P. v. Ritchie

Filed 9/5/06 P. v. Ritchie

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Richard P. Ritchie appeals a judgment entered following our remand for resentencing in People v. Ritchie (Aug. 26, 2004) B165306 [nonpub. opn.].)

FACTS AND PROCEDURAL HISTORY

Between February 28, and March 12, 1999, three home invasion robberies occurred in the Lancaster-Palmdale area. The robberies were similar in execution: residents were awakened from sleep by two men wearing stocking caps or masks, one man carried a rifle or gun, the residents were bound and gagged with duct tape, and their homes were ransacked. Among other things, the intruders took household and electronic goods and an automobile during each robbery. The prosecutor charged Ritchie and a co-defendant with numerous criminal counts regarding the home invasion crimes.

A jury convicted Ritchie of residential robbery, assault with a firearm, false imprisonment by violence, grand theft automobile, residential burglary, receiving stolen property, child abuse, possession of a firearm by a felon, assault with a deadly weapon, and unlawful carrying of a dirk or dagger. (Pen. Code, §§ 211, 245, subd. (a)(2), 236, 487, subd. (d), 459, 496, subd. (a), 273a, subd. (a), 12021, subd. (a)(1), 245, subd. (a)(1), & 12020, subd. (a).)[1] The jury also found true personal weapon use allegations. (§§ 12022.53 & 12022.5.)

Ritchie appealed. (People v. Ritchie (Aug. 7, 2002) B148184 [nonpub. opn.].) Among other things, we reversed his conviction of count 24, carrying a dirk or dagger within the meaning of section 12022, subdivision (c)(24), for want of sufficient evidence. We also remanded for trial regarding the prior serious felony conviction alleged as a "strike." (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).)

During proceedings after remand, the trial court removed Ritchie's appointed attorney over Ritchie's objection. Again Ritchie appealed. A majority of this court reversed and remanded for retrial of the prior felony conviction with representation by Ritchie's appointed attorney. (People v. Ritchie, supra, B165306.)

At the second jury retrial of the prior felony conviction, the prosecutor introduced Exhibits 1 and 3 into evidence, portions of the section 969b certified prison records regarding Ritchie's 1996 felony conviction for arson. (§ 451, subd. (d).) Exhibit 1 contained an abstract of judgment establishing that Ritchie pleaded guilty on December 11, 1996, to arson. Leo Ladan, a paralegal employee of the prosecutor's office, testified that the certified documents indicate that Ritchie was convicted of arson in 1996 and imprisoned therefor.

The prosecutor then referred to an 18-page "rap sheet" regarding Ritchie that Ladan obtained from the California Law Enforcement Telecommunications System. This document, marked Exhibit 2 for identification purposes, recounted a lengthy juvenile and adult criminal history, including pending murder charges. Ladan stated that the "rap sheet" reflects that Ritchie had been convicted in 1996 of arson of property. The prosecutor did not introduce the "rap sheet" into evidence.

Defense counsel then sought to cross-examine Ladan regarding the "rap sheet" and count 24, which we struck in the first appeal for lack of sufficient evidence. Counsel requested the trial court to take judicial notice of the first appellate opinion and the superior court file. He argued that the "rap sheet" was inaccurate in part because it did not reflect that count 24 had been reversed. Counsel stated that he would take "a risk" that the prosecutor would question Ladan regarding Ritchie's criminal history. He stated that he had "no other defense" than to "attack the credibility of [the rap sheet]." The trial court declined to take judicial notice.

The jury found that Ritchie suffered a prior felony conviction for arson in 1996. The trial court resentenced Ritchie and imposed a prison term of 38 years and 8 months.

Ritchie appeals and contends that the trial court impermissibly restricted his constitutional right to present a defense, and infringed upon his constitutional rights to a jury trial, due process of law, and the effective assistance of counsel.

DISCUSSION

Ritchie argues that the trial court unfairly restricted his right of cross-examination, thereby prejudicially impairing his right to present a defense. (Holmes v. South Carolina (2006) – U.S. -, - [126 S. Ct. 1727, 1731-1733] [trial court may not exclude defense evidence by applying evidentiary rules that serve no legitimate purpose].) He asserts that the trial court also impaired his defense by declining judicial notice of the superior court file and our previous opinion in this case. Ritchie contends that effective cross-examination and the superior court file and opinion would establish the unreliability of his criminal records, in part because the records do not reflect reversal of count 24 and other errors. He argues that the trial court's rulings are not harmless beyond a reasonable doubt. (Chapman v. California (1964) 386 U.S. 18, 24.)

Ritchie also contends that principles of due process require that the trial court dismiss the prior felony conviction allegation. Alternatively, he requests that the matter be remanded to a different trial judge. (Code Civ. Proc., §170.1, subd. (c).)

The constitutional rights to confront witnesses and to due process guarantee a criminal defendant the right to cross-examination and to present a defense. (People v. Box (2000) 23 Cal.4th 1153, 1203.) Application of the ordinary rules of evidence resulting in the exclusion of minor or irrelevant evidence, however, does not impair the constitutional right to present a defense. (People v. Rodriguez (1999) 20 Cal.4th 1, 10, fn. 2.; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)

Here the trial court properly exercised its discretion pursuant to Evidence Code section 352 to exclude irrelevant evidence- - the superior court file and our prior opinion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [trial court possesses broad discretion to determine and exclude irrelevant evidence].) Reversal of count 24 in our prior opinion has little direct relevance whether Ritchie pleaded guilty to arson in 1996 and suffered a prior felony conviction therefor. (Holmes v. South Carolina, supra, 126 S. Ct. 1727, 1732 [Constitution permits trial court to exclude marginally relevant evidence].) Moreover, the trial court's ruling did not prevent Ritchie from cross-examining Laden generally concerning whether, in his experience, a "rap sheet" could be erroneous. Ritchie could also challenge the existence of the arson conviction by presenting evidence that his plea was set aside or the conviction reversed. Thus, the trial court did not completely exclude evidence of Ritchie's defense. (People v. Fudge, supra, 7 Cal.4th 1075, 1103.) The trial court's ruling was not a "'blanket exclusion'" of evidence that deprived Ritchie of an opportunity to present a complete defense. (People v. Page (1991) 2 Cal.App.4th 161, 185 [discussions of general rule.].)

In view of our resolution, it is not necessary to discuss Ritchie's remaining arguments.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Charles D. Shelton, Judge

Superior Court County of Los Angeles

______________________________

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless stated otherwise.