People v. Hempstead

• Decision Date: 14 November 1983
• Docket Number: Cr. 23752
• Citation: 148 Cal.App.3d 949,196 Cal.Rptr. 412
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred HEMPSTEAD, Defendant and Appellant. A016254.
• Court: California Court of Appeals Court of Appeals

Page 412

196 Cal.Rptr. 412

148 Cal.App.3d 949

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred HEMPSTEAD, Defendant and Appellant.

A016254.

Cr. 23752.

Court of Appeal, First District, Division 5, California.

Nov. 14, 1983.

Hearing Denied Feb. 2, 1984.

John K. Van De Kamp, Atty. Gen., Ronald E. Niver, Richard G. Tullis, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Quin Denvir, State Public Defender, Deborah Long, Deputy State Public Defender, San Francisco, for defendant and appellant.

KING, Associate Justice.

Fred Hempstead appeals from a judgment of conviction for second degree murder (Pen.Code, § 187) with a firearm (Pen.Code, § 12022.5) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). We affirm the conviction.

On July 14, 1980, Hempstead shot Kenneth Pickett and Pickett's brother, Eugene Henderson, in the home in which they all lived. Pickett died; Henderson was wounded in his right thigh.

Hempstead's defense at trial was that the shooting was accidental: he was putting the gun away when Pickett hit his hand and caused the gun to fire; Henderson grabbed his hand and the gun accidentally discharged again; the gun fired a third time when Hempstead tried to empty it. The prosecution's evidence supported the jury's verdict.

Hempstead intended to call eight witnesses who would give opinion testimony as to Hempstead's good character based on their contact with him during the previous five to fifteen years. During trial he moved in limine to preclude the prosecutor from cross-examining the witnesses about prior acts of misconduct by Hempstead. The acts consisted of an unprosecuted 1974 battery and an unprosecuted 1973 assault with a deadly weapon and kidnapping, all involving the same victim, who was deceased at the time of trial. The prosecutor believed in good faith that the acts had occurred. Hempstead's counsel represented that none of the character witnesses had heard about either incident, and offered to introduce testimony to this effect outside the presence of the jury. He argued that because of this representation, the prosecutor could not be permitted to ask the witnesses whether they had heard of the prior acts, citing People v. Kramer (1968) 259 Cal.App.2d 452, 66 Cal.Rptr. 638. The decision in Kramer requires, as a prerequisite to cross-examination of reputation witnesses regarding the defendant's prior misconduct, that the prosecutor have a good faith belief that the prior acts actually occurred and that the questions will be asked in anticipation of an affirmative response.

The court ruled that the cross-examination would be permitted because the requirement in Kramer of anticipation of an affirmative response applies only to reputation testimony, and not to opinion testimony, since an opinion witness' negative response shows "some lack of information on which he based his opinion, and it does undermine his opinion." Because of the court's ruling counsel chose not to call the character witnesses. Hempstead contends that his representation that the prospective witnesses had not heard about the prior acts compelled a contrary ruling.

When a criminal defendant presents opinion or reputation evidence on his own behalf the prosecutor may present like evidence to rebut the defendant's evidence and show a likelihood of guilt. (Evid.Code, § 1102, subd. (b).) Courts, however, have imposed safeguards to cross-examination of defense reputation witnesses, to prevent prosecutorial abuse of this rule. The Supreme Court held in People v. Eli (1967) 66 Cal.2d 63, 79, 56 Cal.Rptr. 916, 424 P.2d 356, cert. den., 389 U.S. 888, 88 S.Ct. 136, 19 L.Ed.2d 188, that the trial court must exercise its discretion to prevent cross-examination of defense reputation witnesses "based upon mere fantasy" by first ascertaining outside the presence of the jury that the subject of cross-examination was an event that actually occurred. The court subsequently explained in People v. Gonzales (1967) 66 Cal.2d 482, 502, 58 Cal.Rptr. 361, 426 P.2d 929 that "One of the dangers sought to be minimized by Eli was that of the question, based upon a paucity or a total lack of factual support, which is asked with little or no hope of affirmative response and with the basic purpose of creating through innuendo that which cannot be established by proof."

The rule set forth in Eli and Gonzales was expanded in People v. Kramer (1968) 259 Cal.App.2d 452, 466-468, 66 Cal.Rptr. 638. The Kramer court characterized the Eli-Gonzales rule as one requiring the prosecutor "to show that the questions are asked in good faith" (id., at p. 466, 66 Cal.Rptr. 638), and held that "good faith requires, in addition to factual support for the matters inferred in the question, that the question be asked in anticipation of an affirmative response and not simply for the purpose of getting an innuendo before the jury." (Id., at pp. 467-468, 66 Cal.Rptr. 638 [emphasis added], citing People v. Gonzales, supra, 66 Cal.2d at p. 502, 58 Cal.Rptr. 361, 426 P.2d 929.) The court relied on Gonzales, even though Gonzales did not prescribe any requirement of anticipation of an affirmative response, but simply referred to the absence of such anticipation as a corollary of an absence of factual support. (66 Cal.2d at p. 502, 58 Cal.Rptr. 361, 426 P.2d 929.)

The Eli, Gonzales, and Kramer cases involved reputation testimony, whereas the evidence in the present case was limited to opinion testimony. This distinction has some significance in the present context, but the same danger--that of showing prior misconduct by innuendo rather than by proof--is present in both situations.

However, in People v. Hurd (1970) 5 Cal.App.3d 865, 85 Cal.Rptr. 718, the court explained why evidence of prior misconduct may nevertheless be relevant for purposes of cross-examination as to opinion testimony:

"The rationale for permitting the prosecution to cross-examine a defendant's good-character witness as to whether or not he has heard rumors or reports of defendant's arrest or conviction of other offenses inconsistent with the character trait testified to, is that such cross-examination tests and exposes weaknesses in the witness' knowledge of the reputation. [Citations.] Defendant argues that that rationale does not apply where, as here, the good-character witness does not testify to defendant's reputation but states his opinion of defendant's character. Although defendant's argument is not without some logic, we cannot agree with his conclusion that it was error to permit the cross-examination of Father Hiss [the defendant's good-character witness] in the 'have you heard' form.

"Obviously, the opinion of a good-character witness must have some basis, and the prosecution must be permitted to test that basis and bring into question the validity of the opinion. [Citation.] In many instances, the opinion of a personal acquaintance will necessarily be based upon a mixture of personal knowledge or observation of the defendant and a knowledge of his reputation in the community. Just so, in the case at bench, the foundation for Father Hiss' opinion was his personal acquaintance with defendant and his having met other people who knew defendant. Under these circumstances, it would not seem inappropriate that the prosecution be permitted to test the witness' knowledge, including his knowledge or lack of knowledge of well founded rumors of defendant's misconduct inconsistent with the character traits to which he testified." (Id., at pp. 879-880, 85 Cal.Rptr. 718.)

When, as here, a witness is called to express an opinion as to the good character of the defendant, the prosecution must have the opportunity to let the jury test the validity of the opinion or the weight to be given to it by asking whether the holder of the opinion has knowledge of events or acts which have indisputably occurred. If allowing these questions and answers would create a substantial danger of undue prejudice to the defendant, the trial judge has the discretion to preclude them under Evidence Code section 352. When such cross-examination of a good-character witness is permitted, the jury should be instructed that such questions and answers of a character witness are to be considered only for the purpose of determining the weight to be given to the opinion or testimony of the witness. (See CALJIC 2.42.)

For these reasons, the trial court's ruling permitting cross-examination of Hempstead's good-character witnesses as to the prior acts was correct even if such witnesses had absolutely no knowledge of them.

Hempstead also argues that the court should have granted the motion because the prior acts were...