Filed 12/8/17 P. v. Hohman CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 4


THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN DWAYNE HOHMAN,
Defendant and Appellant.
A145717

(Marin County
Super. Ct. No. SC191360A)


Appellant Kevin Dwayne Hohman appeals from his convictions for inflicting corporal injury on a person he was dating, unlawfully taking a motor vehicle, and petty theft. Appellant was sentenced to five years in state prison. He argues the trial court erred in precluding cross-examination of the complaining witness about her intent to seek a visa as a crime victim. For the reasons stated below, we affirm.
I. Procedural History
On February 9, 2015, the Marin County District Attorney charged appellant by information with forcible rape in violation of Penal Code section 261, subdivision (a)(2) (count one); forcible oral copulation in violation of section 288a, subdivision (c)(2)(A) (count two); rape by a foreign object in violation of section 289, subdivision (a)(1)(A) (count three); false imprisonment by violence in violation of section 236 (count four); infliction of corporal injury on a person in a dating relationship in violation of section 273.5, subdivision (a) (count five); driving or taking a motor vehicle without the owner’s consent in violation of Vehicle Code section 10851, subdivision (e) (count six); and misdemeanor petty theft in violation of section 484, subdivision (a) (count seven). The information also alleged eight prior felony convictions (§ 1203, subd. (e)(4)) and five prior prison commitments (§ 667.5, subd. (b)).
Appellant’s trial began April 6, 2015. On April 15, 2015, the jury acquitted appellant on counts one, two, and three and convicted him on counts five, six, and seven. The jury hung on count four, which eventually was dismissed. Appellant admitted his five prior prison commitments. On June 10, 2015, the trial court sentenced appellant to five years in state prison. The court imposed the mitigated term of two years in state prison on the domestic violence conviction (count five) and a concurrent two-year term on the automobile theft conviction (count six). The court imposed three consecutive one-year enhancements for appellant’s prior prison commitments, resulting in a total sentence of five years in state prison. On July 14, 2015, the court sentenced appellant to a concurrent 30 days in county jail on the misdemeanor petty theft conviction (count seven). Appellant filed a timely notice of appeal.
II. Factual Background
Jane Doe testified she met appellant in 2012 when they were both in custody in the Marin County jail. They began dating after appellant was released from state prison. Doe broke up with appellant several times, but would always return to him because she loved him. They broke up for the final time in May 2014.
On December 11, 2014, Doe rented a motel room for appellant because he was homeless. They had dinner together and went to a bar where both drank alcoholic beverages. When they returned to the motel room, Doe decided to stay because she had been drinking and did not want to drive home. She told appellant not to bother her sexually and he agreed. They watched television for a while and Doe went into the bathroom to change into her pajamas. When she came out, appellant was naked and said he wanted to have sex. Doe announced she was leaving and picked up her bags and purse. Appellant responded she was not going anywhere, grabbed her bags, and pushed her onto the bed. They began fighting. Doe told appellant to leave her alone and fought him because she did not want to have sex. Appellant got on top of Doe, removed her pants, and digitally penetrated her. Appellant then orally copulated and forced sexual intercourse with Doe. He hit Doe’s head against the wall of the motel room. Doe fought back, scratching appellant’s chest and biting his wrist.
During the struggle, several men knocked on the motel room door and asked appellant what he was doing. Appellant told them to go away because it was none of their business. Doe ran out of the room and to the motel office to call the police. As she was calling, she heard appellant activating the mechanism to unlock the doors of her car. Doe ran out and saw appellant drive away in her car. Doe called 911 and the police arrived a few minutes later. A recording of Doe’s 911 call was played for the jury. Doe suffered bruises, depicted in photographs shown to the jury, to her ear, both arms, and her back.
Jane Doe was impeached with two prior convictions for driving under the influence of alcohol and one for driving on a suspended license. She was on probation at the time of the motel incident and had violated the terms of her probation that night by driving after drinking alcohol and by driving a car that did not have an ignition interlock device. Doe had called the police multiple times in the past to report that appellant had beaten her up, but appellant was never arrested. On one of those occasions, she had lied to the police to protect her daughter.
Appellant was arrested in Doe’s car shortly after the police were called. He had Doe’s cell phone in the car.
Appellant testified his sexual relations with Doe were consensual. While having sex, they began to argue over Yvette H., another woman with whom appellant was intimate. Appellant told Doe to leave. When she did not leave, appellant picked up her bags and started walking to the door. Appellant and Doe began to fight over the bags, which caused the strap of her purse to break. According to appellant, Doe then went “ballistic” and began hitting and scratching him. When Doe hit him with a closed fist, appellant grabbed her by the wrist and they fell to the floor. Doe bit appellant on the top of his wrist. Appellant tried to get Doe off of him, causing her to hit her head on the wall. Because Doe would not let him go, appellant punched her full-fisted. He “got a couple of good whacks in” before he had to hit her with his other hand. Doe let go and the fight ended. Appellant opened the motel room door and found a man at the door asking what was going on. Appellant told him it was none of his business. When Doe fled out the door, appellant gathered his possessions, plus Doe’s cell phone, and left the room. He had Doe’s car keys in his pocket from having driven the car earlier that evening. Appellant testified he got in Doe’s car and was driving to Richmond when he was stopped by the California Highway Patrol.
III. Analysis
Appellant argues the trial court abused its discretion and denied his right to present a defense by precluding cross-examination of Doe about her desire to obtain U 1 nonimmigrant status (a U-visa) as a crime victim. The People respond that Doe’s interest in a U-visa was properly excluded as irrelevant and that the trial court did not abuse its discretion in ruling that any probative value of this evidence was substantially outweighed by undue prejudice from its admission.
A. Legal Standards
“In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal in the absence of an abuse of that discretion.” (People v. Cooper (1991) 53 Cal.3d 771, 816 (Cooper).) This discretion, however, is not unlimited, particularly when the trial court exercises it in a way that hampers the defendant’s ability to present evidence. “While the trial judge has broad discretion to control the ultimate scope of cross-examination, wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness in a criminal case.” (Ibid.)
Cross-examination designed to expose a witness’s motivation in testifying is an important function of the Sixth Amendment right of confrontation. (Davis v. Alaska (1974) 415 U.S. 308, 316–317.) Nevertheless, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” (Cooper, supra, 53 Cal.3d at p. 817.) “Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation] the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946 (Frye), disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390, 421, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.)
B. Discussion
During the preliminary hearing for this case, defense counsel asked Jane Doe, “Do you intend to apply for a visa on the basis of having been a crime victim?” The People’s relevance objection was overruled. Jane Doe replied, “Yes.”
An alien who has suffered substantial physical or mental abuse as the result of having been the victim of a qualifying crime—including rape, domestic violence, sexual assault, and false imprisonment—and is cooperating in a criminal investigation may apply for a U-visa authorizing him or her to remain in the United States for up to four years. (8 C.F.R. § 214.14, subds. (a)(9), (b) & (g).)
Prior to trial, appellant filed a motion in limine seeking to introduce Doe’s immigration status to demonstrate she had a motive for falsely accusing appellant of violently raping her. The defense theory was that Doe, who was in the United States under temporary protected status, lost her eligibility for that status because she had sustained five misdemeanor convictions. Appellant argued Doe was desperate to remain in the United States, where her mother and daughter live, and used the occasion of her fight with appellant to falsely claim he raped her so she could apply for a U-visa as a victim of a violent crime. Defense counsel planned to call as an expert witness an immigration attorney, who would testify as to the immigration consequences of Doe’s temporary protected status and application for a U-visa.
The People opposed, arguing that examination of Doe regarding her immigration status would require a trial on complex immigration law issues in the midst of this criminal case. If appellant were to call an expert witness on immigration, the People would introduce rebuttal evidence regarding Doe’s specific immigration status during the relevant time period. The immigration issues would eclipse the central issues in the trial.
At the hearing on appellant’s motion, the trial court questioned the defense theory of relevance, observing that Doe’s most recent conviction had occurred in 2011, three years before the events underlying this case. Any impact her prior convictions may have had on her immigration status—and therefore on her motive to fabricate—was remote. Appellant’s counsel responded that Doe was vulnerable to deportation. He asserted Doe had been asking appellant to marry her so she could obtain legal status. When the altercation in the motel room occurred, counsel argued, Doe realized marriage was no longer in the cards and changed her story so she could achieve legal status through the U visa process.
The prosecutor countered that Doe’s temporary protected status would have been in jeopardy after her third misdemeanor conviction, so if she were going to be deported on that basis, she would have been deported long before this case arose. As to the U-visa, the prosecutor noted that one need only to be a cooperating victim in a misdemeanor domestic violence incident to apply for a U-visa; Doe did not have to allege rape to qualify. The prosecutor argued that allowing Doe to be crossed on this issue would open the door to a trial on the intricacies of immigration law and U-visas.
After hearing argument, the trial court excluded cross-examination of Doe on her immigration status. The court found that Doe’s prior convictions were so remote that any arguable impact on her temporary protected status was irrelevant to the current trial. The court also agreed that opening the door to Doe’s immigration status would result in a mini trial on the immigration laws with no relevance to this particular case.
We conclude that the trial court did not abuse its broad discretion under Evidence Code section 352 in excluding cross-examination of Doe about her immigration status. While we agree with appellant that the proffered cross-examination was relevant to her motive to testify, the potential probative value of that evidence was marginal in light of other impeachment of Doe. As noted, the jurors learned that Doe had three prior convictions, that she had been drinking that night, and that she was driving in violation of her probation conditions. Doe arguably had made false claims of domestic violence against appellant in the past and admitted she had lied to the police to protect her daughter. The jurors were provided with ample information on which to evaluate Doe’s credibility; any motive she may have had to apply for a U-visa would have borne little additional impeachment. Appellant fails to show that admission of Doe’s immigration status would have produced a significantly different impression of her credibility. (Frye, supra, 18 Cal.4th at p. 946.)
Moreover, any marginal impeachment of Doe would have been substantially outweighed by the time it would take to explore this issue and the risk the jury would be confused by a foray into immigration law in this domestic violence case. In order to present his proffered impeachment of Doe, appellant would have to elicit and explain the intricacies of temporary protected status, the effect of misdemeanor convictions on such status, eligibility for U-visa qualification, and all of the complexities of immigration law related to these topics. The People would have been entitled to respond by eliciting the fact that Doe’s prior convictions had occurred years earlier, yet no immigration action had been taken against Doe during the intervening years. The People also would have been entitled to call an expert witness to rebut appellant’s proposed expert on immigration law. In order for the jury to evaluate the degree to which Doe was likely motivated by her desire to obtain a U-visa, they would have to have a thorough understanding of the prerequisites for issuance of such a visa. The time consumed exploring Doe’s immigration issues could have exceeded the time it took to present the evidence related to the charged crimes. The risk of jury distraction and confusion would be commensurately high—the jurors would have had to concern themselves with the application of complex immigration laws to Doe’s circumstances in order to evaluate any impeachment value. The trial court properly weighed the potential for undue prejudice against any probative value and reasonably declined to permit this “mini-trial” on a collateral issue of little marginal value. (Frye, supra, 18 Cal.4th at p. 946; Cooper, supra, 53 Cal.3d at p. 816.)
IV. Conclusion
The judgment is affirmed.



 





_________________________
Kennedy, J.*


We concur:


_________________________
Ruvolo, P. J.


_________________________
Reardon, J.





















A145717/People v. Hohman