P. v. Brandon

Filed 3/8/07 P. v. Brandon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

I.

Introduction

A jury convicted appellant James Brandon of first degree murder (Pen. Code,  187, subd. (a)), with the special circumstance finding that the murder was perpetrated by means of discharging a firearm from a motor vehicle ( 190.2, subd. (a)(21)). He was also convicted of attempted murder ( 664, 187, subd. (a)) and possession of a firearm by a felon ( 12021, subd. (a)(1)). Various sentencing enhancements were found true.^[1]On January 20, 2006, the trial court sentenced appellant to prison for life without the possibility of parole.

The sole issue in this appeal concerns the trial courts evidentiary ruling restricting appellants presentation of evidence and limiting the scope of his cross-examination of prosecution witness Earl Pecot, who identified appellant as the murderer. Appellant argues that he suffered prejudice because he was unable to present evidence and fully cross-examine Pecot about Pecots prior lies to the police in an unrelated homicide investigation. We find the trial courts evidentiary ruling was well within the courts discretion and affirm.

II.

Facts and Procedural History

Appellant does not challenge the sufficiency of the evidence underlying his convictions. Consequently, the facts pertinent to this appeal may be briefly stated. On August 17, 2004, a sergeant with the Alameda County Sheriffs Office was on routine patrol traveling northbound on 98th Avenue at approximately 12:15 a.m. He observed the murder victims vehicle stopped against a sound wall with its engine still running. He also observed that there were three bullet holes in the door on the drivers side. The drivers side window was shattered. The officer observed that the victim was lying near the car and suffering from a gunshot wound in his chest area. A subsequent autopsy revealed that the cause of death was gunshot wounds to the left arm and torso. The victim was identified as 24-year-old Larry Sky Hogue, Jr.

Officers subsequently received a telephone call from 16-year-old Earl Pecot (aka Little Swirl) who stated that he was the passenger in the car when the victim was killed and that he believed he was the intended target. He then identified the shooter as appellant, James Brandon.^[2]

At trial, the prosecution sought to prove appellants identity as Hogues killer primarily through Pecots eyewitness testimony. Pecot testified that on August 17, 2004, he was at a gas station located at 98th and Edes looking for someone to give him a ride. Hogue, who appellant described as his best friend, was driving by and stopped. After Pecot got into the car, he noticed that they were being followed by a white car. Appellant, who was driving a white Mitsubishi, pulled alongside Hogues car. Pecot, who was riding in the front passenger seat, recognized appellant as someone he had seen several times before in the neighborhood.

Appellant motioned for Hogue to roll his window down. Hogue complied. Appellant asked, Whos in the passenger seat? Hogue stated, Thats Swirl, referring to Pecot. Appellant then fired three shots in rapid succession into Hogues car. Hogues car crashed into a wall, and Pecot jumped out of the drivers side window because his door was stuck shut. He ran to a friends house. He later called the police and reported the shooting after hearing that the police were looking for him. Pecot identified appellant as the person who shot Hogue.

A white Mitsubishi, matching Pecots description, was eventually found just a few houses from appellants residence. It was registered to appellants aunt, who told the police that appellant often drove it. Gunshot residue was detected in samples collected from the white Mitsubishis interior.

The prosecution introduced evidence to establish that appellants motive for the murder was to avenge his 18-year-old nephews murder, which had occurred on May 16, 2004, three months earlier. The prosecution theorized that appellants intended victim was actually Pecot, who was close friends with the two individuals who murdered appellants nephew.

Officers subsequently received information that appellant had fled to the Los Angeles area. On August 25, 2004 appellant was arrested in Palmdale, where he was staying with his aunt. Appellant was observed opening a sliding glass door to the backyard after the arresting officers announced their presence. He was told to freeze. Appellant shut the door and ran back inside the residence. He then walked out the front door and was arrested without incident.

III.

Discussion

Appellants sole contention is that the trial court erred when it restricted the defense in its cross-examination and evidence concerning Earl Pecots prior lies to the police . . . . He argues the trial courts evidentiary ruling denied him his constitutional right to confront and cross-examine witnesses (U.S. Const., Amends. VI, XIV) and his constitutional right to present a complete defense (U.S. Const., Amends. V, XIV).

Certain additional facts are relevant to this claim. At a pretrial hearing, the court noted that the defense wanted to cross-examine Pecot about other homicide investigations, including the so-called Bishop homicide. The defense indicated Pecot had lied to the police and had also admitted some involvement in that homicide, either as a participant or accessory after the fact. The defense argued that it should be permitted to present the full evidence regarding the other investigations because the case hinges on the credibility of Earl Pecot.

The court essentially permitted the defense to inquire into Pecots prior lies, but prohibited any inquiry into the substance of the lies. The court reasoned, All right. And weve discussed all this before. We have the benefit of having gone through this before, and heres why I ruled as I did, and my ruling is going to be the same.^[[3]] I agree that prior lies by Mr. Pecot to the police are relevant to the question of his credibility. Whats not important is the substance of those lies, because all were talking about here is credibility. If you wished, for example, to show that he was somehow involved in another homicide, maybe, there might be a way in which that could be relevant here, if there were an allegation that this was a self-defense case . . . . [] But if thats not the case, if the only issue is Mr. Pecots credibility, in general, then whats important is that he lied on those occasions, and he gave you that. He was more than willing to admit that he lied to those officers in that so-called Bishop case, three different times. As I recall, he said he gave them some information, they checked it out, came back to him and said they didnt pan out. And he said, well, that was because I lied to them, so I gave them more information, and I lied to them then, and when they came back and said I lied to them again, then I did it again, pretty much.

The trial court expressed its concern that opening up this line of inquiry would turn this into a mini trial on that homicide as to who in fact was responsible, all for a reason thats really irrelevant, when youve got the guy telling you, I lied, and is admitting it to the jury here. [] So on simple relevance grounds, and also under [Evidence Code section] 352, I think it would be an undue consumption of time on something that has minimal additional probative value, if any, if any, [sic] beyond what Mr. Pecot already gives you. So thats the reason for my ruling, and Im going to be consistent, at least in allowing you to inquire into the fact that he had given information to the police, and the fact that as he would admit it wasnt truthful information on other occasions, but I wont let you go into the details of the statements he gave or the circumstances surrounding those homicides.

As our Supreme Court has explained,  Under Evidence Code section 352 , the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. [Citation.] [Citation.] A trial courts discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]  [T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. [Citation.] [Citation.] Regarding constitutional limitations, we have held that  not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)

Appellants argument that he had a right to cross-examine Pecot and present evidence regarding the details of Pecots deception in his prior interviews with police is severely undermined by a case recently decided by our Supreme Court. In People v. Avila (2006) 38 Cal.4th 491, our Supreme Court rejected a similar challenge to the trial courts evidentiary ruling precluding lengthy cross-examination on every untrue statement that [the prosecutions witness] made during his interviews with police, in light of his candid admission that he had lied to them. (Id. at p. 591.) The defendant in Avila argued that the jury should have been able to listen to the actual recordings of the police interviews because it was the clearest evidence of [the witness] skill at lying and thus should have been considered in determining his credibility. (Id. at p. 592.) The court found there was no basis for overturning the courts ruling given the fact that [i]t was uncontested at trial that [the witness] lied to police during his interviews . . . . (Ibid.) Our Supreme Court also rejected the defendants argument that the trial courts evidentiary ruling constituted a denial of his federal constitutional rights to due process, fundamental fairness, cross-examination and confrontation of witnesses, and a reliable judgment. (Ibid.)

Appellants arguments on appeal are equally unavailing. At trial, Pecot acknowledged he was a drug dealer who had repeatedly lied to the police during this and other investigations, and who had also lied under oath in prior proceedings in this case. Specifically, Pecot admitted that during an investigation of the Bishop homicide he lied in his first and second interviews with Alameda County Sheriffs Office Detective Mike Godlewski, then either refused to say anything or lied again at his third interview. The defense then called Detective Godlewski as its own witness. Detective Godlewski testified that in his investigation of the homicide, he interviewed Pecot. In Detective Godlewsis estimation, Pecot told several lies.

As the trial court realized, to prove up the substance of those lies would have been a time-consuming process that would have required the testimony of several witnesses. The process would be diverting and potentially confusing for the jury. Moreover, such a use of time was not justified. Defense counsel conducted a detailed cross-examination of Pecot in which he attacked his credibility by emphasizing that he had lied to police in previous police interviews; he had lied under oath at the preliminary hearing for this case; and that he had a pending case dismissed after he cooperated with law enforcement by identifying appellant as Hogues killer. The defense repeatedly made the point that Pecot was prepared to lie if he believed it was to his advantage. It would have added little to a fair evaluation of Pecots credibility to show exactly how he lied about the prior homicide. Accordingly, the trial court acted well within its discretion in concluding that the probative value of the evidence was substantially outweighed by the risks of undue consumption of time and confusion of the issues.^[4]

Moreover, the courts restriction of the evidence did not deprive appellant of a fair trial or the right to present a defense. Enforcing [t]he ordinary rules of evidence, including the application of Evidence Code section 352, [does] not infringe on the accuseds due process right to present a defense. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 948 (Frye).) Likewise, the confrontation clause of the Sixth Amendment allows the trial court considerable latitude in excluding evidence and limiting cross-examination. If such evidence is repetitive, prejudicial, confusing or of marginal relevance, it may be excluded. In the present context, the trial courts decision to exclude defense evidence going to the credibility of a witness is unassailable unless the evidence would have produced   a significantly different impression of [the witnesses] credibility [citation]. [Citation.] (People v. Carpenter (1999) 21 Cal.4th 1016, 1051; accord, Frye, supra, 18 Cal.4th at p. 946 [unless defendant can show the prohibited cross-examination would have produced a significantly different impression of the witnesss credibility, the trial courts exercise of its discretion will not violate the Sixth Amendment].)

Here, there was no violation of the right of confrontation, since the inquiry into the matter at issue is not reasonably likely to have produced a significantly different impression of Pecots credibility. The defense described Pecot as a thief, a participant in a carjacking, which resulted in a murder, an accessory after the fact to a murder, a drug dealer, a carjacker, a pimp, an inveterate drug user, and a clever, manipulative liar. In short, a thug, and a serial criminal who has a history of providing information to local police officers whenever and every time he gets in trouble. . . . The evidence at trial supported this characterization. Given that appellant was able to attack Pecots credibility in numerous ways, the proposed cross-examination concerning his lies to police would have been cumulative. Appellants confrontation clause rights and his right to present a defense were, therefore, not violated.

IV.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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^[1] The jury additionally found, with respect to the first degree murder, that appellant personally used a firearm ( 12022.5, subd. (a)(1)), personally and intentionally discharged a firearm ( 12022.53, subd. (c)), and personally discharged a firearm causing great bodily injury and death ( 12022.53, subd. (d).) With respect to the attempted murder conviction, the jury additionally found that appellant personally used a firearm ( 12022.5, subd. (a)(1)), and personally and intentionally discharged a firearm ( 12022.53, subd. (c)).

^[2] Officers learned that appellant had just been released on bail after having been charged, in an unrelated incident, with being an ex-felon in possession of a firearm. In a separate trial, appellant was convicted of possession of ammunition ( 12316, subd. (b)(1)) and possession of a firearm by a felon ( 12021, subd. (a)(1)) in connection with this incident. Appellant was sentenced for these crimes at the sentencing hearing conducted in this case.

^[3] This was appellants second trial. It was necessary to retry the counts charging appellant with murder, attempted murder, and possession of a firearm by a felon after the original jury could not reach a unanimous verdict, resulting in a mistrial.

^[4] On appeal, in arguing the probative value of this barred evidence, appellant asserts a theory of relevance not proffered below. Appellant asserts that the courts limitation deprived him of the opportunity to show that Pecot lied to the police about the current crime for the same reason he assertedly lied about the Bishop murderto deflect suspicion from himself in both cases. However, this was not the purpose for which the evidence was in fact offered, as can be seen from the fact that the defense never theorized that it was actually Pecot, and not appellant, who committed Hogues murder. Moreover, no evidence was introduced that would indicate that Pecot was anything other than an eyewitness to Hogues murder. Because the record does not support appellants theory of relevance, we deem this argument meritless.