The People v. Chavez

• Decision Date: 05 October 2000
• Citation: 100 Cal.Rptr.2d 680,84 Cal.App.4th 25
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 3 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. DANNY MATA CHAVEZ, Defendant and Appellant. C032716 (Sacramento) Filed

100 Cal.Rptr.2d 680 (Cal.App. 3 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. DANNY MATA CHAVEZ, Defendant and Appellant.

C032716

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT (Sacramento)

Filed 10/5/00

APPEAL from a judgment of the Superior Court of Sacramento County. Jeffrey L. Gunther, Judge. Affirmed.

(Super. Ct. No. 98F05120)

Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION^*

MORRISON, J.

A jury convicted defendant of two counts of first degree robbery (Pen. Code, 211) and found true the allegations that defendant had used a firearm during the commission of the crime (Pen. Code, 12022.53, subd. (b)). The trial court sentenced him to 20 years 8 months in prison. On appeal defendant argues the trial court abused its discretion in making several evidentiary rulings. He further contends he was denied due process when the prosecutor committed misconduct and the court denied his motion for a mistrial based upon such misconduct. We disagree, affirm the trial court, and hold that sexual battery is a crime involving moral turpitude and, therefore, under People v. Wheeler (1992) 4 Cal.4th 284 may be used to impeach.

FACTS

On May 21, 1998, Eddie Lopez and Jose Castaneda were employed by Sampson Steel and were doing construction work at U.C. Davis Medical Center. Both men arrived in Sacramento early that morning and checked into Motel Six before going to the job site. They worked until approximately 12:30 p.m. and drove back to the motel where they awaited a call from their supervisor. They fell asleep and awoke several hours later.

Lopez walked onto the balcony and befriended defendant and Angel Ruelas who were walking around outside. The four started up a conversation about work, and Ruelas asked Lopez about his truck, which was in the parking lot. Defendant asked if he could use the phone to page his friend explaining they had been locked out of their own room. Lopez offered defendant and Ruelas a beer while they awaited their phone call.

Approximately 15 minutes later, Lopez announced he was going to leave. Defendant asked if he could "roll a joint" first and Lopez agreed. Suddenly, defendant put a gun to Castaneda's head and threatened to kill both men if either moved. Ruelas began beating Lopez violently with his fists and then covered his body with blankets. Ruelas beat Lopez with a shoe and blood began flowing from his head underneath the blankets. Lopez stopped moving. Defendant told Castaneda he would not be harmed and that all they wanted "was a ride." Castaneda was wrapped in blankets, tied up with a telephone cord which had been ripped from the wall socket, and a pillow was placed on his head. Castaneda waited awhile before untying himself, thinking they would be shot. Defendant and Ruelas absconded with the victims' personal effects and Lopez's truck.

Lopez sustained various injuries. He missed approximately three weeks from work due to nausea and headaches. Castaneda sustained an injury to his cheek.

Lopez's truck was later found abandoned in Soledad. At trial both victims positively identified defendant as one of the attackers. They also identified photos of the crime scene including bloody sheets, the phone cord ripped from the wall socket, and the beds, which were left bare. Crime scene investigators testified defendant's fingerprints were found on the phone in the victim's hotel room and on the driver's side window of Lopez's truck. Four beer bottles were found in the room.

Defendant testified on his own behalf as follows. Around noon on May 21, 1998, he met the victims at Club 400, an adult entertainment club. Lopez approached defendant first, asking if he "'did crank.'" At approximately 2:00 p.m. defendant, Lopez, and Castaneda went to Motel Six. After leaving Motel Six, they went to another adult entertainment club. On the way, Lopez stopped to purchase more drugs from a house in downtown Sacramento. Lopez decided to return to the motel to meet with more acquaintances, and they purchased more beer at the "Cheaper Store" on Broadway.

While at the motel, Lopez showed defendant his tattoos and began bragging about being affiliated with a gang from southern California. Defendant engaged Lopez in a debate about the stupidity of gangs and Hispanics killing each other. At approximately 4:30 p.m., Lopez's friends, Ray-Ray, Linda, Stephanie, and Angie arrived at the motel. Everyone was drinking alcohol. A total of 36 beers were consumed. To avoid "inconveniencing" his new acquaintances defendant paged his girlfriend for a ride. Because his girlfriend "wasn't going to be around" until later, defendant left for the store with Castaneda and Stephanie. When they returned to the motel, Angie ran down the stairs to tell them "Ray-Ray's up there fucking up Eddie [Lopez]." Defendant had his passenger side door open, and could see what was happening in the motel room. Castaneda ran upstairs to help his friend, leaving the keys in the truck. Angie urged Stephanie to leave. Defendant could not get his door open. Stephanie took the wheel while defendant remained in the vehicle and the two left in Lopez's truck. Stephanie got out somewhere near McKinley Park.

Defendant feared for his life, but drove the truck back to the motel and parked across the street. Defendant saw that the police had arrived. Fearing for his safety, defendant drove the vehicle to Soledad, where he abandoned it. Defendant went to his sister's house, but did not tell anyone about what happened. He was arrested 10 days later.

DISCUSSION

I.

Defendant first challenges the trial court's decision to exclude the testimony of Sergeant Bosworth, a gang tattoo expert, as an abuse of discretion. He argues his inability to examine this witness violated his right to present a complete defense. We disagree.

Defendant began presenting his case on December 3, 1998. He informed the court that he intended to call Sergeant Bosworth. The court indicated a hearing pursuant to Evidence Code section 402 was necessary to determine the admissibility of the evidence.

At trial, defendant took the stand and described Lopez's tattoo (which depicts a prison tower and the word "Sur"). Defendant explained that it represented a gang from southern California. After being "minimally qualified" as an expert in gangs by the trial court, defendant testified that Lopez bragged about his gang affiliations and ties to the Mexican Mafia. He testified Lopez also showed his affiliation by wearing a blue bandana on the day of the incident and in court when he testified.

That afternoon, counsel for defendant informed the court Sergeant Bosworth would not be available until the next day. He then made an offer of proof, stating the witness would corroborate defendant's testimony that Lopez was a gang member. The court excluded the evidence as cumulative given defendant's testimony.

It is for the trial court to determine all questions regarding the admissibility of evidence. (Verzan v. McGregor (1863) 23 Cal. 339, 342.) "When expert opinion is offered, much must be left to the trial court's discretion. [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 403.) "As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citation.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]" (People v. Page (1991) 2 Cal.App.4th 161, 187.) The trial court also has discretion to determine an expert's qualifications. (People v. Carpenter, supra, 15 Cal.4th at p. 403.) In accordance with these well-settled principles, we find no error in the trial court's exercise of discretion.

Defendant's testimony regarding gang tattoos was unchallenged. There was no cross-examination to question whether Lopez's tattoo truly was gang related, so the need for corroboration was slight. At closing, counsel for defendant was able to highlight that defendant "testified as an expert." The proffered evidence was only minimally relevant. Any additional testimony regarding gang affiliation would have been cumulative. Moreover, the evidence against defendant was overwhelming. Two witnesses identified defendant as the individual who committed these violent acts against them. The physical evidence at the scene corroborated only the victims' version of events. The admission of his expert's testimony would have added little to his defense. Lastly, allowing defendant's expert to testify would have required a one-day delay in the trial. The trial court did not err.

II.

Defendant asserts the trial court abused its discretion in admitting evidence of his misdemeanor conviction for sexual battery (Pen. Code, 243.4, subd. (d)). As we construe his argument, defendant contends his prior conviction has little bearing on his veracity and that its introduction into evidence was unduly prejudicial.

Over defendant's objection, the trial court allowed the prosecution to cross exam defendant on the circumstances underlying his conviction for sexual battery. The court determined a sexual battery was conduct involving moral turpitude and that while the facts of the crime were admissible, the defendant's other convictions for spousal abuse would be excluded as cumulative.

"'No witness[,] including a defendant who elects to testify in his own behalf[,] is entitled to a false aura of veracity.'" (People v. Muldrow (1988) 202 Cal.App.3d 636, 646.) In accordance with this maxim the California Supreme Court in People v. Wheeler (1992) 4 Cal.4th 284, abrogated the felony-only rule and permitted misdemeanors to be used to impeach. However, the threshold inquiry remains whether the prior...