(Super. Ct. No. 09F01200)
The opinion of the court was delivered by: Blease, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Juan Rizo Arrellano of assault with a firearm, finding he personally used a firearm, and also convicted him of carrying a loaded firearm in public that was not registered to him, and drunk driving with a blood alcohol level over .15 percent, but acquitted him of a hit-and-run driving charge. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a), 12031, subd. (a)(2)(F); Veh. Code, §§ 20002, subd. (a), 23152, subds. (a) & (b).) Defendant waived a jury trial on two allegations that he had a prior DUI conviction, and he later admitted that prior conviction. The trial court sentenced defendant to prison for five years, and defendant timely filed this appeal.
On appeal, defendant contends no substantial evidence supports the assault conviction, because the facts show he acted in self-defense. Although there was evidence supporting a self-defense theory, the jury was not required to accept that evidence as true, and we conclude substantial evidence supports the assault conviction. Defendant also contends the trial court erred by excluding critical impeachment evidence, namely, that the main prosecution witness had a prior felony conviction involving moral turpitude. We conclude the trial court acted within its discretion in excluding that conviction for impeachment purposes. We shall affirm.
Maurice Campbell testified that on the evening of February 13, 2009, he was at his girlfriend Mystique McFarland's house on Lerwick Road, a dark street. His brother's girlfriend, Shauna Russell, knocked on the door and reported that a car had driven by and hit McFarland's rental car, a Chevrolet Malibu. Campbell grabbed his keys, got into his own vehicle, a Chevrolet Suburban, saw the rental car had minor damage, like "an exchange of paint," and he gave chase. He saw a Toyota driving down the street, moving slowly, and "swerving back and forth, left and right." Campbell passed Russell's brother Daniel, who was running down the street, yelling and trying to flag the Toyota down. Campbell testified he wanted to get the car's license number and the driver's information to avoid a $500 deductible on the rental car, and that he did not call the police because "I was trying to give him a break."
Campbell testified he caught up with the Toyota and blew his horn and flashed his high beams, and when the Toyota stopped in the middle of the road, Campbell "pulled in front of him[,]" about 10 feet in front of the Toyota.
Campbell then testified: "I got out [of] the truck, I walked up to the car. I said, 'Hey, man, you hit my rental car.' I said, 'I need your license.' Then he said, 'Huh?' Then I said, 'Hey, man, you hit my fucking rental car.' I said, 'I need your license,' and stuff."
Campbell was about two feet from the driver's window, and at first did not yell, but he did yell "'You hit my fucking rental car'" after the driver said "Huh," because the window was still rolled up. He identified defendant as the driver. Defendant had been wobbling or bobbing his head, as if intoxicated, but then he made eye contact with Campbell, his expression changed and he frowned at Campbell. Campbell saw defendant reaching and thought he was "going for a weapon." Campbell testified: "When I seen him reach over, I grabbed the door. And when I grabbed the door, his gun met me in my face. And I grabbed his hands, and when I grabbed his hand, I felt his finger trying to pull the trigger. And when he pulled the trigger, I moved my head like this (indicating), and I fell on him -- I fell on top of him on -- inside his car."
Although Campbell had not seen what defendant was reaching for, he opened the door "Because I felt if I turned around and [ran], if he had a gun, he was going to shoot me in the back." Campbell first saw the gun inches from his face: "I was still outside the car. I was bent over a little bit, and then when I seen the gun, that's when I grabbed onto his hands." He moved his head to the side when defendant pulled the trigger, and then he fell into the car, on top of defendant. He could smell alcohol on defendant's breath. Campbell thought he had been shot, his ears were ringing from the gunshot, and defendant was "trying to point the gun to shoot at me. So then we get to wrassling and punching and he head butting me and I'm hitting him with my elbow, and then I finally get the gun from him."
When Campbell got the gun, he told defendant that defendant had tried to kill him, and he hit defendant in the head with the gun. Defendant called Campbell a "mayate" once or twice, which Campbell understood to mean "nigger." Campbell's testimony at trial and at the preliminary hearing varied about whether defendant called him a "mayate" before or after Campbell hit defendant, but Campbell testified the word "mayate" did not bother him. He denied hitting defendant for revenge, but he also testified he thought defendant deserved it and he could have killed defendant, "but it wasn't in my heart to do that." He hit defendant to subdue him, and previously testified he did so to keep defendant from fighting back.
Campbell drove back to McFarland's house and found he was bleeding on the back of his head, on the side where the gun had been fired, and the jury was shown photographs of Campbell's injury. Campbell did not call the police, because he "was nervous," and he called his girlfriend and his sister instead. He went with his family back to the scene, having his cousin Kareem Rahmaan carry the gun, and told an officer he was involved in the incident and his cousin had the gun.
Campbell was checked by paramedics, who thought he might have been struck by broken glass, but they did not find any glass in his head.
At the preliminary hearing, Campbell had testified he told an officer "'As I walked over to talk to him, was getting to his car, that's when he pulled out a gun and fired a shot.'" At trial Campbell conceded he might have said that to the officer that night, because the incident had happened so fast, but Campbell said that he was testifying at trial to the best of his memory of what happened.
Shauna Russell testified she saw a car swerving back and forth, driving slowly, and that "it would slow down and it would speed up," and then it sideswiped the rental car. She told her brother Daniel to try to stop the car and she ran to get Campbell to tell him what happened. After Russell heard two gunshots, Campbell ...