Opinion
A166180
09-13-2024
THE PEOPLE, Plaintiff and Respondent, v. MIAESHA ANDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 22CR003683.
Fujisaki, Acting P.J.
A jury found defendant Miaesha Anderson guilty of one count of assault with force likely to produce great bodily injury and found true a great bodily injury enhancement. On appeal, defendant contends: (1) the trial court erred in instructing the jury on the mental state required for assault with force likely to produce great bodily injury; (2) the court violated defendant's right to counsel; (3) the court erred in failing to instruct on the lesser included offense of simple assault; and (4) the court erred in allowing the prosecutor to impeach defendant with her prior arrests. We affirm.
Factual and Procedural Background
As indicated, the jury convicted defendant of one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) ) and found true the enhancement allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The evidence at trial included the following testimony from the victim and two neighbors who witnessed the incident, as well as testimony from defendant.
All further undesignated statutory references are to the Penal Code.
Defendant and the victim are neighbors at a housing project. The victim testified that every day for several weeks around the time of the charged offense, defendant had been yelling, approaching neighbors very close and pointing a finger, or throwing things at neighbors and neighborhood teenagers.
On the day of the charged offense, the victim visited with her downstairs neighbor and his friends. Defendant began cursing and threatening this group. The victim tried to calm defendant down, at which point defendant cursed at and threatened the victim. Realizing she was not getting anywhere, the victim turned to go home. Once she turned her back on defendant, she felt a hard hit to her right temple. The victim then saw defendant hit her with a hammer in the left temple. The victim dropped to her knees, and defendant hit her left temple again, at which point the victim fell into the grass, face first, and momentarily lost consciousness. When the victim regained consciousness, defendant jumped on her and again struck her head with a hammer, causing another loss of consciousness. The victim woke up to another neighbor screaming for her to get up. The victim was diagnosed with a concussion and received nine stitches to her face. The victim denied ever threatening defendant.
Defendant took the stand and testified. Defendant has mobility issues and carries a collapsible cane to walk long distances. Defendant described the incident at issue as follows. At the time, her cane was hanging on her wrist by a wristlet. Claiming the victim was the aggressor in the incident, defendant testified she first hit the victim with her fist, reflexively, out of fear when the victim threatened and lunged at her. After this initial strike, defendant again punched the victim, who then fell in the grass and may have hit a sprinkler causing her head to bleed. Defendant denied being a violent person and owning a hammer, and she specifically denied hitting the victim when the victim turned around, or knocking the victim unconscious. In rebuttal, the prosecutor played a recording of a telephone call defendant made in jail, in which defendant said she had "beat the fuck out of" the victim.
At the sentencing hearing, the trial court suspended imposition of a sentence and placed defendant on formal probation for two years. This appeal followed.
Discussion
A. Alleged Instructional Error
Defendant contends the trial court erred by instructing the jury with CALCRIM No. 250 and failing to instruct with CALCRIM No. 251. In arguing that giving CALCRIM No. 250 "was insufficient and misleading," defendant points to the bench notes for CALCRIM No. 250, which state the instruction "must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. In such cases, the court must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State." (Boldface omitted.)
Defendant also argues the court compounded the instructional error by telling the jury that intent was not necessary for the great bodily injury enhancement. We are unpersuaded by either of these contentions.
1. Additional Background
As relevant here, the trial court instructed the jury with CALCRIM No. 250, the standard instruction for general intent crime, as follows: "The crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime of assault with force likely to produce great bodily injury as charged in Count One or to find the allegation of infliction of great bodily injury true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does the prohibited act; however, it is not required that he or she [intend] to break the law. The act required is explained in the instruction for that crime or allegation."
As to the charged count, the trial court instructed with CALCRIM No. 875, as follows: "To prove that the defendant is guilty of [assault with force likely to produce great bodily injury], the People must prove that: [¶] 1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person; and [¶] 1B. The force used was likely to produce great bodily injury; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted she was aware of . . . facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, she had the present ability to apply force likely to produce great bodily injury to a person; [¶] 5. The defendant did not act in self-defense. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she break the law, hurt someone else or gain any advantage. [¶] The terms application of force and applied force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way.... [¶] . . . [¶] The People are not required to prove that the defendant actually intended to use force against someone when she acted."
And for the great bodily injury enhancement, the trial court instructed with CALCRIM No. 3160, in part: "If you find the defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [the victim] in the commission of that crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
On the second day of deliberations (August 2, 2022), the jury deliberated throughout the day. At 4:32 p.m., the jurors sent a note asking the trial court if their decision on the great bodily injury enhancement had to be unanimous (note no. 2). At 9:30 a.m. the next day (August 3), the court responded to note no. 2 in the affirmative and deliberations continued. At 3:56 p.m. that same day, the jurors sent another note (note no. 3) that said: "The jury has arrived on a verdict on Count One but believe we have arrived at a hung jury situation with the special allegation. What should we do?" In the jury's presence, the court asked the foreperson whether the jurors had been polled as to the great bodily injury allegation and what the numbers were. The foreperson said there was "movement" as to "whether great bodily injury has been caused" but "no movement on whether there was intent to cause it."
The trial court then met with counsel in chambers and expressed concern the jurors misunderstood the instructions stating, "It's clear [the great bodily injury] doesn't have to be intentionally inflicted," to which the prosecutor and defense counsel both agreed. Defense counsel stated: "I thought it was the same in that it was general intent like willful. Like do you have to-know that you do the action type thing. Not mean to cause GBI. There's no specific intent but there is general intent." The court stated, "But there is no intent in the great bodily injury section. You wouldn't get there unless the contact that causes it was willful. [¶] . . . [¶] So there's not a separate requirement of willful for the GBI." Defense counsel again voiced agreement. After a readback of what the jury foreperson said, defense counsel said, "So if they're hung up on that then it doesn't matter." The court agreed, indicating "It doesn't matter. Okay. I think this is good.... I'll just go back to clarify that point." Both the prosecutor and defense counsel responded, "Okay."
Back in open court, the trial court gave the jurors this clarifying instruction: "You'll need to go back and deliberate. Actually stop. There is no requirement under the law or in the jury instructions that I gave you that great bodily injury be intentionally inflicted. Nowhere in the instructions does it say this. You need to read [CALCRIM No.] 3160 again and read it carefully. No requirement that the person intend to inflict great bodily injury. The act causing great bodily injury must be a willful one, that is not accidental. That's what the instructions say. So now go and chat and I'll hear from you in a minute." The minutes indicate the jury resumed its deliberations at 4:12 p.m.
At 4:27 p.m. the same day, the trial court received another note from the jurors (note no. 4) that stated: "The jury was deriving intent, the need for it, from [CALCRIM] [No.] 250." Thereafter, in the next discussion with the court, the foreperson indicated that, in light of the court's clarification that intent to cause great bodily injury is unnecessary to prove the enhancement, no further deliberations would be necessary because all twelve jurors agreed great bodily injury was caused. The court clerk then read the verdicts in open court. The jury found defendant guilty of assault with force likely to produce great bodily injury and found true the great bodily injury enhancement allegation.
After the trial court excused the jury, defense counsel objected to the court's "inquiries about the details about the deliberation" and its "phrasing of the instruction to the jurors and the fact that I didn't have an opportunity to be heard to contribute to that." Defense counsel stated for the record that she had asked the court to hear an objection before the jury came back in, and that the court said it would hear defense counsel later as the court "anticipated that [defense counsel's] objections would not matter at that point in time. And when we went back into chambers the second time the Court indicated that he was wrong and that my objections would have been appropriate earlier. But, again, also acknowledged that I did not waive my objections." Defense counsel indicated her objections concerned the two notes received that afternoon-i.e., note nos. 3 and 4-and the court's "interview with the jury [foreperson]." Based on what happened, defense counsel asked for a mistrial.
The trial court responded that defense counsel did have an opportunity, in chambers, to weigh in on the legal question about intent required for the great bodily injury enhancement and that counsel agreed with the court. Notably, defense counsel made clear she thought the court's clarifying instruction concerning the requisite intent for the great bodily injury enhancement was correct. But she objected on the ground that the clarifying instruction was unnecessary because the jury already had the great bodily injury instruction and that giving the clarifying instruction would improperly influence the jury's vote. After defense counsel made her record, the court implicitly overruled the objections and denied the mistrial motion.
2. Analysis
"A claim of instructional error is reviewed de novo." (People v. Mitchell (2019) 7 Cal.5th 561, 579.)" 'In reviewing [a] purportedly erroneous instruction[], "we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." [Citation.] In conducting this inquiry, we are mindful that" 'a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" '" (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We must also "consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.)" 'Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (Richardson, at p. 1028.)
Generally, proof of a crime requires "a union of act and wrongful intent, or criminal negligence." (People v. Coria (1999) 21 Cal.4th 868, 876 (Coria).)"' "Specific and general intent have been notoriously difficult terms to define and apply ...." [Citation.] However, some principles are settled: "When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent." [Citation.]' [Citation.] 'General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law.'" (People v. Thiel (2016) 5 Cal.App.5th 1201, 1208-1209.)
In People v. Williams (2001) 26 Cal.4th 779 (Williams), the California Supreme Court reaffirmed that assault is a general intent crime, but explained that "a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from [their] conduct. [They] may not be convicted based on facts [they] did not know but should have known. [They], however, need not be subjectively aware of the risk that a battery might occur." (Williams, at p. 788.) In other words, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
The People apparently believe that, given this knowledge requirement, CALCRIM No. 251 was the more "salient instruction." That said, defendant does not show that CALCRIM No. 250 or any other of the given instructions was wrong on the law. Nor does there appear a reasonable likelihood that the jury understood CALCRIM No. 250 as eliminating the knowledge requirement for the assault charge. (See People v. Alvarez (1996) 14 Cal.4th 155, 220 (Alvarez) [failure to instruct on the union of act and specific intent is prejudicial if there is a reasonable probability of an effect on the outcome].) As recounted above, and consistent with Williams, supra, 26 Cal.4th 779, the court instructed the jury on the mental state required for assault with force likely to cause great bodily injury (CALCRIM No. 875) as follows: "[W]hen the defendant acted she was aware of . . . facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone." CALCRIM No. 875 and CALCRIM No. 250 are not in conflict; nor does the latter instruction suggest a jury could ignore the mental state required by the former instruction. Furthermore, the prosecutor's closing argument reinforced the proper understanding of the requisite knowledge for the charged offense, emphasizing that when defendant acted, she must have been actually aware of facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone.
Considering the instructions as a whole, along with the prosecutor's closing argument, we cannot conclude it reasonably likely that the jury was unaware of or unable to understand the knowledge requirement for the charged offense. Furthermore, and in any event, it is not reasonably probable that a more favorable outcome would have occurred had the jury been instructed with CALCRIM No. 251. (See Alvarez, supra, 14 Cal.4th at p. 220.) Specifically, the record contains no indication of jury confusion over the knowledge element of the charged offense, that is, whether defendant acted with the requisite awareness of facts. Indeed, as the People point out, the jury had already reached a verdict on the assault count when it sent note no. 3 indicating confusion over whether defendant must have acted with the intent to inflict great bodily injury in order to find the enhancement true.
Citing People v. Medellin (2020) 45 Cal.App.5th 519, defendant contends the People were required to prove "sufficient subjective knowledge" on her part "of the circumstances that, when doing the prohibited act willfully, the act is . . . likely to result in a battery causing great bodily injury." We cannot agree. Neither Medellin nor any other authority offered by defendant stands for the proposition that the crime of assault with force likely to produce great bodily injury requires that a defendant subjectively know that their conduct is likely to result in a battery causing great bodily injury. (See generally Medellin, at pp. 527-528.)
Relying on Coria, supra, 21 Cal.4th 868, defendant next argues the alleged instructional error turned the charged offense and enhancement into strict liability offenses. We are not persuaded.
In Coria, the California Supreme Court clarified that the crime of manufacturing methamphetamine required the defendant's knowledge of the character of the substance manufactured. (Coria, supra, 21 Cal.4th at p. 871.) In doing so, the high court disavowed the holding in People v. Telfer (1991) 233 Cal.App.3d 1194 that a statute criminalizing the manufacture of a controlled substance was "analogous to strict liability, public health and safety statutes." (Coria, at pp. 872, 876-878.) As the Coria court explained," 'where . . . dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that [the Legislature] did not intend to eliminate a mens rea requirement.'" (Id. at p. 880.) The court then stated: "because chemical synthesis ordinarily is 'traditionally lawful conduct,' we may infer the Legislature did not intend to eliminate a mens rea requirement . . . that the accused know of the character of the substance being manufactured." (Ibid.)
Coria, supra, 21 Cal.4th 868 has no bearing on the issue in this case. The jury here was properly instructed that to find defendant guilty on the charged count, it must find defendant willfully did an act that by its nature would directly and probably result in the application of force to a person. The jury was further instructed as to the knowledge requirement in accord with Williams, supra, 26 Cal.4th 779. In short, the crime here was not presented as a strict liability offense as it had been in Coria. (See People v. Poroj (2010) 190 Cal.App.4th 165, 176 [section 12022.7, subdivision (a), does not criminalize otherwise innocent activity].)
Finally, it appears defendant contends the section 12022.7, subdivision (a) enhancement requires knowledge that one's acts will cause great bodily injury because the mens rea required for that enhancement is the same as that required for the charged offense. Case law confirms that this enhancement "require[s] only a general criminal intent, i.e., the defendant need not intend great bodily injury result, the only intent required is that for the underlying felony." (People v. Lewis (2004) 120 Cal.App.4th 837, 853.) As already discussed, we have rejected the premise that the underlying offense requires knowledge that one's acts will cause great bodily injury.
In sum, we reject defendant's claims of instructional error.
B. Right to Counsel
Defendant next contends the trial court violated her right to counsel by answering mid-deliberation questions without consulting defense counsel and over defense counsel's objection. In making this argument, defendant points to the court's handling of the jury's note nos. 3 and 4. Relying on United States v. Cronic (1984) 466 U.S. 648 (Cronic), she argues this was structural error entitling her to reversal without any showing of prejudice. We reject this.
The California Supreme Court summarized the analysis in Cronic as follows: "In Cronic, the high court explained that: 'The right to the effective assistance of counsel is . . . the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel may have made demonstrable errors-the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.' [Citation.] Thus, '[t]here are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. [¶] Most obvious, of course, is the complete denial of counsel.... Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.'" (In re Avena (1996) 12 Cal.4th 694, 727 (Avena).)
The California Supreme Court went on to note examples the United States Supreme Court gave, limiting this otherwise broad language:" 'The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.' [Citation.] After briefly describing Davis v. Alaska (1974) 415 U.S. 308 . . ., in which counsel was prevented from cross-examining a crucial prosecution witness, the Cronic court opined: 'Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.'" (Avena, supra, 12 Cal.4th at p. 727, quoting Cronic, supra, 466 U.S. at p. 659, fns. 25-26.)
Here, the record establishes that the trial court, after receiving the jury's note no. 3, met with both sides to discuss the note in chambers. The court and both sides agreed that "[great bodily injury] doesn't have to be intentionally inflicted." When the court indicated it was going to clarify the point with the jury, both the prosecutor and defense counsel assented. The court then informed the jury: "There is no requirement under the law or in the jury instructions that I gave you that great bodily injury be intentionally inflicted." On this record, there can be no dispute the court responded to the jury's question in note no. 3 after consultation with, and an opportunity for, input from defense counsel.
Around the time note no. 4 was received, which was about 15 minutes after the court dealt with note no. 3, defense counsel wanted to put objections on the record. The court indicated it would hear counsel's objections later, and they would not be waived. The court then addressed the jury in open court, and learned from the foreperson that "[w]ith the clarification that intent is not necessary," the jurors unanimously agreed that defendant personally inflicted great bodily injury. After the verdicts were read, defense counsel put her objections on the record that she objected to (1) the court's inquiries into the details of deliberation, and (2) the court's giving the earlier clarifying instruction because it might influence the jury's vote.
Again, the record establishes that the trial court in fact consulted with defense counsel and obtained her assent before giving the clarifying instruction. After note no. 4 was received and the verdicts were read, defense counsel stated her objection to the court's "phrasing of the instruction," but defense counsel later clarified that, though she did not believe the clarifying instruction was incorrect, she objected to giving a clarifying instruction at all. Setting aside the fact that defense counsel forfeited this objection when she assented to the clarifying instruction, it remains the case that counsel was neither "totally absent" nor "prevented" from assisting defendant on this topic. That the court did not immediately hear defense counsel's objection around the time the jury submitted note no. 4 does not alter the fact that the court solicited and obtained defense counsel's input and consent before giving the clarifying instruction in response to the jury's note no. 3.
In sum, we reject defendant's claim that the trial court deprived her of her right to counsel at a critical stage of the proceedings.
C. Instructions on a lesser included offense
Defendant contends the trial court erred in failing to instruct on the lesser included offense of simple assault (§ 240).
"' "The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." [Citations.] "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." '" (People v. Whalen (2013) 56 Cal.4th 1, 68.)" 'Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.'" (Ibid.) "Whether a trial court commits error by omitting an instruction on a lesser included offense depends not only on whether the evidence supports the possible commission of an alternative crime, but whether that alternative crime constitutes a 'lesser included offense' as we have defined it." (People v. Gonzalez (2018) 5 Cal.5th 186, 197.) We review de novo a claim that the trial court failed to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)
Here, there is no dispute that simple assault is a lesser included offense of assault by means of force likely to produce great bodily injury. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.) Thus, we assess whether substantial evidence supported a simple assault instruction, i.e., whether there was evidence from which a reasonable jury could conclude that defendant committed only a simple assault, and not an assault with force likely to produce great bodily injury.
On appeal, defendant contends the jury could have believed either (1) the victim was injured when she fell on a sprinkler on the ground, or (2) the top of defendant's walking cane, which was on defendant's wrist, hit the victim and defendant was unaware both that the cane was on her wrist during the confrontation and of the probability that it could strike the victim.
Preliminarily, we note the record is undisputed that, as a result of the incident, the victim suffered a concussion and received nine stitches to her face. To support her contention that the evidence supported a finding of simple assault but not an assault with force likely to produce great bodily injury, defendant points to her own testimony, which was that she first hit the victim, reflexively, because the victim threatened and lunged at her and defendant felt threatened and scared. After this initial strike, defendant punched the victim again, causing the victim to fall in the grass, and then defendant went home. Even if believed, defendant's version of the incident might have led to a finding that defendant had acted in self-defense, resulting in an acquittal. (See, e.g., People v. Duff (2014) 58 Cal.4th 527, 562.)
The record contains no actual evidence of any sprinklers in the grass where the victim fell. As defendant says in her opening brief, she "testified that she did not know how [the victim] was injured and speculated it may have been when she fell-she may have hit a sprinkler." (Italics added.)
But contrary to defendant's suggestion, there is no substantial evidence from which a rational jury could have concluded she committed a simple assault. In other words, either defendant attacked and willfully struck the victim with her fist or an object more than once, in which case she committed an aggravated assault, or she struck the victim in self-defense, in which case she committed no crime at all.
In sum, the trial court did not err in failing to instruct on simple assault.
D. Impeachment
Defendant contends the trial court erred in allowing the prosecutor to impeach her with her 1997 arrest for battery and 2007 arrest for domestic violence. Specifically, she argues that only felony convictions or misconduct involving moral turpitude can be used for impeachment (Evid. Code, § 788; People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler)), and that evidence of mere arrests is inadmissible.
The People acknowledge that evidence of prior misdemeanor convictions and arrests is inadmissible under Wheeler, supra, 4 Cal.4th 284. Nonetheless, the People contend the trial court properly admitted the evidence to impeach defendant's testimony that she had never been the subject of a police report and that she was not violent.
"Rebuttal evidence is '" 'evidence made necessary by the defendant's case in the sense that [they have] introduced new evidence or made assertions that were not implicit in [the] denial of guilt.'"' [Citation.] 'The scope of rebuttal evidence is within the trial court's discretion, and on appeal its ruling will not be disturbed absent" 'palpable abuse.'" '" (People v. O'Malley (2016) 62 Cal.4th 944, 997.)
Here, defendant initially testified she had never been the subject of a police report, but shortly afterwards she clarified she meant during the seven years that she had lived at the housing project. Notably, this testimony followed questioning concerning defendant's behavior, or other happenings with neighbors, at the housing project. Considered in context, defendant's "police report" statement does not appear to be a general denial that she had never, in her life, been the subject of a police report. (See, e.g., People v. Thomas (1978) 20 Cal.3d 457, 467-468 [considering the context of a defendant's statement].) Consequently, the evidence of defendant's arrests was not properly admitted to rebut her testimony on this point.
Defendant, however, expressly testified she was not a violent person, thereby putting her character for nonviolence at issue. So the question becomes whether, as the People contend, the evidence of defendant's arrests was properly admitted to rebut this testimony.
" 'It has long been held that evidence of an accused's prior arrests is inadmissible' [citation] because such evidence is more prejudicial than probative [citations]. 'The mere fact that a [person] has been arrested has very little, if any, probative value in showing that he [or she] has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he [or she] is released without trial, whatever probative force the arrest may have had is normally dissipated.'" (People v. Gonsalves (2021) 66 Cal.App.5th 1, 10-11, italics added.) Applying these principles, we agree the evidence of defendant's prior arrests was of such low probative value that it should have been excluded under Evidence Code section 352. The People cite no authority to the contrary.
The People alternatively argue the evidence was admissible character evidence under Evidence Code section 1102, because the prosecution was free to rebut the evidence defendant offered regarding her character for nonviolence by "asking the witness 'have you heard' type questions regarding specific incidents." We reject this.
It does not appear this statutory basis for admissibility was ever invoked below by either party or the court.
"[W]hen the witness has testified to the defendant's reputation, based on what the witness has heard, the proper form is to ask, 'if you heard.' However, when the witness has testified to the witness's own opinion, based on the witness's perceptions, it is perfectly proper to ask, 'if you knew.'" (People v. Hawara (2021) 61 Cal.App.5th 704, 713.)
Here, this line of authority is not particularly apt because the issue is whether the prosecutor properly questioned defendant, not some other witness, about her own prior arrests. As such, the prosecutor could not and did not ask defendant if she heard or knew that she was previously arrested. Instead, the prosecutor asked defendant: "1997, were you were arrested for battery?" and "whether or not you were arrested for domestic violence in 2007?" This was inappropriate because the existence of any previous arrests was neither an opinion nor evidence of reputation. (See Evid. Code, § 1102 [permitting the admission of evidence of a defendant's character "in the form of an opinion or evidence of his reputation," but not specific instances of conduct]; see also People v. Felix (1999) 70 Cal.App.4th 426, 431.)
Although we find error, we are persuaded that, on this record, the error was harmless under the applicable state law standard. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Huynh (2021) 65 Cal.App.5th 969, 985.)
In a portion of her opening brief under the heading "Standard of Review," defendant claims the error implicated her federal constitutional rights to due process. This argument, however, is not properly captioned under a specific argument heading. (Opdyk v. California Horse Racing Board (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) That said, we note that "[t]o prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial" and demonstrate "the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." '" (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.) Here, defendant makes no argument that the alleged error meets this standard.
First, the prosecutor's questioning on this topic was very brief, and defendant was able to testify-without any dispute-that she was in high school during the 1997 incident and released after 40 minutes, and that she did not hit anyone during the 2007 incident. Later, during redirect examination, defendant testified without contradiction as to additional details regarding the incidents underlying these arrests, which tended to confirm she was not actually a violent person.
Second, defense counsel's closing argument strongly contended that, given the remoteness of the incidents, the underlying facts, and the fact that no convictions resulted, defendant was not lying about being non-violent. Additionally, the prosecutor's closing argument emphasized to the jurors that they should consider the prior arrests only for purposes of evaluating defendant's credibility, and should not base their verdict on it. Aligning with this, the trial court instructed the jury that: "If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
The jury was also instructed that: "You have heard testimony that the defendant is an honest and non-violent person. [¶] Evidence of the defendant's character can by itself create a reasonable doubt whether the defendant committed an assault. However, evidence of the defendant's good character may be countered by evidence of bad character for the same trait. You must decide the meaning and importance of the character evidence. [¶] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt."
Third, with or without the evidence of defendant's prior arrests, there were a number of other grounds for questioning her credibility. To begin with, the victim's testimony of defendant's assaultive conduct was generally corroborated by two eyewitnesses. Moreover, as the prosecutor highlighted during closing argument, there was ample evidence that defendant lied on the stand about never threatening people and not cursing. For example, the prosecutor introduced evidence of a telephone call defendant made in jail, in which defendant said she "beat the fuck out of" the victim.
On this record, it is not reasonably probable that a result more favorable to defendant would have been reached absent the admission of evidence of defendant's prior arrests. (Watson, supra, 46 Cal.2d at p. 836.) We reject defendant's claim that the court committed reversible error.
Disposition The judgment is affirmed.
WE CONCUR: Petrou, J., Rodriguez, J.