P. v. Crawford

Filed 3/15/07 P. v. Crawford CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Christopher Crawford appeals from a conviction of first degree murder. He contends there was insufficient evidence of premeditation; the trial court erred in failing to instruct the jury to view evidence of his preoffense statements with caution; defense counsel provided ineffective assistance by failing to request such a cautionary instruction; the trial court violated his constitutional right to cross-examination by refusing to allow evidence of a prosecution witnesss past lies to the police; and the cumulative effect of the errors at trial requires reversal of his conviction. We agree that the trial courts error regarding the preoffense statements requires reversal of appellants conviction. As we will explain, the People shall have the option of accepting a modification of the judgment to reflect a conviction of second degree murder.

STATEMENT OF THE CASE

Appellant was charged with murder (Pen. Code,  187, subd. (a)^[1]) by information filed on October 26, 2004. Enhancements for personal use of a knife ( 12022, subd. (b)(1)) and infliction of great bodily injury ( 12022.7, subd. (a)) were alleged.

On December 9, 2004, appellant filed a motion to dismiss the information, arguing there was insufficient evidence of malice aforethought. This motion was denied on December 23, 2004.

After proceedings on pretrial motions, which began on June 13, 2005, a jury was empanelled on July 8, 2005. On July 13, appellants section 1118 motion was argued and denied. On July 15, the jury found appellant guilty of first degree murder and found the knife use allegation true.

Appellant filed a motion for a new trial on September 22. On September 23, 2005, this motion was denied and appellant was sentenced to 26 years to life in state prison.

Appellant filed a timely notice of appeal on September 23, 2005.

STATEMENT OF FACTS

Freeman Ray Bain, Jeff Smith and appellant, all homeless, lived in Root Park, by the San Leandro Creek and saw each other daily. Bain and Smith were friends; they spent time talking, smoking crack and drinking together. Bain met appellant a couple of years before the trial, when appellant camped a few feet away from him, and the two talked and drank together. Bain had shoulder injuries and could not defend himself physically; both Smith and appellant had, on occasion, stepped in to tell others to leave Bain alone. When Bain wanted to purchase crack cocaine, he would take a bus to Walnut Street in Oakland. Several times Bain had taken appellant with him for protection, repaying appellant by buying him beer. Bain and appellant sometimes got into arguments when they drank.

On July 21, 2004, Bain went with Michael Hern to a plaza near Root Park where Bain liked to hang out and drink. They were drinking 211, a malt liquor with higher alcohol content than regular beer that Bain and Smith both favored. Carlos Sotelho was also present. After about two hours, during which time Bain drank three or four beers, Smith arrived with appellant. Smith was holding two boxes, one containing an open buck knife (exh. No. 1C) and the other a pocket watch. Smith showed the men the items but would not let anyone touch them. Sotelho testified that appellant several times said angrily that he wanted the knife. Smith said no, also in an angry tone. Appellant then stopped asking. Both Sotelho and Bain testified that they did not see appellant touch the knife.

Bain testified that Smith mentioned he and appellant were going to Oakland to buy drugs and invited Bain to accompany them. Smith said he was going to trade the knife and watch for narcotics. Bain did not want to go with appellant, but did intend to go to Oakland to buy a rock of crack cocaine. He did not leave with Smith and appellant but ended up on the same bus as them anyway. Bain got off at 100th Avenue and walked toward Walnut. Smith and appellant were about half or three quarters of a block behind him. It was dark but the street lights were on. Up to this point, Bain had not heard any arguments or observed any problems between Smith and appellant.

Bain crossed Holly Street then, after walking about half a block, looked back and saw a van stop at Holly and 100th and Smith and appellant stop at the drivers window. Bain stopped, wondering whether the others were getting crack from the van and whether he could as well. After a few minutes, Smith and appellant walked away from the van. Smith still had the boxes in his hands; appellant had nothing in his. Smith did not appear to be having problems walking and was not holding his neck. Bain could hear appellants voice kind of loud, as though he was getting upset at Smith, but could not understand what he was saying. Bain could see Smith smiling, shaking his head no, but appellant looked upset. He heard appellant yelling at Smith for about 60 to 90 seconds, then turned the corner on Walnut, where he quickly purchased a rock of cocaine and put it in his mouth.

Bain started back to the bus stop and when he reached the corner of 100th, saw Smith on his knees, with his forehead on the sidewalk, a lot of blood underneath him, and appellant standing over him. Appellant was asking Smith, are you bleeding from the mouth? Smith said yes, and appellant said, Jeff, get up, let me take you home. Smith said no. Bain saw that appellant had a knife in his right hand and saw the box with the watch in it open near Smiths head. He did not see the box the knife had been in. Scared, Bain walked by without stopping. He saw a woman across the street, hysterical, talking on the phone to 911, and thought it would be best to get away. He was concerned because he had the cocaine in his mouth and, having seen appellant with the knife, because I could have been next. From the bus stop, he saw police arrive at the scene.

Athalia Goldsby was at her mothers house at 5145 100th Avenue at about 10:00 p.m. on July 21, 2004. Goldsbys mother said she heard someone yelling for help, and Goldsby followed her outside. When she reached the front gate, about 17 feet from the front door, Goldsby saw a man on the ground in front of the house next door and another man running across the street in the direction of the liquor store saying  help my friend.  She had not heard anyone saying anything before she reached the gate. The man on the ground was on his knees, with one hand around his throat and the other on the ground. He was bleeding from his throat and coughing, and there was a lot of blood on the ground. Goldsby saw a knife on the ground a couple of inches from the victims head. She tried to call 911 from her cell phone, then successfully reached 911 from the liquor stores cordless phone. The second man came back across the street, saying,  [h]urry up, hurry up, you all going to let my friend die. You all going to let my friend die.  The tape of Goldsbys call was played for the jury. Other than her family members, the people who worked in the liquor store and the two men she described, Goldsby did not see anyone in the area.

At about 10:30 p.m. on July 21, 2004, about two minutes after receiving a call reporting a man down on the 1500 block of 100^th Avenue, Oakland Police Officers Holly Hart and Herbert Webber arrived almost simultaneously in front of 1509 100th Avenue, where they found a man lying on his back in a pool of blood, with blood around his mouth. Hart could see blood coming from his mouth, but could not see whether he was bleeding from his neck; Webber could not locate a wound. Appellant was standing over the victim and yelling that the owners of the nearby liquor store were not allowing him to call 911. The victims breathing was shallow and he had a faint pulse. On the ground in the area of the victims head, there were two opened jewelry cases (exh. No. 6A) and an open folding knife with blood on the handle and blade (exh. Nos. 1C, 8A) and a white visor. A rock of cocaine was subsequently found in the pool of blood.

When Hart first arrived and asked what happened, appellant said that he and his friend had just gotten off the bus when his friend started coughing up blood; his friend had not been stabbed and must have had a heart attack. Appellant, agitated and pacing on the sidewalk, repeated several times that the victim had not been stabbed and must have had a heart attack. Appellant also told Hart that he and his friend had been with a third male, who had run away from the scene when the victim started throwing up blood.

Webber transported appellant to the police station. On the drive, appellant volunteered that the victim had started coughing up blood as they were walking down the street and must have had a heart attack, and continued to express anger at the liquor store owners for not letting him call 911.

The police evidence technician who processed the scene found no blood between the corner of Holly and 100th Avenue and the crime scene. The fingerprints taken from the knife found at the scene were of poor quality and could not be compared to appellants or Smiths.

The forensic pathologist who performed the autopsy testified that Smith died from a stab wound to the neck. The stab wound penetrated one- to one and a half inches beneath the skin and involved the branches of the major blood vessel in the neck, the left external carotid artery. The wound caused blood to flow into the throat or mouth and into the lungs, which would interfere with breathing and might cause the victim to cough up blood, and to bleed from the neck and nose. The pathologist found no indication Smith had had a heart attack. The knife found at the scene (exh. No. 1C) was consistent with the type of instrument that could have caused the stab wound. The pathologist testified that it would be possible for a person stabbed in the way Smith was to continue walking for a distance of 50 yards, and possible that blood would not have spurted out from the wound. He also testified that morphine can act as a painkiller, so a person with morphine in his or her system might feel less pain from a wound than one without morphine. The pathologist observed scarring on Smiths body consistent with skin grafts, which could be consistent with heroin use.

Oakland Police Officers Brian Medeiros and Gus Galindo interviewed appellant at the police station from 2:44 to 3:31 a.m. This interview was not recorded. Appellant was informed of his Miranda^[2]rights and waived them. The police later conducted a taped interview from 6:02 a.m. until 6:28 a.m.

Appellant told the police he had known Smith for about a year, saw him about five days a week and did not have any problems with him. Appellant said he and Smith took the bus to Oakland because Smith wanted to sell a knife and a watch set; it was Smiths idea to go. As they walked along 100th Avenue, a van stopped at the intersection of Holly and 100th Avenue, and Smith unsuccessfully attempted to sell the knife and watch set. Appellant said Smith went to the passenger side of the van and talked across the female passenger to the male driver. Appellant said there were no problems or disputes with the vans occupants. When the van pulled away and they continued walking, Smith said he had just bought drugs. Ray Bain, who was walking ahead of them, turned onto Walnut. Suddenly, appellant said, Smith fell down and started coughing up blood. Appellant figured he was havin a massive heart attack or somethin. Blood clot. Appellant said his mother had coughed up blood during a heart attack. Appellant said he got blood on his shoes and on his wrist, but wiped the latter off.

Sergeant Medeiros testified that during the first interview, when he suggested Smith might have been stabbed, appellant repeatedly insisted this had not happened, even when Medeiros said Smith had a stab wound to his neck. In the taped interview, as well, appellant stated that Smith had not been stabbed. Appellant stated that his fingerprints would be on the knife because he had handled it at the plaza and that Carlos Sotelho and Michael Hern would have seen him touch the knife. He denied being drunk or having taken any drugs during the time he was in Oakland with Smith, and denied arguing with Smith. Appellant said Bain could be located at the encampment in Root Park.

Meanwhile, after leaving Oakland, Bain returned to Root Park and told Richard Bittner he had seen Smith bleeding and Bittner should tell Cindy, Smiths girlfriend. Bain did not mention having seen appellant with a knife. Bain smoked his cocaine with Richard, then drank two more beers.

Later that night, the police came to Root Park. Bittner woke Bain and told him Smith was dead. At their request, Bain went with the police to the station for questioning. The police read Bain his Miranda rights, then asked him what had happened. Bain was not concerned that he might be a suspect; he acknowledged that he thought the police might think he had stabbed Smith but said he did not feel scared because he knew he had not done so. He related the events but left out having seen appellant with a knife in his hands. Asked again what had happened, he again left out this fact. At some point in the conversation, Bain told the police he was scared that appellant might get out of jail and they assured him appellant  would be put away for a while.  At this point, Bain said he had seen appellant with a knife. Bain was scared of retaliation from appellant because appellant had threatened him before. The police took photographs of Bain, then took him back to the park.

Sergeant Medeiros, who interviewed Bain, testified that Bain first stated he did not see any objects in appellants hands, then described hearing appellant yelling at Smith as they were walking, started to cry and said he saw appellant standing above the victim holding a knife. Bain said he had not mentioned the knife earlier because he was afraid appellant would beat him up.

Bain testified that a couple of weeks before Smiths death, appellant had told him,  [i]f you ever want to stick someone, take them to Oakland. Youll get away with it.  Bain took the term sticking to mean stabbing. Appellant had generally said he would like to stick [a]nybody that pisses him off.

Susan Fehn knew the homeless people in San Leandro and allowed them to come to her house to wash clothes, shower and watch television. About three months before the stabbing, appellant, whom she had known for years, stayed with her for about four days, taking care of her while she was sick with the flu.^[3] One night appellant came back to the house very late, with a beer, a crack pipe and a half a joint, saying he had been at a party and was loaded. Very agitated, appellant said Smith owed him $10 and the next time he saw Smith he was going to stab him. Fehn did not take appellant seriously because he was high. Appellant lit his crack pipe and Fehn got angry and asked him to leave. Appellant got really angry and scared Fehn a little bit, but she did not think he was going to hurt her and he left with no violence. She never mentioned his threat to anyone.

Fehn considered appellant a friend and felt really torn about testifying against him. At the time of trial, Fehn was in custody due to an open container violation of probation for being drunk in public. She stated that she was only an occasional drinker, but acknowledged having been arrested at least three times that year for public drunkenness. Stating that she never drank enough to become drunk, Fehn testified that there was a particular police officer who wanted to run homeless people out of town, hated her and repeatedly arrested her when she had not done anything. It was stipulated that Fehn had a blood alcohol level of 0.299 on December 26, 2004, that she was treated for symptoms of alcohol withdrawal on October 26, 2004, that her blood tested positive for cocaine on September 26, 2003, and that she had a blood alcohol level of 0.301 on August 19, 2003. The trial court noted that 0.299 and 0.301 were approximately three and a half times the legal limit for driving impairment. At the arraignment on her June 14, 2005 public intoxication arrest, Fehn told the judge she was a star witness in a case for the prosecution.

Fehn had been diagnosed with bipolar disorder in 1996, for which she took prescription medication, but she testified she had phased out the medication and no longer needed it because the disorder had gone away. Asked whether it had been explained to her that bipolar disorder is biological, Fehn responded, Of course. I went to medical school. She then clarified that she had studied psychology to become a therapist, explaining that she considered the program medical school. She had not yet gotten her degree. She acknowledged having been taken to a psychiatric facility once due to a call from her sister, whom she said hated her, but said she had been released after a few hours. On another occasion, she had taken herself to a psychiatric facility because she was feeling schizo after a good friend died; again, she had been released after a few hours.

Appellant did not testify at trial and the defense did not present any witnesses. In argument, defense counsel told the jury appellant was innocent and the police had arrested the wrong person, suggesting appellants behavior was inconsistent with guilt and Smith could have been stabbed by someone in the van or accidentally stabbed himself. Defense counsel noted that Smith, not appellant, had suggested the trip to Oakland, and that appellant, if he had stabbed Smith, would not have chosen to commit the crime on a street where witnesses would be likely or left the knife to be found by the police, would have run (as Bain did) rather than stay to help the victim, and would not have cooperated with the police and told them where to find Bain and other witnesses or mentioned to the police that he had wiped blood off his wrist. Counsel suggested that Smith could have been stabbed by someone in the van and still walked to where he fell without leaving a trail of blood, noting that the stab wound was not immediately obvious and that the stabbing could have happened too quickly for appellant to see. Alternatively, defense counsel suggested Smith could have stumbled, fallen on the knife and not immediately noticed, as Smiths use of alcohol, heroin and other drugs would have lessened his sensitivity to pain. Counsel argued that the prosecution witnesses were unreliable: Bain was an alcoholic and crack user who realized he was in the wrong place at the wrong time, whose perception and recollection could be affected by his substance abuse, and who changed his stories to police; while Fehn was bipolar, denied her obvious abuse of alcohol, suffered from faulty memory and enjoyed her perceived role as star witness for the prosecution.

DISCUSSION

I.

Appellant contends the trial court erred in failing to instruct the jury to view evidence of his preoffense statements with caution. Specifically, he argues the trial court should have instructed the jury according to CALJIC No. 2.71.7, and should not have omitted the final paragraph of CALJIC No. 2.71. These instructions would have pertained to Fehns testimony that appellant told her Smith owed him $10 and he would stab Smith the next time he saw him, and Bains testimony that appellant had said he would like to stick anyone who pisses him off, and [i]f you ever want to stick someone, take them to Oakland. Youll get away with it.

 The dangers inherent in the use of such evidence [of alleged oral admissions of the defendant] are well recognized by courts and text writers. [Citations.] It is a familiar rule that verbal admissions should be received with caution and subjected to careful scrutiny, as no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used. No other class of testimony affords such temptations or opportunities for unscrupulous witnesses to torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself. (2 Jones, Commentaries on the Law of Evidence, 620.)  (People v. Ford (1964) 60 Cal.2d 772, 800, quoting People v. Bemis (1949) 33 Cal.2d 395, 398-399.)

The instructions to which appellant refers address this problem. CALJIC No. 2.71 defines admission as follows: An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. The last paragraph of CALJIC No. 2.71 provides, [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.] (Italics added.)

CALJIC No 2.71.7, concerning preoffense statements by the defendant, provides: Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed. [] It is for you to decide whether the statement was made by [a] [the] defendant. [] Evidence of an oral statement ought to be viewed with caution.

When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution. (People v. Beagle (1972) 6 Cal. 3d 441, 455.) (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.)  [T]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.]  (Ibid., quoting People v. Beagle, at p. 456.) Additionally, the instruction guards against  the great possibilities of error in trusting to recollection-testimony of oral utterances, supposed to have been heard. (People v. Henry (1972) 22 Cal.App.3d 951, 958, quoting 7 Wigmore, Evidence (3d ed. 1940)  2094, pp. 468-469.)

At trial, the jurors were instructed according to CALJIC No. 2.71 on the definition of admission and told they were the exclusive judges as to whether the defendant made the statement and whether it was true, but were not informed of CALJIC No. 2.71s additional statement that [e]vidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution. Respondent contends appellant waived his challenge to the trial courts failure to give this last part of the instruction, or to give CALJIC No. 2.71.7, because he did not request cautionary instructions or modification of any instructions given at trial.^[4] As stated above, howeverand as acknowledged in respondents own brief on appealthe trial court is required to give cautionary instructions sua sponte when evidence is admitted showing that the defendant made oral admissions. (People v. Slaughter, supra, 27 Cal.4th at p. 1200.)

Respondent also asserts the court was correct in not giving the cautionary instructions because to do so would have conflicted with the primary defense theory. According to respondent, appellants defense theory was that appellants statements to the police at the scene and at the police station were the truth and established his innocence. Since the instructions at issue would have directed the jury to view appellants out-of-court oral statements with caution, respondent asserts, they would have applied to appellants exculpatory statements and thereby undermined the defense.

Respondents argument is specious. CALJIC No. 2.71 defines admission as a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. (Italics added.) As the italicized language demonstrates, the instruction by its terms does not apply to exculpatory statements.  In light of the definition of admission, if the jury determines a statement does not tend to prove guilt when considered with the other evidence, it is not an admission. The cautionary language instructs the jury to view evidence of an admission with caution. By its terms, the language applies only to statements which tend to prove guilt and not to statements which do not. (People v. Vega (1990) 220 Cal.App.3d 310, 317.) Juries understand that this instruction by its terms applies only to statements tending to prove guilt, not to exculpatory ones. To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.] (People v. Senior (1992) 3 Cal.App.4th 765, 777.) (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) Here, had the trial court given the bracketed portion of the instruction, containing the cautionary language, the jury would not have been directed to view appellants statements to the police with caution.

The same is true for CALJIC No. 2.71.7, which specifically directs the jurys attention to oral statements of [intent] [plan] [motive] [design] made by the defendant before the offense with which [he] [she] is charged was committed. This instruction could not have been understood as applying to appellants statements to the police, which were made after the offense. The cautionary instruction could only have applied to Fehns and Bains testimony regarding appellants preoffense statements.

Contrary to respondents suggestion, the courts giving of most of CALJIC No. 2.71 and all of 2.72 did not fulfill its duty to instruct on appellants prior statements. As discussed above, the court did not give the portion of CALJIC No. 2.71 directing the jury to view appellants oral admissions with caution. CALJIC No. 2.72 has no bearing on the issue of cautionary instructions.^[5]

Among the factors to be considered in determining whether failure to give cautionary instructions is reversible error are the importance of the admissions to the key issues in dispute, the existence of conflicting evidence as to whether the statements were made and their content, and the reliability and bias of the witnesses relating the statements. (People v. Lopez (1975) 47 Cal.App.3d 8, 14.) People v. Ford, supra, 60 Cal.2d at page 800, found the trial courts failure to give a cautionary instruction regarding the defendants oral admissions reversible error, explaining that the statements bore directly on the defendants capacity to premeditate and deliberate and constituted a substantial part of the proof of these elements of the charged murder, and were related by hostile witnesses whose testimony showed a number of obvious conflicts and apparent inconsistencies. Similarly, in People v. Lopez, supra, 47 Cal.App.3d at page 14, reversal was required where the trial court failed to give cautionary instructions and the defendants oral admissions (statements he allegedly made during an altercation with police officers) were vital to the only disputed question, the defendants version of what he said, backed by his brothers wife, differed significantly from what the police described, and the police officers were not disinterested witnesses. By contrast, reversal was not required in People v. Carpenter (1997) 15 Cal.4th 312, 393, because the testimony concerning the defendants statement was not contradicted, and the circumstances in which it was made suggested the witness properly heard and remembered it.

Here, while there was ample evidence apart from appellants preoffense statements to support the jurys conclusion that appellant stabbed Smith, the statements were critical to the issue of premeditation that permitted appellant to be convicted of first degree murder. A murder that is premeditated and deliberate is murder of the first degree. ( 189.) In this context, premeditated means considered beforehand, and deliberate means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.  (People v. Mayfield [(1997)] 14 Cal.4th [668,] 767.) An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. (People v. Stitely [(2005)] 35 Cal.4th [514,] 543.) A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supportedpreexisting motive, planning activity, and manner of killingbut [t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. (Ibid.; see also People v. Combs [(2004)] 34 Cal.4th [821,] 850; People v. Silva ([2001]) 25 Cal.4th [345,] 368.) (People v. Jurado (2006) 38 Cal.4th 72, 118-119.)

 [W]hile premeditation and deliberation must result from  careful thought and weighing of considerations  ([People v. Anderson (1968)] 70 Cal. 2d [15,] 27), we continue to apply the principle that [t]he process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.]  (People v. Bolin (1998) 18 Cal.4th 297, 331-332.) (People v. Hughes (2002) 27 Cal.4th 287, 370-371.)

Aside from Bains and Fehns testimony regarding appellants preoffense statements, the record is devoid of evidence of premeditation. Putting aside those statements, the record shows that Smith did not permit appellant to touch the knife as appellant wanted at the plaza, that Smith and appellant set out for Oakland together without apparent incident or animosity, and that they appeared to be getting along only moments before the stabbing. There was no evidence appellant initiated the trip to Oakland or brought a weapon with him, no other evidence of planning, and no evidence of motive. As the prosecutor himself stated in argument to the jury,  . . . you believe Susan Fehn, its first-degree murder; if you dont, its hard to get to first-degree murder. Much of appellants case was devoted to discrediting the witnesses who recounted the statements at issue. Despite her professed friendship with appellant and ambivalence about testifying against him, which might suggest the credibility of her testimony, significant evidence was presented raising questions about Fehns ability to perceive and recollect, due to her history of mental illness and alcoholism, as well as about her veracity. Similar questions were raised regarding Bain, who was also potentially biased in that he had reason to believe the police viewed him as a suspect. In these circumstances, we simply cannot say there was no reasonable probability a result more favorable to appellant would have been reached if the jury had been instructed properly to view appellants oral admissions with caution.^[6]

Although appellants conviction for first degree murder cannot stand, it does not necessarily follow that the conviction for that offense must be unconditionally reversed. Under Penal Code section 1260, a reviewing court is not restricted to the remedies of affirming or reversing a judgment of conviction.  Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser  degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.  (People v. Edwards (1985) 39 Cal.3d 107, 118.) (People v. Moretto (1994) 21 Cal.App.4th 1269, 1278.) Here, the error impacts only the degree of the offense. There was ample evidence of second degree murder: appellant was unquestionably with Smith the moment before he was stabbed and Bain saw him standing over Smith with a knife in his hand. Indeed, defense counsel effectively conceded the sufficiency of the evidence of second degree murder at the motion for a new trial, stating that without Fehns testimony, I believe the evidence is only sufficient to sustain a conviction of murder in the second degree.^[7] It follows that we could modify the conviction to second degree murder and affirm the judgment as modified. (People v. Moretto, supra, 21 Cal.App.4th at p. 1278; People v. Hayes (2006) 142 Cal.App.4th 175, 183-184; People v. Edwards, supra, 39 Cal.3d at p. 118.) However, there was sufficient evidence, if believed by the jury under proper instructions, to convict defendant [of first degree murder] and the prosecution may wish to retry defendant on that more serious charge. Accordingly, our disposition should preserve both options. (People v. Moretto, supra, 21 Cal.App.4th at p. 1278; People v. Edwards, at p. 118.)

II.

Appellant contends the trial court violated his constitutional right to cross-examination by refusing to permit him to elicit evidence of Bains past lies to the police. As described above, Bain initially did not tell the police he had seen appellant with a knife, then later added this detail after the police told him appellant would be in custody for a while. Appellant sought to cross-examine Bain about two incidents in which he changed a story he told the police. In the first incident, Bain pulled a knife on another person during a fight. When questioned later, Bain at first failed to mention the knife, then mentioned it after further questioning. In the second, a domestic dispute, Bain initially told the police he was not under the influence of any drugs, then after continued questioning admitted he had smoked rock cocaine. Appellant offered these incidents as character and habit evidence and under Evidence Code section 1101. The trial court found the proposed cross-examination too peripheral and refused to permit it.

The United States Supreme Court has  recognized that the exposure of a witness motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.   (People v. Cooper (1991) 53 Cal.3d 771, 816, quoting Davis v. Alaska (1974) 415 U.S. 308, 316-317.) It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsels inquiry into the potential bias of a prosecution witness. On the contrary, 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 safety, or interrogation that is repetitive or only marginally relevant. (People v. Cooper, at pp. 816-817.)

 [A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness. (Davis v. Alaska, supra, [45 U.S.] at [p.] 318.) (Delaware v. Van Arsdall [(1986)] 475 U.S. [673,] 680.) There is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced a significantly different impression of [the witnesss] credibility . . . .  (People v. Belmontes [(1988)] 45 Cal.3d [744,] 780, quoting Van Arsdall, supra, 475 U.S. at p. 680.) (People v. Cooper, supra, 53 Cal.3d at p. 817.)

Under state law,  [t]he voters [in enacting Proposition 8] have decreed at the least that in proper cases . . . conduct involving moral turpitude should be admissible to impeach a criminal witness. [] [But Proposition 8s] section 28(d) does preserve the trial courts discretion to exclude evidence whose probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Evid. Code,  352.) [Citation.] The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues . . . . [] . . . Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value. [Citation.] (People v. Sapp (2003) 31 Cal.4th 240, 289, quoting People v. Wheeler (1992) 4 Cal.4th 284, 295-297.)

In the present case, appellant sought to cross-examine Bain about two prior incidents in which he had allegedly lied to the police during investigation of an offense, then admitted self-incriminating facts. Appellant sought to demonstrate that Bain had a history of changing his stories to the police, presumably in attempts to protect himself. Evidence of specific instances of conduct is admissible to attack the credibility of a witness. (Evid. Code,  1101, subd. (c).) (People v. Kennedy (2005) 36 Cal.4th 595, 634.)

Respondent maintains the trial court acted within its discretion in refusing to permit this cross-examination because the evidence would have been cumulative, since Bain admitted that he initially failed to tell the police about seeing appellant with the knife, and would have consumed undue time. Respondent is incorrect on both counts. Although Bain admitted changing his story to the police in the present case, he testified that the reason he did so was fear of appellanthe told the police about the knife only after being assured that appellant would be incarcerated for a while. This explanation, of course, only served to further incriminate appellant. Appellant, however, argued that Bain changed his story because he was afraid the police were viewing him as a suspect: he wanted to protect himself by bolstering the case against appellant. Although Bain denied this, the theory that Bain feared he was being seen as a suspect was not far-fetched: Bain was taken to the police station, read his Miranda rights and questioned for a lengthy period. The evidence of Bains past lies to the police would have supported the defense theory by demonstrating that Bain had a habit of lying to the police to protect himself, and might have given the jurors a basis for doubting Bains testimony about seeing appellant with the knife, if not his testimony as a whole.

Nor is there reason to believe the cross-examination would have been unduly time consuming. If Bain admitted the past falsehoods, no more than a few questions would have been required. If he did not, at worst appellant might have presented brief testimony from the officers involved in the two past incidents. It is difficult to imagine how more than a few questions would have been required to make the point.

Bain was a critical witness in this case. In addition to his testimony regarding appellants preoffense statements, Bain was the only witness who claimed to see appellant with the knife in his hand after Smith was stabbed. His testimony in this regard, however, was undermined by Goldsbys: Bain testified that when he walked by the scene of the stabbing, there was a woman across the street calling 911, but Goldsby testified that when she came out of her house, appellant was already running around trying to get help for Smith. Although appellant was able to challenge Bains credibility both by evidence of his changed story in the present case and, more generally, his substance abuse, the evidence appellant sought to present was clearly relevant.

Nevertheless, we cannot view the error in limiting cross-examination as prejudicial. With respect to a conviction for second degree murder, the importance of Bains testimony was his report of having seen appellant standing over Smith with a knife in his hand. As previously discussed, Bains credibility was squarely challenged on this specific point, as well as in general. There is no question appellant was with Smith when he was stabbed: The only theories offered to the jury that could have absolved appellant of guilt altogether were that Smith was stabbed by a person in the van or that Smith accidentally stabbed himself. Both theories border on the incredible. We recognize there was some evidence to suggest they were not impossible scenariosevidence that the neck wound would not necessarily have resulted in a trail of blood from the van to the spot where Smith fell, and that Smiths drug use might have kept him from feeling the initial pain of the wound. The question, however, is whether a reasonable juror may have held a reasonable doubt as to appellants guilt of second degree murder. Even without Bains testimony, it is virtually inconceivable the jury would not have found appellant guilty of this lesser offense.

DISPOSITION

In accordance with the views expressed in part I of this opinion, the judgment is reversed with these directions: If, after the filing of the remittitur in the trial court, the People do not bring defendant to trial within the time limit specified in section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constitutes a modification of the judgment to reflect a conviction of second degree murder in violation

of section 187, subdivision (a), and shall resentence defendant accordingly. (People v. Hayes, supra, 142 Cal.App.4th at p. 184; People v. Moretto, supra, 21 Cal.App.4th at p. 1279; People v. Edwards, supra, 39 Cal.3d at p. 118.)

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Kline, P.J.

I concur:

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Richman, J.

Concurring Opinion of Haerle, J.

I concur completely with both the result and reasoning of part I of the Discussion portion of Presiding Justice Klines opinion, and I concur in the result reached in part II thereof. But I disagree with the reasons stated for reaching that result; I believe there was no abuse of discretion in the trial courts ruling excluding the proffered testimony, and I believe we should have affirmed on that ground, and not on the ground of harmless error.

In the first place, Presiding Justice Klines opinion assumes that the cross-examination would not have been unduly time consuming. (Maj. opn. at p. 20.) This is purely speculative, as defense counsel at no time--at least as far as I can determinetold the trial court either (1) where the relevant police officers were located (i.e., Alameda County, California or Bar Harbor, Maine) or (2) how long ago the relevant incidents took place (i.e., three months ago or 10 years ago). Second, our standard of review in matters such as this is a very strictly-worded abuse of discretion standard; the trial court must be found to have exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 10.) No such thing happened here.

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Haerle, J.

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^[1]All statutory references will be to the Penal Code unless otherwise indicated.

^[2]Miranda v. Arizona (1966) 384 U.S. 436.

^[3]Fehn initially testified that this occurred two weeks before the stabbing, then heard a tape in which she told the police it was three months before.

^[4]Appellant did not request CALJIC Nos. 2.71 or 2.71.7; the prosecution requested the former but not the latter. The parties discussed jury instructions with the court on multiple occasions before and during trial without appellant raising the issue of cautionary instructions and appellants motion for a new trial did not challenge the courts failure to give these instructions.

^[5]CALJIC No. 2.72 provides: No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial. [] The identity of the person who is alleged to have committed a crime is not an element of the crime [nor is the degree of the crime]. The identity [or degree of the crime] may be established by [a] [an] [confession] [or] [admission].

^[6]Appellant contends there was insufficient evidence of premeditation even considering Fehns and Bains testimony regarding appellants preoffense statements, maintaining the evidence supports only an inference of a brief, sudden flare-up culminating in appellant stabbing Smith, not a previously calculated act. He argues the homicide was not especially brutal; there was no evidence appellant had medical skill to know that a stab to the neck likely would be fatal; appellant and Smith were on friendly terms until moments before the stabbing; and appellants conduct after Smith collapsedseeking help rather than running awaysuggested regret rather than accomplishment of a planned act. Appellant points to factors he views as inconsistent with premeditation: stabbing Smith on the street in front of someones house, knowing Bain was nearby, rather than in a dark alley; using Smiths knife rather than bringing a weapon with him; and insisting Smith had had a heart attack instead of having thought of a more credible explanation. Appellant notes that he did not take Smith to Oakland, but rather accompanied Smith at Smiths request. Regarding the preoffense statements, appellant argues that the remarks Bain related were not directed at anyone in particular, while Fehn herself testified she did not take the comment about stabbing Smith seriously because appellant was loaded when he made it and she did not know appellant to be violent.

In sum, appellant argues the jury could only have found premeditation if it accepted the wholly unreasonable theory that appellant went to Oakland with a plan to get the knife away from Smith, stab him, and wait for the police to appear while pretending to seek help, because Smith owed him $10 or because Smith would not let appellant touch the knife earlier in the day.

We cannot accept appellants argument. If credited by the jury, Fehns and Bains testimony supplied evidence of premeditation and deliberation: appellant was angry with Smith for not giving him the knife, or for owing him money; had expressed both a specific intent to stab Smith and a general intent to stab anyone who angered him; and had referred to Oakland as the place to stab someone and get away with it. Evidence of a defendants prior threats against a victim is admissible to prove premeditation and deliberation. (People v. Rodriguez (1986) 42 Cal.3d 730, 756-757; People v. Goldbach (1972) 27 Cal.App.3d 563, 570.) Appellants argument here amounts to a request for us to reweigh the evidence the jury heard and reach a different conclusion. At trial, while defense counsel maintained that appellant did not stab Smith at all, he also challenged the evidence of premeditation, arguing that Fehn and Bain were not credible witnesses, there was no evidence of motive for the killing, and appellant neither suggested the trip to Oakland nor brought a weapon with him. The jury obviously chose to believe the witnesses and their testimony constitutes substantial evidence to support the finding of premeditation.

^[7]Appellants additional argument that his conviction must be reversed because the trial court erred in limiting his cross-examination of Bain does not alter this conclusion. This argument goes to both the degree of the offense and the more basic question of appellants guilt altogether; accordingly, were we to agree with appellant that the error undermined even a conviction for second degree murder, we would be required to reverse appellants conviction unconditionally. We will explain, however, that although we agree with appellants claim of error, the error would not require reversal of a conviction for second degree murder.