IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ERIC VICTOR GAYLE, DEFENDANT AND APPELLANT.
Super. Ct. No. 08F08831
The opinion of the court was delivered by: Butz,j.
P. v. Gayle CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Eric Victor Gayle guilty of assault with a deadly weapon and battery resulting in serious bodily injury. The jury also found true the special allegation that defendant personally inflicted great bodily injury on his victim.
Sentenced to six years in state prison, defendant appeals, contending the trial court erred in excluding evidence to impeach a witness for the prosecution. We shall conclude the trial court did not abuse its discretion in excluding the challenged evidence. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2008, Mark Espinoza's Trek 24-speed mountain bike was taken from the front porch of his house. A short time later, on October 24, 2008, Espinoza and his friend, Gordon Williams, saw Espinoza's bike laying on the ground near defendant, who was homeless and lived on the street in their neighborhood. Espinoza reached for his bike and a scuffle with defendant ensued, during which Espinoza was stabbed in the abdomen.
The following day, defendant approached Melissa Hampton, a young woman who lived in the neighborhood, and told her that he stabbed someone. Hampton saw a bump on defendant's head and asked him how he got it. He said he had been jumped and that was why he stabbed "a guy." Defendant also told her he had fallen down and hit his head on some rocks. Defendant told Hampton he "ditched" the knife he used in the stabbing.
Defendant was later arrested and charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))*fn1 and battery resulting in serious bodily injury (§ 243, subd. (d)). Espinoza was identified as the victim. It was further alleged that during the commission of the assault, defendant personally inflicted great bodily injury on Espinoza within the meaning of section 12022.7, subdivision (a). Defendant waived formal arraignment, pleaded not guilty to the charges, and denied the enhancement allegation.
Williams testified that when they approached defendant to get Espinoza's bike, defendant got "vocal" with Williams. Fearing defendant would become physically aggressive, Williams struck defendant in the head, knocking him to the ground. Defendant got back up and said, "What you want to do?" Williams then told Espinoza: "Get your bike. Let's go." As Espinoza grabbed the bike, defendant began wrestling with him. Williams said he stayed out of the melee.
Ultimately, Espinoza was able to secure his bike and he and Williams walked to Williams' house. During the walk, Espinoza told Williams he thought he had been stabbed. At Williams' house, Williams' wife called 911. Williams never saw defendant holding a knife.
Defendant claimed he stabbed Espinoza in self-defense. In support of his claim, defendant attempted to impeach Williams' credibility. Defendant argued Williams' version of events at trial was different than the version he previously gave to police, and evidence of Williams' prior convictions for crimes of moral turpitude also was admitted. Defendant also asked to introduce the transcript of Williams' interview with the police, arguing it was inconsistent with Williams' trial testimony. The trial court, however, ruled the testimony was not inconsistent and excluded the transcript.
Defendant also attempted to impeach the credibility of Hampton. Defendant claimed Hampton wanted defendant out of the neighborhood because he was homeless. Thus, he argued, she was biased against him.
Defendant introduced an expert in the area of "alcohol and levels of intoxication." Relying on the parties' stipulation regarding Espinoza's blood-alcohol level, the expert testified that with a blood-alcohol content of 0.19 to 0.23 percent hours after the incident, she would have expected Espinoza to be both physically and mentally impaired.
Defendant also introduced Curtis Youngblood as a witness. Youngblood, in whose driveway the assault took place, provided his version of the assault, which differed from the version he provided to the investigator for the Sacramento County Public Defender's office, as well as the version he gave to the investigator for the Sacramento County District Attorney's office.
The jury found defendant guilty as charged. The jury also found true the enhancement allegation. Defendant was subsequently sentenced in February 2009 to an aggregate term of six years in state prison with appropriate credit for time served.*fn2 Defendant timely appeals his conviction.
Defendant claims the trial court erred in excluding impeachment evidence, in particular, part of a recorded interview of the prosecution witness, Williams. He argues the evidence was essential to show that Williams lied to the jury "about the nature and extent" of his conversations with the victim prior to trial. In his view, the exclusion of the evidence denied him due process of law, a fair trial, the right to present a defense, and the right to confront witnesses. We disagree.
Evidence Code section 780 provides that, in determining the credibility of a witness, the trier of fact may consider "any matter that has any tendency in reason to prove or disprove the truthfulness of [the witness's] testimony . . . ." The witness's credibility may be impeached by, among other things, "[t]he existence or nonexistence of any fact testified to" by the witness (§ 780, subd. (i)) and prior statements by the witness that are inconsistent with any part of his or her trial testimony (§ 780, subd. (h)).
As with all relevant evidence, the trial court has broad discretion to exclude impeachment evidence pursuant to Evidence Code section 352. (People v. Douglas (1990) 50 Cal.3d 468, 509, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) The court is required "to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers 'substantially outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6 Cal.4th 585, 609.) The court's discretion will not be disturbed unless it is exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
On cross-examination, defense counsel asked Williams whether he saw Espinoza "knee" defendant. Williams said he did not see Espinoza "knee" defendant. The following colloquy then took place:
"[DEFENSE ATTORNEY:] Did you talk to [Espinoza] about that?
"[WILLIAMS:] Did I talk to [Espinoza] about it?
"[DEFENSE ATTORNEY:] Yeah; about him kneeing [defendant]?
"[WILLIAMS:] No. I only seen [Espinoza] one time.
"[DEFENSE ATTORNEY:] You did not converse with [Espinoza] about what had happened and gone down with that incident, did you?
"[DEFENSE ATTORNEY:] You never talked to him about what had occurred that night?
"[WILLIAMS:] Yeah, he--when I talked to [Espinoza] about what occurred that night, it was about the first time when I was subpoenaed to come here, and I really haven't been in contact with him much afterwards, but that first time he said he didn't have no, you know, no memory of what happened right at that point. You know. He told me when we were walking around the corner that he got stabbed. I didn't know he got stabbed. [¶] . . . [¶]
"[DEFENSE ATTORNEY:] But did you ever ask him if the rumors that you had heard about him kneeing [defendant] were true? [¶] . . . [¶]
"[DEFENSE ATTORNEY:] Did you ever ask Mr. Espinoza about whether or not he kneed [defendant]?
"[WILLIAMS:] I told him what I heard, and he said he didn't do it to me.
"[DEFENSE ATTORNEY:] Okay. Did he tell you not to tell anybody about that?
"[DEFENSE ATTORNEY:] That's not what he told you to say?
Prior to trial, Williams was interviewed by the prosecution's investigator. During that interview, the following exchange was recorded:
"[INVESTIGATOR:] Now, since this event happened, have you talked to [Espinoza]?
"[INVESTIGATOR:] You guys talked a lot about what went down that night?
"[WILLIAMS:] Yeah, we talked about it. And, uh, I told him, I said I didn't see who get stabbed, you know, that night. I'm not gonna go up there lying. [¶] Number two, uh, uh, people said that you was kneeing them. I didn't see you kneeing him. He said, well, don't say it. I said I'm just gonna tell the truth."
Defendant contends the two statements are "wholly inconsistent regarding whether, prior to giving testimony, Espinoza and Williams discussed Espinoza kneeing [defendant], and conversations had by Espinoza and Williams regarding Williams' testimony concerning the same."*fn3 Thus, he contends, the trial court erred in excluding the prior statement. We disagree.
Defendant contends Williams' testimony amounts to a denial that "Espinoza ever told him anything with respect to how to tes[t]ify." Defendant mischaracterizes Williams' testimony. Williams was asked whether Espinoza told him "not to tell anybody about that." Williams said "no," that is not what Espinoza told him to say. The question and Williams' answer leave open the possibility that they did have a conversation about Williams' testimony, but Espinoza did not say what defense counsel was suggesting.
This testimony is entirely consistent with Williams' prior statement that when he told Espinoza he did not see Espinoza knee defendant, Espinoza said, "well, don't say it." As observed by the trial court, this exchange could be Espinoza talking to Williams about his testimony and telling him to "simply tell the truth as you saw it," which is different than do not tell anybody about what you heard.
Because the statements were not inconsistent, the prior statement not only lacked probative value, as found by the trial court, it was irrelevant and thus inadmissible. (Evid. Code, § 350 [only relevant evidence is admissible].) Accordingly, there was no error.
The judgment is affirmed.
HULL, Acting P.J.