Opinion
B296278
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ALEJANDRO GARCIA, Defendant and Appellant.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA070144) APPEAL from a judgment of the Superior Court of Los Angeles County, Carol J. Najera, Judge. Affirmed. Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted defendant and appellant Roberto Alejandro Garcia of assault with a firearm and discharge of a firearm with gross negligence, after he shot his girlfriend in the face. He appeals his convictions, arguing that the trial court prejudicially erred by excluding evidence. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. People's evidence
(i) Relationship between Garcia and the victim
Garcia and the victim, Priscilla Lozoya, began dating in February 2016, and she moved into Garcia's Lancaster home in March of that year. Garcia was much larger than Lozoya; he was approximately six feet tall, and she was five feet two. Garcia owned a Springfield model 1911-A-1 45-caliber semiautomatic pistol that he kept, loaded, in a nightstand drawer, as well as a shotgun that he kept on display in the hallway. Both guns were legally owned, and Garcia taught Lozoya how to use them. Once, Lozoya accidentally fired the handgun into a wall inside the house when she thought she heard an intruder.
Garcia had "anger issues." He monitored Lozoya's phone use, obtaining printouts of her calls and texts. When he was not at home, he would frequently call or text her and demand to know exactly what she was doing. Approximately once a month Garcia would engage in aggressive behavior such as punching holes in the walls of the residence, pushing Lozoya, grabbing her by the shoulders and shaking her, holding her down, or throwing her against the wall or to the floor. He would also yell at her, belittle her, and call her names like "bitch" and "hoe." Although Lozoya had severed all ties with her ex-boyfriend, Garcia was jealous and frequently accused her of intending to return to him. On three or four occasions, Garcia displayed the handgun and threatened that if Lozoya ever cheated on him, he would kill her. She was afraid of him. Garcia persuaded Lozoya to quit her job in West Covina, because the commute—78 miles each way—was too long.
On one occasion the couple attended a concert in Santa Barbara. Afterwards, they got into an argument. When they returned to their hotel room, Garcia threw Lozoya on the bed, ripped her underwear off, and sexually assaulted her. He pulled out his handgun, yelled at her, and waved it about in a manner suggesting that if she failed to listen to him, there would be consequences. Another time, the couple attended a rodeo. When a man attempted to talk to Lozoya, Garcia argued with him. When Lozoya and Garcia drove away, Garcia took his gun from the glove compartment and displayed it.
(ii) The 2016 Thanksgiving dinner
In 2016, Garcia and Lozoya hosted various family members at Garcia's house for Thanksgiving dinner, including his stepfather Manuel Romero, his sister Isabel Medina, his cousin Ruben Castro, and other cousins. Lozoya's mother and her mother's boyfriend attended as well. Both Garcia and Lozoya had been drinking that day. At dinner, Garcia became upset that Lozoya was not sitting immediately next to him. When Garcia cut a piece of turkey for Romero, Romero threw it back at him, and Romero and Garcia argued. Garcia also screamed at Lozoya's mother's boyfriend. Garcia began aggressively carving the turkey, accidentally cutting his hand in the process. Garcia screamed at the guests and "kick[ed] everybody out." Once the guests had departed, Lozoya went to the bedroom to lie down. Garcia pulled her off the mattress, pulled the two nightstands away from the wall, and punched holes in them. When Lozoya retreated to one of the spare bedrooms, Garcia threw her on the floor and took her phone.
The cut required stitches the next day.
(iii) The shooting
During the two weeks following Thanksgiving, Garcia and Lozoya argued constantly. Their fights were both verbal and physical; at one point he threw her against the wall. He also told her he would kill or hurt her.
On December 8, 2016, Garcia arrived home from work at approximately 3:00 or 4:00 p.m., as Lozoya was preparing dinner. Lozoya began drinking cans of "Mike's Hard Lemonade," an alcoholic beverage, around 4:00 or 5:00 p.m. She consumed between two and four cans before 7:00 p.m. Although she could feel the effect of the alcohol, she was not intoxicated. Garcia—who tended to revisit and talk about "bad incidents" repeatedly—began discussing the Thanksgiving incident. He then left the house, telling Lozoya he was going to his cousin's home to discuss the events of Thanksgiving. When he returned at around 7:00 p.m., he was very loud and accused Lozoya of intending to return to her ex-boyfriend.
Hoping to avert a fight, Lozoya went to take a bath. She got in the tub and closed the shower curtain. She could see and hear Garcia through the curtain, pacing back and forth, talking about the ex-boyfriend. She did not respond. Garcia threw a ceramic cup at the bathroom wall. It shattered, and pieces fell in the tub. As Lozoya was picking up the broken pieces, Garcia pulled back the shower curtain, with the gun in his hand, approximately one to two feet away from Lozoya. She saw a flash and heard a loud bang. Her ears started ringing, she felt dizzy, and she saw blood dripping down her chin.
Garcia called 911, but quickly hung up, saying "we have to go." He pulled Lozoya out of the tub and into his car. As they drove away, Lozoya worried that Garcia might kill her or leave her by the side of the road somewhere, so she told him they could say the gun misfired. Garcia did not respond. He drove to a Kaiser Permanente urgent care facility that was not equipped to handle gunshot wounds. He interacted in an aggressive and impatient manner with Kaiser personnel, and the receptionist called 911. Garcia then left and drove Lozoya to Antelope Valley Hospital, where she was treated.
It appeared to the treating physician that Lozoya was inebriated. Her blood alcohol level was .159, twice the legal limit to drive.
A deputy sheriff detained Garcia. Garcia admitted he was drunk.
(iv) The investigation
Lozoya had an entry wound in her left cheek and an exit wound in her left upper back. The gunshot resulted in facial paralysis, which could be temporary or permanent, and damage to the phrenic nerve, which controls the diaphragm. The bullet passed very close to her carotid artery and jugular vein. It appeared to a forensic nurse that the bullet's trajectory showed it was fired from above Lozoya.
Neither the treating physician, the forensic nurse, nor a deputy who spoke with Lozoya at the hospital saw any indication Lozoya was suicidal. In the treating physician's experience, when persons shoot themselves, usually the entry wound is in the temple, under the chin, or in the mouth.
A gunshot residue test (GSR) performed on Garcia was positive, indicating he either discharged or handled a gun, or was in close proximity to a discharging gun.
The Springfield handgun had four safety features that would prevent it from discharging unless all four were disengaged. Examination of the gun revealed that the safety features were working properly. It would not have fired if dropped. If two persons were handing it back and forth, it would not have fired unless the thumb safety was off and the grip safety was depressed at the same time the trigger was pulled. Three and three quarters of a pound of pressure was required to cause the gun to fire.
(v) Lozoya's and Garcia's pretrial accounts of the shooting
1. Lozoya's pretrial statements
Lozoya gave a variety of explanations about how the shooting occurred. The treating physician noted that she gave multiple conflicting accounts and she "didn't make any sense." She told the forensic nurse that Garcia had purchased a new gun, and she wanted to see it while she was in the bathtub. Garcia brought the gun to her, but did not want her to hold it while in the bathtub. They argued, and the gun accidentally fired when they were both in contact with it.
Lozoya told a deputy sheriff "different stories" about what happened. She denied arguing with Garcia. Garcia brought the gun into the bathroom, she "grabbed [it] wrong and it just went off." She also stated, contradictorily, that she retrieved the gun from the nightstand and brought it into the bathroom, where it accidentally discharged while she was holding it. The morning after the incident she told detectives that she was not in danger, was not afraid of Garcia, and there was no violence in their relationship.
At trial, Lozoya admitted she had lied to the physician, the nurse, and officers because she loved Garcia and was protecting him. She had been "brainwashed to think that this was normal." She also lied to Garcia's relatives, and told them the gun misfired. And she lied at the preliminary hearing about the incident, claiming it was an accident and she was unsure who was holding the gun when it fired. After the preliminary hearing she realized she had made a "huge mistake." She reasoned that if Garcia "got away with it" and was released, he would shoot her again the next time he lost his temper.
2. Garcia's pretrial statements
Late on the evening of the shooting, Garcia told Los Angeles County Deputy Sherriff Arnold Camacho that he and Lozoya had a heated argument about the Thanksgiving incident. Garcia brought the gun into the bathroom to show Lozoya, but he "blacked out," apparently from drinking. Garcia awoke upon hearing the gunshot. Camacho told Garcia he was going to administer a GSR test and asked when Garcia had last fired a gun. Garcia stated he could not recall. When Camacho explained how the GSR kit worked, Garcia amended his story and explained that he had been shooting at his father's house in Bakersfield that day.
Garcia called Lozoya from jail, in violation of a protective order. The call was recorded. He told her he was "truly sorry" and "[s]hould've never went down this path." He also asked, "You're not, you're not commit adultery now on me, are you?"
(vi) Domestic violence expert
Gail Pincus, a domestic violence expert, testified about typical domestic violence patterns and their effect upon the victim.
b. Defense evidence
(i) Garcia's testimony
Garcia testified in his own defense, as follows. During their relationship, he and Lozoya argued and drank together. After about six months, they did not get along. When they drank together, it led to fights. As soon as they began drinking, "she knew how to push [his] buttons" and became a "wild child." They "verbally assault[ed]" each other. He admitted punching holes in the wall out of anger and frustration. He also admitted shoving Lozoya on occasion. However, he never pulled a gun on her or threatened to kill her. He did not demand that she quit her job; because her employment was located so far from Lancaster, he encouraged her to seek work locally. He attempted to find her a job, but she failed to follow up.
At the Santa Barbara concert, they both drank and she was intoxicated. They argued and he told her to "get out of here." She took his car, and he chased her. Lozoya drank more when they returned to the hotel room, and Garcia fell asleep on the couch. When he woke up, she was being belligerent and annoying, causing an argument. They then had "rough sex," but he never sexually assaulted her.
On the evening of the shooting, Lozoya was drunk when Garcia returned home from work. Garcia felt like he needed to "catch up," and went to the liquor store to get more alcohol. Then they both drank vodka shots. They argued about the Thanksgiving incident, and Garcia went to his cousin's house. When he returned, he and Lozoya argued about Thanksgiving and the ex-boyfriend, and Garcia shoved her. Garcia began watching football in the master bedroom. Lozoya said she was done with the argument and was going to take a bath. But the argument continued, with Garcia walking back and forth between the bedroom and the master bathroom. Lozoya threw things at Garcia, and he shoved the ceramic cup at her. He said, "I'm done with you. I'm fed up with this." Lozoya then displayed Garcia's handgun and said, "You don't even love me. I'm going to shoot myself." Garcia replied, "Well, go for it." Lozoya had the gun pointed at her temple, but started to lower it toward her mouth. Garcia grabbed it and yanked it away, and it fired. Lozoya's hand was on the trigger. Garcia had not brought the gun into the bathroom and did not intentionally pull the trigger.
Garcia called 911, but hung up and drove to Kaiser because the 911 operator was "giving [him] the run around." He knew Kaiser was not an emergency facility but did not know it was farther from his house than was the hospital. He lied to police initially, saying he blacked out before the gunshot, because he felt guilty for telling Lozoya to shoot herself. In the recorded jail call, he was telling Lozoya he was sorry he made her want to kill herself.
(ii) Testimony from Garcia's relatives and co-workers
Garcia's stepfather, Romero, testified that when he arrived for the Thanksgiving dinner, Lozoya was already drunk and slurring her speech. After the shooting, Lozoya told him she had tried to kill herself, but did not want to be committed to "the looney house." Garcia had not been target shooting at Romero's house on December 8, 2016.
Garcia's sister, Medina, testified that on Thanksgiving, Lozoya was drinking hard liquor and wine from 10:30 a.m. on, and became drunk and somewhat belligerent. After the shooting, Medina stayed with Lozoya and took care of her for a week. When Medina asked what had happened, Lozoya at first ignored her but then said she did not want to go to "the looney bin."
Garcia's cousin, Castro, testified that at Thanksgiving, Lozoya drank from a "Big Gulp" cup filled with juice and alcohol "the entire day." Everyone else was drinking beer, but it was her "preference to drink hard alcohol." When Garcia cut his hand, Lozoya laughed. When there was a disagreement between Lozoya's mother's boyfriend and Garcia, Lozoya told Garcia not to "f'in talk" to him like that.
Romero, Medina, Castro, and three of Garcia's coworkers testified that he was a nonviolent, nonaggressive person who was respectful of women. One of the coworkers testified that Garcia had asked him to assist in finding a job for Lozoya, but nothing came to fruition.
2. Procedure
Garcia was tried twice, before different judges. His first trial ended in a mistrial, after the jury deadlocked. Upon retrial, the jury convicted Garcia of assault with a firearm (Pen. Code, 245, subd. (a)(2)) and discharge of a firearm with gross negligence (§ 246.3, subd. (a)). The jury also found that Garcia personally used a firearm in commission of the assault (§ 12022.5, subd. (a)) and personally inflicted great bodily injury upon Lozoya under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court sentenced Garcia to 17 years in prison. It imposed a restitution fine, a suspended parole revocation restitution fine, a court operations assessment, a criminal conviction assessment, and a crime prevention fine. Garcia timely appealed.
The jury's final vote was seven to five in favor of guilt on both counts.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
The trial court did not err by excluding evidence
Garcia argues that the trial court erred by excluding evidence relevant to two issues: Lozoya's "habitual intoxication," and her "prior violent behavior." He urges that such evidence was properly admitted in the first trial, and its erroneous exclusion from the second trial was prejudicial error that violated his constitutional right to confrontation. (U.S. Const., 6th and 14th Amends.)
1. Applicable legal principles
"Under the Evidence Code, all relevant evidence is admissible unless prohibited by statute. (Evid. Code, § 351.) ' "Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." ' [Citation.] But under Evidence Code section 352, the trial court retains the discretion to exclude relevant evidence if 'its probative value is substantially outweighed by the probability that its admission will' either 'necessitate undue consumption of time' or 'create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (People v. Young (2019) 7 Cal.5th 905, 930-931.)
"Generally speaking, evidence 'that has any tendency in reason to prove or disprove the truthfulness of a [witness's] testimony' is admissible." (People v. Turner (2017) 13 Cal.App.5th 397, 408; Evid. Code, § 780.) Impeachment evidence need not directly contradict a witness's testimony to be admissible; it need only tend to prove the witness is not credible. (People v. Turner, at p. 409.) A trial court has broad discretion in determining whether to admit evidence, including impeachment evidence, and whether such evidence is subject to exclusion under Evidence Code section 352. (People v. Sanchez (2019) 7 Cal.5th 14, 54; People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824; People v. Turner, at p. 408.) We review a trial court's ruling on admissibility for abuse of discretion, and will not disturb its decision unless there is a showing it acted in an arbitrary, capricious, or absurd manner that resulted in a miscarriage of justice. (People v. Young, supra, 7 Cal.5th at p. 931; People v. Bell (2019) 7 Cal.5th 70, 105.)
2. Exclusion of evidence about Lozoya's drinking
a. Additional facts
At the first trial, Garcia's cousin, Castro, testified that he saw Lozoya on approximately 20 occasions, when she and Garcia stopped by Castro's house en route to events such as concerts or football games. On these occasions, Lozoya was "always intoxicated." Castro formed this impression because "she would always be drinking" and have a "big cup of I don't know what" and would offer him a drink. He could also smell alcohol on her. Defense counsel asked, "Are we talking slurring words and stumbling or just you can tell if she had one drink or how was it?" Castro replied, "I wouldn't say stumbling. I've seen her stumble, but that was like one occasion or twice. But not as to the times I've seen her, no." On cross-examination, the prosecutor asked Castro to describe Lozoya's demeanor on these occasions. Castro stated that she was happy, "clingy," flirtatious, and serious toward Garcia. Castro never spent time at Garcia's house, except for Thanksgiving 2016.
Garcia's sister, Medina, testified at the first trial that before Garcia purchased his home in Lancaster, he lived with his parents and Medina in Llano. Lozoya would also stay there off and on. After the couple moved to Lancaster, Medina only visited them once every month or two. Regarding Thanksgiving, defense counsel asked, "by the end of the night, did it appear to you that Miss Lozoya was just intoxicated, or was she wasted, or how would you describe it?" Medina volunteered, "I've seen her multiple times. Every time I've seen her, she's always been drunk. So it was kind of normal."
Garcia states that at the first trial, Medina testified she "saw Ms. Lozoya imbibe 'multiple times,' becoming intoxicated—slurring her speech and smelling of alcohol." The cited portion of Medina's testimony refers only to Lozoya's behavior during the Thanksgiving dinner. At the second trial, the court did not exclude evidence about Lozoya's alcohol consumption at Thanksgiving.
Garcia's stepfather, Romero, testified at the first trial that when Lozoya was staying at his house before the couple moved to Lancaster, one night Lozoya was "pretty drunk" and tried to take Garcia's car to drive to her home.
Garcia testified that when he and Lozoya visited New York City in May 2016, Lozoya drank a lot on her birthday, becoming intoxicated.
Prior to the start of Garcia's retrial, the People moved to exclude evidence regarding Lozoya's drinking on occasions other than on the night of the charged crime. The prosecutor explained: "There is some testimony that came out [in the first trial] regarding the drinking habits and patterns of the victim. We had a good conversation about this in Your Honor's chambers regarding the relevance of some of that testimony since there was alcohol involved the night of the incident, but the People are asking to [exclude additional] mention of prior incidents of her drinking and her behavior while she was under the influence of alcohol." Defense counsel replied, "Well, I do agree with the behavior when she is under the influence of alcohol. Having said that, there are instances, where I believe the alleged victim is going to say that my client threatened her on this occasion or just displayed a firearm. [¶] To the extent that she may have been under the influence at that time, I think it would go to her ability to recollect and her credibility, but I'm not just going to try to elicit that she is some sort of raging alcoholic."
The trial court ruled, "The night in question is of course relevant. If specific instances are brought up and if in fact alcohol was a factor in any of the previous incidents, that would of course affect her credibility as well as everything else that was going on; her judgment, all of that, so that would be relevant. And I think we all agree that that is actually the case." Defense counsel agreed.
Later the People filed a trial brief again seeking exclusion of defense testimony regarding prior incidents of alcohol consumption by Lozoya. The court reiterated its earlier ruling that evidence of Lozoya's drinking during any alleged domestic violence incidents was relevant because it could affect her memory. It excluded evidence that Lozoya was intoxicated on other occasions.
b. Discussion
Garcia contends that the trial court erred by excluding evidence of Lozoya's "habitual intoxication" to impeach her credibility.
Preliminarily, we question whether this issue has been preserved for appeal. Defense counsel appeared to agree with the parameters of the trial court's ruling regarding evidence of intoxication. Counsel stated he did not intend to attempt to show Lozoya was "some sort of raging alcoholic." (See People v. Armstrong (2019) 6 Cal.5th 735, 791.)
But assuming the claim has not been forfeited, it fails on the merits. Garcia argues that evidence Lozoya was habitually intoxicated was relevant because it "bore directly on her ability to perceive and recall" the shooting. Specifically, Garcia asserts that although Lozoya admitted drinking on the night of the shooting, she claimed she was not drunk; therefore, evidence she was drunk on other occasions would have assisted the jury in determining her level of intoxication when she was shot.
We do not see how. The trial court allowed testimony about Lozoya's alcohol consumption on the night of the shooting, at the Thanksgiving dinner two weeks previously, and during past incidents when Garcia committed domestic violence. That Lozoya was intoxicated on occasions other than these did not provide direct evidence of her level of intoxication at the time of the shooting. Garcia's argument rests on the notion that if Lozoya was often intoxicated, she must also have been intoxicated—rather than simply feeling some effect of the alcohol she admittedly imbibed—at the time of the shooting. The conclusion does not follow from the premise. Unless counsel could show that Lozoya was drunk at virtually all times—an intent he expressly disavowed, and a fact the proffered testimony did not establish—the excluded evidence would not have provided circumstantial proof of Lozoya's condition when the shooting occurred. "Evidence of habitual narcotics or alcohol use is not admissible to impeach perception or memory unless there is expert testimony on the probable effect of such use on those faculties." (People v. Balderas (1985) 41 Cal.3d 144, 191-192; People v. Wilson (2008) 44 Cal.4th 758, 790-794.)
Nor is there merit to Garcia's argument that evidence of her drinking would have impeached her "credibility in general." "The authorities establish that drunkenness on occasions prior and subsequent to the one involved in the case does not amount to competent impeachment evidence. [¶] . . . 'Intoxication, if it is of such a degree as to deserve the name, involves a numbing of the faculties so as to affect the capacity to observe, to recollect, or to communicate; and is therefore admissible to impeach. . . . But a general habit of intemperance tells us nothing of the witness' testimonial incapacity except as it indicates actual intoxication at the time of the event observed or the time of testifying; and hence, since in its bearing upon moral character it does not involve the veracity-trait . . . it will usually not be admissible.' " (People v. Stanley (1962) 206 Cal.App.2d 795, 798-799.) As explained, the proffered evidence did not show Lozoya's drunkenness at the time of the event.
Given the foregoing, the trial court did not abuse its discretion by concluding the proffered testimony should be excluded under Evidence Code section 352. It lacked probative value, but had the potential for prejudice: it would have painted Lozoya as an alcoholic. A trial court "is not required to admit evidence that merely makes the victim of a crime look bad." (People v. Kelly (1992) 1 Cal.4th 495, 523 [finding no abuse of discretion in exclusion of evidence that murder victims had alcohol or cocaine in their systems]; People v. Hillhouse (2002) 27 Cal.4th 469, 495-496.)
Moreover, although not expressly cited by the trial court as a reason for exclusion, it is not clear that the proffered testimony would have consumed only little time, as Garcia avers. Although questioning at the first trial was brief, the prosecutor could well have felt it necessary to probe Medina's and Castro's rather conclusory assertions that Lozoya was "always" drunk by asking a multitude of questions about the specific occasions and specific facts upon which their conclusions were based. (See People v. Carter (2005) 36 Cal.4th 1215, 1259, fn. 30 [no abuse of discretion in excluding evidence of rape victim's alcoholism; evidence was marginally relevant and would likely have consumed an undue amount of time]; People v. Ayala (2000) 23 Cal.4th 225, 301 [" 'The latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trial from degenerating into nitpicking wars of attrition over collateral credibility issues.' "]; People v. Contreras (2013) 58 Cal.4th 123, 152.) The trial court's ruling was not arbitrary, capricious, or absurd.
3. Exclusion of evidence of Lozoya's prior conduct
a. Additional facts
At Garcia's first trial, Garcia's sister, Medina, and Garcia testified regarding an incident in which Lozoya purportedly engaged in domestic violence against Garcia. At the time, Lozoya was staying with Garcia's family, prior to his purchase of the Lancaster house. When the incident began, Garcia was not home. According to Medina, Lozoya was intoxicated. She was slurring her words and smelled like alcohol, and unsuccessfully tried to convince Romero to give her the keys to Garcia's car. When Garcia arrived home, Lozoya followed him into his room and yelled at him, saying she wanted to go home. She said she was upset about her dog that was still at her ex-boyfriend's house. Lozoya complained that Garcia did not understand how much she loved the dog; he would never understand until something he loved was gone; and she wished his mother would die so he would feel the pain she felt of missing the dog. The argument then "got quiet." Medina looked into Garcia's bedroom and saw Garcia lying on the bed, with Lozoya straddling him. She was "crying about her dog and he was just laying there with her hands around his neck," "choking" him. Lozoya did not hit Garcia. Garcia, who was bigger than Lozoya, "could have overpowered her, but he decided not to." Medina, concerned, went into the bedroom, pulled Lozoya off, and tried to calm Lozoya down. Lozoya was "very upset" and "trying to explain her pain." Medina characterized Lozoya's behavior as dramatic and threatening. When Medina described the incident to a defense investigator, she did not state that Lozoya had been choking Garcia. She told the investigator she did not take the incident seriously but was concerned about the loud, shrill sound of Lozoya's voice and the content of her statements.
Garcia testified at the first trial that he and Lozoya had both been drinking. Lozoya began arguing with him about her dog. He ignored her and "shrugged her off'" because the dog was at her ex-boyfriend's house. Lozoya said, "you don't understand," "aren't you listening to me[?]" and "you don't know how it feels . . . to lose somebody." Garcia went to bed in his room, intending to go to sleep. He explained that Lozoya "grabbed me. So I kind of like rolled over like, what do you want? You know, so she grabs me, and kind of like pins me down, and that's where my sister came in and said, 'Get off my brother' . . . ." His memory of the incident was vague, but he thought it was a serious matter.
As noted ante, Romero testified that Lozoya was drunk and wanted to take Garcia's car and drive home. Lozoya "became very rowdy" towards Garcia, calling him names.
During the second trial, defense counsel sought a ruling allowing admission of the foregoing evidence. He argued that Lozoya's conduct amounted to a crime of moral turpitude, i.e., an aggravated assault, and was therefore admissible for impeachment. Further, in her testimony Lozoya characterized herself as "innocent and sweet" and Garcia as a "monster"; therefore it was "unfair to let the jury think that she's never assaulted him." The incident also impeached her testimony that Garcia was controlling and aggressive. Counsel averred the defense was not claiming self-defense, and was not offering the evidence to show Lozoya's character for violence.
After reviewing the relevant portions of the prior trial transcript, the court excluded the evidence, finding it lacked probative value and was unduly prejudicial. (See Evid. Code, § 352.) The court observed that Lozoya was "not making it sound like she is innocent and sweet. . . . That is not the impression that I have gotten . . . ." Moreover, the court said the incident did not involve violent or aggressive behavior. Garcia barely recalled the incident and appeared "completely unconcerned" about it. The evidence served only to show Lozoya was "not a good person, she is coming off too nice," which was "the definition of prejudice."
b. Discussion
Garcia argues that evidence of Lozoya's "prior violent conduct" was relevant and probative for two reasons. First, the proffered evidence showed Lozoya committed assault with force likely to produce great bodily injury, a crime of moral turpitude. Therefore, the prior misconduct was admissible to impeach her testimony. He is incorrect.
A witness may be impeached with evidence he or she committed misconduct involving moral turpitude, because such conduct may indicate a willingness to lie. (People v. Anderson (2018) 5 Cal.5th 372, 408; People v. Contreras, supra, 58 Cal.4th at p. 157, fn. 24.) Assault by means of force likely to produce great bodily injury is a crime of moral turpitude. (People v. Elwell (1988) 206 Cal.App.3d 171, 175-177.) Simple assault and simple battery are not. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1522; People v. Rivera (2003) 107 Cal.App.4th 1374, 1381.)
As described in the first trial, Lozoya's conduct did not amount to assault by means likely to produce great bodily injury. That offense requires proof the perpetrator willfully committed an act which by its nature would probably and directly result in injury to another. (People v. Williams (2001) 26 Cal.4th 779, 790; People v. White (2015) 241 Cal.App.4th 881, 884.) Great bodily injury is that which is significant or substantial, rather than trivial or moderate. (People v. Drayton (2019) 42 Cal.App.5th 612, 614; People v. Duke (1985) 174 Cal.App.3d 296, 302.) Actual injury is not necessary; "[t]he focus is on force likely to produce great bodily injury." (People v. White, at p. 884; People v. Duke, at p. 302; People v. Medellin (2020) 45 Cal.App.5th 519, 527.) The evidence "must prove more than a mere possibility that the force actually used would result in greater than moderate harm." (People v. Medellin, at p. 528.)
People v. Duke is instructive. There, the defendant restrained the victim in a headlock and touched her breast through her clothing. She stated that the headlock made her feel choked, but did not cut off her breathing. (People v. Duke, supra, 174 Cal.App.3d. at pp. 302-303.) The court found the evidence insufficient to sustain a conviction for assault with force likely to cause great bodily injury. The defendant only grabbed the victim momentarily, and she was in no danger from the force actually exerted. (Ibid.; see In re B.M. (2018) 6 Cal.5th 528, 524-535 [citing Duke with approval].)
Here, the evidence showed the intoxicated Lozoya, who was five foot two inches tall and much smaller than Garcia, straddled him on the bed and either pinned him down or placed her hands around his neck in an effort to get him to acknowledge her distress about being separated from her dog. There was no evidence Garcia was in any danger from the force briefly exerted. Lozoya did not hit Garcia. Neither Garcia nor Medina claimed that Lozoya actually squeezed Garcia's neck, attempted to strangle him, or did anything remotely likely to cause injury. There was no evidence he suffered even a trivial injury as a result of the incident. (See People v. Russell (2005) 129 Cal.App.4th 776, 778 [the results of an assault, while not conclusive, are highly probative on the question of the amount of force used]; People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) Garcia was readily able to roll away had he chosen to do so, and neither he nor Medina described the incident in any terms that would have allowed for a finding Lozoya committed assault by means likely to produce great bodily injury.
Moreover, even if the evidence could be construed as proving such an offense, its exclusion would not have amounted to an abuse of discretion. In People v. Lightsey (2012) 54 Cal.4th 668, the defendant contended the trial court abused its discretion by precluding impeachment of a prosecution witness, Lehman, with her prior conduct of hitting her ex-husband with a rock. The court explained: "[E]vidence of Lehman's misdemeanor conduct—striking her ex-husband with a rock during a dispute—does not strongly demonstrate moral turpitude, i.e., a ' "general readiness to do evil" ' [citation], and thus would not have provided the jury much assistance in assessing Lehman's credibility. 'This was a routine matter of weighing the evidence's probative value against the probability its admission would "necessitate undue consumption of time" [citation], and the trial court's ruling was both reasoned and reasonable.' [Citation.]" (Id. at p. 714.)
The same is true here. Moreover, there was already ample evidence in the record that Lozoya had a willingness to lie: she admitted lying to medical personnel, to law enforcement officers, to Garcia's relatives, and to the court at the preliminary hearing. Thus, when offered for this purpose, the evidence was merely cumulative.
Second, Garcia urges that the evidence was probative because "it contradicted [Lozoya's] testimony that Mr. Garcia was the aggressor in their relationship and that she was afraid of him." But, the evidence had minimal probative value in this regard. As the trial court found, the proffered testimony did not reflect genuinely violent conduct by Lozoya; certainly, Garcia did not describe it that way. Moreover, the incident occurred near the beginning of their relationship, prior to March 2016. Lozoya's interactions with Garcia near the start of their relationship said little about the nature of their relationship months later, in December 2016. In short, the proffered evidence was largely irrelevant, and the trial court did not abuse its broad discretion by excluding it.
4. Garcia's confrontation rights were not violated
Nor do we detect any violation of Garcia's confrontation rights. The right to confrontation is guaranteed by both the federal and state constitutions, and is essential to a fair trial. (People v. Wilson, supra, 44 Cal.4th at p. 793; People v. Brown (2003) 31 Cal.4th 518, 538.) However, " 'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [Citation.]" (People v. Wilson, at p. 794; Delaware v. Van Arsdall (1986) 475 U.S. 674, 679.) The routine application of state evidentiary rules does not generally implicate a defendant's constitutional rights. (People v. Fayed (2020) 9 Cal.5th 147, 190; People v. Michel (2016) 2 Cal.5th 181, 218-219.) "[A]s long as the excluded evidence would not have produced a ' " 'significantly different impression' " ' of the witness's credibility, the confrontation clause and related constitutional guarantees do not limit the trial court's discretion in this regard. [Citations.]" (People v. Contreras, supra, 58 Cal.4th at p. 152.)
A reasonable jury would not have gotten a different perception of Lozoya's credibility had the excluded evidence been presented. As to her alcohol use, the court did not limit evidence about her drinking on the night of the shooting. As detailed above, Garcia testified that Lozoya was drunk when he arrived home and thereafter they drank vodka shots; Lozoya admitted drinking three or four 12- to 16-ounce cans of Mike's Hard Lemonade; the treating physician testified that she appeared to be inebriated; and her blood alcohol level was .159.
Considerable evidence was also adduced about her alcohol use on Thanksgiving. Castro testified that Lozoya drank alcohol "the entire day throughout the night"; Romero testified Lozoya was drunk when he arrived, and was slurring her speech; Medina testified that Lozoya started drinking at 10:30 a.m., and was "in and out" of the kitchen the entire day, grabbing drinks, including wine and a bottle of vodka. Her behavior changed "from sober . . . to drunk," and she began slurring her words and being "a little more belligerent."
And, evidence was also adduced about Lozoya's drinking on other occasions. She testified that she and Garcia drank together when they were at home and when they went out. Garcia testified that they drank together "wherever we go"; their drinking tended to lead to fights; Lozoya drank "a lot," and acted crazy and like a "wild child" when she did. At the Santa Barbara concert, both he and Lozoya drank; she became "extremely drunk" and attempted to drive off in his car; and then she drank more upon returning to their hotel room. Medina testified that Lozoya was drunk when she accidentally fired the gun into the wall after hearing what she believed to be an intruder.
As to Lozoya's purportedly violent conduct, the evidence presented at the second trial did not show Lozoya was docile. She admitted calling Garcia an "asshole" when they argued. Medina, Castro, and Romero all testified that when Garcia cut his hand at Thanksgiving, Lozoya simply laughed at or made fun of him. According to Medina, Lozoya said "that's what you get," and did not attempt to assist Garcia with the wound. Castro testified that when Garcia and Lozoya's mother's boyfriend exchanged words at the dinner, Lozoya told Garcia, "don't f'in talk to him like that." According to Garcia, he and Lozoya argued frequently and verbally abused each other.
Under these circumstances, there is no likelihood the jury would have gotten a significantly different impression of Lozoya's credibility, or of her ability to accurately perceive events during the shooting, even if the excluded evidence had been admitted. Accordingly, there was no violation of Garcia's confrontation rights. (See People v. Contreras, supra, 58 Cal.4th at pp. 152-153.)
Delaware v. Van Arsdall, cited by Garcia, does not assist him. In Van Arsdall, the defendant was charged with murder. The trial court prohibited the defense from cross-examining a prosecution witness, Fleetwood, about Fleetwood's promise to speak with the prosecutor about the murder in exchange for dismissal of a criminal charge against Fleetwood. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 676.) The court held that 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.' " (Id. at p. 680.) That standard was met in Van Arsdall: "the trial court prohibited all inquiry into the possibility that Fleetwood would be biased as a result of the State's dismissal of his pending public drunkenness charge. By thus cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court's ruling violated [the defendant's] rights secured by the Confrontation Clause." (Id. at p. 679.) The court thus remanded for a determination of prejudice under Chapman v. California (1967) 386 U.S. 18, 24. It reiterated, however, that trial courts retain "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits" on cross-examination based on concerns about harassment, prejudice, confusion of the issues, or "interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall, at p. 679.)
Unlike in Van Arsdall, the trial court here did not limit defense counsel's cross-examination into a "prototypical" area of inquiry such as witness bias. Instead, as we have explained, the proffered testimony was only marginally relevant, and the trial court did not prohibit all inquiry into Lozoya's alcohol use or her behavior toward Garcia. Our review of the testimony offered at the first trial convinces us the jury would not have had a different impression of Lozoya's credibility had the proffered evidence been allowed. There was, therefore, no violation of Garcia's confrontation clause rights.
Because we find no error, we need not address the question of prejudice.
Garcia also cites Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091, for the proposition that his confrontation rights were violated. In Holley, a child molestation case, the Ninth Circuit held exclusion of a child's statements to other children about sexual matters was error. Evidence that she had a "highly active sexual imagination or that she had a familiarity with sexual activities" could have impeached her testimony, demonstrated a tendency to exaggerate or fabricate, and could have countered the prosecution's theory of the case. (Id. at pp. 1096-1097, 1099.) We see no similarity between the facts of Holley and the instant matter, and in any event, decisions of the lower federal courts are not binding on this court. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296; People v. Tuggle (2012) 203 Cal.App.4th 1071, 1076.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.