People v. Blanco

• Decision Date: 04 November 1992
• Docket Number: No. A054352,A054352
• Citation: 10 Cal.App.4th 1167,13 Cal.Rptr.2d 176
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff/Respondent, v. Edmundo Escobar BLANCO, Defendant/Appellant.

Page 176

13 Cal.Rptr.2d 176

10 Cal.App.4th 1167

The PEOPLE, Plaintiff/Respondent, v. Edmundo Escobar BLANCO, Defendant/Appellant.

No. A054352.

Court of Appeal, First District, Division 2, California.

Nov. 4, 1992.

David McNeil Morse, by appointment under the First District Appellate Project, San Francisco, for defendant, appellant Edmundo Escobar Blanco.

Daniel E. Lungren, Cal. Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Donna B. Chew, Deputy Atty. Gen., San Francisco, for plaintiff, respondent People.

PETERSON, Associate Justice, Assigned. ^*

Appellant contends that the 1991 amendment to Evidence Code section 1103, subdivision (b)--which allows the introduction of evidence of a defendant's violent acts and reputation for violence, if a defendant presents evidence as to the bad acts or reputation of the victim of a crime--violates the due process rights of a criminal defendant and is, therefore, unconstitutional. We reject this contention, find no reversible error, and affirm the judgment of conviction.

I. FACTS AND PROCEDURAL HISTORY

It is uncontested that appellant shot the murder victim in the back, shortly after they had had a violent street dispute over drugs or money. The major issue contested at trial was appellant's claim that he fired in self-defense. We summarize the evidence briefly to provide necessary factual background.

The prosecution evidence showed that a prostitute purchased some cocaine from appellant; when she learned that what she had been given by appellant was not in fact cocaine, she tried to get her money back from appellant and enlisted the help of the victim, her protector or enforcer. The prostitute and the victim became involved in an argument with appellant which escalated to fisticuffs; the prostitute testified that appellant tried to land a blow on her, but was stopped by the victim, who then proceeded to batter appellant with his fists. Appellant refunded the money and retreated after being bested in this fist fight; the prostitute and the victim went about their business.

Some 15 or 20 minutes thereafter, appellant shot the victim in the back in revenge; there was no fighting or yelling preceding the shooting.

The defense evidence was that the victim was a violent man who had a history of accosting people and demanding money, and that he tried to rob appellant. Appellant testified he fired in self-defense during the ensuing struggle.

The prosecutions's forensic evidence showed the victim died from a gunshot wound fired into his back from some distance away. That evidence was inconsistent with appellant's claim he fired in self-defense during a struggle. Further, every other witness testified the initial struggle had long expired when appellant returned to the street and fired one shot into the victim's back, killing him. Although appellant testified that the killing had nothing to do with a dispute over drugs, and that he did not sell drugs, he admitted a previous conviction for drug sales and was impeached with evidence of witnesses who bought drugs from appellant.

Appellant also testified that, although he had formerly been a soldier in the Nicaraguan National Guard, he now had to avoid getting in fights because of stomach wounds he had received in battle, which necessitated the replacement of certain internal organs with plastic parts. Coupled with the defense evidence as to the victim's violent nature, this evidence was intended to support a defense theory that appellant was, due to his injuries, now a peaceable man who would not engage in violence; according to appellant's testimony, "I can't fight with anybody."

The prosecution then sought to adduce evidence to rebut this defense claim by showing that appellant was also a violent man like his victim. The prosecution contended this evidence was admissible under the newly amended EVIDENCE CODE SECTION 1103¹, subdivision (b) (section 1103(b)). The defense argued the evidence was not admissible under that section; although the defense had also briefly alluded to "constitutional minefields in this new statute" when disputing the introduction of this evidence in a previous colloquy, the only "minefield[ ]" mentioned was that the section "puts into a separate category those defendants who wish to offer evidence showing self-defense." Ultimately even this glimmer of a constitutional argument was apparently abandoned, and appellant framed the issue only in terms of the application of the statute, arguing that "I don't think [section] 1103 applies at all." The prosecution also pointed out that, quite apart from the application of section 1103(b), the evidence as to appellant's violence was admissible to rebut his claims in his testimony that he did not have any fights before the killing, due to his stomach injury.

The trial court applied section 1103(b), ruling that certain evidence offered by the prosecution would be admissible, while utilizing its discretion under section 352 to bar prosecution evidence that appellant's wife told the police he had a gun and had told her during a domestic dispute he was going to kill her.

The prosecution then adduced evidence that appellant had been involved in violent disputes and associated threats against his wife and neighbors which caused him to have a reputation for violence; as part of this evidence, it was shown that appellant had beaten his wife while she was holding her little daughter, tried to kick down a neighbor's door and made a variety of threats against her, and threatened another neighbor and his family with violence.

The jury convicted appellant of second degree murder and the use of a firearm during the offense. The trial court imposed a sentence of 15 years to life, plus 4 years for the use of the firearm. Appellant brought a timely appeal.

II. DISCUSSION

We affirm. We are somewhat dubious as to whether there was a timely and specific objection below, sufficient to allow appellant to raise on appeal the argument he now makes in contending that section 1103(b) is unconstitutional for violation of his due process rights. In any event, we find no constitutional infirmity or other error on these facts. Further, any possible error here would be harmless, since the evidence in question was either independently admissible, or could not have affected the outcome of this trial.

A. Was There a Sufficiently Specific Objection?

Appellant contends that section 1103(b) violates his constitutional due process rights, by making evidence of his prior violent acts and reputation for violence admissible when he had not proffered evidence as to his reputation for or character trait of violence, and had only sought to introduce evidence as to the character of the victim as a violent man prone to assault and robbery. We have great difficulty finding an objection below which bears any close resemblance to this appellate contention of a violation of constitutional due process.

Appellant's objection below was that section 1103(b) did not apply here, not that it violated constitutional due process. Appellant's counsel did allude vaguely in colloquy with the trial court to certain "constitutional minefields," without specifying which constitution or constitutional provision he was talking about; but the only claim actually mentioned was the argument that the statute "puts into a separate category those defendants who wish to offer evidence showing self-defense." This claim, of course, is false; the statute does not allow evidence of the defendant's character in every case where self-defense is asserted as a defense; it only allows such evidence where the defendant first presents evidence of the victim's character for violence as a means of showing the defendant's alleged reasonable response to the victim's violence.

As for appellant's due process argument which he now raises, our Supreme Court has expressly refused to reach the merits of a similar constitutional due process claim where no timely and specific objection was made below. In People v. Gordon (1990) 50 Cal.3d 1223, 1240, footnote 2, 270 Cal.Rptr. 451, 792 P.2d 251, our Supreme Court declined to address an analogous belated claim of a due process violation, where the prosecution introduced evidence the defendant robbed a retail establishment in order to show he was likely to be involved in the robbery of another store: "Defendant claims the court's ruling was error under the United States Constitution as well as the Evidence Code. He argues that the ruling violated his right to due process under the Fourteenth Amendment. We reject the point at the threshold. It is, of course, 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.' [Citation.] At trial defendant failed to make a sufficient objection that the admission of the evidence of the Riverside K Mart incident would violate his federal constitutional right to due process." (Accord, People v. Raley (1992) 2 Cal.4th 870, 892, 8 Cal.Rptr.2d 678, 830 P.2d 712 ["We reject the constitutional arguments because no objection on these grounds was raised below."]; People v. Benson (1990) 52 Cal.3d 754, 788, 276 Cal.Rptr. 827, 802 P.2d 330.)

However, our Supreme Court and other appellate courts have also sometimes addressed such constitutional questions in the absence of proper objection below. (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512 ["[A]lthough California authorities on the point are not uniform, our courts have several times examined constitutional issues raised for the first time on appeal, especially when the enforcement of a penal statute is involved [citation]...."]; People v. Allen (1974) 41 Cal.App.3d 196, 201, fn. 1, 115 Cal.Rptr. 839 [This court ...