(Super. Ct. No. 10F04797)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Curtis Atkinson III killed his father. The death was unintentional. Defendant's father was an alcoholic. While staying at defendant's apartment, he became heavily intoxicated and started a physical fight after defendant removed his bottle of whiskey. Defendant's father was known for becoming violent when intoxicated and knew how to handle himself in a fight. After a few blows were exchanged, defendant placed his father in a chokehold, believing this would subdue him without causing injury. He was wrong. Defendant released the hold after his father stopped fighting. He then realized his father's breathing was labored, called 911, and administered CPR until paramedics arrived. His father died of asphyxia caused by neck compression.
Defendant was charged with voluntary manslaughter and convicted by jury of the lesser-included offense of involuntary manslaughter. He was sentenced to three years in state prison. He claimed self-defense at trial. In support of this defense, defendant sought to adduce testimony from his mother and cousin regarding seven specific instances of his father's prior violent conduct under Evidence Code section 1103.*fn1 The trial court allowed each witness to testify that defendant's father had a reputation for being violent when intoxicated and also allowed defendant's mother to testify to the facts of one violent incident that occurred seven years before trial. However, the trial court excluded testimony regarding the other six violent incidents under section 352 because they occurred more than 10 years before trial. As the trial court explained, anything outside the "ten-year range" is "just going back too far" and "starts to loose [sic] some of its probative value" when balanced against the need to prevent "undue consumption of time."
Defendant objected to the trial court's ruling, arguing that it deprived him of his constitutional right to present a defense. He renews this argument on appeal. We agree and reverse his conviction. As we explain, where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible and may be proven by specific acts of violence committed by the victim. (§ 1103.) And while "[s]section 352 permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," these dangers must "substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744.) Thus, "section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense." (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.) We conclude the trial court abused its discretion in determining the probative value of the excluded testimony was substantially outweighed by the danger that the presentation of this evidence would take too long. And because this error undermines our confidence in the verdict, we must reverse defendant's conviction.
On July 21, 2010, defendant and Melanie Toney decided to go to the river to celebrate Toney's birthday. Defendant and Toney had two children together and were seeing each other periodically following their break-up the previous September. Defendant's father, Curtis Atkinson II (Atkinson), agreed to watch the children at defendant's apartment while defendant and Toney were at the river. Atkinson was an alcoholic, but promised not to drink while watching the children.
Defendant and Toney brought some beer to the river. They each drank around a dozen beers over the course of seven to eight hours. Toney also drank some vodka. On the way back to the apartment, they went to the store and bought a bottle of whiskey and some clams for Toney's birthday dinner. When they arrived home, defendant steamed the clams for Toney and cooked steak for the rest of the family. Atkinson, who had remained sober while watching the children, began to drink whiskey at dinner.
After dinner, defendant put the children to bed and then retired to the master bedroom with Toney. Atkinson stayed up in the living room and continued to drink, but promised that he would "keep his drinking to a minimum [because] the kids were in the house." At some point, Atkinson began yelling at the television. Defendant got up, opened the bedroom door, and asked his father to "keep it down." Atkinson apologized and said that he would. Defendant went back to sleep. A short time later, defendant was again awakened by his father's yelling. Defendant opened the door and said: "Hey, man, you are going to wake up the kids." His father again apologized. Defendant returned to bed, but could not go back to sleep. When Atkinson began yelling a third time, defendant went into the living room and told him that he had broken his promise about keeping the drinking to a minimum. Defendant then took his father's drink, poured it down the kitchen sink, brought the whiskey bottle into the bedroom, and returned to bed.
Atkinson was "really drunk" and defendant hoped that removing the whiskey would cause him to finally go to sleep. Instead, as defendant was falling asleep, his father came down the hallway "grumbling" about defendant's relationship with Toney and pounded on the bedroom door until it opened and slammed into the dresser. Atkinson then went to the side of the bed where Toney was sleeping and demanded "in a very aggressive manner" to be taken home. Defendant got up and ran to the other side of the bed to protect Toney. With an arm around his father, defendant led him out of the bedroom, explaining that he "needed to [lie] down" because "he was drunk" and "didn't know what he was doing."
In the hallway, Atkinson planted his feet, grabbed defendant, and began throwing punches. Defendant did the same. One punch that defendant landed gave him "a sick feeling in [his] stomach because," as defendant explained, "it was one of those punches that you could tell hurt." At this point, not wanting to hurt his father, defendant "decided that wrestling would probably be a better way to take control of the situation." The two men began to grapple. Atkinson went down, but "popped up" and rushed defendant, who placed him in a side headlock and was carried into the wall by his father's momentum. After being thrown into the wall a few times, defendant managed to take his father to the ground and placed him in a rear chokehold. While defendant had his father under control at that point, he testified that his father was still "fighting like all hell."
Toney, who could hear the fight from the bedroom, came out after it had been quiet for "three to five minutes" and saw that defendant had his father in the chokehold. She asked him three times what he was doing. After the third time, defendant answered: "Shut up, he is still fighting." Not seeing any movement on the part of Atkinson, Toney responded: "You need to stop, you are going to hurt him." She then went back into the bedroom. Defendant confirmed in his testimony that his father was no longer "banging around in the hall[way]" when Toney came out of the bedroom, but maintained that his father's "body posture [was such that] he was ready to pop up" and that he believed "there was a great potential for the fight to resume."
Defendant released the chokehold when he was sure his father had stopped fighting and caught his breath for a couple minutes. Atkinson was not moving and his breathing sounded labored. Defendant then pulled his father into his lap and tried to wake him up, repeating: "Come on, old man. It's time for you to go home. Wake up." Atkinson did not respond. At this point, "three to five minutes" after Toney had returned to the bedroom, she came out and saw defendant with his father in his lap. Defendant told Toney they needed to call 911. Toney handed him the phone and said he was the one who needed to call. Defendant called 911 and performed CPR until paramedics arrived. Atkinson died of asphyxia.
At trial, defendant asserted that he acted in self-defense. In addition to the circumstances surrounding his father's death, recounted above, defendant testified that Atkinson was "really loved in the family" and was "somebody that everybody looked up to," but that he was also "violent with the people he was closest to," especially when he was drinking. Defendant testified that his father had physically abused him "lots of times" during his life, and that he had also assaulted other family members, friends, and strangers. Defendant explained that his father was "feared" and "renowned" for being a "tough guy, somebody who got into a lot of street fights." Defendant also testified that, in March 2009, Atkinson moved into the apartment for about three weeks and routinely came home drunk. One night, he came home "pretty beat up" and "told [defendant] that he had been in a bar fight," but was too drunk to coherently explain what had happened. Defendant had also heard about an incident that occurred before Atkinson moved into the apartment, in which Atkinson said he got into a fight with a man named Kevin while the two were "out drinking" and "significantly" injured the man. On another occasion, Atkinson was drunk and pulled a pocket knife on defendant and his brother.
Defendant explained that, based on prior experiences with his father, he was "very much afraid" during the fight. Defendant knew that Atkinson was "an experienced fighter," and that he "could really hurt" defendant if he was not subdued. But defendant also explained that the punch he landed in the hallway caused him to believe he was going to hurt his father if he continued to throw punches. His solution was to place his father in a chokehold, believing this would subdue him without causing injury. This maneuver was not foreign to the family. Defendant testified about an incident in which he and his uncle were wrestling and he placed his uncle in the same chokehold. When his uncle "tapped" and said that he was choking, defendant released the hold and his uncle "flipped over with a big grin on his face" and placed defendant in the same chokehold. Defendant's uncle, Jeffrey Atkinson, testified and confirmed the story. He also confirmed that Atkinson "had a reputation for being violent when he had too much to drink."
Defendant's mother, aunt, and cousin also testified. They each confirmed that Atkinson had a reputation for being violent when intoxicated. Defendant's aunt, Deana Payne, explained that when sober, Atkinson "was one of the greatest guys you would know," but when drunk, "he was your worst nightmare." Defendant's mother, Faith Emery, explained that he "was the nicest guy when he was sober, but he was a Jekyll & Hyde when he was drunk, and everybody knew it. [¶] . . . [¶] He'd be standing talking to you one minute, be the nicest guy in the world, and then the next minute, he would be beating you up, and it didn't have to be just me, it was anybody." Defendant's mother also testified to one specific incident that occurred seven years before trial. When she went to Atkinson's house to talk to him about defendant, he was intoxicated and violently assaulted her. As she explained: "He got mad and came after me. I run [sic] out the front door. He pulled me by my ponytail, hit me in the head with his fist. And then as I was headed toward my car, he threw a trash can at me."
I Exclusion of Prior Incidents of Violence
Defendant contends the trial court violated his constitutional rights by excluding testimony from his mother and cousin concerning six specific incidents of his father's prior violent conduct. We agree.
The People moved to exclude evidence of Atkinson's prior violent conduct "based on the remoteness of the claimed conduct." As relevant to this appeal, the prior incidents of violent conduct sought to be introduced are the following. Defendant's cousin, Elizabeth Dahl, was to testify concerning two such incidents. In the first, while Atkinson was married to Emery between 1979 and 1985, he became violent to the point that he "'demolished' his trailer." In the second, Dahl "saw [Atkinson] get into a bar fight with a guy named 'John' in the 1990's and saw [Atkinson] hit John's head into the wall several times." Defendant's mother, Emery, was to testify about five violent assaults committed by Atkinson. In the first, about seven years before trial, Emery went to Atkinson's house to talk to him about defendant. He was intoxicated and became violent, pulling her ponytail, punching her in the head, and throwing a trash can at her. In the second, about 14 years before trial (when defendant was 17 years old), Atkinson was intoxicated and "punched [defendant] in the face" for "being mouthy." In the third, about 18 years before trial (when defendant was 13 years old), Atkinson was working on his van and defendant handed him the wrong wrench. Atkinson threw the wrench at defendant, hitting him in the ankle. In the fourth, about 26 years before trial (when defendant was five years old), Emery told Atkinson she was moving to Florida and taking defendant with her. Atkinson pulled her hair and punched her two or three times. In the fifth, when defendant was very young, Atkinson was intoxicated and threw a coffee cup at Emery "because he didn't like what [she] said." Emery also would have testified that Atkinson beat her "once every two or three months" during this time period.
During the initial hearing on the motion to exclude these incidents of violent conduct, the People cited People v. Gonzales (1967) 66 Cal.2d 482 (Gonzales) and argued the remoteness of the prior acts made them irrelevant. The People also argued that these incidents should be excluded under section 352 because the probative value was substantially outweighed by the probability their admission would necessitate undue consumption of time or create the danger of undue prejudice, of confusing the issues, or of misleading the jury. Defense counsel distinguished Gonzales and argued that, despite the remoteness of some of the prior incidents, they were relevant and highly probative of defendant's state of mind when he placed his father in the chokehold. Defense counsel also estimated she could present the testimony regarding these prior incidents in "a couple of hours." The trial court deferred ruling on the motion.
Prior to Dahl's testimony, the trial court entertained further argument and ruled that Dahl would be allowed to testify that Atkinson had a reputation for being violent when intoxicated, but she could not testify about either the incident in which Atkinson demolished his trailer or the incident in which he got into a bar fight and hit another man's head into the wall several times. These incidents were excluded under section 352 because they occurred more than 10 years before trial. As the trial court explained: "[S]ome of . . . what you are offering in terms of things that happened a long time ago; starts to lose some of its probative value just due to the passage of time. [¶] . . . [¶] . . . As I said before, my gut has been sort of for anywhere until about a ten-year range or so. I think that on balancing things, it's about where I would land. [¶] . . . [¶] It's just going back too far, and I think it starts to loose [sic] some of its probative value, and I balanced it against other -- undue consumption of time." Prior to Emery's testimony, the trial court ruled she would also be allowed to testify that Atkinson had a reputation for being violent when intoxicated. Emery ...