Opinion
D071537 D072039
08-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON WARD, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Melissa Mandel, Meredith S. White and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD265228) CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Melissa Mandel, Meredith S. White and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jason Ward of corporal injury to a spouse and/or roommate (Pen. Code, § 273.5, subd. (a); count 6) and false imprisonment (Pen. Code, § 236, 237, subd. (a); count 7). The court declared a mistrial due to a jury deadlock as to other counts charging Ward with assault with intent to commit sodomy (Pen. Code, § 220, subd. (a)(1); count 1), forcible sodomy (Pen. Code, § 286, subd. (c)(2)(A); count 2), forcible sexual penetration with a foreign object (Pen. Code, § 289, subd. (a); count 3), forcible rape (Pen. Code, § 261, subd. (a)(2); count 4), and sexual battery by restraint (Pen. Code, § 243.4, subd. (a); count 5). The court granted the People's motion to dismiss counts 1 through 5. It sentenced Ward to four years in state prison (the upper term on the corporal injury conviction and a stayed midterm of two years on the false imprisonment conviction) and ordered him to pay restitution to the victim and the victim's compensation fund.
The numerical breakdown on those counts was eight to four on count 1; five to seven on count 2; and four to eight on counts 3, 4 and 5.
Ward separately appealed from the court's restitution order. We consolidated the two appeals. Ward does not challenge the restitution order however.
Ward contends the trial court erred when it excluded what he claims is evidence that the victim lied to district attorney investigators days before her trial testimony. He maintains the error prejudiced him under People v. Watson (1956) 46 Cal.2d 818, 836 because the victim's credibility and character for truthfulness was crucial, there were no percipient witnesses to his crime, and the jury struggled with the victim's story as well as the evidence as reflected by its inability to reach verdicts on counts 1 through 5. Ward asks this court to reverse his count 7 conviction for felony false imprisonment and order a new trial on that count. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Ward and the victim, J.O., became roommates after they had a brief romantic relationship. They sometimes had sexual relations. Ward slept in the bedroom and J.O. slept on a fold-out couch in the living room. J.O. worked as a bartender.
On December 20, 2015, Ward became angry at J.O. because she had not paid his cell phone bill; he took her phone as well as her car keys and left in her car, which at times she allowed him to use. J.O. walked to the bar where she worked, borrowed a friend's phone and called her father. She stayed at the bar and had a few drinks. J.O. returned to her apartment later that day, and at about 10:30 or 11:00 that night, Ward returned there with a friend. J.O. was sleeping on the sofa bed in leggings and a tank top. When she awoke Ward was on top of her with his knees on her shoulders, calling her a whore and laughing at her. Ward's friend, who was eating, told Ward to "be nice" and not to hurt J.O., but after J.O. wriggled free, Ward threw her down on another couch and started slapping her on her face. Ward told J.O. he was slapping instead of punching her so as not to leave a mark, and that J.O. would not be able to prove anything. Ward's friend got mad, told Ward not to hit J.O., and left, though J.O. ran to him and asked him not to leave.
Ward told J.O. she had no friends then yanked J.O. by the hair, threw her down, and starting to rip her clothing. He took her leggings off and ripped her top. J.O. tried to escape and ran to the bathroom where she found her phone and tried to dial 911. Ward however was able to open the door. He then "beat the crap out of" J.O., picking her up and slamming her into the ground. At some point, J.O. tried to get into the living room, but Ward grabbed her by the hair, took her phone and threw it. She also tried to escape to the kitchen, but he pushed her to the ground and tried to poke her in the eyes. J.O. tried to reach the front door, but Ward kept grabbing her and throwing her back. When the assault paused, J.O. tried to ask for water or a bathroom break to humanize herself so he would stop. Ward mostly just laughed at her. J.O. felt Ward called her a whore because he had seen text messages from another man she was seeing.
At about 10:00 that night, a neighbor in the apartment directly upstairs from J.O.'s heard noise and an angry male voice yelling, "You fucking bitch," which drew her attention. She and her boyfriend got on the ground and tried to listen to make sure no one was hurt, but they did not hear any more specific words, just arguing and objects either being thrown or knocked over. The noise went on for about two hours, then the neighbor fell asleep. She did not call the police because she thought it was just a dispute; she stayed awake as long as possible to make sure everything was okay, then went to bed when it got quiet.
The incident ended that night when Ward entered the shower to rinse off. J.O. put on sweat pants and ran out of the house. She went to her workplace and told them to call 911 because she had been raped and beaten. One of the bar employees saw J.O. was frantic, shaky and pale, and repeating, "Call the cops."
Police responded to the early-morning call. An officer observed J.O. had some bruising and scratches on her extremities, a small mark on the left side of her mouth, and her top was slightly torn. He believed she was under the influence of alcohol at the time, but J.O. was coherent and able to answer questions appropriately, and when the officer asked if she wanted medical attention, she responded, "Probably a rape kit." Another officer went to J.O.'s apartment at about 1:30 that morning. The front door was open and it appeared someone had just left. The television and lights were on, and there was an open fold-out couch with blankets strewn about. Nothing stood out to the officer about the scene; he did not notice broken furniture or vomit. A neighbor came out and asked the officer what was going on.
J.O. initially did not want to go to the hospital, but eventually was transported there in an ambulance. On the way, J.O. vomited multiple times, which the medic attributed to adrenaline. After J.O. was treated, she went to a separate facility and underwent a SART exam. The SART nurse documented the injuries and extensive bruising to J.O.'s body that J.O. reported did not exist before the incident. Some of J.O.'s bruises were yellowish in color. A criminalist found no blood on external genital or rectal swabs taken from J.O., though both swabs tested positive for Ward's DNA.
Ward contacted police on December 26, 2015, to keep things peaceable while he obtained his belongings, and two officers accompanied him to the apartment at about 2:30 p.m. The officers saw that J.O., who identified herself as Ward's girlfriend, was intoxicated and became angry that they were allowing Ward inside. The officers placed Ward under arrest after performing a records check and finding a warrant for his arrest. Ward seemed shocked at being arrested and asked what he was being charged with; when an officer told Ward the charges involved rape and sodomy, he told the officer that he and J.O. had gotten into a fight but did not have sex.
Defense Evidence
Ward's childhood friend who was with Ward on the night in question testified that Ward and J.O. were living together as boyfriend and girlfriend. He characterized Ward as trustworthy. On the night in question, he ate dinner and drank beer with Ward then went back to Ward's house. Ward had J.O.'s phone and showed him that other men were texting J.O. and she was sending sexual texts. Ward's friend testified that that night, Ward was calm, sitting on the couch next to J.O. and trying to get answers from her about what was going on. Ward and J.O. began arguing loudly with each other for about 20 or 30 minutes, but did not have any physical contact. Ward's friend left because he was uncomfortable.
Ward admitted he had a prior misdemeanor domestic violence conviction. He testified that on the night in question he was upset and hurt, and had confronted J.O. with her text messages when he returned home. He knew J.O. had been drinking. According to Ward, J.O. asked to cuddle, then asked him to have sex with her. They tried to have sex but he could not because he was thinking about J.O.'s infidelity. Ward testified that J.O. got mad when he said something spiteful to her about her belonging to other men, then she told him to stop and that if he continued, "it's rape." Ward denied slapping J.O. or throwing her to the ground, engaging in any violence, forcing himself on her, or doing any of the things she accused him of doing to her. Ward testified that J.O. always had bruises. He denied that J.O. at any time was screaming, crying or asking for help.
The defense presented evidence that while J.O. told police officers she had not had anything to drink after leaving her workplace on the afternoon of the incident, J.O.'s alcohol level upon her arrival to the emergency room was 0.11 percent.
Defense Motion to Admit Evidence
Voir dire of the jury took place on November 7, 2016, and the first trial witness was presented on November 9, 2016. Five days later, Ward moved to admit evidence of an incident involving J.O. that had occurred at J.O.'s hotel on November 8, 2016, and J.O.'s later statement to a district attorney investigator. In an affidavit, Ward's counsel recounted that the district attorney had told him that J.O. was involved in an incident at the hotel where she was staying in anticipation of her testimony. Specifically, according to reports and media he reviewed, on November 9, 2016, the hotel's manager notified the district attorney's office that J.O., who was either " 'really intoxicated or under the influence of something,' " needed to be removed from the hotel for "harassing" agents and asking them to come to her room. That day, two district attorney investigators picked J.O. up and took her a different hotel, telling J.O. the hotel did not want her to stay any longer. She told the investigators that the night before, she went to the hotel lobby and watched television, then ordered a pizza. She said she started talking with the front desk clerk. He was " 'flirting' " with her and asked for her telephone number, which she gave him, telling him he could text her. J.O. denied saying anything sexual to him and she did not know why she was asked to leave the hotel; according to her, the only other interaction she had with hotel staff was when she asked for towels and water.
When the district attorney investigators spoke with the front desk clerk, he told them J.O. was making him feel uncomfortable. J.O. was in the lobby for about two and a half hours. He stated their interaction was initially friendly while they watched television, then J.O. told him she " 'liked' him" and told him she was in San Diego for court, that she had been " 'abducted' and 'sodomized,' " and that she was not supposed to be seen. After he gave J.O. a brochure for a pizza place, she left the clerk a note with her phone number and " 'let's make out' " written on it. J.O. smiled at him and asked him to call and text her. The clerk told investigators that he never asked J.O. for her phone number, and threw her note away. Thereafter, J.O. went to her room and began calling the front desk five to ten times asking if she could get a " 'stripper' " for room service. The clerk became uncomfortable when he told J.O. he had other guests to attend to and she responded, " 'I'm a guest here. I'm a guest here.' " The clerk did not see J.O. drink, but he could smell alcohol and she seemed " 'buzzed.' " The clerk told the manager what happened, adding that J.O. had told him she would be there all week and asked him if he wanted to come to her room.
Counsel argued that the incident was relevant, and demonstrated "a fuller picture of [J.O.'s] character." He explained the testimony would consist of further questioning of J.O., one of the investigators who would be testifying on other matters, and the hotel clerk, whose testimony would take at most 45 minutes. Counsel argued the proffered testimony was more probative than prejudicial, and his questions would focus on J.O.'s dishonesty concerning the incident, which related to J.O.'s character for honesty and credibility.
At a hearing on the motion, the People opposed admission of the evidence, arguing J.O.'s conduct was not a matter of moral turpitude but a collateral matter that would waste time and confuse the jurors. The prosecutor also stated that J.O.'s aggressive flirtation with the front desk clerk would fall under Evidence Code section 352 as painting J.O. as sexually aggressive and the one hitting on the clerk. She argued there was no relevance under any theory to evidence of J.O.'s aggressive flirtation, request for strippers, or giving the clerk her number; it was not probative of her credibility but would inflame the jury; and the evidence should be excluded under the rape shield law as well as section 352. Defense counsel responded that the incident did not qualify as sexual conduct. He stated his focus was on the fact J.O. did not mention any of her conduct to the district attorney investigators but lied to them about the circumstances, going to her credibility when drinking, which "goes directly to the part of what the defense is going to be in this case:" how "when confronted about how she acted when intoxicated, how she lies about what she did and what she said" with regard to the incident with Ward.
Undesignated statutory references are to the Evidence Code.
The trial court denied the motion. It ruled the evidence had no relevance and if it did, it was substantially outweighed by misleading and confusing the jury. The court characterized the matter as a "fundamental question of relevance," stating it did not reach the rape shield law issue.
DISCUSSION
I. Evidentiary Principles and Standard of Review
" 'No evidence is admissible except relevant evidence.' [Citation.] 'Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." ' [Citation.] 'The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citation.] 'In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal absent an abuse of that discretion.' " (People v. Hardy (2018) 5 Cal.5th 56, 86.) Under this appellate standard, the court's ruling " ' "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Case (2018) 5 Cal.5th 1, 46.)
As with all relevant evidence, the trial court retains discretion to admit or exclude evidence offered for impeachment, and its exercise of discretion is reviewable under the same standard. (People v. Case, supra, 5 Cal.5th at p. 46.) This broad discretion includes the discretion to exclude impeachment evidence under section 352. (People v. Hamilton (2009) 45 Cal.4th 863, 946; People v. Turner (2017) 13 Cal.App.5th 397, 408.) And, " ' "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense." ' [Citation.] Rather, '[c]ourts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.' " (People v. Ghobrial (2018) 5 Cal.5th 250, ___ .)
Finally, this court will not set aside a judgment by reason of the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice. (§ 354.) An error has resulted in a miscarriage of justice and warrants reversal "if in the absence of the error, the appealing party would have probably obtained a more favorable result." (Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 526-527; citing Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354.)
II. Analysis
Ward contends the trial court abused its discretion when it excluded evidence of the hotel incident and J.O.'s inconsistent statements to district attorney investigators. He argues section 780 permits him to attack J.O.'s credibility using a "collateral" matter. Ward acknowledges that evidence of sexual history is not admissible on the issue of consent, but citing People v. Tidwell (2008) 163 Cal.App.4th 1447, he points out the rape shield laws do not apply to evidence that a witness made a false allegation of rape. He maintains that here, defense counsel did not focus on J.O.'s sexual activity or flirtation, only her credibility. Ward argues the evidence tended to establish J.O. exaggerated things that had happened to her while she was drinking, and it showed she recently lied about her conduct to law enforcement officials. He maintains it suggests J.O. was capable of lying about other things, including her claim at trial, partly disbelieved by the jury, that Ward kept her from getting away for a period of two to four hours while he beat and raped her, a material issue in dispute for the false imprisonment charge.
Section 780 provides in part: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to [ ]: [¶] . . . [¶] (e) His character for honesty or veracity or their opposites." --------
Under the foregoing appellate review standards, we cannot say the trial court's section 352 assessment was arbitrary, capricious, patently absurd or resulted in a manifest miscarriage of justice. To establish reversible error in relation to the balancing of the section 352 factors, Ward must, at a minimum, show that the excluded evidence had "substantial and significant" probative value to his defense. (See People v. Tidwell, supra, 163 Cal.App.4th at p. 1457; People v. Homick (2012) 55 Cal.4th 816, 865 [though a criminal defendant has a "constitutional right to present all relevant evidence of significant probative value in his favor," this does not mean that an unlimited inquiry may be made into collateral matters; " ' "the proffered evidence must have more than 'slight-relevancy' to the issues presented" ' "]; People v. Reeder (1978) 82 Cal.App.3d 543, 553.) Further, a prior false statement by a victim may be admissible to challenge the victim's credibility, but such evidence is properly excluded under section 352 if it is not first established that the prior statement was false. (See Tidwell, at p. 1457.) It is not error to exclude evidence of a victim's alleged false statement if "the evidence [is] weak on the issue of [the victim's] credibility and would require an undue consumption of time." (Tidwell, at pp. 1456-1457.)
That is the case here. People v. Tidwell, supra, 163 Cal.App.4th 1447, relied on by Ward, is instructive. Tidwell involved charges of sexual assault of a 21-year-old deaf woman. (Tidwell, at p. 1449.) The defendant sought to impeach the victim with evidence of prior false complaints of rape, and moved to question the victim under section 782. (Id. at p. 1452.) The appellate court held the procedure permitting a defendant to question a victim under section 782 was not applicable where the defendant sought to introduce the victim's past false statements for impeachment purposes. (Id. at p. 1456.) Although it found the evidence of the alleged false complaints relevant and admissible under section 1103, the court nonetheless excluded it under section 352 "because the evidence was weak on the issue of [the victim's] credibility and would require an undue consumption of time." (Tidwell, at p. 1457.)
The Tidwell court stated: "Although there was some evidence that [the victim] made inconsistent statements, there was no conclusive evidence that her prior rape complaints were false. The defense was unable to obtain evidence from the men that [the victim] accused, and inferences could be drawn either way from the circumstances of the prior incidents and [the victim's] statements concerning the incidents. In addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced evidence that [one of the men involved in a prior complaint] had raped another female student. We therefore cannot say that the trial court abused its discretion in excluding the evidence based on the weak nature of the evidence of falsity of the complaints and the confusion of the jury and consumption of time it would have engendered for the parties to embark on the task of litigating the truthfulness of [the victim's] prior complaints." (People v. Tidwell, supra, 163 Cal.App.4th at p. 1458.)
Here, while defense counsel made an offer of proof as to what the hotel front desk employee assertedly experienced and what the district attorney investigator learned from him about the hotel incident, none of it was conclusive evidence that J.O.'s statements to the investigators were false. And inferences could be drawn either way from the circumstances; a reasonable trier of fact could conclude the hotel employee told his story to avoid getting in trouble with his employer for his interactions with J.O. Also, as in Tidwell, the trial court reasonably could conclude that additional testimony of the district attorney investigator, hotel employee and J.O. would have resulted in a trial within a trial, taking an undue consumption of time from an already lengthy jury trial. (See People v. Tidwell, supra, 163 Cal.App.4th at p. 1458.)
Further, there was a substantial risk the jury would use the evidence of J.O.'s alleged flirtation and behavior against her to malign her or impugn her character apart from her credibility. " ' "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." ' " (People v. Howard (2010) 51 Cal.4th 15, 32.) Here, the trial court could conclude the prosecution likely would have suffered prejudice by the admission of this evidence, the probative value of which in support of Ward's defense was minimal. In short, the trial court did not abuse its discretion in excluding the proffered evidence regarding the hotel incident under section 352.
Even if we were to conclude otherwise, the record shows Ward's trial counsel vigorously presented to the jury his defense that J.O. was not credible, including because the neighbors directly upstairs did not hear screaming or fighting for a two-to-four-hour period as J.O. had claimed, the condition of J.O.'s apartment and medical evidence contradicted her story, and J.O. had lied to police about her alcohol intake that day and vomiting during the incident with Ward. J.O.'s credibility had already been substantially undermined, making the evidence essentially cumulative of other evidence that was admitted. Thus, there is no "reasonable probability" the result would have been different if the challenged evidence were received. (Accord, People v. Keehley (1987) 193 Cal.App.3d 1381, 1387.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. AARON, J.