Filed 3/14/13 P. v. Travis CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H036440
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC946056)

         v.

WILLIAM TRAVIS,

         Defendant and Appellant.



         Following a jury trial, William Travis (appellant) was found guilty of attempted
premeditated murder. (Pen. Code, §§ 187, 664, subd. (a).) The jury found true the
allegation that appellant had personally used a handgun within the meaning of Penal
Code section 12022.53, subdivisions (b), (c), and (d) and had personally inflicted great
bodily injury on the victim Fred Williamson within the meaning of sections 1203,
subdivision (e)(3) and 12022.7, subdivision (a).1 Subsequently, the court sentenced
appellant to 32 years in state prison.
         In this appeal appellant contends that his due process rights were violated when
the prosecution suppressed favorable material evidence in violation of Brady v. Maryland
(1963) 373 U.S. 83 (Brady). Further, the trial court erred in excluding evidence that the
victim in this case, Fred Williamson, had raped a former girlfriend. Appellant has filed a

1
         All unspecified statutory references are to the Penal Code.
petition for writ of habeas corpus in which he asks that this court order an evidentiary
hearing into what the prosecutor knew and when he knew it in connection with his claim
of a Brady violation; alternatively, he asserts that his counsel was ineffective in failing to
cross examine the prosecutor and prosecutor's investigator in connection with his post
trial motion to set aside his conviction on Brady grounds.2 For reasons that follow, we
affirm the judgment. We have disposed of the habeas petition by separate order filed this
day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
                                Testimony Adduced at Trial
       By 2009, appellant and Fred Williamson had known each other for about four
years. Appellant was Mr. Williamson's rap music producer and Mr. Williamson
considered him to be a friend. On May 30, 2009, appellant picked up Mr. Williamson at
Mr. Williamson's house in a car driven by Tiara Lewis. A second passenger was in the
car. This passenger was later identified as Ryne Scott, but at trial was referred to as
Dreadlocks or Dreads because he sported a dreadlocks hairstyle. Ms. Lewis drove her car
to a friend's house where appellant's car was parked. Appellant got into his car with
Dreadlocks, but Mr. Williamson stayed in Ms. Lewis's car. After stopping at a liquor
store both parties drove in separate cars to San Jose to Aretha Dillard's house.
       According to Ms. Lewis, on the way to San Jose Mr. Williamson asked Ms. Lewis
about her relationship with Dreadlocks and appellant; Mr. Williamson made some
derogatory comments about them. Mr. Williamson told Ms. Lewis that he was jealous of
appellant because appellant always had money. Ms. Lewis thought that Mr. Williamson
did not like appellant, which made her nervous. At one point, Mr. Williamson pulled out
some money as if he was trying to "entice" or impress her with the money.
       Both parties arrived at Ms. Dillard's house around 10:00 p.m. Ms. Dillard was
making dinner for her two daughters. Appellant and Ms. Dillard had had a dating

2
       This court ordered the petition for writ of habeas corpus be considered with the
appeal.
                                              2
relationship for about three years and Ms. Dillard had known Mr. Williamson for a
couple of years. Ms. Dillard did not know either Dreadlocks or Ms. Lewis.
       At Ms. Dillard's house Ms. Lewis became nervous and anxious to leave. She told
Dreadlocks about the conversation she had with Mr. Williamson on the journey to San
Jose; she asked Dreadlocks not to say anything to appellant. At one point, when
Dreadlocks and appellant stepped outside, Ms. Lewis suspected that Dreadlocks told
appellant about her conversation with Mr. Williamson. This made Ms. Lewis grow
increasingly uncomfortable.3
       According to Ms. Dillard, at some point appellant announced that his keys were
missing and said that someone must have his keys. Appellant said that he was going to
check Mr. Williamson's pockets and patted him. Mr. Williamson said that he did not
have appellant's keys. Eventually, Dreadlocks took the keys from his pocket and tossed
them onto the couch.
       Appellant went outside with Mr. Williamson and asked him if he was talking
about him behind his back. Mr. Williamson denied that he had been so doing. Mr.
Williamson went into the house while appellant, Dreadlocks, and Ms. Lewis remained
outside for a while. After they came inside, Dreadlocks told Ms. Lewis to tell Mr.
Williamson what she had been saying to him and appellant while they were outside.
Dreadlocks pressured her to "say it." Ms. Lewis testified that she was getting really
nervous and uncomfortable. Eventually, Ms. Lewis said that Mr. Williamson had called
appellant a "jay-cat."4 Ms. Lewis went upstairs to call a friend and when she returned she
"bolted out the door."




3
        Ms. Lewis referred to Dreadlocks as Reezy during her testimony. However, for
the sake of clarity we refer to him as Dreadlocks throughout our discussion of the facts.
4
        Mr. Williamson testified at trial that jay cat is a derogatory term for a person who
"is not the sharpest knife in the drawer . . . ."
                                              3
       According to Mr. Williamson, both appellant and Dreadlocks pulled out guns and
accused Mr. Williamson of calling appellant a jay cat. Mr. Williamson became very
scared; he testified he thought he was going to die. Ms. Dillard entered the room, but
appellant told her to leave. At one point, appellant put the gun down by his side. Then
he took a pillow from the couch and placed it in front of the gun. Dreadlocks told
appellant, "You got to do him now because you done pulled a gun on him. You got to do
him." When appellant said that he was going to "give him a pass," Dreadlocks urged
appellant to shoot Mr. Williamson so that he would not come after appellant and shoot
him. Appellant shot Mr. Williamson in the abdomen, after which appellant and
Dreadlocks ran from the house. Ms. Dillard called the police. Mr. Williamson denied
having a gun in his possession on the day of the shooting.
       Ms. Dillard was interviewed by Officer Peralez on May 30, 2009, shortly after the
incident and again later. A recording of both the interviews was played for the jury. In
her first statement, Ms. Dillard claimed she was in the bathroom when she heard a pop
sound. After Officer Peralez spoke with Ms. Dillard's daughter, who told him that she
saw a gun, Officer Peralez re-interviewed Ms. Dillard and confronted her with her
daughter's statement that she saw a gun. Ms. Dillard confessed that she saw both
appellant and the "other guy" pull out guns and argue with Mr. Williamson. Ms. Dillard
testified that it was Dreadlocks that had the pillow in front of his gun, but admitted that
she told a detective that appellant put a pillow in front of his gun. However, she testified
that she said that because she was scared. Much of Ms. Dillard's trial testimony differed
from the accounts she gave officers after the incident in that she tried to place the blame
on Dreadlocks and that it was Mr. Williamson that had a gun not appellant.5 She
admitted that she loved appellant.


5
      The jury heard a recording of Ms. Dillard's statements that she gave to Detective
Barbara Melloch on June 2, 2009.
                                              4
      Ms. Dillard's daughter, who was eight years old at the time of trial, testified that
she saw Dreadlocks get angry with Mr. Williamson; she saw Dreadlocks point a gun at
him. Her mother told her to go into the bathroom and lock the door. Inside the
bathroom, she heard a gunshot.
Defense Evidence
      Appellant did not testify. However, the defense called Officer Billy Beason of the
Hercules Police Department to testify about prior incidents of domestic violence
involving Mr. Williamson in order to attack Mr. Williamson's credibility. The court gave
the jury a limiting instruction and informed them that alleged domestic violence incidents
involving Mr. Williamson and his former girlfriend did not result in any conviction.6
      In addition to Officer Beason, the defense called Ray Hernandez, an investigator
with the Santa Clara County District Attorney's Office. He testified that he interviewed
Ms. Lewis on March 17, 2010. She told him that Mr. Williamson may have been making
advances toward her during the car ride on the day of the shooting. She said that Mr.
Williamson pulled out a large sum of money and seemed to be trying to impress her.
Investigator Hernandez interviewed Mr. Williamson on March 18, 2010; Mr. Williamson
acknowledged that he had owned a gun in the past.
                                        Discussion
Alleged Brady Violation
Background
      Following appellant's conviction, defense counsel filed a non-statutory motion to
set aside appellant's conviction based on a Brady violation. Defense counsel argued that
according to Ray Hernandez's investigative reports received after the trial had concluded,
the true identity of the person known as Dreadlocks at trial became known to the

6
       Officer Beason told the jury that he had responded to a call regarding domestic
violence. He spoke to Mr. Williamson's former girlfriend who told him that Mr.
Williamson had punched her on her head twice and once on her left shoulder.
                                             5
investigator on March 26, 2010, when Ms. Lewis positively identified that person's
Department of Motor Vehicles photograph. Defense counsel alleged that neither the true
identity of Dreadlocks nor his whereabouts were revealed to the defense during trial;
however, the prosecutor, during argument, had mentioned the name Ryne Scott for the
first time in connection with telling the jury that they were not to be concerned with what
Dreadlocks/Ryne Scott was doing. Defense counsel stated that less than a week after the
trial ended, Mr. Scott was taken into custody and gave a statement to Investigator
Hernandez at the Alameda County Jail, in which in essence, Mr. Scott said that there was
a tussle between appellant and Mr. Williamson over Mr. Williamson's gun and the gun
went off. Mr. Scott adamantly denied that he told appellant to shoot Mr. Williamson.
Counsel argued that the prosecution was obligated under Brady to disclose this
information to the defense because Mr. Scott's "version of events would have been
extremely favorable to the defense."
       The prosecutor filed opposition to the motion in which he provided a lengthy
detailed chronology of events surrounding the discovery of Mr. Scott's true name and
whereabouts. The prosecutor argued that learning Mr. Scott's name was not in and of
itself Brady evidence. Further, the prosecutor asserted that appellant already knew the
whereabouts of Mr. Scott because they were friends and it was appellant that brought him
to Ms. Dillard's house on May 30, 2009. According to the prosecutor, an arrest warrant
issued for Mr. Scott on April 5, 2010; he was arrested at his home in Oakland on
April 13, 2010. Thereafter, on April 19, 2010, Investigator Hernandez took a statement
from Mr. Scott in which he said that appellant picked him up at his house on the night of
the shooting. Mr. Scott's statement to the investigator was turned over to defense counsel
within a few days.
       At the hearing on appellant's motion, the prosecution and defense stipulated that
Investigator Hernandez showed Ms. Lewis a photograph of Ryne Scott on March 26,
2010; she identified him. Accordingly, as of that date, the prosecution knew Mr. Scott's
                                             6
full legal name, his date of birth, and his precise address. While agreeing to the
stipulation, the prosecutor added that he personally did not know Mr. Scott's name, date
of birth and address until April 2, 2010, and even then he was under the impression that
Mr. Scott's first name was Ryan.
       The court took judicial notice that the prosecutor's opening statement took place
on March 29, 2010, and closing statements occurred on April 5, 2010. The jury returned
its guilty verdict on April 7, 2010.
       Defense counsel pointed out to the court that in Mr. Scott's statement to
Investigator Hernandez, Mr. Scott said that Mr. Williamson had two weapons on him
during the incident; counsel argued that Mr. Scott's exhortation to appellant to shoot Mr.
Williamson was conspicuously absent from Mr. Scott's statement. According to counsel,
Mr. Scott described the shooting as "an accidental discharge and implied that there was a
struggle over a firearm at one point in time." Counsel asserted that if the defense had
been able to locate Mr. Scott, and if Mr. Scott had testified, he would have given
testimony similar to the statement he gave Investigator Hernandez, which would have
contradicted Mr. Williamson's testimony about being unarmed.
       The prosecutor asserted that during appellant's trial law enforcement officers were
actively hunting for Mr. Scott, who was considered a codefendant. After Ms. Lewis
identified Mr. Scott's photograph, the prosecution had only Mr. Scott's name, date of
birth, and address. The prosecution did not have a statement from Mr. Scott or any
exculpatory evidence. The prosecutor speculated that it was unlikely that Mr. Scott once
he was found and charged would have taken the witness stand to testify. The prosecutor
argued that Mr. Scott's statements to Investigator Hernandez were self-serving because he
said, " 'I never saw the shooting. I saw a gun that was within the reach of both Mr. Travis
and Mr. Williamson and I coincidentally or luckily turned my head and heard a shot.' "
As a final point, the prosecutor argued that appellant, who had known Mr. Scott for a


                                             7
long time and had picked Mr. Scott up at Mr. Scott's house on the night of the shooting,7
knew Mr. Scott's whereabouts.
       Appellant took the witness stand and testified that he had known Mr. Scott since
2005 or 2006. Appellant said that Mr. Scott was not a close friend, rather he was
somebody he knew and they would "hang out" occasionally. Appellant denied knowing
exactly where Mr. Scott lived, but knew the general area. Appellant claimed to have
picked up Mr. Scott on "90th" in Oakland on the day of the shooting.8 Appellant
acknowledged that between the time of the incident and him being arrested he had spoken
to Mr. Scott. Appellant claimed to have Mr. Scott's telephone number memorized.
However, he confirmed that telephone number was 510-809-7857.
       Before appellant testified, the court asked for clarification on the telephone
number for Mr. Scott that Ms. Lewis had provided to a defense investigator. According
to the court, in his declaration the defense investigator stated that he had received a
telephone number of 510-302-7785 for Mr. Scott back in October 2009 and had
attempted to contact Mr. Scott on that number. The prosecutor confirmed that the
number was an accurate telephone number for Mr. Scott and was used to ultimately
identify Mr. Scott. At this point in the proceedings, defense counsel did not dispute that
his investigator had the correct telephone number for Mr. Scott.
       On cross-examination, appellant disputed Mr. Scott's statement that he had been
picked up from his house by appellant on the day of the shooting. Appellant insisted that
he picked up Mr. Scott that day at 90th and McArthur. Appellant admitted that he had
Mr. Scott's telephone number; during the 12 days between the shooting and the time
appellant was arrested, appellant admitted that he spoke to Mr. Scott a few times.



7
      In his statement to Investigator Hernandez, Mr. Scott claimed that he was picked
up from his house in Oakland by appellant.
8
      We assume that appellant meant 90th Avenue.
                                              8
       Under questioning from the court, appellant testified that he had Mr. Scott's
telephone number recorded in his cellular phone and that Mr. Scott's name would come
up when Mr. Scott called him. However, appellant disputed that the number he had was
the same number used by the prosecution to locate Mr. Scott.
       The court made a finding that it did not believe appellant did not know Mr. Scott's
whereabouts. Specifically, the court stated, "I don't believe the defendant did not know
the whereabouts of Mr. Scott both based on his testimony, his body language in
testifying, the close relationship they appeared to have and the fact that Ryne Scott said
that without knowing it was going to harm the defendant because it seemed pretty
innocuous, that the defendant picked him up at his house."
       At the conclusion of the hearing, the court found not "one scintilla of evidence to
support a Brady violation in this case." The court went on to say that the prosecution
possessed nothing exculpatory as to appellant. Furthermore, even if the defense could
have obtained a statement from Mr. Scott similar to the one Mr. Scott gave Investigator
Hernandez, the court would have found it inadmissible because it was "clearly self-
serving" and unreliable and thus not a declaration against interest.
       The court found it unlikely that Mr. Scott would have testified at appellant's trial
and given exculpatory testimony. Specifically, the court said, "These are a lot of
speculations, most of them based on premises that are not reasonable and do not normally
take place that he possibly would have given a statement once he's charged, to the
defense. There would have been the same statement whenever it was taken, that he
possibly would have gotten on the stand. Very rare, almost never. And he possibly could
have testified and gave the same self-serving statement."
       In addition, the court found that "the defendant in this case could have obtained
any evidence from Ryne Scott with any reasonable diligence. And that's because he was
the only one that knew where Ryne Scott lived. Everyone else was on a fishing
expedition basically."
                                              9
       Accordingly, the court denied appellant's motion to set aside his conviction based
on a Brady violation.
       Appellant argues that Mr. Scott's true name and location was potentially
exculpatory evidence that the prosecution was required to disclose to the defense. In
other words, there was a Brady violation in this case and the court erred in finding that
there was not.
       In Brady, the United States Supreme Court held "that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) The high court has
extended the prosecutor's duty to encompass the disclosure of material evidence, even if
the defense made no request concerning the evidence. (United States v. Agurs (1976) 427
U.S. 97, 107.) The duty encompasses impeachment evidence as well as exculpatory
evidence. (United States v. Bagley (1985) 473 U.S. 667, 676 (Bagley).) Such evidence is
material, however, "only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A
'reasonable probability' is a probability sufficient to undermine confidence in the
outcome." (Id. at p. 682.) Defendant has the burden of showing materiality. (In re
Sassounian (1995) 9 Cal.4th 535, 545.)
       To put it another way, to merit relief on Brady grounds, "the evidence a prosecutor
failed to disclose must have been both favorable to the defendant and material on either
guilt or punishment. Evidence would have been favorable if it would have helped the
defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence
would have been material only if there is a reasonable probability that, had it been
disclosed to the defense, the result would have been different." (People v. Dickey (2005)
35 Cal.4th 884, 907 (Dickey).)


                                             10
       Thus, "[t]here are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S.
263, 281–282.) We review the elements of a Brady claim de novo. (People v. Salazar
(2005) 35 Cal.4th 1031, 1042.)
       Initially, we point out, "The scope of a prosecutor's disclosure duty includes not
just exculpatory evidence in his possession but that possessed by investigative agencies to
which he has reasonable access." (People v. Robinson (1995) 31 Cal.App.4th 494, 499
(Robinson).) Thus, for purposes of this appeal the prosecutor knew as of March 26,
2010, Mr. Scott's true name and address.
       Under the circumstances presented here, we find the court did not err in
determining a Brady violation did not occur. First, this is not a case where the
prosecution suppressed the identity of an eyewitness as in Robinson, supra, 31
Cal.App.4th 494. In Robinson the prosecution had knowledge of an eyewitness who had
been interviewed by an arson investigator immediately after a suspect fire. The witness
did not see the defendant but implicated another individual. Defense counsel learned of
the witness only indirectly and belatedly during cross-examination of another witness.
The court in Robinson concluded there was a distinct possibility the undisclosed witness
would have testified another individual, not the defendant, caused the fire. The
withholding of this exculpatory evidence by the district attorney was held to violate
Brady and the judgment was reversed. (Id. at pp. 502–503.)
       Mr. Scott's existence, if not his true name, was known to defense counsel early on
as evidenced by a defense investigator's report, dated November 23, 2009, of an
interview of Ms. Lewis where she stated that "Reezy" was with appellant at Aretha's
house, and she spoke with him the next day and found out what had transpired. Further,
Ms. Lewis's statement to the defense investigator included her telling him that Reezy told
                                             11
her that Mr. Williamson had a gun with him the whole night and brought it out. She
indicated she could not remember exactly what Reezy said except that appellant got the
gun away from Mr. Williamson and shot him and there might have been a struggle over
the gun and appellant accidently shot Mr. Williamson. Thus, defense counsel was fully
aware that Reezy was a potential witness to the shooting and could possibly have
provided evidence favorable to his client.
       More importantly, the undisclosed evidence was Mr. Scott's true name and
location, information which by itself has no exculpatory value.
       Although the prosecution may not withhold favorable and material evidence from
the defense, neither does it have the duty to conduct the defendant's investigation for him.
(People v. Morrison (2004) 34 Cal.4th 698, 715 (Morrison).) If the material evidence is
in a defendant's possession or is available to a defendant through the exercise of due
diligence, then, at least as far as evidence is concerned, the defendant has all that is
necessary to ensure a fair trial, even if the prosecution is not the source of the evidence.
(Coe v. Bell (6th Cir.1998) 161 F.3d 320, 344; U.S. v. Pandozzi (1st Cir.1989) 878 F.2d
1526, 1529–1530.) Accordingly, evidence is not suppressed unless the defendant was
actually unaware of it and could not have discovered it by the exercise of reasonable
diligence. (Morrison, supra, 34 Cal.4th at p. 715.) The Brady rule does not displace the
adversary system as the primary means by which truth is uncovered. (United States v.
Martinez–Mercado (5th Cir.1989) 888 F.2d 1484, 1488.) Accordingly, "when
information is fully available to a defendant at the time of trial and his only reason for not
obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the
defendant has no Brady claim." (United States v. Brown (5th Cir.1980) 628 F.2d 471,
473; see also United States v. Stuart (8th Cir.1998) 150 F.3d 935, 937 [Evidence is not
suppressed if the defendant has access to the evidence prior to trial by the exercise of
reasonable diligence]; United States v. Slocum (11th Cir.1983) 708 F.2d 587, 599 [newly-
discovered evidence does not warrant a new trial unless, inter alia, the evidence is
                                              12
discovered following trial and the movant demonstrates due diligence to discover the
evidence prior to trial].)
       In this case appellant's Brady claim is defeated by the fact that appellant had a
close relationship with Mr. Scott, and despite his protestations to the contrary, as the
lower court found, knew where Mr. Scott lived and how to locate him. "There is no
Brady violation 'where a defendant "knew or should have known the essential facts
permitting him to take advantage of any exculpatory information," or where the evidence
is available . . . from another source,' because in such cases there is really nothing for the
government to disclose. [Citations.]" (Coe v. Bell, supra, 161 F.3d at p. 344.)
       Accordingly, we find no Brady violation in this case.
Exclusion of Evidence that Mr. Williamson Raped a Former Girlfriend
Background
       After the prosecution finished its case in chief, the court held an Evidence Code
section 402 hearing (402 hearing) to determine the admissibility of evidence concerning
alleged prior incidents of misconduct by Mr. Williamson. Officer Billy Beason testified
at the 402 hearing that on August 3, 2007, he responded to a call about a rape and
domestic violence incident. He contacted Jessica Powell who was visibly shaken and
"teary eyed." When Officer Beason questioned Ms. Powell she told him that her former
boyfriend Fred Williamson had beaten her and raped her twice. She said that she called
the police right after Mr. Williamson left. Officer Beason saw a fresh bruise on Ms.
Powell's left shoulder and it appeared as if she was in pain. A SART examination9 was
performed on Ms. Powell, but Mr. Williamson was never prosecuted.
       The court questioned Officer Beason regarding a conversation the officer had with
Ms. Bell, a friend of Ms. Powell. Ms. Bell was with Ms. Powell while Officer Beason
was there. Ms. Bell told him that she received a text message saying " 'Fred hit me.' "


9
       SART stands for Sexual Abuse Response Team.
                                              13
Ms. Bell told Officer Beason that when she telephoned Ms. Powell, Ms. Powell was
crying and said, "Fred hit me." Officer Beason had noted in his report that Ms. Powell
had told him that she had had consensual sex with Mr. Williamson two months earlier. In
addition, Ms. Powell said that when Mr. Williamson wanted to have sex with her she told
him that she was "on [her] period." Four Kotex pads were seized as evidence.
       The court listened to a recording of Ms. Powell's 911 telephone call.10 According
to the prosecutor, at one point on the telephone call Ms. Powell said she was being raped.
According to the court, when asked when it happened, at first she said that it was a long
time ago and then she said it did not happen a long time ago.
       Defense counsel informed the court that Ms. Powell refused to testify; she was
pregnant and about to give birth. As a consequence, defense counsel wanted to call
Officer Beason to testify about what Ms. Powell had told him for the purpose of
impeaching Mr. Williamson's credibility. The prosecutor argued that neither Ms.
Powell's statements to the 911 operator, nor to Officer Beason were excited utterances
and that the authenticity of the 911 tape could not be proved. The prosecutor said that
there was no evidence that a rape occurred and suggested that Ms. Powell's refusal to
cooperate could mean that at the time she had lied about what happened because she was
angry with Mr. Williamson. The prosecutor argued that evidence of Ms. Powell's
statements should be excluded under Evidence Code section 352.
       The court found that Ms. Powell's allegations of prior bad acts were "complicated
by a lot of factors." Ultimately, the court ruled that Officer Beason could testify to the
domestic violence incident, but not the rape allegations; further, the court ruled




10
       The record does not contain a transcript of the 911 telephone call, nor has
appellant supplied this court with a copy of the tape.
                                             14
inadmissible the 911 recording because the court was concerned with the trustworthiness
of Ms. Powell's allegation that she had been raped on that day.11
       The court made a record of its considerations under Evidence Code section 352.
Specifically, the court stated, "Just a few more comments under 352, I find it far more
prejudicial than probative to allow anything regarding the rape under all the
circumstances I talked about, the alleged rape that occurred. There wasn't enough
credible evidence and certainly no probative value over the prejudicial effect that it
would have had. [¶] Such an inflammatory charge that was unsubstantiated. The battery
however was a close call, I thought there was enough evidence to show that there was,
even though obviously little concerned the alleged victim can't be cross-examined
regarding it and I find that more probative than prejudicial. It's not going to be as
inflammatory but still be somewhat inflammatory and it has some probative value as to
credibility, as to Mr. Williamson's credibility."
       Accordingly, Officer Beason was allowed to testify as noted ante.
       Appellant contends that the court erred in allowing Officer Beason to testify about
Ms. Powell's allegations of domestic violence, but not about being raped. Appellant
argues, "Powell was clear in her statement to Officer Beason that she was both assaulted
and raped within a three hour period before she called 911."
       In People v. Wheeler (1992) 4 Cal.4th 284 ( Wheeler ), our Supreme Court held
that a person can be impeached in a criminal case by evidence of prior misdemeanor
conduct that involves moral turpitude, provided such evidence is not excluded under
Evidence Code section 352. (Id. at pp. 295–297 & fn. 7.) This is so because
11
       The court allowed Ms. Powell's statements to come in under Evidence Code
section 1240, the spontaneous declaration exception to the hearsay rule. The court felt
that because the officer could see bruises on Ms. Powell and she appeared to be in pain,
her statements to Officer Beason that she had been beaten were trustworthy. However,
because of her contradictory statements about when the rape had occurred and because
there was no corroborating evidence from the SART examination her statement about
being raped could not.
                                             15
"[m]isconduct involving moral turpitude may suggest a willingness to lie . . . ." (Id. at p.
295.) "Of course, the admissibility of any past misconduct for impeachment is limited at
the outset by the relevance requirement of moral turpitude. [Fn. omitted.] Beyond this,
the latitude section 352 allows for exclusion of impeachment evidence in individual cases
is broad." (Id. at p. 296.) Similarly, "[a] witness may be impeached with any prior
conduct involving moral turpitude whether or not it resulted in a felony conviction,
subject to the trial court's exercise of discretion under Evidence Code section 352."
(People v. Clark (2011) 52 Cal.4th 856, 931.)
       Certainly, domestic violence is a crime of moral turpitude (People v. Rodriguez
(1992) 5 Cal.App.4th 1398, 1402), as is rape. (People v. Lewis (1987) 191 Cal.App.3d
1288, 1295; People v. Mazza (1985) 175 Cal.App.3d 836, 844.)
       Nevertheless, Evidence Code section 352 provides that the trial court may, in its
discretion, exclude evidence if its probative value is substantially outweighed by the
probability that its admission will necessitate undue consumption of time or create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.12
       Assuming, without deciding, the evidence of the rape allegation was erroneously
excluded, we review errors in the application of the "ordinary rules of evidence" under
the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Marks
(2003) 31 Cal.4th 197, 226–227.) Under the Watson standard, if a trial court erroneously
excludes evidence, a defendant must show on appeal that it is reasonably probable he or
she would have received a more favorable result had that evidence been admitted.
(Watson, at p. 836; People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.)




12
        We point out that a trial court has discretion to exclude impeachment evidence if it
is collateral, irrelevant, cumulative, confusing, or misleading. (People v. Price (1991) 1
Cal.4th 324, 412.)
                                             16
       Appellant makes the bare assertion that the exclusion of the evidence of the rape
accusation was prejudicial since the case turned on Mr. Williamson's credibility. We are
not persuaded.
       Even though Mr. Williamson's credibility was an issue, the jury was already aware
from the court's instruction to the jury before Officer Beason testified that the domestic
violence allegation could be used in assessing Mr. Williamson's credibility. We find no
reasonable probability that the outcome would have been different if Mr. Williamson had
been impeached with evidence of the rape allegation, which was cumulative to the other
impeachment evidence adduced by the defense. Appellant has the burden of
demonstrating that there would have been a significantly different impression of the
witness's credibility had the proposed impeachment been permitted. (People v. Williams
(1997) 16 Cal.4th 153, 207-208.) Appellant has failed to carry that burden.




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                                 Disposition
     The judgment is affirmed.




                                   _________________________________
                                   ELIA, Acting P. J.


WE CONCUR:




___________________________________
BAMATTRE-MANOUKIAN, J.




___________________________________
MÁRQUEZ, J.




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