Opinion
F071003
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEX MERRILL, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. DF011522A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Alex Merrill, a state prison inmate, was charged and convicted of assault with force likely to produce great bodily injury while confined in state prison (Pen. Code, § 4501, subd. (b)), with allegations that he inflicted great bodily injury (§ 12022.7, subd. (a)), and he had two prior strike convictions and two serious felony enhancements (§ 667, subd. (a)). The charges were based on an incident where another inmate, Marco Aguero (Aguero), took a photograph from defendant's bunk without defendant's permission; the following day, defendant retrieved the photograph and punched Aguero with such force that he broke the inmate's jaw.
All further statutory citations are to the Penal Code unless otherwise indicated.
The court subsequently dismissed the prior strike convictions. It sentenced defendant to the midterm of four years, plus three years for the great bodily injury enhancement and two consecutive terms of five years for the prior serious felony enhancements, for an aggregate term of 17 years, to be served consecutive to the term he was already serving in prison.
On appeal, defendant argues the court abused its discretion when it denied his pretrial motions for discovery and dismissal for discriminatory prosecution, filed pursuant to Murgia v. Municipal Court for Bakersfield Judicial District (1975) 15 Cal.3d 286 (Murgia). Defendant argued his prison bunk was his "home," Aguero was a burglar and a thief, defendant was entitled to use force to defend his property, private citizens are not prosecuted for similarly using force to defend their homes, and his prosecution in this case was the result of invidious discrimination.
Defendant also contends the court improperly denied his motion to impeach the credibility of Aguero's trial testimony with evidence that in an unrelated case in 2012, Aguero admitted to a Los Angeles Police Department officer that he had sexual relations with a minor; Aguero was not charged or convicted of any offense related to the 2012 investigation. However, defendant asserts the evidence was admissible because Aguero admitted in 2012 that he committed acts of moral turpitude.
Defendant further argues the court improperly instructed the jury with CALCRIM No. 362 on false testimony, and violated his due process rights to present a defense when it prohibited defense counsel from discussing different levels of burdens of proof in closing argument.
We affirm.
FACTS
Defendant and Aguero were inmates at North Kern State Prison. Aguero testified for the prosecution. At the time of this incident, Aguero was in prison because he had been convicted of a theft-related felony offense.
Defendant's jury trial was held in December 2014. Aguero testified that he was released from prison in July 2014, and he was on parole. The district attorney's office was paying for his hotel and meal vouchers when he testified.
Approximately 150 to 200 inmates were housed in one large dormitory facility, and assigned to bunk beds that were not in separate cells. The inmates had relatively free movement within the dormitory. The inmates stored their property in footlockers under the lower bunks.
Defendant and Aguero were assigned to beds that were located at the opposite sides of the dormitory. Defendant was assigned to a lower bunk, and had taped pictures under the bunk above him. Aguero was also assigned to a lower bunk. There was no evidence that Aguero and defendant knew each other before this incident. Aguero takes the photograph from defendant's bunk
Around 11:00 p.m. on Thursday, November 28, 2013 (Thanksgiving Day), the lights were out in the dormitory, and inmates were not supposed to be moving between the bunk beds. However, Aguero was talking to inmates near defendant's bunk. Defendant was not present. Aguero sat on defendant's bed and saw several pictures that were taped above defendant's lower bunk bed. Aguero testified that he removed and took one of the photographs without defendant's permission. Aguero thought it was a picture of a female model that had been taken out of a magazine. Other inmates were there when he took the picture. Aguero went back to his area and taped the picture above his own bunk bed.
Aguero testified that he knew it was wrong to take the photograph without defendant's permission, and he intended to pay him for it later. Aguero was not written up for a rules violation or prosecuted for taking the picture. The photograph
The defense introduced evidence about the photograph that Aguero took from defendant's bunk. It was a picture of a female's backside, and she was wearing lingerie underwear. The woman's face was not shown. The name "Alex" was handwritten on the back of the photograph. There were no other identifying marks on the picture. At trial, both defendant and his wife testified that it was a picture of his wife, which she had sent to defendant. Defendant asks Aguero to return the picture
Aguero testified that on Friday, November 29, 2013, he got up at 8:00 a.m. for breakfast, then returned to his bunk. Around 10:00 a.m., defendant arrived at Aguero's bunk and asked for his picture. Defendant was calm. Aguero testified he gave it back to defendant without incident, and defendant left. Defendant assaults Aguero
Aguero testified that after he gave the picture back to defendant, he went to sleep in his own bunk. Shortly before noon, an inmate woke him up and told him that a second inmate wanted to talk to him about taking the picture. Aguero got up and walked toward the second inmate, who was waiting near Aguero's bed. This inmate directed Aguero to come closer. As Aguero approached the second inmate, someone punched Aguero on the right side of his face. Aguero fell backwards. He looked up and saw defendant was the person who hit him. There were other inmates present during the assault.
Aguero realized his cheek was bleeding. He went to his bunk to get a clean shirt, and then went to the bathroom to clean up. He had a large cut that went through his lip and into his mouth.
Aguero testified that when he was in the bathroom, he was approached by some of the same inmates who had witnessed the assault. They asked Aguero if he was going to report the incident to the correctional officers. Aguero told the inmates he was not going to snitch because he (Aguero) got what he deserved. At trial, however, Aguero testified that he did not report the incident because he feared for his safety from the other inmates. Aguero asks for medical attention
On Saturday, November 30, 2013, Aguero's face was swollen and it was hard to chew his food. He realized that he had been seriously injured and needed help. He approached Sergeant Vega in the day room, while the other inmates were leaving on yard call. Aguero told Vega that he injured his face because he fell out of his bunk while he was sleeping, and he needed medical attention. Aguero testified he lied because he feared for his safety.
Aguero testified he was placed in a holding cell to wait for the medical staff. The nurses conducted an initial evaluation, and determined his jaw was swollen and he was bleeding inside his mouth.
A nurse asked Aguero about the circumstances of the injury. Aguero replied, "[N]o comment." Later during the evaluation, another nurse asked Aguero what happened. Aguero said that "he got punched the night before...."
Later that day, Sergeant Vega talked to Aguero again because he suspected that he was assaulted. Vega asked Aguero what happened. Aguero adamantly insisted that he just rolled off his bed, and said he was not afraid of anyone. Defendant identified as the suspect
On Sunday, December 1, 2013, Sergeant Vega spoke to Aguero in the program office; no one else was present. Vegas asked what happened. Aguero said that he was hit from behind and could not identify who hit him. Vega testified that Aguero never said he took anything from another inmate.
As a result of Aguero's revelation, Sergeant Vega directed the prison staff to conduct unclothed body searches on all inmates to look for anyone with injuries consistent with a physical altercation.
In the course of these searches, the officers determined defendant had scratches on his knuckles consistent with an assault. Aguero's injuries
On December 3, 2013, an oral surgeon examined Aguero's jaw and asked how he was injured. Aguero said he was assaulted the previous Friday. The oral surgeon testified that the right side of Aguero's jaw was fractured. Aguero's face was swollen, and he had a small laceration on his right check that was infected. The oral surgeon opened and cleaned the wound. Aguero's mouth was wired shut so his jaw would heal. Aguero also lost one tooth. At the time of trial, Aguero still had trouble fully extending his mouth.
DEFENSE EVIDENCE
Juan Velazquez-Mosqueda (Mosqueda) was also an inmate at the time of the incident. He had two prior convictions for felony offenses involving moral turpitude in 2013.
Mosqueda testified he was playing basketball with defendant and other inmates around the time of the assault on Aguero. Mosqueda testified he accidentally scratched defendant's knuckles while they were playing. He thought that he injured defendant's right hand, but he did not remember the details very well.
Summer Merrill, defendant's wife, testified that the photograph in dispute was her picture. It showed her behind, and she was wearing lingerie underwear; it did not show her face. Mrs. Merrill testified that defendant's first name, "Alex," was tattooed on the back of her shoulder, and that was visible in the photograph. She also wrote "Alex" on the back of the photograph.
Marieta Erbe, a prison nurse, testified she evaluated defendant on December 1, 2013. Defendant had several scratches and abrasions on his side, hand, and wrist. Defendant said he was injured while playing basketball the previous day. Defendant's trial testimony
Defendant testified that in 2012, he was convicted of a felony charge of criminal threats. In 2013, he was convicted of committing assault with a firearm for the benefit of a gang, and sentenced to seven years in prison. He was serving that term during the incident in this case. Defendant testified that he had gang-related tattoos on his face and hands for the Norteños and the Northerners.
Defendant testified he dropped out of his gang right after the shooting, but he did not tell anyone. Defendant testified that when he arrived at the North Kern prison, he told the officers in the receiving unit that he was a dropout from the Northern Hispanic gang, and he was scared for his safety. He was placed in a special needs unit.
Defendant testified it was more dangerous to be housed in a dormitory setting compared to a cell. "You're around a lot more people and you got to protect your home, your bunk area. You always got to watch it, because it's out in the open for everybody. Um, everyone's moving around freely. They could do whatever they want in a dorm, more than - you know, there's only one [correctional officer] watching. He's not really watching. They're too much going on, compared to a cell ...."
Defendant testified that he was assigned a lower bunk in the dormitory facility. He stored his property in a drawer under the bunk. His address book was stolen from that drawer when he had been there just two weeks. Defendant was concerned because he did not want his personal information "floating around out there" with sex offenders and rapists. Defendant notified his wife about the theft, but he did not report it to the correctional officers.
Defendant testified that in late 2013, he taped several personal and family photographs under the upper bunk above his bed, including photographs of his wife. He did not have any magazine pictures posted in that location.
Defendant admitted he punched Aguero but testified he did it in self-defense. Defendant testified that on Thanksgiving night, he was not around his bunk, which he called his "house." When he returned to his "house" (bunk), he discovered that one of his wife's photographs was missing from where he had taped it under the top bunk.
As we will discuss, post, defendant's descriptions of his bunk as his "house" and "home" were consistent with his pretrial Murgia motions for discovery and dismissal, and his trial claim of self-defense.
Defendant identified Exhibit W2 as the photograph that was taken from his bunk. Defendant testified the photograph showed the back of his wife's body, and she was wearing lingerie. Defendant was surprised, worried, and scared, because he connected the disappearance of his wife's photograph with the earlier theft of his address book. Defendant testified that inmates who are victimized by thefts in prison are seen as "suckers, punks, bitches," and get bullied and picked on if they let it continue.
That night, defendant asked the inmates who slept near his bunk if they saw anything. They said no. The next morning, defendant continued to ask inmates about who took the picture. Based on information from several different inmates, defendant determined that Aguero took the photograph.
Defendant testified he went to Aguero's bunk after breakfast. Aguero was sleeping in his lower bunk. Defendant testified that he squatted down, tapped Aguero's shoulder, called his name, and woke him up. As he did so, defendant testified he looked up and saw the photograph of his wife's body taped above Aguero's lower bunk.
Defendant testified he did not hit Aguero because it was not worth it. Instead, he asked Aguero if he took the picture of his wife. Aguero just laughed. Defendant told Aguero that he wanted his photograph. Aguero did not say anything. Defendant reached under the top bunk and grabbed the picture. As he did so, Aguero raised his hands up, and he shoved or pushed defendant's throat.
Defendant testified that Aguero hit his throat hard enough to make it difficult to swallow. When defendant felt Aguero's hands on his throat, he just reacted and swung his right arm and hit Aguero's face in self-defense. Defendant hit the back part of Aguero's jaw with a "pretty strong" backhand. Defendant backed up and went into a ready stance because he did not know what Aguero would do. They stared at each other, and defendant again said he wanted the picture back. Aguero was holding his jaw and nodded yes. Defendant grabbed his picture and went back to his own bunk.
Defendant testified he washed off his wife's photograph because he was afraid Aguero had used it while performing a sexual act.
As we will discuss in issue II, post, defendant tried to introduce evidence that Aguero had committed sexual acts against a minor in 2012, to impeach Aguero's credibility. Aguero was not charged or convicted of any offenses based on the 2012 case, and the court denied the motion. After defendant testified, counsel renewed his motion and claimed that Aguero took the photograph because he was an alleged "sexual deviant." The court again denied the motion.
Defendant testified that he played basketball the following day (Saturday) with inmate Mosqueda. Mosqueda jumped up and swatted the ball away, and his fingernails scratched defendant's wrist. Defendant testified he suffered the scratches at the basketball game, and not from hitting Aguero.
Defendant testified Sergeant Vega took him to see a nurse on Sunday. Defendant asked what it was about. Vega referred to the cuts on defendant's hand. Defendant replied that he got the cuts when he played basketball the previous day.
Defendant's letter
Defendant admitted that after he saw the nurse on Sunday, he wrote a letter to his wife, and prison authorities confiscated the letter from the outgoing mail. In the letter, defendant wrote several things to his wife: that "I already f**ked up and got in trouble" by hitting Aguero; he knocked out Aguero, who had to get medical attention; Aguero told on defendant; and defendant was not sure if Aguero's jaw was broken, but "it's hella bad." Defendant also wrote that the sergeant pulled him out and took him to medical for a cut on his knuckles, but defendant told them the cuts were from playing basketball. Defendant wrote that the officers did not tell him anything or question him about it because "that foo" already told them everything. Defendant further wrote that he would probably get written up for a prison violation, but "I'ma fight it and tell 'em I got my cut on my hand from playing basketball," and "I really did get scratched when I was playing basketball." Defendant wrote that he was sorry about it and asked if she was thinking about divorcing him. He also asked her to put money on his books.
The prosecution introduced evidence that correctional officers screened and seized a letter that defendant had placed in the outgoing mail.
Defendant testified that when he wrote the letter, he did not tell his wife that Aguero stole her photograph, what the picture showed, that his address book had also been stolen, that Aguero grabbed his throat, or that he was defending himself when he hit Aguero. He said he did not share these facts with his wife because he did not want her to worry.
DISCUSSION
I. Denial of Murgia Motion for Discovery and Dismissal
Defendant contends the court abused its discretion when it denied his pretrial motion for discovery of evidence to support a motion to dismiss for discriminatory prosecution pursuant to Murgia.
Defendant argues the motions should have been granted because he was simply using force to defend his "dwelling," i.e., his bunk, from the theft committed by Aguero. Defendant asserts that a homeowner is entitled to use nonlethal force in such circumstances. Defendant further asserts that he was subject to invidious discrimination because individuals who are not inmates are not prosecuted for using force to defend their "homes." In support of his motion, defendant submitted several newspaper articles about private citizens who had used force in similar situations and were not prosecuted by the district attorney's office. Defendant argues that the court should have granted his motion for discovery, which would have resulted in the disclosure of evidence that the district attorney's office did not prosecute private citizens who committed similar acts, and would have supported his motion to dismiss the prosecution against him for invidious discrimination.
We begin with the principles behind a Murgia motion for discovery and dismissal, and then address defendant's contentions.
A. Discriminatory Prosecution
"In the ordinary case, 'so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his [or her] discretion.' [Citation.]" (United States v. Armstrong (1996) 517 U.S. 456, 464 (Armstrong); People v. Lucas (1995) 12 Cal.4th 415, 477.) "As a result, 'the presumption of regularity supports' their prosecutorial decisions and, 'in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.' [Citation.]" (Armstrong, supra, 517 U.S. at p. 464.) However, the People's discretion to prosecute and what to charge is subject to " 'constitutional constraints' " including "the equal protection component of the Due Process Clause of the Fifth Amendment ...." (Ibid.)
As first set forth in Murgia, supra, 15 Cal.3d 286, in order to establish a claim of discriminatory prosecution, " 'the defendant must prove: (1) "that he has been deliberately singled out for prosecution on the basis of some invidious criterion"; and (2) that "the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities." ' " (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832 (Baluyut), italics added; Murgia, supra, 15 Cal.3d at p. 298.) " '[A]n invidious purpose for prosecution is one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests ....' [Citation.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568-569.)
"Although referred to for convenience as a 'defense,' a defendant's claim of discriminatory prosecution goes not to the nature of the charged offense, but to a defect of constitutional dimension in the initiation of the prosecution. [Citation.] The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' [Citation.] When a defendant establishes the elements of discriminatory prosecution, the action must be dismissed even if a serious crime is charged unless the People establish a compelling reason for the selective enforcement. [Citations.]" (Baluyut, supra, 12 Cal.4th at pp. 831-832.)
"Unequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citations.] However, the unlawful administration by state officers of a state statute that is fair on its face, which results in unequal application to persons who are entitled to be treated alike, denies equal protection if it is the product of intentional or purposeful discrimination. [Citation.]" (Baluyut, supra, 12 Cal.4th at p. 832, italics added.)
"[A]n equal protection violation does not arise whenever officials 'prosecute one and not [another] for the same act' [citation]; instead, the equal protection guarantee simply prohibits prosecuting officials from purposefully and intentionally singling out individuals for disparate treatment on an invidiously discriminatory basis." (Murgia, supra, 15 Cal.3d at p. 297, italics added.)
B. Discovery
Murgia also set forth the related concept of a defense motion for discovery of evidence to support a claim of discriminatory prosecution. (Murgia, supra, 15 Cal.3d at pp. 291, 293, 305.) "[T]raditional principles of criminal discovery mandate that defendants be permitted to discover imformation relevant to such a claim." (Id. at p. 306.) "Evidence of discriminatory enforcement usually lies buried in the consciences and files of the law enforcement agencies involved ....' [Citation.]" (People v. Municipal Court (Street) (1979) 89 Cal.App.3d 739, 748.)
In order to obtain discovery in support of a claim of discriminatory prosecution, the defendant must produce " 'some evidence tending to show the existence of the essential elements of the defense,' discriminatory effect and discriminatory intent. [Citation.]" (Armstrong, supra, 517 U.S. at p. 468, italics added; People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1189-1190 (Baez).)
Armstrong explained there was a " 'background presumption,' [citation] that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims." (Armstrong, supra, 517 U.S. at pp. 463-464.) "If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy." (Id. at p. 468.)
"In order to succeed on an actual discriminatory prosecution claim, a defendant 'must demonstrate that the ... prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." ' [Citation.] 'The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.' [Citation.]" (Baez, supra, 79 Cal.App.4th at p. 1189, italics added; citing Armstrong, supra, 517 U.S. at p. 468.)
A defendant is thus entitled to discovery only "if the trial court concluded that he had produced 'some evidence' in support of his discriminatory prosecution claim." (Baez, supra, 79 Cal.App.4th at pp. 1190-1191.) We review orders that deny Murgia motions for discovery for an abuse of discretion. (Baez, supra, at pp. 1190-1191.)
With these standards in mind, we turn to the procedural history of defendant's Murgia motions and appellate contentions. C. Defendant's Pretrial Motions
After the preliminary hearing, defendant filed a motion to set aside the information pursuant to section 995, and argued the prosecution failed to prove he did not act in self-defense of his home and personal property. The court denied the motion.
Thereafter, defendant filed a motion to compel discovery and dismiss for discriminatory prosecution pursuant to Murgia. In stating the underlying facts of the charged offense, defendant described himself as "the homeowner" and declared that Aguero was "the burglar." Defendant asserted that Aguero committed a residential burglary because he entered defendant's "home" when he sat on his bunk in the prison dormitory and "stole" the photograph that belonged to defendant. Defendant asserts that while his assigned bunk did not have walls, it was "sufficiently partitioned" so that it constituted a "room within a building."
Defendant further argued that Aguero was "in perpetual violation" of the residential burglary statute because he returned to his own bunk with the stolen photograph, maintained possession of the picture, and he was never released from prison or moved to a different building, so that he never reached a place of temporary safety. Defendant also argued that Aguero's continued possession of the stolen photograph constituted another criminal violation for receiving stolen property.
Defendant asserted that the owner or possessor of property may use reasonable force to protect that property from imminent harm, and since Aguero was in "continuous violation" of the residential burglary statute, then defendant was justified as a "homeowner" when he punched Aguero the following day to regain possession of his property. Defendant argued his use of force was not unreasonable or disproportionate compared to Aguero's continuing commission of residential burglary and possession of stolen property.
Defendant concluded: "A reasonable state prisoner would have believed that allowing himself to be victimized by a predatory inmate like [Aguero] would lead to future thefts and assaults at the hands of all predatory inmates. As a result, a reasonable state prisoner would have believed that ignoring [Aguero's] felonies presented an imminent and ongoing danger to his personal safety and property. Under the circumstances, [defendant's] use of force was more than reasonable ...."
Based on this version of the underlying facts, defendant argued he was subject to discriminatory prosecution because there was evidence that the Kern County District Attorney's Office did not prosecute non-inmate homeowners and property owners, who used both nonlethal and lethal force to protect their homes and possessions against intruders. In support of this claim, defendant submitted copies of several newspaper articles that described such cases.
Defendant argued that based on Murgia, he was entitled to discovery of records from the district attorney's office to show that private citizens were not prosecuted for committing similar acts, consistent with the stories in the newspaper articles, and to support his motion to dismiss because he was subject to discriminatory prosecution based on his status as a state prisoner.
Defendant requested the court to order discovery of the following records from the Kern County District Attorney's office for the prior two years:
1. All cases reviewed by the district attorney's office, where a homeowner, store owner or employee, or property owner or possessor used or threatened force against a thief or burglar.
2. All such cases that the district attorney's office rejected for prosecution.
3. All such cases that the district attorney's office accepted for prosecution.
4. Any written or informal charging criteria reflecting charging policies used by the district attorney's office to decide whether or not to charge a homeowner, store owner or employee, or property owner or possessor, who used or threatened force against a thief or burglar.
Defendant's motion to dismiss was based on the presumption that his motion for discovery would result in evidence from the district attorney's office consistent with the newspaper stories, that private citizens were not similarly prosecuted and he was subject to invidious discrimination because he was an inmate. D. The People's Opposition
The People filed opposition to the motions for discovery and dismissal. The People took exception to defendant's declaration that his bunk bed was an occupied dwelling house or that a residential burglary could be committed within a state prison. The People further argued that a state prison inmate is not similarly situated to a private homeowner, and there was a reasonable basis for the enactment of section 4501, prohibiting a prisoner from committing an assault, given the "overarching need to promote prison safety, which is the main reason why the legislature distinguished assaults by inmates from assaults by defendants on the street...." The People argued defendant failed to show that the case was prosecuted against him based on any alleged discriminatory design as compared to other similarly situated prisoners. E. The Court's Hearing on the Motion
At the court's hearing on defendant's Murgia motions, defense counsel stated he was not challenging the validity of section 4501. Instead, counsel argued that defendant did not instigate this incident, and that he was entitled to take steps to prevent himself from becoming victimized in prison. Defense counsel stated that "the only reasonable inference" in this case was that defendant was being prosecuted because he was a state prisoner, which violated his constitutional rights and supported both his discovery and dismissal motions.
The prosecutor replied that prisoners were not a protected class under the Constitution, and a prisoner who commits a crime in prison was not similarly situated as a private homeowner.
Defense counsel agreed with the prosecutor that "as far as the protected status, one that's recognized for heightened scrutiny, would not include a prisoner." However, counsel argued defendant was still protected by the equal protection clause from arbitrary and capricious discrimination because non-inmates who use self-defense under similar circumstances are not charged with felonies, and defendant was only charged because he was a state prisoner.
The court denied defendant's motions for discovery and dismissal "for the grounds stated by the People." F. Analysis
On appeal, defendant reasserts his arguments that his Murgia motions for discovery and dismissal were improperly denied, and he was subject to invidious discrimination in violation of his right to equal protection when he was charged in this case because non-inmates in similar situations have not been charged with using force to defend their "homes" from "thieves."
Defendant's arguments are based on several underlying premises - that his lower bunk bed in an open dormitory was an "occupied dwelling house" for purposes of first degree residential burglary; that Aguero committed a residential burglary because he unlawfully entered defendant's "residence" when he sat on defendant's bunk bed and removed the photograph; Aguero's alleged burglary, theft of the photograph, and possession of stolen property constituted a continuing violation of section 459 because he remained in the same prison dormitory; and defendant was entitled as a "homeowner" to use physical force to retrieve his property from a "thief" who entered his "living space" when he punched Aguero and broke his jaw, over 12 hours after the alleged taking.
In reviewing defendant's arguments, we note that in People v. McDade (1991) 230 Cal.App.3d 118, the defendant and the victim were inmates in state prison and housed in separate cells. On two occasions, the defendant entered the victim's cell while the doors were open, and assaulted and robbed the victim. McDade held the defendant was properly convicted of two counts of first degree robbery perpetrated in an inhabited dwelling house. (Id. at pp. 127-128.) "[T]he record does indicate 'how vulnerable some inmates are to predators like [the defendant] and his cohort,' and we decline to hold that a jail cell in which seven or eight inmates live in not an inhabited portion of a building within the meaning of ... section 212.5." (Id. at p. 128, fn. omitted.)
We further note that a burglary is complete upon the defendant's unlawful entry with the requisite intent to commit a felony. (People v. Washington (1996) 50 Cal.App.4th 568, 578-579.) "[T]he crime of burglary is complete when an entry with the essential intent is made, regardless whether the felony planned is committed or not. [Citation.]" (People v. Walters (1967) 249 Cal.App.2d 547, 550; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377.) In certain contexts, such as for felony-murder liability or imposition of an enhancement for possession of a weapon, a burglary is treated as a continuing offense during the perpetrator's escape from the scene and until he reaches a place of temporary safety. (People v. Bodely (1995) 32 Cal.App.4th 311, 313-314; People v. Funtanilla (1991) 1 Cal.App.4th 326, 331, disapproved on other grounds in People v. Masbruch (1996) 13 Cal.4th 1001, 1010-1011.) Even if defendant's burglary theory were applied to this case, it is doubtful that the offense would have continued for over 12 hours after the initial taking under the circumstances.
As set forth above, however, in order to establish a claim of discriminatory prosecution in support of his motion for discovery under Murgia, " 'the defendant must prove: (1) "that he has been deliberately singled out for prosecution on the basis of some invidious criterion"; and (2) that "the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities." ' " (Baluyut, supra, 12 Cal.4th at p. 832, italics added.) " '[A]n invidious purpose for prosecution is one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests ....' [Citation.]" (Manduley v. Superior Court, supra, 27 Cal.4th at pp. 568-569.) "The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' [Citation.]" (Baluyut, supra, 12 Cal.4th at p. 831.)
Thus, in order to prevail in an equal protection argument, the defendant must first show that "the state has adopted a classification that affects similarly situated groups in an unequal manner. [Citation.]" (People v. McCain (1995) 36 Cal.App.4th 817, 819.) If two groups are not similarly situated, we need not analyze the equal protection claim any further. (In re Jose Z. (2004) 116 Cal.App.4th 953, 960.)
Even if we were to accept any of premises underlying defendant's Murgia arguments, defendant has failed to show that inmates housed in a correctional institution are similarly situated to private citizens in an occupied dwelling, such that the district attorney's decision to charge defendant with assault was based on an invidious and arbitrary classification.
Defendant was charged and convicted of violating section 4501, subdivision (b), which states:
"Except as provided in Section 4500 [which addresses assaults committed by prisoners serving life sentences], every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively."
"[T]he purpose of section 4501 ... is to promote prison safety by discouraging assaulting by prison inmates [citation], and to except any inmates from its operation would lessen its effectiveness and to some extent defeat its objective." (In re Smith (1966) 64 Cal.2d 437, 439-440, fn. omitted.)
Defendant argues that he is not challenging the validity of section 4501, but asserts that the district attorney's office violated his constitutional right to equal protection when it decided to charge him with assault simply because he was a prison inmate. To the contrary, defendant cannot raise an equal protection argument without acknowledging the nature and circumstances of his status as a prison inmate.
"[W]hile persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. [Citation.] These constraints on inmates, and in some cases the complete withdrawal of certain rights, are 'justified by the considerations underlying our penal system.' [Citations.] The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of 'institutional needs and objectives' of prison facilities, [citation], chief among which is internal security, [citation]. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction." (Hudson v. Palmer (1984) 468 U.S. 517, 524 (Hudson).)
"Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for anti-social criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others." (Hudson, supra, 468 U.S. at p. 526.)
" '[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' [Citations.]" (Pell v. Procunier (1974) 417 U.S. 817, 822.) Thus, the "general rule" is that "prisoners have a much lesser expectation of privacy than do other citizens. [Citations.]" (People v. Santibanez (1979) 91 Cal.App.3d 287, 290.) " 'A [person] detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment. [Citations.]" (Ibid.) Moreover, "[t]he fact that a prison society is a closed society does not make its temporary occupants unworthy of protection from assaults." (People v. Gardner (1976) 56 Cal.App.3d 91, 96, original italics.)
Thus, an inmate has no "reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures." (Hudson, supra, 468 U.S. at pp. 519, 525-526, 536.) In another context, the United States Supreme Court has observed: "Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (United States v. Knights (2001) 534 U.S. 112, 119, italics added.)
It is clear that prison inmates housed in a correctional institution are not similarly situated as private citizens in their own domiciles for purposes of an equal protection analysis. We find that charging defendant with committing an assault in prison, in violation of section 4501, based on his status as a prison inmate, did not infringe upon his constitutional right to equal protection or any other fundamental right. While private citizens who are not in custody, or subject to any type of custodial status or restrictions, may be lawfully entitled to engage in assaultive conduct under the appropriate circumstances, a prosecution for violating section 4501 in this case did not discriminate on the basis of a suspect classification.
Thus, the proper standard of review for defendant's equal protection challenge is the rational basis test. Defendant asserts that he used reasonable force to protect his property from theft and, if he had failed to do so, he would have been subject to further thefts and victimizations by other inmates. As explained above, the obvious purpose behind section 4501 is to maintain prison discipline and order. The statute is rationally related to that purpose because a situation where a prisoner believes he can willfully assault another prisoner for any type of infraction can lead to violent altercations. "Violence, justified in the name of preempting some future, necessarily speculative threat to life is the greater, not the lesser evil, particularly in the highly volatile environment of a prison institution." (People v. McKinney (1986) 187 Cal.App.3d 583, 587.)
The trial court properly denied defendant's Murgia motion for discovery and his related motion for dismissal. II. Evidence About Aguero's Alleged Prior Sexual Misconduct
Defendant next contends the court abused its discretion when it denied his motion to impeach Aguero's trial testimony with evidence that in an unrelated case, Aguero previously admitted committing sexual acts on a minor. Defendant argues such evidence was relevant and probative to impeach Aguero's trial testimony as to how and why he took the photograph from defendant's bunk, and particularly Aguero's claim that defendant punched him without provocation, compared to defendant's trial claim that he hit Aguero in self-defense because Aguero lunged at his throat.
A. Defendant's Motion
Defendant filed a pretrial motion to impeach Aguero's expected trial testimony with evidence that Aguero "engaged in several acts of sodomy and oral copulation with a minor culminating in his arrest in October 2012" by the Los Angeles Police Department, and that Aguero stole a cellphone and provided narcotics to this same minor. Defendant stated that during the investigation into the prior case, Aguero admitted to a Los Angeles Police Officer that he committed these sexual offenses against the minor, and wrote a letter of apology. Defendant admitted Aguero was not convicted of any offenses in that case. However, defendant argued that sodomy and oral copulation of a minor are acts of moral turpitude, and the failure to allow impeachment with these "prior bad acts" would put Aguero in a false positive light in front of the jury, even though Aguero was not convicted of any offenses.
1. Investigative Reports About 2012 Case
In support of his motion, defendant submitted two documents from the Los Angeles Police Department's investigation into Aguero's conduct with the male minor: a November 2012 police report summarizing the case, and the transcript of the investigating officer's interview with Aguero at that time. The investigation apparently began because of a dispute between Aguero and the minor about a stolen cellphone.
According to the investigative report, an officer from the Los Angeles Police Department arrested Aguero on November 7, 2012, for a violation of section 286, subdivision (c), sodomy with a minor. Aguero was taken to the police department and advised of the Miranda warnings, and he agreed to answer questions. The officer conducted a tape-recorded interview.
Aguero was 21 years old and the minor was 16 years old at the time of the investigation. However, Aguero told the investigating officer that he thought the minor was 17 or 18 years old at the time. Aguero said he met the minor when the boy was 12 years old. They had sex for the first time when Aguero was 19 or 20 years old, and the minor was 14 or 15 years old. Aguero claimed the minor allegedly "came onto" him. Aguero said that they had "consensual" sexual relations three times, which involved kissing, oral copulation, and sodomy. They had also smoked marijuana. The officer asked Aguero if he had sexual relations with young girls. Aguero said he did not have sex with girls. Aguero told the investigating officer that he realized the minor was under age, and Aguero was sorry and did not know why he did it.
After the interview with the officer, Aguero wrote an apology note to the minor and his mother. Aguero wrote that he was sorry and should have been "more adult," told the minor that they could no longer talk or see each other, and promised to replace the minor's cellphone. The investigative report ends with a statement that the matter was being referred to the district attorney's office.
B. The People's Opposition
The People moved to completely exclude any reference to any alleged unlawful sexual conduct between Aguero and the minor. The People stated that the case was investigated by the Los Angeles Police Department in 2012 and submitted to the district attorney's office. The district attorney's office referred the matter to the Los Angeles City Attorney's office for a possible misdemeanor filing, and the city attorney rejected the case, so that Aguero was not charged or convicted of any offenses based on the 2012 investigation.
The People argued any evidence about the 2012 investigation constituted improper impeachment, had no probative value, and created risk of undue prejudice.
C. The Court Excludes Evidence of Aguero's 2012 Arrest
Prior to trial, the court conducted a hearing on the parties' motions about whether Aguero could be impeached with the 2012 incident based on the reports from the Los Angeles Police Department. The court stated that its tentative ruling was to exclude evidence of Aguero's alleged commission of sex offenses against a minor because it was irrelevant and prejudicial, and did not result in the filing of any criminal charges or a conviction.
Defense counsel argued that Aguero admitted that he committed acts of moral turpitude against a minor, and the evidence was relevant and admissible to impeach his credibility even though he was not charged or convicted, pursuant to People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler).
As we will discuss below, Wheeler held that a testifying witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at pp. 290-296.)
The court agreed that such allegations constituted acts of moral turpitude "if he was convicted or if it was established that he was guilty," but "there's a leap you're making there." (Italics added.) Defense counsel replied that Wheeler allowed impeachment of a testifying witness with prior acts of moral turpitude that did not result in convictions. Defense counsel asked the court to review the documents from the Los Angeles Police Department that were filed in support of his motion.
The court stated:
"I accept the facts that there is evidence of - contesting is another issue, but there is evidence that the defendant admitted, and under certain circumstances, I have no doubt that the Court would have discretion to admit that.
"But in this case ... I still have two reasons for excluding it. Number one, I don't believe it's specifically relevant to the issue of truthfulness. I recognize that it is an act of moral turpitude and would be admissible in other circumstances for impeachment, but the Wheeler case tells me that they're looking only at past criminal conduct which has a logical bearing on the veracity of a witness, which suggests to me that the standard is a little bit different....
"... I don't believe that either one of those cases compel me to accept that evidence as relevant to ... Mr. Aguero's veracity as a witness. But even if they did, the nature of the allegations are so abhorrent that I can't imagine that Mr. Aguero would not want to put on a defense to those which would consume time, but also I think it would be unduly prejudicial. I recognize Mr. Aguero is not the defendant and we have special concerns about prejudice accruing to defendants, but I would exclude it under [Evidence Code section] 352 as well...." (Italics added.)
Defense counsel did not dispute that charges were not filed against Aguero, and complained about the alleged "laziness of the Los Angeles County District Attorney's Office." Defense counsel suggested any prejudice could be addressed by a limiting instruction that the evidence could only be considered for the credibility of Aguero's trial testimony.
The prosecutor replied that it would be unduly prejudicial for an inmate who was a victim of a violent crime to be characterized as a child molester when charges were not filed against him. The prosecutor said that according to a note in the investigative file, the Los Angeles City Attorney determined there was not enough proof to file charges against Aguero, "[a]nd if the city attorney couldn't figure that out, after it ran through the D.A.'s office, when it was their sole job to figure out whether to file charges, I don't know how we're expected to deal with that finding of fact in a criminal case where this is a secondary issue."
The court stated that even if the People had moved to introduce evidence that Aguero was convicted of committing sexual offenses against a minor, it would have either excluded the evidence or sanitized the prior conviction as too prejudicial. The court again denied defendant's motion:
"It seems to me that this is clearly a case where the Court should be expected to exercise discretion and, quite frankly, I think appellate courts may very likely view it as an abuse of discretion if I was to admit that evidence.
"I don't mean to suggest that [Evidence Code section] 352 is the only reason for my ruling, although it may be the stronger reason, but for all the reasons I previously cited, I will exclude any evidence of those activities, accusations, however you want to characterize it.... [¶] ... And I will take a very dim view if anyone bombs in any reference in front of the jury, either to the sentence or this incident involving the minor. Anyone that does that runs the risk of being chastised in front of the jury."
D. Defendant's Renewed Motion
As set forth in the factual statement, Aguero testified for the prosecution. Defendant testified that the photograph that Aguero took from his bunk showed his wife's back and behind, and she was wearing lingerie.
After defendant testified, defense counsel asked the court to reconsider its earlier ruling about Aguero's prior admissions that he sexually molested a minor. Counsel argued that the trial evidence showed that Aguero took a photograph that showed defendant's wife wearing lingerie and part of her body. Counsel argued that the prior sexual molestation allegations, and Aguero's admissions that he committed the acts against a minor, were admissible under Evidence Code section 1101, subdivision (b), because it established Aguero's motive for taking that particular photograph, that Aguero was "a sexual deviant." Counsel argued that taking that particular picture was "creepy, that is weird, he's weird guy because he's a sexual deviant."
The prosecutor replied that Aguero's motive for taking the picture was irrelevant to the case, and Aguero did not have any prior convictions for "sexual deviancy." The prosecutor reminded the court that Aguero was never charged or convicted of any offenses arising from the 2012 investigation.
The court declined to change its original evidentiary ruling.
"First of all, if we considered every male that looked at a photograph of a woman in lingerie as evidence of sexual deviancy or criminal behavior, we could fill up the jail probably from this building alone.
"The evidence, itself, as I previously noted when I made the original ruling, is of an uncharged offense, an offense that was rejected by the prosecuting authority. There is no conviction.
"I do not want to get involved in the necessity of having Mr. Aguero come and defend his conduct and, essentially, have a second trial on some matter that occurred many years ago in Los Angeles and involved a number of LAPD officers and an alleged victim." (Italics added.)
E. Analysis
Defendant contends the court abused its discretion when it denied his motion to impeach Aguero's trial testimony with his admission to the Los Angeles police officer of his "prior bad acts," that he had sex with a minor in 2012. Defendant argues this evidence was relevant and probative because it supported the defense claim that Aguero "repeatedly committed criminal acts and was not credible," and that defendant "acted" against Aguero to protect "himself and his property, and responded "to a very real threat that Aguero and other inmates would prey upon him."
Defendant further argues the evidence of Aguero's "pending criminal case" about having sex with a minor was admissible because it involved acts of moral turpitude, and it was relevant to attack the "false impression" that Aguero was "not a bad person" even though "he had repeatedly committed bad, even criminal acts, leading up to his incarcerations," including having sex with a minor.
"Subject to the trial court's discretion under Evidence Code section 352, the California Constitution, article I, section 28, subdivision (f), 'authorizes the use of any felony conviction which necessarily involves moral turpitude [to impeach a witness], even if the immoral trait is one other than dishonesty. On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.' [Citation.] Thus a 'prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.' [Citation.] Crimes involve moral turpitude when they reveal dishonesty, a ' "general readiness to do evil," ' ' "bad character," ' or 'moral depravity.' [Citation.] Such crimes involve an act of baseness, vileness, or depravity in the private and social duties which a person owes to others or to society in general, contrary to the accepted and customary rule of right and duty between people. [Citation.]" (People v. Gabriel (2012) 206 Cal.App.4th 450, 456.)
"It is well established that child molesting in California law is a crime of moral turpitude for impeachment and other purposes. [Citations.]" (People v. Massey (1987) 192 Cal.App.3d 819, 823.)
Beyond the foundational requirement of moral turpitude, a " 'court should consider, among other factors, whether [the prior felony conviction] reflects on the witness's honesty or veracity, whether it is near or remote in time, [and] whether it is for the same or similar conduct as the charged offense ....' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 722.)
In contrast to felony convictions, the fact of a prior misdemeanor conviction is inadmissible hearsay when offered to impeach a witness's credibility. (People v. Chatman (2006) 38 Cal.4th 344, 373; Wheeler, supra, 4 Cal.4th at pp. 288, 298-299.) However, a witness may be impeached with any prior conduct involving moral turpitude, whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at pp. 290-296; People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).) "Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited conduct which resulted in a felony conviction." (Wheeler, supra, 4 Cal.4th at pp. 295-296.)
"Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, '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.]" (Clark, supra, 52 Cal.4th at pp. 931-932.) In such situations, "the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Wheeler, supra, 4 Cal.4th at p. 296.) A reviewing court ordinarily will uphold the trial court's exercise of discretion. (Clark, supra, 52 Cal.4th at p. 932.)
The court in this case did not abuse its discretion when it denied defendant's motion to impeach Aguero with evidence about the 2012 investigation and his prior statements to the investigating officer. First, Aguero was already subject to impeachment with his prior felony conviction for a theft-related offense. While committing sexual acts against a minor involves moral turpitude, such evidence would have been highly inflammatory in a case which, at most, involved Aguero's theft of defendant's picture and defendant's decision to assault Aguero with such force that he broke Aguero's jaw. There was no evidence that the dispute between Aguero and defendant involved any type of sexual relations, sexual assault, or misconduct involving a minor.
Second, defendant asserts that the 2012 investigation involved a "pending" case. There is no evidence that there were any pending charges against Aguero. As explained above, defendant submitted the investigative report from the Los Angeles Police Department in support of his motion to impeach Aguero. This report consists of hearsay, but the parties relied on the contents of the report for the limited purpose of their offers of proof about whether evidence about the 2012 case was admissible. The police report stated that Aguero was arrested for violating section 286, subdivision (c), sodomy with a minor, and the matter referred to the district attorney's office. It is well-settled that evidence of "mere arrests" is inadmissible to impeach a witness. (People v. Anderson (1978) 20 Cal.3d 647, 650; People v. Medina (1995) 11 Cal.4th 694, 769; People v. Lopez (2005) 129 Cal.App.4th 1508, 1523.)
In addition, the prosecutor in this case advised the court, as a further offer of proof, that the Los Angeles County District Attorney's Office did not file felony charges against Aguero, the district attorney referred the matter to the city attorney's office for a possible misdemeanor case, and that misdemeanor charges were not filed. Defense counsel did not dispute the prosecutor's offer of proof, and instead complained that charges were not filed because of the "laziness" of the Los Angeles District Attorney's Office, but he did not offer any further explanation to support this assertion.
Third, defense counsel failed to account for the hearsay nature of the evidence about the 2012 investigation. Counsel apparently assumed that he could have cross-examined Aguero and asked whether he had previously admitted that he committed acts of sodomy and oral copulation with a minor. Given the prosecutor's vigorous opposition to this impeachment, there was no indication that a stipulation could have been reached between the parties on this subject. If Aguero denied making the statements to the Los Angeles police officer, or that he engaged in such conduct with the minor, then defendant would have been compelled to introduce admissible evidence of Aguero's prior inconsistent statements, such as calling the investigative officer from the Los Angeles case to testify about Aguero's statements during the 2012 interview. The prosecution would have been entitled to introduce evidence to refute any aspects of the 2012 investigation, including the appropriate witnesses to testify that both the district attorney and city attorney declined to file charges against Aguero, and possibly the reasons for those decisions. The trial court did not abuse its discretion to exclude this evidence and avoid a "nitpicking war[] of attrition over collateral credibility issues." (Wheeler, supra, 4 Cal.4th at p. 296.)
Next, defendant argues the evidence was admissible to show Aguero "was not a good guy, but someone who was good at escaping responsibility for his bad acts," since he admitted having sex with a minor even though he knew it was wrong. These arguments are similar to the arguments that defense counsel made in the midst of trial, when he renewed his motion to introduce evidence of the 2012 case. Counsel argued Aguero's prior admissions that he had sex with a minor were admissible to show his motive in this case pursuant to Evidence Code section 1101, subdivision (b), and that Aguero was a "sexual deviant" and stealing the photograph was "creepy, that is weird, he's a weird guy because he's [a] sexual deviant."
The court properly denied defendant's renewed motion. "Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. [Citations.] This ban against admitting character evidence to prove conduct, however, does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity [or motive], and does not affect the admissibility of evidence regarding the credibility of a witness [citation]. [Citation.] The Legislature has also created specific exceptions to the rule against admitting character evidence in cases involving sexual offenses [citation], and domestic violence, elder or dependent abuse, or child abuse [citation]. [Citation.]" (People v. Villatoro (2012) 54 Cal.4th 1152, 1159, citing Evid. Code, §§ 1101, 1108, 1109.) As with impeachment evidence, evidence of uncharged misconduct " 'is so prejudicial that its admission requires extremely careful analysis' " and to be admissible, such evidence " 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citation.]' [Citations.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404; People v. Kipp (1998) 18 Cal.4th 349, 371.)
We have already explained that the court did not abuse its discretion when it excluded evidence of the 2012 incident to impeach Aguero's trial testimony. We further conclude that the court properly denied defendant's renewed motion to introduce this evidence to purportedly show that Aguero's motive - that he was "creepy," a "sexual deviant," and "a weird guy." This theory went far beyond attempting to impeach the credibility of Aguero's trial testimony with prior acts of moral turpitude, but instead amounted to defendant's attempt to introduce inadmissible character and propensity evidence. The dispute between defendant and Aguero did not involve any alleged sexual relationship or misconduct, such that propensity evidence was inadmissible in this case, even under the provisions of Evidence Code section 1108, which permits propensity evidence in criminal prosecutions for sexual offenses.
While the court denied defendant's renewed motion to introduce this evidence to show that Aguero was a "sexual deviant" and "creepy," defense counsel used closing argument to raise these suggestions. Counsel cited defendant's trial testimony, that he suspected Aguero performed a sexual act while looking at his wife's photograph, and argued that was "creepy."
1. Due Process Clause
Finally, defendant asserts that the court's decision to exclude this evidence violated his constitution right to confront and cross-examine witnesses, and was not harmless beyond a reasonable doubt under the standard of Chapman v. California (1967) 386 U.S. 18.) "[N]ot every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] ... Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Contrary to defendant's assertions, Aguero did not testify before the jury under the false impression of being "a good guy." The jury was well-aware that Aguero was an inmate in a state prison, he had been convicted of a theft-related felony offense, he took the picture from defendant's bunk bed without defendant's knowledge or permission, and he did not return it until defendant asked for it. The court's evidentiary ruling was well within its discretion and did not amount to a violation of defendant's constitutional rights. III. CALCRIM No. 362
Defendant next contends the court improperly granted the prosecution's motion to instruct the jury with CALCRIM No. 362, false statements, and argues the instruction was not supported by substantial evidence that defendant made any false statements, the instruction predisposed the jury to find that he made false statements, and it improperly shifted the burden away from the prosecution.
A. Background
During the instructional phase, the court said that the prosecution had requested CALCRIM No. 362, and it was inclined to give it. Defense counsel objected because the instruction required "an admission that there was a false statement." The court replied that was not an element, and it expected the prosecution to argue that "some of the statements that we've heard about the testimony are false."
The court gave the instruction without further comment.
"If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude
defendant made the statement, it is up to you to decide its meaning and importance; however, evidence that the defendant made such a statement cannot prove guilt by itself."
B. Analysis
CALCRIM No. 362 is properly given if there is evidence from which the jury can rationally infer that the defendant made a false statement to deflect suspicion from himself. (People v. Barnwell (2007) 41 Cal.4th 1038, 1057.) " 'False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt. [Citations.]' [Citations.]" (People v. Flores (2007) 157 Cal.App.4th 216, 221.)
The false nature of the defendant's statement may be shown by inconsistencies in the defendant's own testimony, his or her pretrial statements, or by any other prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 497-498.) "The falsity of a defendant's pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendant's testimony at trial." (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103.) Accordingly, "[a] trial court properly gives consciousness of guilt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instructions. [Citation.]" (People v. Bowman (2011) 202 Cal.App.4th 353, 366.)
CALCRIM No. 362 has been held to be a correct statement of the law and does not run afoul of constitutional strictures. (People v. Howard (2008) 42 Cal.4th 1000, 1025; People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159.) In addition, CALCRIM No. 362 does not permit the jury to draw irrational inferences of guilt where there is a basis for the jury to make an inference that the defendant made a self-serving statement to protect himself. (People v. Howard, supra, 42 Cal.4th at p. 1025; People v. Alexander (2010) 49 Cal.4th 846, 922.) The cautionary nature of the instruction benefits the defense since "the jury need not believe the prosecution's evidence suggesting that the statement was false, and even if it finds that the statement was false, it need not conclude that defendant deliberately lied to hide his complicity in the crime. In brief, the question is one of weight, not admissibility." (People v. Kimble, supra, 44 Cal.3d at p. 498; People v. Edwards, supra, 8 Cal.App.4th at p. 1103.) It also benefits the defendant because it admonishes the jury that it may consider the evidence, but the evidence is not sufficient by itself to prove guilt. (People v. Kelly (1992) 1 Cal.4th 495, 531; People v. Jackson (1996) 13 Cal.4th 1164, 1224.)
We conduct a de novo review of claims of instructional error. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
CALCRIM No. 362 was supported by the entirety of the evidence in this case. The prosecution introduced Aguero's testimony that on Friday, November 29, 2013, defendant punched him on the right side of the face, and that he did so with such force that he fractured Aguero's jaw, and inflicted a cut that went through Aguero's lip and into his mouth. On Sunday, December 1, 2013, Aguero admitted to Sergeant Vega that another inmate hit him but claimed he could not identify the suspect. Sergeant Vega directed the prison staff to search all inmates and look for injuries consistent with a physical altercation. The officers discovered defendant had scratches on his knuckles consistent with an assault. Defendant told prison authorities, and wrote to this wife, that his knuckles were scratched while playing basketball on Saturday.
At trial, defendant admitted that he punched Aguero but claimed he did so in self-defense. Defendant said it was simply a reaction to Aguero's alleged conduct of grabbing defendant's throat and tried to minimize the force of the blow.
Nevertheless, CALCRIM No. 362 was supported by substantial evidence. The jury could have rationally inferred that defendant made false statements when he claimed his hand was scratched during a basketball game, based on Aguero's testimony that defendant punched him, and the undisputed evidence of the serious nature of Aguero's injuries. The jury could have reasonably believed that defendant's knuckles were scratched when he delivered a single blow to Aguero's face that was so powerful that he broke Aguero's jaw, and inflicted a cut that went through Aguero's lip and into his mouth. Such a conclusion would have undermined defendant's claim that he threw a punch at Aguero in reaction to Aguero's act of grabbing his neck. IV. The Court's Ruling as to the Burdens of Proof
Defendant's final contention is the court abused its discretion when it granted the prosecution's motion in limine that prevented defense counsel from discussing the different burdens of proof in closing argument.
A. Background
During the motions in limine, the prosecutor moved for the court to issue a mutually binding order to prohibit both sides from referring to the lesser standards of proof—preponderance of the evidence or clear and convincing evidence - in order to prevent "misstating, exaggerating or improperly attempting to educate the jury regarding the burden of proof."
Defense counsel objected and argued the other two burdens were relevant because "it's showing lesser standards of proof than proof beyond a reasonable doubt."
The court granted the prosecutor's motion and overruled defendant's objections:
"... I'm not saying that you can't make arguments that I have typically heard from you and other defense attorneys about, you know, someone's probably guilt, possibly guilty, et cetera. But ... it is the role of the court to instruct on the law, and in the context of a criminal case, it would be highly unlikely that I would be instructing on preponderance or clear and convincing evidence."
The court also considered defendant's motion in limine to prohibit the prosecutor from "analogizing to the standard of proof beyond a reasonable doubt." The court stated it had already addressed this issue and ordered "both parties not to misstate the law with respect to the burden of proof."
Defense counsel again objected and asked to submit contrary authorities. The court stated that it would reconsider the ruling upon request, but defendant did not again raise the issue.
B. Closing Argument
Prior to closing argument, defense counsel advised the court that he wanted to use a chart during argument. The prosecutor objected. Defense counsel said his normal practice was to use a chart about "the preponderance and probable cause and clear and convincing" standards, but he would use another chart instead. The court said counsel's first suggestion would violate its order not to talk to the jury about other burdens of proof. The court looked at defense counsel's chart, and overruled the prosecutor's objection and said that counsel could use it.
Defense counsel did not make any offers of proof as to how his argument would have been different in the absence of the court's ruling.
In closing argument, the prosecutor correctly stated the People's burden of proving defendant's guilt beyond a reasonable doubt, and that it included the burden to prove beyond a reasonable doubt that defendant did not act in self-defense.
In defense counsel's closing argument, counsel used a chart that addressed the rigorousness of the People's burden of proof beyond a reasonable doubt. In rebuttal, the prosecutor argued the jury should ignore defense counsel's chart and only rely on the court's instructions about the burden of proof.
C. Analysis
Defendant argues that the court's order violated his constitutional right to present a defense by limiting the nature of closing argument to prevent him from explaining the People's burden of proof beyond a reasonable doubt by comparing it to the lesser standards of proof.
A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. (Herring v. New York (1975) 422 U.S. 853, 862-865; People v. Marshall (1996) 13 Cal.4th 799, 854-855; People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) It is also true that counsel should be given wide latitude in closing argument. (People v. Farmer (1989) 47 Cal.3d 888, 922, disapproved on unrelated ground People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) However, it is equally settled that "a judge in a criminal case 'must be and is given great latitude in controlling the duration and limiting the scope of closing summations.' [Citations.]" (People v. Rodrigues, supra, 8 Cal.4th at p. 1184.) The court's limitations on closing argument are reviewed for an abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 110.)
"California law imposes a duty on the trial court to instruct the jury in a criminal case on the presumption of innocence in favor of the defendant and the prosecution's burden of proving guilt beyond reasonable doubt. Specifically, Evidence Code section 502 requires a trial court to instruct the jury concerning which party bears the burden of proof on each issue, and the applicable standard of proof. The prosecution's burden of proof in a criminal case is controlled by section 1096 of the Penal Code, the substance of which has, in turn, been incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90 and CALCRIM No. 220. Tracking the language of section 1096, the standard instructions describe the presumption of innocence and the requirement of proof beyond a reasonable doubt, and provide the legislatively approved definition of reasonable doubt. A court satisfies its statutory obligation to instruct on these principles by giving CALJIC No. 2.90 or CALCRIM No. 220. As section 1096a explains, '[i]n charging a jury, the court may read to the jury Section 1096, and no further instruction on the ... presumption of innocence or defining reasonable doubt need be given.' " (People v. Aranda (2012) 55 Cal.4th 342, 352-354, fns. omitted.) Moreover, courts have cautioned against any elaboration or attempt to clarify or improve the language of the standard instructions. (People v. Johnson (2004) 119 Cal.App.4th 976, 985-986.)
The court did not abuse its discretion when it ordered both parties not to misstate the law on the burden of proof or compare that burden to the lesser standards. While defendant complained the court's ruling prevented him from presenting a defense, he never suggested how his closing argument would have addressed the lesser standards without misrepresenting the People's burden of proof. In light of authority that CALCRIM No. 220 is a complete and accurate statement of the law and authority cautioning against elaboration, we conclude that the trial court did not abuse its discretion or otherwise err in its ruling.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.