Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA065616. Joseph E. DiLoreto, Judge.
Law Offices of James M. Hodges, James M. Hodges; The Cochran Firm and Al F. Amer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Dominique Tanks appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with firearm discharge findings. Defendant contends the trial court erred by holding an evidentiary hearing in his absence, denying his motion to exclude statements he made to the police, and refusing to let a defense surrebuttal witness testify. We affirm.
BACKGROUND
On the night of December 2, 2004, defendant exchanged gunfire with security guard Noe Fernandez outside of the grocery store that employed Fernandez. Fernandez suffered two bullet wounds and died. Defendant, who was 16 years old, was shot three times on the legs and once in the abdomen. Ballistics evidence, recordings from security cameras, eyewitness testimony, clothing and bullets found in the car in which defendant arrived at the hospital, and defendant’s own statements and testimony established defendant’s identity as the person who shot Fernandez. (Defendant attempted to tell—and have his girlfriend tell—the police a false story about being shot during a road rage incident.)
Ilalia Benfield, who was dating defendant at the time of the shooting, testified that defendant once told her he was a member of a Crips gang in Long Beach. In defendant’s bedroom the police found a newspaper article referring to gang members who had been killed. Someone had written on the article and circled several of the photos included in the article, including that of John Butler. Officers found in defendant’s room a separate photograph of Butler wearing a Pittsburgh Steelers hat and making a gang hand sign. They also found a photograph of defendant in which he was making a Rollin’ 20’s Crips gang hand sign and photographs of other people making hand signs for the same gang. Officers also found a Pittsburgh Steelers jersey in defendant’s room. The prosecution’s gang expert testified that the Rollin’ 20’s Crips gang identified with the colors of black and yellow, and that they often wore Pittsburgh Steelers garb. The expert had never encountered defendant and could find no information in any police database indicating defendant was a gang member or associate. Nonetheless, the expert opined that defendant either was a member or was going on his first mission to become a member of the Rollin’ 20’s Crips gang and that the charged crime was gang-related within the meaning of Penal Code section 186.22, subdivision (b). (All further statutory references pertain to the Penal Code unless otherwise specified.)
Defendant testified that he was at the scene of the shooting to meet a girl. The gun he was carrying in his waistband dropped down inside his jeans and ultimately fell out on the ground. Defendant reached to pick up the gun and Fernandez shot him. Defendant tried to flee, but Fernandez kept firing, so defendant returned fire. Defendant denied that he was a gang member.
Defendant’s original trial resulted in a hung jury and a mistrial.
The jury at the retrial convicted defendant of first degree murder and found that in the commission of the offense, defendant personally and intentionally fired a gun, causing death (§ 12022.53, subd. (d)). The jury found that a gang enhancement allegation was not true. The court sentenced defendant to prison for 50 years to life.
Defendant filed a timely appeal. The attorney appointed by this court to represent defendant on appeal filed a no merit brief under People v. Wende (1979) 25 Cal.3d 436, 441. Defendant then substituted retained counsel, who filed a supplemental opening brief raising specific issues on the merits and seeking reversal of defendant’s conviction. This court deemed the appeal to no longer be a proceeding under the strictures of Wende, deemed the supplemental opening brief to be the opening brief, and directed the Attorney General to file a responsive brief. We now resolve the issues raised in the supplemental opening brief and have not independently reviewed the record as we would if this had remained a Wende appeal. (Id. at p. 442.)
DISCUSSION
1. Defendant’s absence from hearing
Defendant contends that the trial court violated his constitutional and statutory rights to be present during trial proceedings when it ruled upon his motions in limine in his absence on November 6, 2006. (All further date references pertain to 2006, unless otherwise noted.) The court’s minute order for that date indicates defendant was in lock-up, but not in the courtroom. The court first discussed scheduling matters with counsel, then addressed defendant’s four motions in limine: to prevent the prosecution’s gang expert from testifying to defendant’s intent and to exclude a newspaper article found in defendant’s bedroom and defendant’s statement to Officer Matthew Whybrew and his subsequent statement to Detectives Daniel Mendoza and Scott Lasch. Counsel argued the motions but introduced no evidence regarding any of them. The court denied the motions to exclude the newspaper article and defendant’s statement to Detectives Mendoza and Lasch and deferred ruling upon the permissibility of the gang expert’s testimony regarding defendant’s intent, pending the introduction of sufficient evidence establishing that defendant was a gang member. Defense counsel informed the court that he wanted an Evidence Code section 402 hearing on the motion to exclude the statement defendant made to Officer Whybrew. Counsel agreed to have the evidentiary hearing that afternoon, but for reasons that do not appear in the record, the hearing was not conducted until the next day. Finally, the court and counsel discussed the witness list.
Defendant was present in the courtroom when proceedings resumed on November 7. The court addressed defendant: “Mr. Tanks, yesterday the situation was that we had no deputies. And in an attempt to try to move this case along, there were some preliminary motions called motions in limine which were made out of your presence and your attorney indicated that he’d spoken to you and you had no objection to proceed without your presence. [¶] Is that your understanding?” Defendant replied, “Yes.”
The court then conducted an evidentiary hearing at which Officer Whybrew testified, as described in the next section. The court denied defendant’s motion to exclude the statement he made to Whybrew.
The Sixth and Fourteenth Amendments of the federal Constitution, article I, section 15 of the California Constitution, and Penal Code sections 977 and 1043 establish a defendant’s right to be personally present at his trial. (People v. Wallace (2008) 44 Cal.4th 1032, 1052.) A defendant does not have a protected right to be present at every proceeding, only those in which his or her presence either bears a reasonable and substantial relation to the opportunity to defend against the charges or would contribute to the fairness of the procedure. (Ibid.; People v. Harris (2008) 43 Cal.4th 1269, 1306.) Sections 977 and 1043 require the defendant’s presence or a written waiver only when the aforementioned standard has been met. (Wallace, supra, 44 Cal.4th at p. 1052.) Defendant must show that a violation of the right to be present resulted in prejudice or violated the right to a fair and impartial trial. (Ibid.)
The proceedings on November 6 involved only legal arguments and trial management discussions. No evidence was taken and nothing that was discussed was a matter to which defendant could have personally contributed. Defendant’s presence would not have made any difference in the outcome of any matter discussed, and was thus neither substantially related to his opportunity to defend nor likely to have contributed to the fairness of the proceedings.
Also, defendant agreed to let the court conduct proceedings in his absence. Because defendant had no protected right to be present at the November 6 proceedings, his oral waiver was effective.
2. Denial of motion to exclude defendant’s statements
Defendant contends that the trial court erred by denying his motions in limine to exclude the statements he made to the police at the hospital on the grounds they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda). We address each of the statements in turn.
a. Unwarned statement to Whybrew
Defendant sought to exclude his statement to Officer Whybrew because the officer did not advise him pursuant to Miranda, supra, 384 U.S. at page 444. Before interrogating a person who is in “custody or otherwise deprived of his freedom of action in any significant way,” the police must first warn the person “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (Ibid.) Statements obtained in violation of this rule may not be used to establish guilt. (Ibid.)
Whybrew was the only witness at the Evidence Code section 402 hearing regarding the statement defendant made to him at the hospital. Whybrew testified that the police dispatcher directed him and his partner to go to Memorial Hospital, where a gunshot victim was being treated. Whybrew knew that there had been a shooting around an hour earlier at Willow and Baltic and that officers were searching for a gunman, but he had no additional information about the shooting and did not know “what kind of suspect [police] were looking for.” At the hospital, Whybrew saw defendant and saw that he had gunshot wounds to his legs. Whybrew “just asked [defendant] what happened,” and defendant began speaking about the shooting. The record does not indicate that either officer asked defendant any other questions.
The trial court found that Whybrew knew only that there had been an earlier shooting and that a gunshot victim was at the hospital, but had no other information about the shooting, including the identity of the victim or suspect, and had not interacted with any officers investigating the shooting. The court concluded Whybrew “had a mandatory duty to at least speak to the gunshot victim to determine... whether or not he was a victim or anything else based upon that limited information. [¶] The fact that... defendant had not been stopped or in custody, had not even been detained by the police department or any other law enforcement agency, the court finds it was not in custodial interrogation. [¶] There was no need to administer the Miranda rights at that point in time.” The trial court denied the motion to exclude defendant’s statement to Whybrew.
Miranda warnings are required only when a person is subjected to “custodial interrogation.” (Miranda, supra, 384 U.S. at p. 444.) “Custody” in this context includes both actual custody and any situation in which a person has been deprived of his freedom of action in any significant way. (People v. Mickey (1991) 54 Cal.3d 612, 648.) To determine whether a defendant was in custody, a trial court must examine the totality of the circumstances surrounding the interrogation to determine whether a reasonable person in the defendant’s position would have considered himself at liberty to terminate the interrogation and leave. (People v. Ochoa (1998) 19 Cal.4th 353, 401–402; People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury).)
Courts have identified a variety of circumstances relevant to the determination of whether the defendant was in custody, including the following: whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the defendant voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the defendant that he or she was under arrest or in custody; whether they informed the defendant that he or she was free to terminate the interview and leave at any time or whether the defendant’s conduct indicated an awareness of such freedom; whether there were restrictions on the defendant’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the defendant was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, or accusatory; whether the police used interrogation techniques to pressure the defendant; and whether the defendant was arrested at the end of the interrogation. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) No single factor is dispositive; their interplay and combined effect must be assessed. (Ibid.)
Evidence of a police officer’s subjective suspicions or beliefs is relevant only (1) if such views or beliefs are somehow communicated or manifested to the defendant and would affect how a reasonable person in his or her position would perceive his or her freedom to leave, or (2) to test the credibility of the officer’s account of what happened during the interrogation. (Stansbury, supra, 9 Cal.4th at p. 830.)
On appeal, we accept the trial court’s findings of historical fact if supported by substantial evidence but independently determine whether defendant was in custody. (Stansbury, supra, 9 Cal.4th at p. 831.)
Under the totality of the circumstances, defendant was not in custody when Whybrew spoke to him at the hospital. Defendant was in a hospital, in the care of the hospital’s medical staff. Whybrew and his partner were the only police officers present at that time. This was not a police-dominated atmosphere or one in which defendant was removed from the view of hospital staff. He was not under arrest or handcuffed. Nothing indicates he was physically restrained, and “[a]ny restraint of defendant’s freedom of action was caused by the need to treat his gunshot wound[s]....” (People v. Mosley (1999) 73 Cal.App.4th 1081, 1091 [wounded defendant who called 911 and was being treated by paramedics in route to hospital was not in police custody when sheriff’s deputy who entered ambulance asked him what happened].) The single question Whybrew asked defendant was not aggressive, confrontational, or accusatory. Whybrew did not manifest a belief in defendant’s guilt, use any interrogation techniques, or otherwise pressure defendant to incriminate himself. Under all of these circumstances, a reasonable person in defendant’s position would not have considered himself to be in police custody. The trial court correctly ruled that Whybrew was not required to give defendant Miranda warnings before asking him what happened.
b. Warned statement to Mendoza and Lasch
It was undisputed that Detectives Daniel Mendoza and Scott Lasch warned defendant pursuant to Miranda and that defendant signed a written waiver of his rights. Prior to the retrial, defendant renewed his motion in limine to exclude his statement to the detectives on the ground that his waiver was involuntary, arguing that he “was in no mental and physical condition to understand and waive his [Miranda] rights. He was very medicated and even had to be assisted when executing the Advisement of Legal Rights Form.” Citing title 18 United States Code section 5033, the motion further argued that defendant’s waiver was invalid because his parents had not been “notified of his custodial situation.” He also argued that he invoked his right to silence during the interrogation by closing his eyes and remaining silent before making a further statement.
When the court heard the motion in limine, defense counsel did not seek to introduce any evidence and did not ask the court to review the transcript of Mendoza’s testimony when a nearly identical motion was heard prior to the original trial. Counsel argued only that when defendant signed the waiver form “he was already medicated” with morphine. The court responded that morphine was “not the kind of drug in and of itself that would make statements made by a person unreliable, it’s just a painkiller. I mean, this is not psychotropic... it’s not the kind of drug that can alter your mental state. It’s just a painkiller.” The court offered counsel the opportunity to provide “evidence that morphine can affect a person’s cognitive values,” but counsel did not pursue the issue.
A defendant may knowingly and intelligently waive the rights to silence and the presence of counsel following advisement and an opportunity to exercise them. (Miranda, supra, 384 U.S. at p. 479.) Such a waiver must be voluntary, that is, the product of a free and deliberate choice, and made with a full awareness of the nature of the right waived and the consequences of such a waiver. (Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135].) In determining whether these criteria are met, the totality of the circumstances must be considered, keeping in mind the particular background, experience, and conduct of the suspect. (Ibid.; North Carolina v. Butler (1979) 441 U.S. 369, 374–375 [99 S.Ct. 1755].) The state must demonstrate the validity of the waiver by a preponderance of the evidence. (People v. Bradford (1997) 14 Cal.4th 1005, 1034.)
Defense counsel’s arguments at the time the trial court considered the motion in limine indicate decisions to (1) abandon all of the grounds stated in the written motion except for the claim that the administration of morphine rendered the waiver involuntary and (2) refrain from having defendant testify regarding the effect the morphine had upon him. As a result of this tactic, the prosecution had no incentive to have the detectives testify regarding defendant’s demeanor, alertness, conduct, statements, or other matters relevant to the determination of whether defendant understood his rights and the consequences of waiving them and freely and voluntarily waived them. (People v. Ray (1996) 13 Cal.4th 313, 339 (Ray).) The tactic also obviated the need for the trial court to resolve material factual disputes and make necessary factual findings on any matter other than whether the administration of morphine by hospital personnel for the treatment of defendant’s pain necessarily rendered his consent unknowing or involuntary. (Ibid.) Defendant thereby forfeited all of the remaining contentions raised in his written motion in limine.
The trial court did not err by concluding that the administration of morphine did not, as a matter of law, render defendant’s waiver unknowing or involuntary. Miranda waivers have been found to be knowing, intelligent, and voluntary even though the defendant had consumed drugs or been administered drugs by medical personnel. (People v. Breaux (1991) 1 Cal.4th 281, 299–301 [hospital staff administered morphine to defendant one hour before Miranda advisement, waiver, and interrogation]; People v. Jackson (1989) 49 Cal.3d 1170, 1183, 1189 (Jackson) [voluntary ingestion of PCP, amphetamines, and cocaine]; People v. Loftis (1984) 157 Cal.App.3d 229, 236 (Loftis) [interrogating officer testified defendant was under influence of PCP during interrogation].)
The record as a whole demonstrates that the court was unlikely to have reached a different conclusion even if the prosecutor and defendant had introduced testimony with respect to the voluntariness of defendant’s Miranda waiver. When Judge Kim addressed the same issue in an Evidence Code section 402 motion during the original trial, Mendoza testified that before speaking to defendant, Detective Lasch asked a doctor whether defendant was well enough to speak to the detectives. The doctor told them he was. The detectives introduced themselves and told defendant they were investigating a shooting that had just occurred. Lasch advised defendant of his Miranda rights by handing defendant an advisement of rights form and reading it aloud to him as defendant looked at the form. Defendant wrote his initials after each part of the advisement and on paragraphs acknowledging that he understood his rights. Before defendant initialed the portion of the form stating he wished to discuss the matter with Lasch and Mendoza and was making a voluntary statement without promise of leniency or reward, defendant asked what that portion meant. Lasch explained that if defendant “wished to speak to [the detectives] that he would be speaking voluntarily, and it was not being forced upon him to speak with us, and that there were no rewards or any promises made to him as a result of his speaking with us.” Defendant seemed to be conversing normally.
Hospital staff then took defendant away for X-rays. About 15 minutes later, defendant returned and the detectives asked him about the shooting. Defendant told them he had been involved in an incident at Del Amo Street in Wilmington (not the site of the charged shooting). One of the detectives interrupted, said they knew where the shooting occurred, and advised defendant that it was important to tell the truth. Defendant closed his eyes and remained silent while the detectives asked him “several other questions.” Lasch advised defendant he was going to be arrested for murder. Defendant then said “it was an accident” and began making a statement.
At the same evidentiary hearing during the original trial, defendant testified that he signed the advisement of rights form and asked the detectives questions about it. The detectives assisted him in signing the form by “kind of keeping [his] arm up.” Defendant was in pain and had received pain medication four or five minutes before the detectives approached him. He did not really want to talk to the detectives and “wasn’t really comprehending what they were saying” to him.
Judge Kim denied the motion at the first trial to exclude defendant’s statement to the detectives, stating that the totality of the circumstances established a knowing, intelligent, and voluntary waiver. The court noted that (1) defendant began to tell the detectives the false road rage story he had originally told Officer Whybrew before adopting the “accident” version, (2) defendant asked a question about the meaning of one of the Miranda advisements, and (3) “there’s absolutely no testimony about what if any effect the medication had on him or whether or not he understood or he knowingly, intelligently waived his constitutional rights.” Judge Kim did not address whether defendant invoked his right to silence by closing his eyes and remaining silent.
The testimony at the evidentiary hearing conducted during the first trial thus amply demonstrated that the morphine did not so disable defendant’s “abilities to reason, comprehend, or resist... that he was incapable of free, rational choice.” (Loftis, supra, 157 Cal.App.3d at p. 236.) Defendant demonstrated sufficient presence of mind, understanding and freewill to question the detectives about part of the advisement, begin telling his false road rage story to the detectives, and remain silent briefly when they indicated they knew he was lying. (Jackson, supra, 49 Cal.3d at p. 1189 [defendant’s lies to interrogating officer tended to demonstrate voluntariness of waiver and statement].) Had Judge DiLoreto been presented with the same evidence, there is little or no chance he would have found defendant’s Miranda waiver involuntary.
Even if defendant did not abandon his remaining arguments regarding his statement to the detectives, we would find them unpersuasive. Defendant argued he invoked his right to silence by closing his eyes and remaining silent for a time. If the defendant “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Miranda, supra, 384 U.S. at pp. 473–474.) Whether a defendant has invoked this right is a question of fact to be decided in light of all the circumstances, and the defendant’s words must be construed in context. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) If a defendant makes an ambiguous statement falling short of an invocation of his rights, police may continue talking to clarify the defendant’s intentions. (People v. Wash (1993) 6 Cal.4th 215, 239.) Defendant’s closed eyes and temporary silence were ambiguous, at best. As far as the detectives were concerned, he might have been falling asleep or simply considering his predicament before continuing to speak. The detectives cannot be faulted for asking him a few more questions. Nothing in the record indicates the detectives interpreted defendant’s conduct as an invocation of his right to silence or that their additional questions constituted an attempt to “wear down his resistance and make him change his mind.” (Michigan v. Mosley (1975) 423 U.S. 96, 105–106 [96 S.Ct. 321].) Defendant’s resumption of speaking to the detectives tends to show that his silence was not intended as a reassertion of his right to silence.
In the conclusion to defendant’s motion in limine to exclude his statement to the detectives, defendant argued that questioning him in the absence of his mother or father violated title 18 United States Code section 5033. This statute requires a federal agent who takes a juvenile into custody to notify the juvenile’s parents, guardian, or custodian. It has no application to state law enforcement officers. (People v. Castille (2003) 108 Cal.App.4th 469, 489–490, judg. vacated on a different ground and cause remanded sub. Nom. Shields v. California (2004) 541 U.S. 930 [124 S.Ct. 1653].)
Title 18 United States Code section 5033 provides, “Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense. [¶] The juvenile shall be taken before a magistrate judge forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate judge.”
c. Exclusion of Miranda-related testimony at trial
In the midst of his Miranda arguments, defendant argues that the trial court erred by sustaining the prosecutor’s relevance objection to defendant’s attempt to cross-examine Whybrew during trial about when he determined that defendant was a suspect, rather than a victim. Defendant admits Whybrew’s subjective belief was irrelevant and fails to assert any relevance for the excluded evidence, except by reference to a determination of whether defendant was in custody for purposes of determining whether Miranda warnings were required. The point at which Whybrew began to believe that defendant was a suspect was completely irrelevant to the issues to be determined at trial. The Miranda issue was determined before trial and could not be relitigated at trial. Because defendant admitted at trial that he spoke to Whybrew and told him the road rage story, the timing of Whybrew’s suspicion was not relevant as a ground for challenging Whybrew’s credibility. In addition, defendant forfeited the issue by failing to brief it under a separate heading. (Cal. Rules of Court, rules 8.360(a), 8.204(a)(1)(B); Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1503–1504, fn. 2.)
d. Due process claim
Defendant also seemingly asserts a due process claim of involuntariness regarding both of his statements to the police. Defendant forfeited this claim by failing to brief it under a separate heading and by failing to raise it in the trial court. (Ray, supra, 13 Cal.4th at p. 339.) Indeed, defense counsel’s arguments demonstrated he was not making a due process claim because he argued that defendant’s statement to the detectives should merely be excluded from the prosecution’s case-in-chief, but conceded it could be used for impeachment once defendant testified. A statement obtained in violation of due process is completely inadmissible (People v. Massie (1998) 19 Cal.4th 550, 576), whereas a statement obtained in violation of Miranda is admissible as impeachment if the defendant testifies (Michigan v. Harvey (1990) 494 U.S. 344, 350–351 [110 S.Ct. 1176]).
3. Refusal to permit surrebuttal testimony
During his testimony at trial, defendant admitted that in April of 2004 he punched classmate Luke Scott in the face, causing Scott to hit his head on concrete and sustain a concussion.
Scott then testified as a rebuttal witness for the prosecution. He played high school football with defendant. In March 2004, they argued in the school locker room about a girl, but did not engage in physical fighting. About three weeks later, in April of 2004, defendant approached Scott as he sat on a wall and punched him in the face. Scott fell off the wall, hit his head on the concrete, and suffered a concussion.
Scott further testified that he had heard defendant had “been in a fight here and there” and had “put in work” to attempt to get into the Rolling 20’s Crips gang. But he had never heard defendant claim to be a gang member or heard any of defendant’s friends say that defendant was a gang member. To the best of Scott’s knowledge, defendant was not a gang member.
Defendant sought to call William Alo as a surrebuttal witness and represented that Alo was another classmate and teammate of defendant who would testify “only with respect to the fight and the gang allegation.” (It was unclear whether defense counsel’s reference to a “fight” pertained to the locker room incident or the later punch in the face.) The prosecutor objected that (1) Alo had been in the courtroom while defendant and Scott testified, notwithstanding an agreement between counsel to exclude witnesses from the courtroom; (2) there had been no discovery regarding Alo; and (3) the proposed testimony would not rebut Scott because Scott testified that defendant was not a gang member and the incident in the locker room did not involve a fight.
The court noted that although it had not made a “formal order for exclusion of witnesses,” counsel and the court had “operated on the assumption all the witnesses would be excluded,” the court had “been trying to meticulously make sure all the witnesses are excluded,” and “both the prosecution and defense have taken efforts to exclude witnesses.” The court noted that Scott’s testimony had been of “questionable value.” The court opined that because defendant’s gang membership was “the main issue,” the defense “should have brought those people in their case in chief....” The court concluded that Alo should not be permitted to testify: “[T]he court finds that this is not proper surrebuttal. That the testimony of Mr. Scott is of minimal value anyway and that there is no need for any further rebuttal of his testimony based upon all the reasons the court just stated including the last one. The fact that they [sic] sat through the hearing with respect to Mr. Scott and, therefore, the testimony should have been excluded and will be excluded.”
Defendant contends that the trial court violated his right to present a defense by precluding Alo from testifying. He bases his contention only on the absence of an order excluding witnesses and the absence of any indication that the defense knew Alo was in the courtroom.
Although defense counsel indicated that Alo would testify “with respect to the fight and the gang allegation,” the record contains no offer of proof regarding what Alo would have said in such testimony. This was inadequate to permit any assessment of the relevance and importance of Alo’s proposed testimony and inadequate to preserve the issue for review. (Evid. Code, § 354; People v. Eid (1994) 31 Cal.App.4th 114, 126.)
In any event, the admission of surrebuttal evidence rests within the sound discretion of the trial court. (People v. McGhee (1987) 193 Cal.App.3d 1333, 1348.) Section 1044 authorizes the trial judge to “control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” As the trial court noted, Scott’s rebuttal testimony was of little relevance. It was of little or no consequence to any factual or legal issue. Scott testified that the incident in the locker room had not involved a physical fight. If counsel intended to ask Alo about the subsequent incident in which defendant punched Scott, his proposed testimony would have added nothing, as defendant admitted in his testimony that he punched Scott, and Scott’s testimony on this point was no different than defendant’s testimony. Scott’s testimony about whether defendant was a gang member was equivocal and added nothing to the prosecution’s already weak showing regarding the gang enhancement allegation. The court could reasonably conclude that any slight probative value of the proposed surrebuttal testimony was substantially outweighed by the risks that the testimony would consume undue time and confuse the jury. (Evid. Code, § 352.)
Even if we were to conclude that defendant preserved his claim and the trial court abused its discretion, we would necessarily conclude that no prejudice resulted from the exclusion of Alo’s testimony—whatever it might have been. The jury found that the gang enhancement allegation was not true. Scott’s testimony was fully consistent with defendant’s testimony regarding the punching incident, and the earlier locker room argument was relevant only as background to the punching incident. Alo’s testimony regarding the locker room incident would have been an irrelevant elaboration upon a purely collateral matter.
Nor did the court’s ruling violate defendant’s constitutional right to present a defense. A defendant does not have an unfettered right to introduce evidence that is incompetent, privileged, or otherwise inadmissible under the rules of evidence. (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [116 S.Ct. 2013].)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., JOHNSON, J.