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The People v. andre Pulido

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


August 11, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDRE PULIDO, DEFENDANT AND APPELLANT.

(Super. Ct. No. 07F09612)

The opinion of the court was delivered by: Blease, Acting P. J.

P. v. Pulido 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following the denial of a motion to suppress evidence (Pen. Code, § 1538.5),*fn1 a jury found defendant Andre Pulido guilty of the first degree murder of Rodrigo Rodriguez, Jr. (§ 187, subd. (a)). The jury also found true allegations he used a firearm in the commission of the murder (§ 12022.53, subds. (b)-(d)) and committed the murder while lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive 25 years to life for the firearm enhancement. The court also imposed, among other things, a $10,000 parole revocation fine. (§ 1202.45.)

Defendant appeals, contending the trial court prejudicially erred in (1) denying the motion to suppress, (2) admitting evidence regarding an eyewitness's identification of defendant's car as the getaway car, and (3) excluding evidence that a key prosecution witness lied to police in connection with a prior, unrelated incident. Defendant also asserts, and the People concede, that the parole revocation fine must be stricken because he was sentenced to life in prison without the possibility of parole.

We shall order the parole revocation fine be stricken and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Defendant is shot on September 2, 2007

On the evening of September 2, 2007, defendant attended a party with his girlfriend Francine Guzman, his friend Oliver Garrett, and Garrett's girlfriend. While defendant and the others were drinking in the backyard, Guzman's cousin, Joseph Garcia, arrived with two or three other men. Garcia, who previously had been associated with the Bloods street gang, "exchanged some looks" with Garrett. Defendant introduced the two men, and they shook hands. Later, a song began playing and Garrett began doing the "Crip dance" and said, "Valley Hi Crips." When Garcia saw and heard Garrett, the two men again exchanged hostile looks.

Guzman and defendant asked Garrett and his girlfriend to leave the party "so nothing further would happen," and they did. Shortly thereafter, Garcia left with four or five men. As Garrett walked away from the party, he and Garcia exchanged words, including "Crip" and "Blood." Garcia lifted up his shirt and displayed a gun in his waistband. Defendant attempted to intervene, and Garcia shot him in the face.

Guzman told a friend that defendant "went crazy" after he was shot. Several days later, defendant's brother telephoned Guzman and asked if she "knew that it was [her] cousin Joseph [Garcia]" who shot defendant, where Garcia lived, and what kind of car he drove. Guzman responded that she did not know whether Garcia was involved, where he lived, or what kind of car he drove. Guzman never saw defendant with a handgun, and she would not have dated him if he had one. Gangs were not any part of defendant's life.

B. Rodriguez is murdered on September 16, 2007

Rodriguez, the victim in this case, was Garcia's cousin. In September 2007, Rodriguez was a student at UC Berkeley. He returned home to Sacramento on weekends to cut hair and earn money for college. He rented a chair at the House of Skillz Barber Shop on Martin Luther King Jr. Boulevard.

At approximately 5:30 p.m. on September 16, 2007, Rodriguez and his half-brother Andrew Lopez went to the barber shop so that Rodriguez could cut Lopez's hair. Rodriguez drove them there in his blue Mustang, which he parked in front of the shop. The shop was closed, but Rodriguez opened the door with his key and locked the door behind them. No one else was in the shop at that time. It took Rodriguez about 40 minutes to cut Lopez's hair. When he was nearly finished, the building manager, Lorenzo Walsh, stopped by. Walsh coached a Pop Warner football team and was returning some equipment he stored elsewhere in the building. Rodriguez and Walsh exchanged pleasantries and Walsh left. When Rodriguez was finished cutting Lopez's hair, they cleaned up and prepared to leave.

Lopez left the shop first, while Rodriguez turned off the power. While Lopez was waiting for Rodriguez outside, he saw a man crouched down on the side of the building. As Rodriguez walked outside, the man came around the corner, fired two shots at Rodriguez, then pointed the gun at Lopez. Lopez dove underneath Walsh's truck, which was parked in front of the shop. When Walsh started the truck, Lopez rolled out from underneath it and saw the shooter straddle Rodriguez and shoot him four or five more times. Lopez then ran to get help.

At 6:40 p.m., Sacramento police were dispatched to the scene. Rodriguez was pronounced dead at 6:48 p.m. He was shot six times -- once in the abdomen, once in the right buttock, and twice in the upper and lower back.

Lopez described the shooter as a light-skinned African American or Puerto Rican man, with long dark hair that was pulled back in a ponytail, between 18 and 24 years old, between 5 feet 10 inches and 6 feet 2 inches tall, thin build, between 150 and 165 pounds, with acne scars or razor bumps along his jaw line, and wearing a red t-shirt with some kind of design on it and faded black jean shorts. Shortly after the shooting, Lopez worked with a sketch artist in creating a composite sketch of the shooter.

At trial, Lopez testified that he did not believe defendant was the shooter. He explained that the person who shot his brother had long hair, little sideburns, a "little jawline [sic] hair," and more acne scars than defendant had at trial. He believed the people in Walsh's truck would have gotten a better look at the shooter because the shooting happened right in front of them. Bert Moore, a parent volunteer, and three of Walsh's young players -- Dejanerio Woldridge, Demariae Woldridge,*fn2 and Derayne Duncan -- were sitting in Walsh's truck at the time of the shooting.

As Walsh turned to get into his truck to leave, he heard multiple gun shots. He watched as the shooter continued to fire shots at Rodriguez. He heard the shooter say, "Punk mother fucker," "Bitch mother fucker," or "Bitch ass mother fucker." Once inside the truck, Walsh fumbled around, and finally was able to start the truck and drive off. After he got the children to safety, he returned to the shop.

Walsh described the shooter as black and white or white and Hispanic, light-skinned, with long hair that was pulled back in a ponytail, in his mid-twenties, with facial hair, slim, approximately 5 feet 10 inches tall, 160 pounds, and wearing a plain red t-shirt and knee length blue jeans. Walsh thought defendant looked like the shooter but could not positively identify him as the shooter. Walsh met with the sketch artist and was shown the composite drawing that was created based on Lopez's description. The sketch artist altered the shooter's hair after meeting with Walsh.

Prior to the shooting, Moore noticed a man sitting on the side of the building. It appeared to Moore that he was smoking a cigarette while waiting for a haircut. When Moore, who was seated in the front passenger seat of Walsh's truck, heard the gunshot, he ducked. He then heard a series of other shots and someone say, "Your momma [F]rench you, bitch ass mother fucker." Moore observed the same man he saw standing next to the building prior to the shooting walking away from the building after the shooting. Moore described the man as mixed race, possibly Puerto Rican or Cuban, with his hair in a ponytail, approximately 6 feet and 1 inch tall, between 160 and 170 pounds, and wearing a red shirt. On November 16, 2007, Moore picked defendant out of a photographic lineup as the man he saw walking away from the building after the shooting. At trial, Walsh testified the man he saw after the shooting looked similar to the defendant, but he was not positive defendant was that man.

At the time of the shooting Demariae and Dejanerio Woldridge were seated in the back seat of Walsh's truck. Demariae was 10-years-old, and Dejanerio was 6-years-old. Each described the shooter as light-skinned, with black hair that was pulled back in a ponytail. At trial, Demariae testified the shooter was wearing a white t-shirt, and Dejanerio testified the shooter was white.

Demariae was shown several pictures of defendant's car and positively identified it as the car he saw the shooter get into after the shooting. Prior to identifying defendant's car as the getaway car, Demariae described the getaway car as a large, blue four door with tinted windows and shiny rims. Defendant's car did not have rims. Dejanerio described the car as a large, dark blue car. At trial, Dejanerio described the car as a gray, four door car with tinted windows.

Immediately after the shooting, a neighbor who witnessed the shooter get into a car described the car as a "small black newer compact." At trial, the neighbor testified the car was a four door, medium-sized, dark colored car.

Four other witnesses observed a man standing alongside the building prior to the shooting or the shooting itself. Each of the witnesses generally described the man they saw as mixed race, possibly Hispanic and African American or Puerto Rican, with light skin, long curly dark hair, in his 20s, between 5 feet 6 inches and 5 feet 10 inches tall, around 150 pounds, and wearing a red t-shirt. Three of the four witnesses indicated the man's hair was partially pulled back or in a ponytail. One of the four witnesses was able to positively identify defendant as the shooter, stating she was 90 percent sure of her identification.

Defendant is half African American and half Mexican. In September 2007, he drove a blue Buick LeSabre and had shoulder length hair that he typically wore in a ponytail. Telephone records for defendant's cellular telephone indicated no calls were made to or from defendant's phone around the time of the murder. The records also reflected that the phone was in the general vicinity of the murder at 5:56 p.m.

On October 5, 2007, officers executed a search warrant at defendant's home in Elk Grove. Defendant's cousin, Bernardino Dalaza, was in the front bedroom when officers arrived. The door to defendant's bedroom was locked. A detective picked the lock and officers discovered a loaded semi-automatic handgun inside a shoebox in defendant's bedroom closet. Later that day, the Sacramento Country Crime Lab confirmed that the gun found in defendant's closet was the gun used to murder Rodriguez. No fingerprints were found on the box, the magazine, the live rounds, the firearm, or the spent shell casing collected at the scene. DNA was recovered from the trigger of the firearm. Defendant could not be eliminated as a contributor.

A laptop computer was also seized from defendant's bedroom. A forensic examination of the computer revealed that defendant's name was listed as a user name for the computer. The examination also revealed that the computer had been used to conduct internet searches related to Rodriguez's murder. Web pages found during those searches had been "deleted," but still existed on the hard drive.

During the search of defendant's residence, detectives also observed rims in the garage.

On October 5, 2007, the day police executed the warrant, Dalaza was taken into custody, transported to police headquarters, and interviewed by Sacramento Police Detective Michael Lange. During the interview, Lange made numerous false statements to Dalaza in an attempt to get him to open up. Among other things, Lange told him that a witness had identified him as the shooter from a photographic lineup, the gun found in defendant's home was the gun used in the murder although that had not yet been confirmed, and defendant implicated Dalaza as the shooter. Lange also explained that if convicted of Rodriguez's murder, Dalaza could receive the death penalty.

Thereafter, Dalaza told Lange that defendant had been angry about being shot two weeks earlier, wanted to get back at the shooter, and believed the shooter was a "Mexican dude" who drove a black Mustang. Defendant telephoned Dalaza on the night of the murder and asked him to go to Martin Luther King Jr. Boulevard to see if police were present. Dalaza also told Lange that defendant told him, "I got dude, I shot dude." Later, Dalaza said defendant told him, "Dude shot, dude dead." The day after the murder, defendant told Dalaza the man who was killed "wasn't the dude" that shot him and that "it was the wrong person." Dalaza had seen defendant with a gun approximately one month before the murder.*fn3

Dalaza generally matched the description of the shooter. Dalaza drove a white Buick LeSabre with tinted windows and shiny rims. He also drove defendant's car whenever he wanted. Dalaza used to have shoulder length hair and sometimes would pull it back. Dalaza smoked cigarettes; defendant did not. Dalaza had access to defendant's laptop and sometimes used it to search the internet. He also had access to defendant's closet and would sometimes borrow defendant's clothes. At trial, Dalaza admitted having a juvenile conviction for felony assault, and a prior conviction as an adult in 2006 for felony evasion of a peace officer.

One particle consistent with gunshot residue was found on the right front seat of defendant's Buick LeSabre, but the criminalist could not completely eliminate the possibility that the particle came from a different source.

Defendant did not testify on his own behalf at trial.

DISCUSSION

I

The Trial Court Properly Denied Defendant's Request to Traverse and Quash the Search Warrant

Defendant contends the trial court erred in refusing to traverse and quash the search warrant that allowed officers to search his home. More particularly, he claims the affidavit used to secure the warrant contained statements that were either deliberately false or made in reckless disregard for the truth, and the information in the affidavit was insufficient to establish probable cause for the search. He is mistaken.

A. Background

On October 4, 2007, a magistrate signed a search warrant authorizing the search of defendant's home, vehicle, and person, and the seizure of certain property. The warrant was issued based on a probable cause affidavit executed by Detective Lange. In the affidavit, Lange attested to the following:

* Descriptions of the suspect who shot Rodriguez "varied slightly, but were generally consistent as: Male, mixed race Black or Hispanic, 18-22 years, 5-10 to 6-0, thin to average build, with dark curly or wavy longer hair pulled back into pony tail and wearing a red t-shirt with either writing or a design on the front and dark colored pants or jeans. Witnesses were able to provide Detectives with a composite sketch of the suspect."

* Defendant matched the description of the suspect who shot Rodriguez in terms of height, weight, age, skin complexion, and hair style. He also appeared to resemble the suspect in the composite.

* Defendant's cell phone records revealed no calls around 6:30 p.m. on September 16, 2007, the approximate time of Rodriguez's murder. The last call prior to Rodriguez's murder was made or received at 5:56 p.m. in the general area of the homicide.

* Twelve days after Rodriguez's murder, detectives received an anonymous tip that defendant was involved in Rodriguez's murder. "The text of the crime alert tip read as follows: [¶] 'Caller stated above subject is involved in the murder of Rodrigo Rodriguez. Caller stated a few weeks prior to the murder, one of Rodrigo's relatives by the name of Joseph was involved in shooting one of [defendant's] relatives. Caller believes this was in retaliation. [Defendant] matches the sketch of the suspect and was driving a similar vehicle to the one described and was wearing a red shirt on the day of the homicide. [Defendant] work [sic] at a dental office off 42nd and Fruitridge or Franklin. [Defendant] lives in Elk Grove.'"

* Defendant resided on Blue Lupine Road in Elk Grove. His mother confirmed he worked at a dental office on Florin Road.

* A records check revealed defendant was the victim of a shooting on September 2, 2007. A detective assigned to that case reported that "the motivation for the shooting was a dispute over rival gang colors" and that witnesses indicated "[defendant] and his associates were in a verbal altercation with another group of individuals over the colors 'red and blue.'" Defendant was subsequently shot in the face. The detective identified Joseph Garcia, a validated Norteno gang member, as the person he suspected shot defendant.

* Defendant was not a validated gang member, but a number of his associates were "affiliated with Crip gang members."

* Defendant's mother stated defendant was friends with a man named "Oliver." A records check showed that defendant was "associated" with Oliver Garrett, who was "associated" with the 29th Street Crip gang. Garrett was present when defendant was shot and "was involved in the altercation over 'red and blue.'"

* On September 29, 2007, a detective conducted surveillance at defendant's Elk Grove residence and observed defendant get into a blue Buick LeSabre and leave the area. That car was similar "to the one described as the suspect vehicle."

* Hours before executing the affidavit, Lange met separately with witnesses Demariae (11 years) and Dejanerio (6 years). Both had observed the suspect get into a vehicle and leave the scene of Rodriguez's murder. Lange showed each of them color photographs of defendant's car, and Demariae "indicated that he was 100% sure the vehicle in the photo was the same one that he observed the suspect get into after the homicide. He stated he felt this way because it was the same color, body style and type of vehicle he remember [sic]. He also indicated that the rear tail lights were the same color, size and shape that he saw. He also was very specific about the passenger side of the vehicle being the same." Dejanerio said the car looked like the car he remembered but was unable to state why he thought that other than it was the same color and looked familiar.

The warrant was executed on October 5, 2007. Among other things, the murder weapon was found in a shoebox in defendant's bedroom closet.

Defendant moved in limine to suppress evidence seized from his home, including the murder weapon. He argued Lange had "intentionally and recklessly misled the magistrate with material omissions and misstatements in reckless disregard for the truth." More particularly, he claimed: (1) Lange's statement regarding Demariae's identification of the getaway car failed to mention differences between Demariae's earlier description of the getaway car and defendant's car; (2) the anonymous tip linking defendant to the murder and describing his motive was not sufficiently corroborated in that there were several misstatements or omissions concerning the circumstances surrounding defendant's shooting; and (3) Lange stated that multiple witnesses assisted in creating the composite sketch of the shooter, while defendant believed that only one witness had in fact participated.

Following argument, the trial court ruled that defendant failed to meet his burden of establishing that the affidavit contained a deliberately false statement that was "necessarily material to the overall information contained within the warrant." The court further concluded that the warrant contained sufficient evidence to establish probable cause. Accordingly, the court declined to conduct an evidentiary hearing and denied the motion to traverse and quash the warrant.

B. Analysis

1. Motion to traverse

Defendant contends that Lange's statement that "Demariae Woldridge indicated that he was 100% sure the vehicle in the photo was the same one that he observed the suspect get into after the homicide" "was made in reckless disregard for the truth, because [Lange] failed to mention that Woldridge's identification was the result of an unreliable procedure in which Detective Lange showed Woldridge nine photos of only [defendant's] car, rather than a photo line-up of several cars." He also complains that Lange intentionally omitted the fact that Woldridge initially described the getaway car as "having shiny rims and shiny paint, but [defendant's] car had neither shiny rims nor shiny [paint] . . . ."

"[A] defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause." (People v. Bradford (1997) 15 Cal.4th 1229, 1297, citing Franks v. Delaware (1978) 438 U.S. 154, 155-156 [57 L.Ed.2d 667, 672] (Franks).) Even if these requirements are met, a hearing is not required if there remains sufficient content in the warrant affidavit to support a finding of probable cause after the challenged material is set aside (Franks, supra, at pp. 171-172 [at p. 682]), or in the case of omissions, if the affidavit still supports a finding of probable cause after the omissions are added (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1317). We review the trial court's decision not to hold a Franks hearing de novo. (Id. at p. 1316.)

In his affidavit, Lange explicitly stated that he showed Demariae "digital color photos of the vehicle [defendant] was seen driving in" and that Demariae "indicated that he was 100% sure the vehicle in the photo was the same one that he observed the suspect get into after the homicide." No mention was made of photographs of any cars other than defendant's car. Thus, there was no possibility the magistrate was misled as to the procedure by which Demariae identified defendant's vehicle.*fn4 Moreover, Lange's failure to include the fact that Demariae previously described the getaway car as having shiny rims and paint, but defendant's car did not have either, is of no consequence because in looking at the totality of the circumstances there is no substantial possibility that inclusion of those facts would have altered the magistrate's determination of probable cause.

Defendant next contends Lange falsely asserted "that the motivation for the murder was a prior shooting of [defendant's] relative that resulted from a dispute over gang colors in which [defendant] and his associates were in a verbal altercation with other persons over the colors red and blue." While Lange noted that an anonymous tipster indicated that Rodriguez was murdered in retaliation for the shooting of defendant's relative a few weeks earlier, Lange went on to state that a records check revealed that defendant was the victim of a shooting on September 2, 2007 -- two weeks prior to Rodriguez's murder. Moreover, the affidavit contained substantial evidence that Rodriguez's shooting was in retaliation for defendant's shooting. Lange stated that Garrett, defendant's friend, was present when defendant was shot and was involved in the altercation of "'red and blue.'" Garrett was associated with the 29th Street Crip Gang. The suspect in defendant's shooting, Joseph Garcia, was a validated Norteno gang member. Garcia was Rodriguez's cousin and close friend. Moreover, assuming, as defendant contends, that Lange's statement that defendant was involved in a verbal altercation over rival gang colors was false, the fact remains that his friend, Garrett, was involved in such a dispute and during the course of that dispute defendant was shot in the face by Garcia. Accordingly, the affidavit contained substantial evidence that Rodriguez's murder was motivated by defendant's shooting two weeks earlier.

Finally, defendant argues Lange's statement that "[w]itnesses were able to provide Detectives with a composite sketch of the suspect" was intentionally false because only one witness contributed to the creation of the sketch. As defendant correctly acknowledged immediately after the trial court made its ruling, there were two witnesses that assisted the sketch artist in preparing the composite sketch -- Lopez and Walsh. Thus, Lange's use of the word "witnesses" was accurate.

The trial court did not err in failing to conduct an evidentiary hearing or in denying the motion to traverse the warrant.

2. Motion to quash

Assuming "the trial court was correct when it denied the motion to traverse," defendant contends "the court erred when it denied the motion to quash the warrant, because the facts set forth in the affidavit were insufficient to provide probable cause for the search." In Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 548 (Gates), the United States Supreme Court explained the standard by which a magistrate must determine whether an affidavit is sufficient to establish probable cause. The Court explained: "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity[,]' [reliability,] and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." (Ibid.) "A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.'" (Id. at p. 236 [76 L.Ed.2d at p. 547].) We apply these standards in evaluating claims brought under the federal and state Constitutions. (People v. Camacho (2000) 23 Cal.4th 824, 829-830.)

Here, the affidavit contained sufficient, competent evidence supportive of the magistrate's finding of probable cause that contraband or evidence related to Rodriguez's murder, including the murder weapon, would be found at defendant's residence. Defendant resembled witnesses' descriptions of the shooter, as well as a composite drawing of the shooter; a call was made to or from defendant's cell phone in the general location of the shooting shortly before Rodriguez was shot; a witness identified defendant's car as the getaway car; and defendant was recently shot in the face by Rodriguez's cousin, and thus, had a motive to shoot Rodriguez. (See Gates, supra, 462 U.S. at pp. 238-239 [76 L.Ed.2d at p. 548].) The trial court did not err in denying the motion to quash the warrant.

II

The Trial Court Did Not Abuse Its Discretion In

Admitting Evidence Regarding Demariae's Identification

Of Defendant's Car As The Getaway Car

Defendant next contends the trial court prejudicially erred in admitting evidence regarding Demariae's identification of defendant's car as the getaway car because the identification "was the product of an unduly suggestive procedure wherein the witness was shown photos of only [defendant's] car . . . ." He argues that "the principles governing a witness's pretrial identification of a person logically apply to a witness's pretrial identification of a vehicle." As we shall explain, we rejected an identical argument in People v. Edwards (1981) 126 Cal.App.3d 447 (Edwards) and decline defendant's invitation to revisit that decision here.

A. Background

Defendant moved in limine to exclude evidence regarding Demariae Woldridge's identification of defendant's vehicle, arguing that the vehicle identification procedure was unduly suggestive and unreliable, thereby violating his due process rights. After hearing argument, the trial court denied the motion, finding "defendant's concerns are appropriate topics and areas for cross-examination, and go to the weight and the assessment of the credibility of the 11-year old [witness]."

B. Analysis

Defendant fails to cite any California or federal authority that holds identification procedures related to objects are governed by the same due process considerations which apply to the identification of individuals. In Edwards, supra, 126 Cal.App.3d at page 456, we held that "[t]he due process proscription against impermissibly suggestive identification procedures relates to the identification of people -- not physical evidence." We explained that "the trustworthiness of th[e] identification testimony is to be tested, like other evidence discovered during a criminal investigation, by cross-examination, impeachment and argument." (Id. at p. 457.) In People v. Carpenter (1997) 15 Cal.4th 312, our Supreme Court, citing Edwards with approval, concluded the suggestiveness in the identification process goes to the weight rather than the admissibility of evidence. (Id. at p. 369.) Here, defense counsel cross-examined Demariae and Lange extensively regarding Demariae's identification of defendant's car, and during closing argument challenged the reliability of Demariae's identification. There was no error.

III

The Trial Court Did Not Abuse Its Discretion In Precluding Defendant From Impeaching Bernardino Dalaza With Evidence He Lied to Police In Connection With A Prior Unrelated Incident

Defendant next contends the trial court abused its discretion and violated a number of his rights under the state and federal Constitutions, by prohibiting him from impeaching Bernardino Dalaza, a "crucial prosecution witness," "with questions about whether he lied to police who had arrested him for felony evading after a high-speed car chase . . . ." We are not persuaded.

A. Background

During direct examination, Dalaza admitted he was convicted of "felony evading" in June 2006, was on probation for that offense, and was testifying pursuant to a grant of immunity. During cross-examination, he acknowledged a prior conviction for felony assault when he was 14 or 15 years old. He also admitted he had been on felony probation since at least September 2007, had violated the conditions of his probation by smoking marijuana, and was arrested for driving under the influence in October 2007 and attempted to "get [him]self out of [the] DUI" by lying to police that he had not been drinking.

After Dalaza had been excused, the defense sought to recall him to cross-examine him as to the reason he fled from police in February 2006. According to the defense, Dalaza told officers he fled because he was driving with a suspended license; however, officers pursued Dalaza because they "had information" shots had been fired from his car, and shell casings were found in the street. The defense sought to ask Dalaza why he fled from police -- "whether it was a 246 or whether it was just a suspended license." (Section 246 makes it unlawful for "[a]ny person [to] maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . .") If Dalaza denied he lied to officers about why he had fled, the defense would present evidence concerning the "shots fired" call, as well as evidence he told the arresting officer he fled because he had a suspended license.

The People objected, arguing, among other things, that Dalaza was never charged or arrested "for 246 or 246 conduct," and thus, "[w]e'd have to conduct basically a mini trial on that [issue]." The People also expressed concern that the defense did not intend to use the evidence to impeach Dalaza, but rather for the improper purpose of "trying to show that Mr. Dalaza was a shooter on a prior occasion" to add credence to the defense theory that he "is the real shooter" here. When the trial court asked defense counsel for "his thoughts" as to the "[Evidence Code section] 352 issue" raised by the People, defense counsel asked for additional time to "think about how [he] would prove it."

The next day, defense counsel made the following proffer: "Mr. Dalaza was driving a 1994 Buick on the day in question . . . . [¶] His car was seen by a police vehicle in the vicinity in Del Paso Heights. There was a 911 call that was placed, and there was . . . a witness who reported that shots came from the brown La Sabre [sic]. [¶] We do not have a person that can come and testify that they saw the shots coming from the brown La Sabre [sic]. We have an officer following Dalaza on the basis that there had been shots that had come from the brown La Sabre [sic]. [¶] When Dalaza was eventually caught some miles later, he had two things to say. One was he was upset . . . that he'd ruined his own car because he had just paid for registration on it. [¶] The other thing that he said was the reason he fled was because he had a suspended license." Defense counsel explained that he would prove the above facts by having one officer testify that he was responding to a call for shots fired in an area, saw Dalaza's car in the area, and followed it until it crashed. Another officer, who arrested Dalaza, would testify that Dalaza said he was upset that he ruined his own car. According to defense counsel, such information was "important to Mr. Dalaza's credibility." Defense counsel further asserted that because Detective Lange was the investigating officer on both the evading case and Rodriguez's shooting, such evidence was relevant to whether the police adequately investigated Rodriguez's murder by giving due consideration to the possibility that Dalaza, not defendant, shot Rodriguez.

The trial court denied defendant's request to present such evidence "based on [Evidence Code section] 352." The court was concerned that the presentation of evidence related to Dalaza's prior conviction would mislead the jury and consume an undue amount of time. In addition, the court observed that the evidence was "not specific and/or sufficiently tied to Mr. Dalaza in terms of him actually having gunfire coming from his car as opposed to the arrest, conviction, and examination of him regarding a felony evading conviction in February of '06."

B. Analysis

As a general matter, in determining the credibility of a witness, the jury may consider "any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including . . . [¶] . . . [h]is character for honesty or veracity or their opposites." (Evid. Code, § 780, subd. (e).) However, a defendant's right to cross-examination is not absolute. (People v. Brown (2003) 31 Cal.4th 518, 545.) Although "'[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude' [citation], such latitude does not 'prevent the trial court from imposing reasonable limits on defense counsel's inquiry based on concerns about harassment, confusion of the issues, or relevance' [citations]. Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination."*fn5 (Ibid.)

Under the circumstances, we conclude the trial court acted well within its discretion in concluding under Evidence Code section 352 that any probative value the evidence may have had was substantially outweighed by its potential to confuse the jury and consume an undue amount of time. The impeachment value of the evidence was minimal. As defense counsel acknowledged, the defense did not have a witness who could testify that he or she had seen shots fired from Dalaza's car. Rather, they had a 9-1-1 call from an unidentified witness reporting that they saw the "shots [coming] from the brown La Sabre [sic]." On the other hand, there was a substantial risk that the presentation of such evidence would consume an undue amount of time. As the trial court observed, Dalaza "wasn't arrested for or investigated for a shooting as it related to the felony evading." Thus, to establish Dalaza fled from police to avoid prosecution for violating section 246 or some other crime related to shots being fired from his car, the defense would have had to call at least two police officers, the officer who was involved in the chase, and the officer who was involved in Dalaza's arrest. The People undoubtedly would have cross-examined those witnesses and potentially presented evidence of their own. Moreover, the jury would have had to be instructed as to the limited use of such evidence. (Evid. Code, § 1101.) On this record, the trial court reasonably could conclude the presentation of such evidence would consume an undue amount of time without adding significant probative value. (See People v. Brown, supra, 31 Cal.4th at pp. 545-546.)

Finally, any error in excluding such evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) The jury already knew Dalaza was a liar and a felon, and had little regard for the law. In addition to his prior felony conviction for evading a peace officer and prior juvenile conviction for assault, Dalaza admitted to lying to police in 2007 to avoid being arrested for drunk driving, and violating the conditions of his parole by smoking marijuana. Moreover, he lied to police in this case by initially stating he had no information about Rodriguez's murder, and then providing such information. On this record, we find beyond a reasonable doubt that the exclusion of evidence Dalaza lied to police to avoid prosecution for violating section 246 or a related charge in an unrelated prior incident did not contribute to the verdict in this case. (See ibid.)

IV The Parole Revocation Fine Must Be Stricken

Lastly, defendant contends, and the People concede, the $10,000 parole revocation fine imposed but suspended under section 1202.45 was unauthorized because defendant was sentenced to life without the possibility of parole, plus a consecutive indeterminate term of 25 years to life. The parties are correct. (People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. DeFrance (2008) 167 Cal.App.4th 486, 505-506.) We shall therefore order the fine stricken and the judgment modified to so reflect.

DISPOSITION

The trial court is ordered to strike the $10,000 parole revocation fine imposed under section 1202.45. In all other respects, the judgment is affirmed.

We concur: ROBIE , J. MAURO , J.


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