Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF158078 of Tulare County. Gary L. Paden, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Jesus Torres was convicted after jury trial of assault with a firearm on a peace officer, resisting an executive officer, being a felon in possession of a firearm, possession of methamphetamine and cocaine for sale, giving false information to a police officer and driving without a valid license. A personal arming allegation was found true in connection with the drug possession offense. (Pen. Code, §§ 245, subd. (d)(1); 69; 12021, subd. (c)(1); 148.9, subd. (a); 12022, subd. (c); Health & Saf. Code, § 11378; Veh. Code, § 12500, subd. (a).) He was sentenced to an aggregate term of eight years’ imprisonment.
Appellant argues that the court erred by excluding the testimony of a prospective defense witness and by denying his motion to release juror identifying information. Neither argument is persuasive; we will affirm.
FACTS
II. Prosecution Evidence.
Porterville Police Officer Tony Espinosa testified that he initiated a traffic stop of appellant’s vehicle on January 15, 2006. Appellant first told Espinosa that his name was Pedro Hernandez. Then he told Espinosa that his name was Pedro Ramirez. Espinosa wrote a citation, which appellant signed. Espinosa observed a video card in the name of Pedro Manuel on the passenger seat. Appellant told him the card belonged to his father. Espinosa did not believe appellant and intended to arrest him for giving false names and driving without a license. He directed appellant to exit his vehicle.
While Espinosa was patting down appellant’s front left pocket, he felt a gun handle. Appellant turned, looked at Espinosa and ran. Espinosa pursued appellant. Espinosa grabbed appellant from behind and they fell to the ground. Appellant landed on top of Espinosa. Appellant pulled his gun out of his pocket. The gun was wrapped in a rag. It was pointed toward Espinosa. Appellant held the gun in his right hand and started unwrapping it with his left hand. Espinosa used his left hand to hold both appellant’s right hand and appellant’s gun. Espinosa pushed the gun away. While the gun was still partially wrapped, Espinosa unholstered his weapon and fired it. Although appellant was not hit by the bullet, he released his gun and fell to the ground, screaming that he was shot. Espinosa yelled at appellant to stay on the ground. However, appellant got on his knees. Espinosa kicked him. Appellant continued to try to get up and so Espinosa repeatedly kicked him. Backup assistance arrived. Espinosa watched Porterville Police Sergeant Jay Brock open appellant’s gun and Espinosa observed that the gun was loaded.
During rebuttal, Porterville Police Sergeant Michael Blain testified that he took a detailed statement from Espinosa after the incident. Espinosa’s statement was consistent with his trial testimony.
Meanwhile, Vinich Poonyothaitip was in his car when he saw appellant and Espinosa run past him. He saw something that might be a cell phone drop from appellant’s shirt pocket as appellant ran by. When Poonyothaitip heard a gunshot, he parked his car and got out to investigate. Poonyothaitip picked up the object that had fallen from appellant’s shirt pocket. Poonyothaitip showed the object to Porterville Police Officer Cody Dean. It was a black container with a lid. The container held four small pieces of plastic. Three pieces of plastic were found on the ground near the place where Poonyothaitip picked up the container. Six of the pieces of plastic contained a powdery substance and one contained a crystalline substance. The parties stipulated that the pieces of plastic containing a powdery substance tested positive for cocaine and had a total weight of 1.6 grams, and the piece of plastic containing a crystalline substance tested positive for methamphetamine and weighed 10.75 grams.
During an inventory search of appellant’s vehicle, a black digital scale was found in the glove compartment and a glass pipe was found in the center console area.
When appellant was processed at the police station, he told Porterville Police Officer Raphael Vasquez that his name was Pedro Hernandez. Also, appellant told Vasquez that he ran from Espinosa because he had “crank” and a loaded weapon on his person.
Porterville Police Officer Mark Azevedo opined that the methamphetamine and cocaine were possessed for sale.
II. Defense Evidence.
Appellant testified on his own behalf. Appellant admitted that he gave Espinosa a false name when he was stopped. Appellant also admitted that he ran from Espinosa because he had a gun and drugs on his person. Appellant said that while he was running, his drugs fell from his pocket. Appellant stopped running because he thought Espinosa was going to shoot him if he continued. Both men tumbled to the ground and they struggled. Appellant’s gun fell out of his pocket and Espinosa picked it up. Appellant continued struggling with appellant. Then Espinosa shot at appellant. Appellant estimated that Espinosa kicked him 10 or 11 times.
Delores Martinez watched the incident from across the street. She saw appellant and Espinosa struggling. She did not see appellant strike Espinosa or see a weapon in appellant’s hand. Espinosa was not pointing his gun at appellant when Espinosa fired it.
Alvino Gonzales testified that he saw Espinosa chasing appellant. Appellant slowed down and Espinosa grabbed him from the back. He saw a black pouch fall from appellant’s waistband onto the street. Gonzales saw a gun in Espinosa’s hand. Espinosa dropped the gun. Espinosa picked the gun up and shot at appellant. After Espinosa fired the gun, he picked up the pouch. Espinosa took something out of the pouch and then he dropped it. Espinosa kicked appellant numerous times while appellant was on the ground.
Rochelle Ennis saw Espinosa run and then slow down as if he were tired. She saw Espinosa and appellant struggle. Ennis did not see anything drop onto the ground. She did not remember any kicking.
Gustavo Garcia testified about an incident involving Espinosa. Garcia testified that Espinosa did not like him and that he repeatedly visited his girlfriend, Elizabeth Castro. Garcia was driving his father’s car one day in February 2005, when Espinosa conducted a traffic stop. Espinosa removed him from the car and handcuffed him. Espinosa slammed Garcia’s head into the patrol car and threw him to the ground. Espinosa then picked him up by the handcuffs. At the police station, Espinosa grabbed Garcia’s head, banged it on some cabinets and started choking him. Espinosa and a sergeant slammed Garcia’s head on the ground and Espinosa punched him in the stomach.
There is some confusion concerning the name and marital status of this person. She is variously referenced as “Elizabeth Castro,” “Elizabeth Garcia” and “Elizabeth Castro Garcia.” In his opening brief, appellant asserts that her name is Elizabeth Garcia and that she is Garcia’s common law wife. However, Garcia testified that her name is “Elizabeth Castro” and they are “not married.” Common law marriage has been abolished in California. (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 19.) There is no evidence that Garcia and Castro validly contracted a common law marriage in another state. Therefore, we have referenced this person as Elizabeth Castro and characterized her as Garcia’s girlfriend.
During cross-examination Garcia admitted that he was convicted of battery and battery on a peace officer as a result of this incident. Garcia also admitted that he might have told Espinosa, “I’m gonna fuck you up.” He also admitted that during the pat down search, he twisted his body and yelled at Espinosa that he “wanted to fuck him up.” He admitted struggling with Espinosa and the sergeant at the police station.
DISCUSSION
I. Exclusion of Castro’s testimony was not an abuse of discretion and did not infringe any of appellant’s federal constitutional rights.
A. Facts
On the third day of trial, the court conducted a hearing to determine whether two newly identified defense witnesses, Garcia and Castro, would be permitted to testify. Defense counsel argued that Garcia’s testimony was relevant to prove that Espinosa used excessive force against Garcia. This shows that Espinosa has a propensity for violence and it supports appellant’s contention that Espinosa used excessive force against him. Defense counsel argued that Castro’s testimony was relevant to provide a motive for Espinosa’s use of excessive force against Garcia.
Defense counsel subsequently made an offer of proof concerning the content of Castro’s proposed testimony. He stated that Castro would testify that Espinosa had been coming to her house to visit her and her family since 2001. On several occasions, Garcia drove by when Espinosa was visiting. Espinosa asked Castro if he was her boyfriend. On other occasions, Espinosa drove by her house without stopping when Garcia was visiting. Espinosa counseled Castro to end her relationship with Garcia because he was not good for her. Espinosa stopped Castro in her car several times purely to socialize. He did not issue her a citation on any of these occasions, despite his knowledge that she was 15 years old and did not have a driving license. On the day Espinosa arrested Garcia, he told Castro “that he had hooked up her little boyfriend” because Garcia “got smart with him.”
After the offer of proof was made, the prosecutor argued that Castro’s testimony was not relevant and would “confuse the jury and make issues out of nonissues in this case.”
The trial court excluded Castro’s testimony. It reasoned as follows:
“I don’t believe it’s relevant. In addition, if this -- this witness relates to the witness Gustavo Garcia that was called regarding a prior incident with the officer here. If it was Mr. Torres’ girlfriend, I would think it would certainly be much more relevant but certainly it’s very remote in terms of relevancy concerning Mr. Gustavo Garcia.
“In addition, under Evidence Code Section 352, I find that the prejudicial effect and the undue consumption of time is much greater than any probative value on this matter and weighing all the factors of Evidence Code Section 352 I just don’t believe that allowing this evidence in would assist the jury in any way. It will perhaps only confuse the matter more so I’m not going to allow [her] to testify.”
B. Castro’s testimony was properly excluded.
Appellant argues that Castro’s testimony was relevant and contends that exclusion of this evidence was an abuse of judicial discretion that resulted in infringement of his federal constitutional rights to due process and to present a defense. We disagree.
The court did not simply exclude Castro’s testimony as irrelevant. Rather, it also determined that this testimony was inadmissible pursuant to Evidence Code section 352 because the evidence’s probative value was substantially outweighed by the prejudicial effect and undue consumption of time. Therefore, the applicable determination is whether the trial court erred in excluding Castro’s testimony pursuant to Evidence Code section 352. Trial courts have broad latitude when assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. Exclusion of evidence pursuant to this section will not be disturbed on appeal absent a finding of abuse of judicial discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Abuse of discretion does not appear. We agree with the trial court that the asserted relevance of Castro’s testimony was remote. Defense counsel argued that Castro’s testimony would bolster Garcia’s testimony by providing a motive for Espinosa’s alleged use of excessive force on Garcia. That was not a central issue in this case. Castro’s testimony would not have demonstrated the existence of a motive for Espinosa to attack appellant or for Espinosa to lie about the events surrounding appellant’s arrest. Castro was not appellant’s girlfriend; she had no connection to appellant. Castro was not a percipient witness to appellant’s arrest or to the incident involving Garcia in January 2005. Thus, Castro’s testimony had little probative value. We also agree with the trial court that the probative value of this testimony was substantially outweighed by the risk of undue prejudice, consumption of time and confusing the jury. The jury could have been confused by Castro’s testimony and distracted by tangential questions surrounding Espinosa’s personal interest in her. The trial court’s exercise of its discretion was well within reason; no error appears. (People v. Robinson (2005) 37 Cal.4th 592, 626.)
Appellant contends in this forum that Castro’s testimony was relevant to undermine Espinosa’s credibility because it would demonstrate that he is a police officer who was “willing to bend the rules when it pleased him, who allowed his personal feelings to get in the way of performing his duty, and who engaged in near-stalking behavior with an underage girl.” However, that argument was not advanced by defense counsel below. During trial, defense counsel only argued that Castro’s testimony was relevant to provide a motive for Espinosa’s alleged use of excessive force on Garcia. It is a well established principle of jurisprudence that only points that were first raised at trial and considered by the lower court are preserved for appellate review. (Evid. Code, § 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) Therefore, the new relevance theory advanced for the first time by appellate counsel is not cognizable. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.)
Appellant’s contention that exclusion of Castro’s testimony violated his federal constitutional rights to due process and to present a defense also fails. Generally, application of the ordinary rules of evidence does not violate a defendant’s right to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503.) The United States Supreme Court has not questioned the power of states to exclude evidence through the application of evidentiary rules. (People v. Yeoman (2003) 31 Cal.4th 93, 141-142.) Here, exclusion of Castro’s testimony did not undermine the fairness and reliability of the trial. Castro was not a percipient witness to any of the events giving rise to the charged offenses or to Garcia’s arrest. Her testimony would not have demonstrated the existence of a motive for Espinosa to use excessive force against appellant or to lie about the events surrounding appellant’s arrest. No constitutional error occurred. (People v. Abilez, supra, 41 Cal.4th at p. 503.)
II. Denial of appellant’s request for disclosure of confidential juror information was not an abuse of discretion.
A. Facts
The jury began deliberating at 3:50 p.m. on Thursday, December 7, 2006. The court recessed shortly thereafter, at 4:25 p.m.
The jury resumed their deliberations at 9:05 a.m. on Friday, December 8, 2006. At 4:30 p.m., the trial court called the jury into the courtroom. It discussed the possibility of the jurors returning on Monday or Tuesday to continue deliberations. Some jurors felt that continuing deliberations on Friday would be helpful. At the request of the jurors, the court permitted them to continue deliberating until 5:00 p.m. At 4:50 p.m., the jurors returned with their verdicts. In relevant part, the jury found appellant guilty of assault with a firearm on a peace officer as charged in count 1. However, it found not true a special allegation that he personally used a firearm in the commission of this offense.
On January 31, 2007, appellant filed a petition for release of juror information (disclosure motion). Defense counsel filed a supporting declaration in which he averred that the jurors needed to be contacted because they might have reached a compromise verdict on count 1. Defense counsel asserted that the guilty verdict on count 1 is inconsistent with the not true finding on the arming enhancement. He also found it suspicious that the jurors were able to reach a verdict by 5:00 p.m. on Friday. The prosecutor filed written opposition, arguing that appellant had not demonstrated good cause for disclosure.
The disclosure motion was denied after hearing. The court ruled that it did not find good cause for the release of juror information. It commended the prosecutor on the quality of its opposition papers, stating that it found them helpful. Defense counsel asked whether he was prohibited from going to public sources to ascertain addresses and communicate with jurors. The court replied, “No.” The court granted defense counsel’s request for a 30-day continuance so that he could attempt to locate jurors based on public information, communicate with them and prepare a motion for new trial based on their responses.
B. Denial of the disclosure motion was not erroneous.
Code of Civil Procedure authorizes a defendant or defendant’s counsel to petition the trial court for access to personal juror identifying information. Such requests are evaluated pursuant to Code of Civil Procedure section 237. This section provides that the petition shall be supported by a declaration that includes facts sufficient to establish good cause. What constitutes good cause is not defined. However, case law holds that to obtain disclosure a defendant must make “a sufficient showing to support a reasonable belief that jury misconduct occurred ….” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552 (Rhodes); accord, People v. Wilson (1996) 43 Cal.App.4th 839, 850-852 (Wilson).) A petition may be denied if the court determines that defendant did not show good cause or need for disclosure. (People v. Barton (1995) 37 Cal.App.4th 709, 716.) Denial of a petition to disclose juror identifying information is reviewed for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
In this case, the trial court’s determination that appellant failed to demonstrate good cause for disclosure is reasonable. Appellant did not make a showing sufficient to support a reasonable belief that jury misconduct occurred.
First, it is evident from the reporter’s transcript of the proceedings on Friday afternoon that that the jurors felt they might be able to reach a verdict if permitted to continue deliberating and they wanted the opportunity to attempt to do so. The jury’s ability to reach a verdict by 5:00 p.m. does not give rise to any inference of misconduct. Defense counsel’s averment to the contrary is purely speculative.
Second, the verdicts on count 1 and the associated personal firearm use enhancement are not factually inconsistent. Appellant was charged in count 1 with assault on an executive officer with a deadly weapon. To prove this crime, the People were required to establish, inter alia, that appellant willfully “did an act with … a firearm … that by its nature would directly and probably result in the application of force to a person.” (CALCRIM No. 860.) Espinosa testified that when appellant and he were on the ground struggling, appellant pulled a gun out of his pocket and attempted to remove a rag that was wrapped around it. The jury reasonably could have determined that these acts “would directly and probably result in the application of force to a person.” (CALCRIM No. 860.) Therefore, it returned a guilty verdict on count 1. However, the personal firearm use enhancement contains different elements than does the crime of assault on an executive officer with a deadly weapon. A defendant personally uses a firearm during the commission of a crime only if he intentionally displays the firearm “in a menacing manner,” or hits someone with it or fires it. (CALCRIM No. 3146.) Although Espinosa testified that the wrapped gun was pointing toward him when appellant took it out of his pocket, Espinosa did not testify that appellant intentionally pointed the gun toward him in a menacing way. He and appellant were struggling during this entire period of time and appellant did not say anything to him. Also, appellant did not succeed in unwrapping his gun before Espinosa fired his own service weapon, causing appellant to drop his gun. Appellant did not hit Espinosa with his gun or fire it. In light of these facts, the jury reasonably could have determined that the People did not satisfy their burden of proving beyond a reasonable doubt that appellant personally used the firearm in the commission of count 1.
In any event, “It is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand.” (People v. Lewis (2001) 25 Cal.4th 610, 656.) If a defendant is given the benefit of an acquittal on the count or enhancement allegation on which he was acquitted, it is neither irrational nor illogical to require him to accept the burden of conviction on the count on which the jury convicted. (People v. Santamaria (1994) 8 Cal.4th 903, 911.)
We are not convinced by appellant’s assertion that the court’s praise of the prosecutor’s written opposition demonstrates that the court applied an incorrect legal standard. Appellant’s challenge to the viability of Wilson, supra, 43 Cal.App.4th 839 is unfounded. In Townsel v. Superior Court (1999) 20 Cal.4th 1084 at footnote 4 on page 1094, our Supreme Court expressly accepted Wilson’s conclusion that the 1992 amendment of Code of Civil Procedure section 206 did not disturb the holding in Rhodes, supra, 212 Cal.App.3d 541, requiring good cause for disclosure.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Dawson, J.