Filed 8/20/14 P. v. Roston CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136743
v.
CEBRAM LAWRENCE ROSTON,                                              (Lake County Super. Ct.
                                                                      No. CR929359)
         Defendant and Appellant.


         Cebram Lawrence Roston appeals from a conviction of robbery. He contends he
received ineffective assistance of counsel in that his attorney failed to move to suppress
his statement to the police as fruit of a warrantless entry into his home. He additionally
contends the trial court erred in refusing to allow him to introduce evidence of the
complaining witness’s prior accusations of being victimized and, in the alternative, that
his attorney rendered ineffective assistance of counsel in failing to explicitly challenge
this ruling on constitutional grounds. We affirm.
                                       STATEMENT OF THE CASE
         An information filed on May 3, 2012, charged appellant with one count of robbery
(Pen. Code, § 211) and alleged he had served one prior prison term (§ 667.5, subd. (b).)
Appellant was found guilty as charged on July 20, 2012, after a jury trial, and then
admitted the prior prison term. He was sentenced on September 26 to a total prison term
of six years, consisting of the aggravated term of five years for the robbery and an
additional year for the prison enhancement. Appellant filed a timely notice of appeal on
September 27, 2012.


                                                             1
                                STATEMENT OF FACTS
       Jerry Maggio testified that on April 8, 2012, between 11:00 and 11:30 p.m., he
was standing outside the side of the Safeway in Clearlake eating some cereal. He noticed
a car pull up to the front of the store and saw two people get out. Appellant, with whom
Maggio had gone to high school, got out and walked toward the front of the store while
the driver stood by the back of the vehicle.
       About six minutes later, appellant walked up to Maggio and, without saying
anything, punched him in the face. Maggio fell. Appellant grabbed his jacket with both
hands, shook him, and said loudly, “Give me your money.” Maggio said his spine was
injured and asked appellant not to hurt him. Appellant shook Maggio several more times,
each time demanding money and each time Maggio saying he did not have any.
Appellant reached into Maggio’s right pants pocket with his right hand and felt around,
and shook Maggio several more times, lifting him more than a foot and a half off the
ground and hitting his lower spine on the concrete. After the seventh shaking, appellant
pulled out of Maggio’s right pocket a plastic Safeway shopping bag containing an
insurance card, a bank card, some appointment cards, some receipts, a flashlight and a
lighter. Appellant threw the bag to his right and Maggio’s bank card, drivers license, two
appointment cards and two receipts fell out. Appellant then reached into Maggio’s left
pants pocket and ripped it upward, ripping the pants from the pocket to the leg area and
across to the waist. Appellant shook Maggio again, Maggio again said he had no money,
and appellant ripped open Maggio’s jacket, which had been zipped and buttoned, and felt
around the inside of the jacket. Appellant released Maggio, who fell to the ground,
stepped to his right, picked up the plastic bag with Maggio’s belongings, and left in the
car, which had pulled around from the parking lot. Maggio never got back his lighter, his
flashlight, some of his appointment cards, his insurance card or his bank card. Although
he initially testified only that appellant picked up the bag and took it with him when he
left, he later testified that appellant also picked up the bank card that had fallen on the
ground and took that as well.



                                               2
       Maggio got up and picked up a receipt he had seen fall out of appellant’s pocket,
as well as two appointment cards that appellant had dropped. A woman who worked in
the store approached and asked Maggio if he was okay and if he wanted to contact the
police. He went into the store with her and she called the police, who arrived a few
moments later. Maggio explained to Officer Cook what had happened. The officer left,
then returned later and showed Maggio some photographs. Maggio identified appellant
and gave Cook the receipt that appellant had dropped.
       Maggio had not been drinking alcohol or taking any medication before the assault.
       On cross examination, defense counsel elicited Maggio’s testimony that he had
talked to Officer Cook and to the prosecutor the day before but did not discuss the
questions he would be asked when he testified. Maggio had trouble remembering the
specific conversations, saying he had spoken with the prosecutor more than once and
with Cook more than five but not more than seven times, not six times, and finally
estimating nine times. Maggio said Cook had talked to him the day before about 13
photographs that defense counsel showed him. He acknowledged having testified in an
earlier proceeding that appellant lifted him off the ground at most six to eight inches,
whereas at trial he said it was at least one and a half feet. Maggio testified that he had not
taken any medication within the past 24 hours that might affect his ability to remember
and communicate the events of April 8, 2012, including Vicodin or other pain killers.
When defense counsel asked whether Maggio had been the victim of another assault, the
court sustained the prosecutor’s relevance and Evidence Code section 352 objections.
       Sandra Kirby, a Safeway employee, was in the parking lot around 11:00 p.m. on
April 8, 2012, returning her shopping cart after putting groceries in her car. She heard a
person saying “I don’t have any money, dude” and looked over to see Maggio, whom she
knew as a regular Safeway customer, being assaulted about 150 feet away. The assailant
was bent over, holding Maggio’s jacket with both hands and “picking him up and
slamming him on the ground.” Kirby could not see who the assailant was or whether he
was reaching into Maggio’s pocket. Kirby yelled “hey, stop” and turned around to get



                                              3
her cell phone from her car and call the police. She then saw the assailant run to the end
of the parking lot, get in the passenger side of a car and leave.
       Kirby called to Maggio, who was standing and picking up a few cards that had
been in his pocket, asking if he was alright. When she got over to him, Maggio was
holding the side of his face; he asked if it was swollen because he had been punched.
Maggio’s pants were torn along the seam by the pocket. Kirby and Maggio went into the
store and Kirby called the police.
       David Lewis, who was working as a checker at the Safeway on the night of April
8, 2012, testified that a large black male wearing a blue shirt with white lettering or
design on the front bought some candy on his line that night. Lewis identified the receipt
Maggio had given to Cook, which showed the time 11:22 p.m., as being the time when
the man bought the items. The man did not appear to have been drinking. Lewis testified
that it was possible appellant was the man he saw, but he saw too many faces each day to
be sure.
       Joseph Flores testified that he drove to Safeway with appellant on April 8. He
parked in front of the store and appellant got out of the car. About eight or nine minutes
later, Flores saw appellant hit a man at the corner of the store. The man fell to the
ground.1 Flores pulled the car over and told appellant to stop; appellant got in, and they
left. Flores asked appellant why he had beaten the man and appellant said he was
“stressed out about needing money” and was “angry and took it out on the first person he
seen.” Asked if he had told the police that appellant said “I’m mad and I need someone’s
money,” Flores stated, “if that’s what’s in the report that’s—I guess that’s probably what
I said, but, you know, he’s just stressed because he needed money, you know really.”
       Flores had been convicted of two felonies, burglary in 1996 and receiving stolen
property in 2007, and four misdemeanors, accessory after the fact in 2000, vandalism in

       1
         When interviewed by the police that night, Flores said that appellant had
knocked the man down and “started slamming him into the ground[]” but he testified that
this was a bad choice of words; the man was holding onto appellant and appellant was
“shaking him off.”


                                              4
2003, automobile theft in 2005, and receiving stolen property in 2012. He was on
probation at the time he testified. He had known appellant since he was a kid and did not
want to see anything bad happen to him.
       Police Officer Elvis Cook was dispatched to the Safeway about 11:33 p.m. on
April 8, where he interviewed Maggio, Kirby, and Lewis. Maggio, who appeared upset
and distressed, had a cut on his lip and slight redness on his cheek and lip area, and his
pants pocket was ripped open. He told Cook what had happened and identified his
assailant as “Larry,” which the parties had stipulated was the name by which appellant
was known in the community. From Maggio’s description, Cook believed he knew who
the suspect was, so he returned to the police station and compiled a photographic lineup
to show Maggio. He returned to the scene, and Maggio identified appellant’s
photograph. During this second interview, Maggio gave Cook a Safeway receipt he said
appellant had left at the scene.
       Cook went to Flores’s house, spoke with him and photographed his car, which was
parked in front. He then went to appellant’s house, next door to Flores’s, arriving there
about 1:05 or 1:10 a.m. on April 9. Appellant was asleep when Cook arrived. Once
woken, appellant showed signs of having consumed alcohol but did not appear highly
intoxicated; his demeanor, balance and speech were “normal.” Appellant was wearing
clothes that matched the description Maggio and Lewis had given to Cook. The police
did not search appellant’s home, but saw a plastic Safeway bag in plain sight. None of
the items Maggio reported being stolen were recovered.
       Cook’s contact with appellant was captured on an audio recording, which was
consistent with Cook’s description. Asked to tell Cook what happened at Safeway,
appellant said, “I’m a little upset that my money wasn’t on my card and that was it.
[¶] . . . [¶] I spent more, spent my, more money than I thought and . . . .” Cook queried,
“So you were a little upset ‘cause you didn’t have any money?” Appellant replied, “Yes
sir.” Appellant said he had drunk “[a]lmost a thirty pack” that night, commenting that it
was his birthday. Appellant said he had walked to Safeway by himself. He initially said
he did not buy anything, then when told that the store camera showed him buying


                                              5
something and Cook had the receipt, appellant said he bought Snickers bars.2 Appellant
acknowledged pushing and hitting Maggio, grabbing him by the jacket and yelling at
him, but did not remember what he yelled and denied taking anything from him.
                                       DISCUSSION
                                              I.
       Appellant contends he received ineffective assistance of counsel in that his
attorney did not move to suppress his statement to the police on the basis that it was
obtained as a result of an unlawful warrantless entry into his home.
       On July 9, 2012, appellant filed a motion in the trial court seeking to suppress all
evidence obtained from him on the grounds that the police lacked probable cause to
detain appellant and unreasonably acted without a warrant. On July 12, defense counsel
told the court she had erred in not filing the motion earlier and asked the court to hear it
despite it being untimely. The court questioned whether it had jurisdiction to do so.
After discussing the matter with appellant and defense co-counsel, appellant’s attorney
stated that they had decided to withdraw the motion to suppress because the argument
was “legally weak” in light of “the underlying legal authority for exigent circumstances
in pursuit of a fleeing felon.” Counsel instead pursued an alternative argument that
appellant did not validly waive his Miranda3 rights.
       “Establishing a claim of ineffective assistance of counsel requires the defendant to
demonstrate (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’
that, but for counsel’s failings, defendant would have obtained a more favorable result.
(Strickland v. Washington (1984) 466 U.S. 668, 687, 694; In re Wilson (1992) 3 Cal.4th
945, 950.) A ‘reasonable probability’ is one that is enough to undermine confidence in


       2
         Cook’s statement about the camera was not true; it was a “ruse” to make
appellant “more forthcoming.”
       3
           Miranda v. Arizona (1966) 384 U.S. 436.


                                              6
the outcome. (Strickland, . . . at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.)”
(People v. Dennis (1998) 17 Cal.4th 468, 540-541.) 
       “When a defendant claims ineffective assistance of counsel based on his counsel’s
failure to bring a motion to suppress evidence on Fourth Amendment grounds, the
defendant is required to show that the Fourth Amendment claim had merit.” (People v.
Frye (1998) 18 Cal.4th 894, 989, disapproved on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) Defense counsel told the trial court she was
withdrawing the suppression motion because the Fourth Amendment claim was “weak”
in light of legal authority for “exigent circumstances in pursuit of a fleeing felon.”
Appellant argues that defense counsel’s decision to withdraw the suppression motion was
not a reasonable tactical decision and that counsel was incorrect in assessing the basis of
the motion as “weak.”
       “ ‘It is axiomatic that the “physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.” ’ (Welsh v. Wisconsin (1984)
466 U.S. 740, 748.) A warrantless entry is ‘presumptively unreasonable.’ (Payton v.
New York (1980) 445 U.S. 573, 586.) This presumption can be overcome by a showing
of one of the few ‘specifically established and well-delineated exceptions’ to the warrant
requirement (Katz v. United States (1967) 389 U.S. 347, 357), such as ‘ “hot pursuit of a
fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect’s
escape, or the risk of danger to the police or to other persons inside or outside the
dwelling” ’ (Minnesota v. Olson (1990) 495 U.S. 91, 100). The United States Supreme
Court has indicated that entry into a home based on exigent circumstances requires
probable cause to believe that the entry is justified by one of these factors . . . . (Ibid.)”
(People v. Celis (2004) 33 Cal. 4th 667, 676.)
        “[I]n appropriate circumstances the fresh pursuit of a fleeing felon may constitute
a sufficiently grave emergency to justify an exception to the warrant requirement and
make it constitutionally reasonable for the police to enter a private dwelling without prior
authorization of a magistrate. (See, e.g., Coolidge v. New Hampshire (1971) 403 U.S.
443, 481; Warden v. Hayden (1967) 387 U.S. 294, 298-299; People v. Wetzel (1974) 11


                                               7
Cal.3d 104, 108 & fn. 4; People v. Dumas (1973) 9 Cal.3d 871, 882.) ‘There is no ready
litmus test for determining whether such circumstances exist, and in each case the claim
of an extraordinary situation must be measured by the facts known to the officers.’
(People v. Ramey (1976) []16 Cal.3d 263, 276.)” (People v. Escudero (1979) 23 Cal.3d
800, 808-809.) “[A]lthough ‘fresh pursuit’ of a fleeing felon must be substantially
continuous and afford the law enforcement authorities no reasonable opportunity to
obtain a warrant, it is not necessary that the suspect be kept physically in view at all
times.” (Escudero, at p. 810.)
       It is questionable whether the “fresh pursuit” doctrine would apply in the present
case, because “there was no immediate or continuous pursuit of the [suspect] from the
scene of a crime.” (Welsh v. Wisconsin, supra, 466 U.S. at p. 753.) There was an
immediate, continuous and expeditious investigation that led the police to appellant’s
home within a short time, but the “pursuit” characterization is not accurate.
       Nevertheless, appellant has not demonstrated he had a meritorious Fourth
Amendment claim. First, the warrantless entry may have been permissible due to the
implied consent of appellant’s girlfriend, Canevari. Consent is a recognized exception to
the Fourth Amendment’s warrant requirement, and that consent may be given by a third
party “ ‘who possesses common authority over the premises.’ ” (People v. Superior
Court (Walker) (2006) 143 Cal.App.4th 1183, 1198, quoting Illinois v. Rodriguez (1990)
497 U.S. 177, 181.) It may be inferred from the fact Canevari and appellant lived
together that Canevari possessed authority to consent to the officers’ entry into their joint
home. (People v. Frye, supra, 18 Cal.4th at p. 990.) Consent to enter may be express or
implied. (Ibid.)
       Respondent maintains that it is inferable from the transcript of the recorded
encounter at appellant’s home that Canevari permitted the officers to enter and led them
to the bedroom where appellant was sleeping. The transcript reflects that when Canevari
answered the door, Cook asked for appellant and she said he was sleeping. Cook asked
where he was, Canevari said appellant’s name, Cook asked Canevari to “step on out
here,” Canevari said appellant’s name again, Cook and another officer repeated, “Ma’am,


                                              8
come out here,” Canevari said, “sorry,” and Cook asked appellant to stand up.4 The
recording of this exchange demonstrates that it happened quickly; less than 16 seconds


      4
          The transcript reflects the following encounter:
      “[Knocking].
      “Canevari:      Who is it?
      “Cook:         Police department.
      “Canevari:     Yes?
      “Cook:         Hello.
      “Canevari:     Hi.
      “Cook:         Is Larry here?
      “Canevari:     He’s sleeping.
      “Cook:         Can we talk to him? Where’s he at?
      “Canevari:     Larry, Larry.
      “Unknown: Ma’am.
      “Cook:         Ma’am, do me a favor, step on out here.
      “Unknown: Come on out.
      “Canevari:     Larry.
      “Cook:         Ma’am, ma’am. Come out here.
      “Unknown: Ma’am, ma’am. Come out here.
      “Canevari:     Sorry. Uh.
      “Cook:         Larry, do me a favor, stand on up.
      “Unknown: [Unintelligible].
      “Unknown: Hey, Larry.
      “Cook:         Walk on out this way Larry. Don’t grab anything, don’t reach in
                     your pockets.
      “Canevari:     What the hell babe. What happened?
      “Roston:       [Unintelligible—makes noise].
      “Cook:         Do me a favor Larry, turn around, put your hands on the wall, put
                     your hands behind your back.
      “Canevari:     What happened: Please tell me.


                                              9
passed from when Canevari answered the door to when Cook asked appellant to stand up.
The volume of the voices on the tape indicate Canevari was close by the officers. These
facts suggest that it was not far from the door of the house to where appellant was
sleeping, and that Canevari accompanied the officers from one location to the other.
There is no indication Canevari said anything to suggest she did not want the officers to
enter the home. On the other hand, there is no way to tell from the transcript or the
recording itself whether Canevari’s nonverbal conduct expressed any desire to permit or
prevent entry, and it is impossible to tell what was happening when the officers were
asking her to “come out here.”
       If Canevari consented to the entry, of course, appellant’s claim of ineffective
assistance of counsel would fail because a suppression motion would not have succeeded.
But even the ambiguity of the recording undermines appellant’s claim: Had the
suppression motion been made, the prosecution may well have been able to present other
evidence demonstrating consent, such as testimony from one or more of the officers. In
this context, it is appellant’s burden to demonstrate the absence of consent.
       Respondent also urges that the police entry into appellant’s home was justified
under the “exigent circumstances” exception to the warrant requirement.
“ ‘ “[E]xigent circumstances” means an emergency situation requiring swift action to
prevent imminent danger to life or serious damage to property, or to forestall the
imminent escape of a suspect or destruction of evidence. There is no ready litmus test for
determining whether such circumstances exist, and in each case the claim of an
extraordinary situation must be measured by the facts known to the officers.’ ” (People
v. Williams (1989) 48 Cal.3d 1112, 1138, quoting People v. Ramey, supra, 16 Cal.3d at p.
276.) The relevant inquiry is “whether, in light of all of the circumstances, there was an
objectively urgent need to justify a warrantless entry.” (People v. Rogers (2009) 46
Cal.4th 1136, 1160-1161.) “Generally, a court will find a warrantless entry justified if




       “Unknown: We’ll tell you, hang on ma’am.”


                                            10
the facts available to the officer at the moment of the entry would cause a person of
reasonable caution to believe that the action taken was appropriate.” (Id. at p. 1157.)
       Here, the trial court reasonably could have concluded that the circumstances
justified the warrantless entry. By proceeding to appellant’s home as soon as he
determined that appellant was the suspect in the assault and robbery, within two hours of
the incident, Cook minimized appellant’s opportunity to eliminate evidence of the
offense. In fact, appellant was found wearing clothes that fit the description given by
Maggio and Lewis of what the assailant was wearing, adding further weight to
appellant’s identification as the perpetrator. (See, People v. Escudero, supra, 23 Cal.3d
at pp. 810-811, fn. 6 [distinctive shirt worn by suspect not significantly less ‘disposable’
than narcotics or other contraband].) Appellant argues that the fact Cook returned to the
police station to prepare a photographic lineup demonstrates there would have been time
to obtain a search warrant, but the lineup permitted Maggio to make the identification
that gave Cook probable cause to arrest appellant. Prior to this photographic
identification, Cook “thought” he knew the person Maggio was describing, but it was the
photographic identification that confirmed Cook’s suspicion. It does not appear there
was “unjustified delay” during which an arrest warrant could have been obtained. (See,
People v. Williams, supra, 48 Cal.3d at p. 1139.)
       In any event, it is unnecessary for us to determine whether appellant in fact would
have prevailed if his attorney had pursued the motion to suppress on Fourth Amendment
grounds, nor whether counsel’s choice to drop the motion was reasonable, because there
is no reasonable probability the result at trial would have been more favorable to
appellant if his statements had been excluded.
       With respect to the assault, the evidence against appellant—without consideration
of his own statements to Cook—was overwhelming. Maggio, who had gone to school
with appellant, identified him as the assailant; Flores saw appellant assaulting Maggio.
Appellant’s argument at trial was that he assaulted Maggio but did not rob him. Thus, the
only real question is the significance of appellant’s statements to Cook on the issue of
intent to rob.


                                             11
       Appellant argues that his statement was the crux of the prosecution’s case,
emphasized repeatedly in the prosecutor’s closing argument as establishing appellant’s
intent to rob Maggio and also providing the basis for the prosecutor to argue that
appellant’s lies—telling Cook, for example, that he walked to Safeway alone rather than
having driven with Flores, and saying he had not bought anything until Cook said the
police had evidence he had done so—were evidence of his guilt. The latter point is of
little consequence in terms of prejudice, as the lies did not in any way bear on appellant’s
intent and, as we have said, the evidence that appellant was the assailant was
overwhelming. As to appellant’s intent to rob Maggio, even without his own statements,
the prosecution’s case was very strong. Maggio, of course, described being robbed, and
his story was corroborated by his torn pocket. Kirby heard Maggio yelling that he did not
have any money, further corroborating that a robbery was in progress. And Flores’s
description of what appellant said when Flores asked him why he had assaulted Maggio
was even more damning than appellant’s own statement. Appellant’s statement to Cook
was that he was “a little upset” that he did not have any money on his card. Flores
initially testified that when he asked why appellant had assaulted Maggio, appellant said
he was “stressed out about needing money” and was “angry” and “took it out on the first
person” he saw. Flores then acknowledged that he could have told the police appellant
had said, “I’m mad, . . . I need someone’s money.”
       Appellant argues that if his statement had been suppressed, he would not have had
to take the stand to explain it. As appellant did not testify, this argument is difficult to
comprehend.
       Appellant also argues that if his statement had been suppressed he would have
been free to attack Flores’s credibility, suggesting that defense counsel did not vigorously
challenge Flores’s credibility because Flores’s testimony was consistent with appellant’s
own statements. Further, appellant urges that in the absence of his statement, the defense
could have highlighted Flores’s motivation to testify against appellant in exchange for
being given immunity from prosecution for his own role in the robbery. As it was,
according to appellant, the jury heard only the prosecution’s argument that while Flores’s


                                              12
criminal history might undermine his credibility in general, his motivation as appellant’s
friend was to minimize appellant’s conduct, so that anything he said against appellant
should be considered trustworthy.
       The prosecutor reminded the jury of the stipulation it had heard setting forth
Flores’s criminal history, and explained that this history provided “insight into the guy”
to help the jury decide whether he was “completely believable.” The prosecutor
explained that juries are informed of a witnesses “moral turpitude crimes” because “the
law says if you commit a moral turpitude crime conduct or conviction that means you
might have a readiness to do evil,” which “bears directly on this guy’s credibility.” The
prosecutor stated that Flores’s record would make it easy to decide not to believe
anything he said, and asked the jurors not to do this, pointing out that Flores made clear
his interest in not hurting appellant.
       Perhaps defense counsel could have attempted to persuade the jury that Flores’s
record made him an entirely untrustworthy witness, motivated to testify against appellant.
But Flores’s testimony completely supported the prosecutor’s characterization. Flores
plainly did not want to testify against appellant. Although he related appellant’s
statement about needing money, he tried to minimize what the prosecutor wanted him to
say—that appellant said he needed “someone’s” money—acknowledging that “if that’s in
the [police] report . . . I guess that’s probably what I said” but reiterating that appellant
was stressed and angry about needing money in general. Flores testified, “he was angry
that night and it was bad time, you know. And shit happens, excuse my language.” The
prosecutor told Flores his demeanor suggested he was “having a little bit of trouble
coming in and testifying about this” and asked if he did not want to testify, and Flores
replied, “Well, I’m right here, you know, trying to keep it as honest as I can without him
going, yeah.” In the face of Flores’s obvious discomfort, it would have been very
difficult for the defense to have convinced the jury that Flores was manufacturing a
statement to incriminate appellant. As it was, defense counsel tried to explain how
Flores’s testimony might be less damaging than it appeared: Counsel argued that it
would have made no sense for appellant to have gotten into Flores’s car saying “I need


                                              13
someone’s money” and instead he might have said “I need some money.” Defense
counsel also told the jury, regarding Flores’s prior convictions, that it could not assume
appellant to be a “bad guy” because he “hangs out with the bad guy.”
       Given Flores’s description of appellant’s statement in the car, which was more
damaging than appellant’s own statement, and the other evidence described above, there
is no reasonable probability appellant would have achieved a more favorable outcome at
trial if his statement to the police had been excluded. His claim of ineffective assistance
of counsel thus fails. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008-1010.)
                                             II.
       Appellant additionally argues that the trial court abused its discretion in refusing to
allow him to introduce evidence that Maggio had previously made false accusations of
being victimized. Appellant’s defense, as we have said, was that he assaulted Maggio but
did not rob him. The only direct evidence of robbery came from Maggio. Appellant
wanted to demonstrate that Maggio had mental or emotional problems that led him to
believe, incorrectly, that he was being victimized in the Safeway incident.
       At the time of trial, Maggio had a criminal case pending against him for violation
of Penal Code section 653f, subdivision (a), on January 30, 2012, in which a question had
been raised as to Maggio’s competency to stand trial. The prosecution filed a motion in
limine seeking to preclude the defense from presenting evidence of this competency
question, arguing that competency to stand trial and competency to act as a witness are
not determined by the same standard.
       In response, appellant disavowed any intent to introduce evidence about the
competency issue for the truth of the matter but sought to introduce evidence on a
number of points in order to impeach Maggio’s capacity to perceive and character for
veracity. The points appellant raised were that Maggio had made previous claims of
being a victim of criminal conduct that were not credible; Maggio was addicted to pain
medication; Maggio had been unable to relate truthful facts of previous emergency
situations; and Maggio had refused to acknowledge the trial court’s authority “to return to
court and to contact medical personnel regarding possible competency issues.” The


                                             14
motion stated that Maggio had previously claimed he was “under assault” by his doctor
because the doctor would not prescribe more pain medication; that Maggio was facing
criminal charges for abusing the 911 emergency dispatch system by making numerous
911 calls even after being admonished to stop by the dispatcher and being threatened with
arrest by police officers; that Maggio told police officers his doctor was assaulting him by
not providing him with two tetanus shots and three Benadryl shots he claimed to need
before 10:00 a.m. the next morning to avoid serious illness, and told police officers, “ ‘I
am being held hostage’ by my doctor, you must arrest me now”; that Maggio then called
911 five times about “ ‘a seven-year problem surrounding a loan’ ” which he felt was a
crime and as to which no report was taken; and that Maggio had refused to comply with
court orders (issued by the same judge as in the present case) to report for two psychiatric
evaluations, and had an outstanding court order for an arrest warrant for intentional
failure to appear in court on these matters. In the present case, according to the motion,
Maggio had continuously asked the investigating officer to sew his torn pocket; had
testified at the preliminary hearing that he declined the option Officer Cook gave him of
going to the hospital when in fact Cook had refused to take Maggio to the hospital
because he had had multiple contacts with Maggio at the hospital in which Maggio
demanded pain medication that the staff refused, indicating Maggio might be an addict;
and Maggio had testified at the preliminary hearing that appellant stole his driver’s
license, then admitted on cross examination that he had added this information to his
claim when he met with the investigating officer just before the hearing, and that in fact
appellant did not steal his license.
       With respect to the pending case, the court noted that any questioning would raise
the issue of Maggio’s Fifth Amendment privilege against self-incrimination, requiring the
court to consider whether the probative value of the evidence would outweigh the time
consumed by dealing with “all the circumstances surrounding this and also dealing with
Fifth Amendment privilege and also dealing with potential immunity proceedings.” The
court questioned the probative value of the evidence because the facts underlying the
pending case occurred some four months before the present incident. The court did not


                                             15
view Maggio’s statements to the 911 dispatcher and police as having much probative
value absent proof that the statements were in fact false, and did not want to have a
“mini-trial” concerning the pending case.
         The trial court ruled that the defense could ask Maggio about his expectations in
the pending case and whether any promises of leniency had been made to him, but not
about the underlying facts. The court stated that defense counsel would be permitted
“vigorous cross-examination to go into his emotional and mental stability” but not
necessarily to address the pending case for that purpose. Regarding addiction to pain
medication, the court noted that evidence of a witness’s drug addiction is admissible only
if it tends to show the witness was under the influence while testifying or when the events
being related occurred, or that the witness’s mental faculties were impaired by use of the
drugs.
         Evidence Code section 352 gives the trial court discretion to 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.” “ ‘A trial court’s exercise
of discretion under section 352 will be upheld on appeal unless the court abused its
discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently
absurd manner.’ (People v. Thomas (2012) 53 Cal.4th 771, 806.)” (People v. Suff (2014)
58 Cal.4th 1013, 1066.)
         Appellant views the evidence he sought to present as relevant and necessary to
demonstrate that Maggio had a propensity to exaggerate claims of being criminally
victimized, thereby supporting appellant’s defense that he assaulted but did not rob
Maggio. We disagree with appellant’s view of the probative value of the proposed
evidence and, therefore, find no basis to fault the trial court’s exercise of discretion.
         While evidence of a person’s character or trait of character is generally
inadmissible to prove his or her conduct on a specified occasion (Evid. Code, § 1101,
subd. (a)), this rule does not make inadmissible “evidence of the character or a trait of
character (in the form of an opinion, evidence of reputation, or evidence of specific


                                               16
instances of conduct) of the victim of the crime for which the defendant is being
prosecuted . . . if the evidence is [¶] [o]ffered by the defendant to prove conduct of the
victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd.
(a)(1).) Pursuant to this rule, for example, in a rape prosecution, evidence that the victim
has previously made false accusations of rape may be highly probative. (People v.
Adams (1988) 198 Cal.App.3d 10, 16-17, 19; People v. Burrell-Hart (1987) 192
Cal.App.3d 593, 597-600.) Similarly, in a prosecution for sexual assault, People v.
Randle (1982) 130 Cal.App.3d 286, 295-296, found error in the exclusion of evidence
that the victim had previously made false claims of being the victim of a purse snatch and
of having been kidnapped at the same bar and restaurant where the charged offenses were
alleged to have occurred. On the other hand, where the evidence of past conduct has little
probative value on the issue for which it is introduced, a trial court does not abuse its
discretion in excluding evidence that would be admissible under this statute. (People v.
Covino (1980) 100 Cal.App.3d 660, 666 [evidence that victim of sexual assault
aggressively sought attention from men, hugged and kissed men in a public place, and
encouraged men to take her home not probative on question whether sex with defendant
was consensual].)
       Maggio’s complaints to 911 and police officers bear no similarity to the charged
offenses in the present case. Appellant characterizes the prior reports as false or
exaggerated claims of being the victim of criminal offenses. But it is obvious that those
reports were not referring to anything like the assault and robbery here. The claim of
having been “assaulted” by his doctor’s failure to provide the treatment Maggio believed
he needed did not portray Maggio as the victim of a criminal offense; it expressed
frustration and distress over a perceived lack of medical care. Further, as the trial court
discussed, the defense had no basis for anything other than speculation as to the truth or
falsity of Maggio’s belief that he needed the treatment in question. To the extent the
reports of a loan “problem” Maggio believed to be a crime could be seen as an actual
report of a criminal offense, again, the defense had no information regarding the validity
of the claim. The evidence simply does not appear to cast light on the issue for which


                                             17
appellant sought to use it—Maggio’s ability to perceive, during a physical assault,
whether he was being robbed or merely assaulted.
       Appellant takes issue with the trial court’s emphasis on the past complaints having
been made several months before the present incident, seeing this as too recent to support
the trial court’s view of them as “remote.” But the trial court’s point was that Maggio’s
mental state was only relevant, for appellant’s purposes, to the extent it had bearing on
his ability to perceive and communicate at the time of the incident. Even if the past
complaints reflected an impairment causing Maggio to misperceive himself as a victim,
without a similarity in circumstances or explanation of what might cause the prior kind of
misperception to operate in the present circumstances, the several month time difference
served to further undermine the probative value of the evidence.
       At the same time, the proposed evidence would have brought into the present case
the as yet untried charges against Maggio for abuse of the 911 system, raising issues
about Maggio’s constitutional privilege against self incrimination, as well as the potential
for undue consumption of time. Significantly, the trial court did not preclude appellant
from cross-examining Maggio concerning his mental state and ability to perceive and
relate the incident. On the contrary the court said it would permit “vigorous” cross-
examination in this area. The court only precluded evidence concerning the pending case
against Maggio.
       Appellant’s contention that the trial court violated his constitutional rights to cross
examine and to present a defense is unavailing. Portraying the court’s ruling as
precluding him from cross-examining Maggio, the sole witness to the disputed element of
theft, on his ability to perceive and relate the events, appellant relies upon Franklin v.
Henry (9th Cir. 1997) 122 F.3d 1270 to argue that evidence of Maggio’s prior
accusations “would have shown [the complaining witness] capable of fantasies about
[others] analogous to the charges [he] made against [appellant].” (Id. at p. 1273.) As
with the cases we have already discussed, the similarity between the prior accusations
and charged conduct in Franklin is in no way matched in the present case. In Franklin,
the defendant was accused of molesting the five-year-old daughter of a friend with whose


                                              18
family the defendant had lived for several months. Six months after the defendant left the
household, the child reported that he had “licked her ‘private’ and made her lick his
‘private.’ ” (Id. at p. 1271.) The trial court refused to permit the defendant to testify that
in his presence, the child told her brothers that the previous night “her mother had come
into her room and ‘licked her private.’ ” (Id. at p. 1272.) The California Court of Appeal
found the ruling error, but harmless, and the Supreme Court denied review. (Ibid.) The
Ninth Circuit granted the defendant’s petition for habeas corpus, finding the error was of
constitutional magnitude and prejudicial. (Id. at p. 1273.) The Franklin court
emphasized that the prosecutor’s case was “not a strong one” and rested on whether the
jury believed the child, and that, if believed, the defendant’s testimony would have shown
the child “capable of fantasies about her mother analogous to the charges she made
against” the defendant. (Id. at p. 1273.) Therefore, exclusion of the evidence “deprived
[the defendant] ‘of the basic right to have the prosecutor’s case encounter and “survive
the crucible of meaningful testing.” ’ ” (Ibid., quoting Crane v. Kentucky (1986) 476
U.S. 683, 690-691.) For the reasons above, the present case does not rise to this level.5




       5
         Having reached this conclusion, we need not consider respondent’s argument
that appellant forfeited his constitutional claim by failing to raise it in the trial court, or
appellant’s argument that this failure by defense counsel constituted ineffective assistance
of counsel.


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                                      DISPOSITION
      The judgment is affirmed.




                                              _________________________
                                              Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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