Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD211177, Bernard E. Revak, Judge.
McINTYRE, J.
Larry Lamar Smoots appeals a judgment arising out of his conviction of simple assault. He contends the court erroneously concluded that unlawful sexual intercourse is not a crime of moral turpitude and therefore erred in refusing to allow cross-examination of a prosecution witness regarding his prior conviction of that offense. Although we agree—and the People concede—that unlawful sexual intercourse is a crime of moral turpitude, we conclude the error was harmless beyond a reasonable doubt and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 14, 2008, Smoots gave his room key to Felicia Speaks, his apartment building's janitor. When Smoots requested his key the following morning, Speaks indicated that the building's manager would need to retrieve it from a safe deposit box. Smoots returned later that afternoon and again asked Speaks for his key. When Speaks reiterated that Smoots would have to obtain his key from the manager, Smoots became agitated and began shouting at Speaks.
On hearing the commotion in the hallway outside his door, Speaks's stepson Kenneth Williams emerged from his room adjacent to Smoots's. Williams demanded that Smoots stop yelling at his stepmother. Speaks attempted to keep the two men from fighting and eventually retreated with Williams into Williams's room. Minutes later, Smoots came out of his room brandishing a screwdriver and attempted to stab Williams.
Williams locked himself in his room, leaving Speaks in the hallway with Smoots. Smoots exchanged the screwdriver for a hammer, which he used to strike Williams's door at least once. He then turned his attention to Speaks and began chasing her while swinging the hammer. At some point, Smoots struck Speaks on the arm with the hammer, causing an indentation and bruising. Police responded to 911 calls by both Speaks and Williams and arrested Smoots.
An amended information charged Smoots with one count of assault with a deadly weapon. At trial, Smoots admitted hitting Williams's door with the hammer and carrying the hammer as he walked down the hallway after Speaks. However, he denied swinging the hammer at or hitting Speaks. A jury acquitted Smoots of assault with a deadly weapon but convicted him of the lesser included offense of simple assault. The court sentenced Smoots to 180 days in jail and 3-years probation.
DISCUSSION
Smoots contends the court erred in refusing to allow him to cross-examine Williams regarding his prior conviction for unlawful sexual intercourse. Citing People v. Fulcher (1987) 194 Cal.App.3d 749, 753-754, the People concede the court erred in concluding unlawful sexual intercourse is not a crime of moral turpitude. (See People v. Castro (1985) 38 Cal.3d 301, 314 [only prior convictions of crimes involving moral turpitude admissible for impeachment].) However, the People assert the court's error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) We agree.
A criminal defendant's Sixth Amendment right to confront witnesses is not absolute. (See Davis v. Alaska (1974) 415 U.S. 308, 316 (Davis).) "'The main and essential purpose of [the Confrontation Clause] is to secure for the opponent the opportunity of cross-examination.' [Citations.] Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 19-20, italics in original.) "[T]he trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." (People v. Frye (1998) 18 Cal.4th 894, 946; accord, Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall).)
"[T]he denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case." (Van Arsdall, supra, 475 U.S. at p. 682.) For an erroneous denial of the opportunity to impeach an adverse witness's credibility to rise to the level of reversible error, there must exist some possibility that a reasonable jury might have garnered a significantly different impression of the witness's credibility had the court allowed the proposed line of cross-examination. (Id. at p. 680.) If, however, it is clear beyond a reasonable doubt that the proffered impeachment evidence would not have produced a significantly different picture of the witness's credibility, the erroneous exclusion of that evidence on cross-examination does not warrant reversal. (Ibid; accord, Chapman v. California, supra, 386 U.S. at p. 24.)
Here, we are confident beyond a reasonable doubt that the jury would not have received a significantly different impression of Williams's credibility had the court allowed Smoots to cross-examine Williams regarding his prior conviction of unlawful sexual intercourse. Although Williams's prior offense admittedly revealed a "general readiness to do evil," it was at best marginally relevant to support Smoots's claim that Williams instigated the underlying altercation. (People v. Fulcher, supra, 194 Cal.App.3d at p. 753.) Moreover, the court let Smoots cross-examine Williams regarding his prior conviction of misdemeanor assault—an offense considerably more probative of Williams's alleged propensity for violence.
The cases on which Smoots relies are factually inapposite. In Davis, supra, 415 U.S. at page 311, Van Arsdall, supra, 475 U.S. at page 676, and People v. Wilkerson (1981) 429 N.E.2d 526, 527, the trial courts denied the criminal defendants the opportunity to cross-examine adverse witnesses regarding their probation status, dismissed criminal charges, and pending criminal charges, respectively. The reviewing courts concluded that the trial courts erroneously disallowed cross-examination concerning these matters, all of which could have led the witnesses to bias their testimonies in favor of the states. (Davis, supra, 415 U.S. at pp. 317-318; Van Arsdall, supra, 475 U.S. at p. 679; People v. Wilkerson, supra, 429 N.E.2d at p. 529.) Here, however, Smoots does not suggest—nor could he suggest on this record—that Williams's prior conviction of unlawful sexual intercourse gave him any reason to try to curry favor with the prosecution. Rather, Smoots simply asserts that the proposed line of cross-examination would have damaged Williams's credibility in some indeterminate way.
People v. Rowland (1968) 262 Cal.App.2d 790 (Rowland), and People v. Mizer (1961) 195 Cal.App.2d 261 (Mizer), are similarly unavailing. The Rowland court held the trial court improperly excluded evidence of the complaining witness's "aggressive homosexual character" because the jury could have inferred the witness made "an aggressive homosexual advance towards defendant, which defendant had to ward off." (Rowland, supra, 262 Cal.App.2d at pp. 797-798.) Smoots's reliance on this holding is misplaced. In contrast to the evidence excluded in Rowland, the jury would have had no basis to infer from Williams's prior conviction of unlawful sexual intercourse that he in fact instigated the underlying altercation, causing Smoots to act in self defense.
In Mizer, the court of appeal reversed a judgment convicting the defendant of molesting and annoying children based on the trial court's failure to consider written interrogatories regarding the prosecution witness's reputation for lack of truthfulness and integrity despite the parties' prior stipulation that such evidence would be admitted at trial. (People v. Mizer, supra, 195 Cal.App.2d at p. 267.) By contrast, there was no stipulation regarding the admissibility of the evidence of Williams's prior conviction in this case and thus the analysis of Mizer is totally inapposite here.
Further, Smoots fails to indicate how—and we can conceive of no basis to conclude that—cross-examination regarding Williams's prior unlawful sexual intercourse conviction would have given rise to a significantly different impression of his credibility in this case. Moreover, Speaks's testimony corroborated Williams's testimony that Smoots perpetrated the alleged assault. (See Van Arsdall, supra, 475 U.S. at p. 684 [factors for determining prejudicial effect of improper denial of defendant's opportunity to impeach adverse witness include "the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points"].) On the whole record, we find the court's error harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.