P. v. Reyes

Filed 3/15/06 P. v. Reyes CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.

A jury convicted Jose Luis Reyes of two counts of assault with a deadly weapon or with force likely to cause great bodily injury, three counts of corporal injury to a spouse or cohabitant, and one count of battery on the parent of his child.^[1] The jury found Reyes used a deadly weapon in one count of assault and one count of corporal injury. The court imposed a sentence of 18 years and four months. On appeal, Reyes contends the trial court improperly denied him the opportunity to cross-examine the victim about her potential bias against Reyes. We reject this contention and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Evidence at Trial

Reyes had an intermittent romantic relationship with the victim, Denise Wyatt. They have one daughter together. Wyatt also has a son, who was nine years old at the time of trial.

On September 11, 2003, Reyes went to Wyatt's apartment between 4:00 a.m. and 5:00 a.m. After Reyes used the restroom, he sprayed beer on Wyatt, punched her in the head, and threw a beer bottle at her, hitting her in the forehead. Although he did not see what had happened, Wyatt's son heard his mother screaming after Reyes went into Wyatt's bedroom. He also saw a cut on his mother's face. In addition to the son's testimony, two police officers testified about observing Wyatt's injuries shortly after the incident.^[2]

On October 15, 2003, Reyes again went to Wyatt's apartment. After they started arguing, Wyatt walked out of the bedroom and into the kitchen to get away from

Reyes. Reyes followed Wyatt into the kitchen. When Reyes saw a "hickey" on Wyatt's neck, he became angry and punched Wyatt in the face, causing her to fall. After she fell,

Wyatt crawled out of the kitchen and into the living room. As she was crawling into the living room, Reyes kicked her in the head and side. Reyes continued kicking Wyatt until he slipped and then left the apartment. After Reyes left, Wyatt went to the emergency room because her eye was bleeding, bruised, and swollen. She also had a swollen and cut lip.

Wyatt's friend Amanda Aguilar corroborated Wyatt's testimony about this event. The nurse practitioner who treated Wyatt, a police officer, and a neighbor also testified. The nurse practitioner stated Wyatt told her "the father of her child" injured her. The police officer testified Wyatt told him Reyes caused her injuries. One of Wyatt's neighbors testified he heard screaming coming from Wyatt's apartment and then saw Reyes run by him.

The third incident occurred on February 1, 2004. Wyatt was at a motel with Reyes and one of Reyes's friends. Wyatt asked the friend to stay at the motel because Wyatt believed Reyes was angry and wanted to fight with her. After Wyatt again asked the friend not to leave, Reyes punched Wyatt, causing her eye to bleed. A police officer testified he arrived at the motel shortly after the incident and saw a cut on Wyatt's face.

On March 31, 2004, Reyes was driving Wyatt's car and had difficulty seeing because the windshield was dirty. When Wyatt tried to explain why the windshield was dirty, Reyes backhanded Wyatt twice in the head. Wyatt then jumped out of the moving car to get away from Reyes. Wyatt's son was in the back seat and witnessed Reyes hitting his mother.

Wyatt reported all four incidents to the police. In addition to the testimony described above, the prosecution introduced photographs of Wyatt's injuries from all but the March 31 incident. Wyatt's son testified to witnessing Reyes hit Wyatt on March 31.

Defense counsel impeached Wyatt with her testimony she used methamphetamine on a daily basis. The defense did not call any witnesses or present any evidence.

Cross-Examination of Denise Wyatt

During defense counsel's cross-examination of Wyatt, defense counsel asked where Wyatt's daughter was on March 31. Wyatt responded that her daughter was not living with her. Defense counsel then asked whether Wyatt and Reyes "ever argue[d] about [your daughter]" and her placement. Wyatt responded they never argued about her or her placement. Defense counsel then asked, "When was [your daughter] placed with [Reyes's] mother?" The prosecutor objected based on relevance, and the court sustained the objection.

Following the court sustaining the objection, defense counsel did not make an offer of proof for his question about Wyatt's daughter. Instead, defense counsel began another line of questioning. When defense counsel asked for a sidebar conference one question later, he again failed to make an offer of proof. Only after Wyatt was excused as a witness (but still subject to recall) did defense counsel state he was asking about the daughter because "part of the defense's theory is . . . [Wyatt] is losing [her daughter] because DSS has taken [her daughter] away from her . . . . She's in a foster home--could be spite against Mr. Reyes to fabricate." The court responded, "Well, [Wyatt has] been excused as a witness, number one, and I appreciate your not getting into anything like that prior to discussing it with the Court. I'm not sure I see the [¶] . . . [¶] connection between what she may have testified to and whether or not she's lost her kids. Unless there is more of a substantial connection that you can give as an offer of proof, I think I would not be allowing that type of testimony in." Defense counsel responded, "Thank you. I wanted to make sure we got that on the record."

In moving for a new trial, Reyes argued that the court erred in refusing to permit his counsel to question Wyatt about custody issues concerning their daughter. The court denied the motion, stating "the potential probative value of that evidence was minimal and was outweighed by the time it would take to present it and the somewhat minimal relevance that it had to the issues that the defendant has indicated they would have liked to present."

DISCUSSION

Reyes contends the trial court erred in refusing to permit his counsel to cross-examine Wyatt about whether Wyatt had a motive to cooperate with the prosecution because of "her fear of losing [custody of] her children." Reyes contends the court's ruling violated his Sixth Amendment right to confront his accuser. We conclude Reyes waived this issue because he failed to make a sufficient offer of proof as to the relevancy and basis for this line of questioning. Alternatively, we conclude the trial court did not abuse its discretion and in any event, the court's ruling was not prejudicial.

To preserve the exclusion of evidence as an issue for appeal, counsel must inform the court of the substance, purpose, and relevance of the excluded evidence. (Evid. Code, § 354, subd. (a); People v. Morrison (2004) 34 Cal.4th 698, 711.) Although a party need not make a specific offer of proof if the evidence is sought during cross-examination, counsel must explain the relevance of the question and the information sought. (Evid. Code, § 354, subd. (c); People v. Coleman (1970) 8 Cal.App.3d 722, 729; see also People v. Allen (1986) 42 Cal.3d 1222, 1270, fn. 31.) If defense counsel fails to clarify the relevance of the information, the issue is waived. (Coleman, supra, 8 Cal.App.3d at p. 731.)

In People v. Coleman, the court sustained the prosecutor's relevance objection when defense counsel asked the robbery victim on cross-examination where the victim acquired the money defendant stole from him. (People v. Coleman, supra, 8 Cal.App.3d at p. 727.) After the court sustained the objection, defense counsel did not pursue the question or make an offer of proof as to the question's relevance. (Ibid.) The appellate court held the issue was waived, stating: "In the face of an objection by the prosecutor and the statement of defense counsel, it should have been clear that the judge was unaware of the materiality of the question if, indeed, it had a material purpose; the judge did not suggest that counsel refrain from further related inquiry; and defense counsel made no offer of proof or other attempt to explain a relevant purpose of the question, but abandoned the direct line of inquiry and moved on to proper and related questions . . . ." (Id. at pp. 730-731.)

Here, defense counsel asked Wyatt on cross-examination, "When was [your daughter] placed with [Reyes's] mother?" Similar to Coleman, the relevance of defense counsel's question was unclear. The court could not determine defense counsel was inquiring about Wyatt's potential bias or motive to fabricate her testimony from a question about where the daughter was living. Therefore, defense counsel was required to explain the question's relevance. However, defense counsel failed to state why the daughter's placement was relevant to Wyatt's testimony against Reyes. Instead, defense counsel began another line of questioning. At a sidebar one question later, defense counsel again failed to explain the relevance of the information sought. Not until Wyatt was excused from the witness stand, although still subject to recall, did defense counsel state the question was relevant, "because DSS has taken [Wyatt's daughter] away from her . . . . She's in a foster home--could be spite against Mr. Reyes to fabricate." This response was unclear because it did not clarify the claimed connection between Wyatt's daughter's placement and Wyatt's purported bias against Reyes. When the court again invited an offer of proof, defense counsel failed to give one for the third time. Therefore, because defense counsel did not provide a reasonable explanation for the question after he was given the opportunity to do so on several occasions, the issue was not properly preserved for appeal. (See People v. Coleman, supra, 8 Cal.App.3d at p. 731.)

Even if the issue was not waived, the court acted within its discretion in sustaining the prosecutor's objection. Generally, evidence tending to prove the existence of bias or an improper motive is admissible in determining the credibility of a witness. (Evid. Code, § 780, subd. (f).) However, evidence of a witness's improper motive requires proof of "'the witness' state of mind.'" (People v. Ramos (1997) 15 Cal.4th 1133, 1165.) Moreover, evidence is properly excluded when counsel offers only the conclusion the witness is biased without some foundational evidence supporting the conclusion. (Id. at pp. 1165-1166.) Further, although revealing improper motive is an important function of cross-examination, the court retains discretion to reasonably limit cross-examination on matters involving prejudice, confusion of the issues, or marginally relevant evidence. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679; People v. Brown (2003) 31 Cal.4th 518, 545.)

The trial court did not abuse its discretion in sustaining the prosecutor's objection. The relevance of the line of questioning was not clear and defense counsel failed to offer any basis for inferring that Wyatt blamed Reyes for losing custody of their daughter and therefore sought revenge against him or that Wyatt believed she would regain custody if she testified against Reyes. To the contrary, Wyatt explicitly denied that she and Reyes had any conflicts over their daughter's custody or placement. Moreover, because Wyatt admitted using methamphetamine daily, it is likely her drug use was a significant factor in her losing custody. Defense counsel's later conclusory statement that Wyatt may have "spite against Mr. Reyes to fabricate" based on their daughter's placement was unclear and not supported by any foundational facts or evidence as to Wyatt's state of mind. Therefore, the court acted within its discretion in determining the evidence sought was not relevant and/or that any slight probative value was outweighed by the time it would take to present the evidence and potential for confusing the jury on a collateral issue.

For similar reasons, we reject Reyes's assertion that the court's denial of cross-examination violated Reyes's Sixth Amendment right to confront his accuser. To state a violation of the Confrontation Clause of the Sixth Amendment, a defendant must show the jury "might have received a significantly different impression of [the witness's] credibility had [defendant's] counsel been permitted to pursue his proposed line of cross-examination." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Frye (1998) 18 Cal.4th 894, 946.) There was no basis to conclude the jury would have evaluated Wyatt's testimony any differently if defense counsel had been allowed to probe into the reasons that Wyatt's and Reyes's daughter no longer lived with Wyatt. Wyatt denied that she had any conflicts with Reyes over the child, and there was no evidence to support a contrary inference. The jury would not have had a significantly different impression of Wyatt had counsel been permitted to ask Wyatt further questions about her daughter's placement with Reyes's mother. (See Van Arsdall, supra, 475 U.S. at p. 680; Frye, supra, 18 Cal.4th at p. 946.)

Reyes relies on People v. Stewart (1983) 145 Cal.App.3d 967 to contend cross-examination should be allowed to explore whether the witness has an improper motive even when there is no evidence of an improper motive. Reyes's reliance on Stewart is misplaced. In Stewart, when the defense counsel asked the defendant's accomplice about her possible motive to testify against the defendant because the accomplice had been punished for her participation in the crime, the trial court sustained the prosecutor's relevance objection stating there was no evidence of revenge. (Id. at pp. 976-977.) Defense counsel replied he needed an opportunity to determine whether the witness was seeking revenge. (Id. at p. 977.) The court responded, "All she is doing, here--she is under oath, telling the truth, that isn't revenge. I don't think it goes to prejudice, either--sustained." (Ibid.) The appellate court held this constituted reversible error because the trial court "limit[ed] cross-examination of a key witness in a material area, [and] comment[ed] on the credibility of that witness, without informing the jury that [the court's] statements were merely its personal opinion . . . ." (Id. at pp. 978-979, italics added.)

Unlike in Stewart, there was no evidentiary basis for defense counsel's question about Wyatt's daughter and the court sustained an objection only to a question concerning the timing of the daughter's placement. Additionally, the trial court did not comment on the truthfulness of Wyatt's testimony and did not hold any discussions as to the question's relevance in front of the jury.

In any event, the court's sustaining the prosecutor's objection to a single question did not result in any prejudice to Reyes. Under the Chapman standard applicable to constitutional rights, "[t]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684; see also Chapman v. California (1967) 386 U.S. 18, 24.)

Although the court did not permit Reyes's cross-examination questions about his daughter's placement, defense counsel still impeached Wyatt's credibility through her admitted daily methamphetamine use. Moreover, the evidence against Reyes was overwhelming. Wyatt testified to all four incidents of abuse, each of which was also corroborated by other witnesses. Wyatt's son and friend testified to either seeing or hearing three of the incidents. Additional evidence included photographs of Wyatt's injuries on three occasions and her contacting the police after each incident. Police officers also testified to responding to Wyatt's calls on three occasions. Reyes did not call any witnesses or present any evidence in his defense. On this record, the claimed evidentiary error was harmless beyond a reasonable doubt.

In his reply brief, Reyes contends for the first time he had ineffective assistance of counsel because defense counsel failed to make an adequate offer of proof for his attempted cross-examination of Wyatt regarding her alleged bias or motive for revenge against Reyes. Reyes's assertion is waived because he did not raise it in his opening brief. (People v. Adams (1990) 216 Cal.App.3d 1431, 1441 fn. 2.) In any event, we reject this claim on the merits.

To succeed on an ineffective assistance of counsel claim, Reyes must first prove his counsel's assistance was so deficient that it was unreasonable. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216.) Second, Reyes must prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) When the record supports that counsel's omissions may have resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Bolin (1998) 18 Cal.4th 297, 317.) If there is not an adequate record to explain counsel's challenged actions, the "claim of ineffective assistance . . . is more appropriately made in a habeas corpus petition." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Reyes is unable to meet his burden. Although the court sustained defense counsel's cross-examination question, there are no facts on the record showing that Wyatt would receive favorable treatment on custody issues in exchange for her testimony or that she blamed Reyes or was seeking revenge against him because their daughter was no longer living with her. To the contrary, Wyatt denied that she and Reyes had conflicts pertaining to their daughter. Moreover, defense counsel's failure to make an offer of proof may have been the result of a tactical decision. If defense counsel asked Wyatt if county protective services removed their daughter because of Reyes's abuse and she blamed Reyes for this loss of custody, the question would have strengthened the prosecution's case and weakened Reyes's defense by tending to show he did abuse Wyatt. Additionally, even if counsel had been permitted to cross-examine Wyatt on this issue, the outcome would not have been different given the strength of the evidence against Reyes.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

AARON, J.

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^[1] The jury also found Reyes not guilty of making a criminal threat and the court dismissed a false imprisonment charge.

^[2] One police officer testified at trial. The parties stipulated to read the other police officer's preliminary hearing testimony into the record.