People v. Zavala CA3 ( 2023 )

Filed 6/14/23 P. v. Zavala CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C095823
Plaintiff and Respondent, (Super. Ct. No. S20CRF0083)
v.
EDGAR BRINGAS ZAVALA,
Defendant and Appellant.
A jury found defendant Edgar Bringas Zavala guilty of two counts of inflicting
corporal injury resulting in a traumatic condition upon a dating partner, and one count
each of rape, false imprisonment, and making criminal threats. The jury also found true
allegations that he used a deadly weapon in making those threats. On appeal, defendant
contends the trial court abused its discretion by excluding evidence that the victim gave a
false name on a job application because the evidence would have injected the issue of the
victim’s immigration status into the case. Defendant also contends the trial court’s ruling
violated his Sixth Amendment right of confrontation. The People contend defendant
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forfeited his constitutional claim by failing to raise it in the trial court and, in any event,
the trial court did not prejudicially err by excluding evidence of the victim giving a false
name. We conclude the trial court did not abuse its discretion or violate defendant’s
constitutional right. We will affirm.
I. BACKGROUND
A. Direct Examination of Jane Doe
Jane Doe met defendant while they worked at a Pizza Hut together. They
eventually began dating, after which defendant became increasingly aggressive about
checking Doe’s phone and preventing her from having contact with other men. Once,
when Doe would not let defendant check her phone, he pulled Doe’s hair hard enough to
rip some out of her scalp. Another time, he pushed her and insulted her.
Defendant and Doe had been dating for about two months when they made plans
to spend some time together at defendant’s mother’s house while his mother was out of
town for a week. Doe lived with her cousin and his wife, Jackie, at the time, who would
not have allowed her to stay with defendant alone, so she lied and told them she was
travelling with defendant and his mother to meet his family in Modesto. Doe admitted
using methamphetamine while staying with defendant so that they would have a good
time. At first, Doe testified she had never used methamphetamine, but later admitted she
had used methamphetamine once before.
While Doe was staying with defendant, he used her phone to access her Facebook
account and discovered that she had sent a “friend request” to a man. Defendant became
angry, began questioning Doe about the man, and then began yelling at her because he
thought she was interested in the man. This began a series of escalating abuse over
several days. Doe described defendant slapping her, strangling her with his hands,
cutting her with scissors, threatening to cut her hair, pushing her, kicking her, spitting in
her face, and threatening to make her disappear. Doe explained: “I didn’t know what
else could happen. Every time I thought we had reached a limit, but then things would
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get worse.” At one point she started to leave, but defendant convinced her to come back
inside to calm down.
Later, defendant grabbed a knife, ordered Doe to take her pants off, and, when she
refused, told her to take the knife and kill herself. Doe threw the knife away, and
defendant ordered her into the bedroom. In the bedroom, defendant lay on top of Doe,
holding her down, cut her blouse with scissors, took her pants off, and started to penetrate
her vagina with his penis. When Doe later tried to lock defendant out of the bedroom, he
threatened her with a large kitchen knife, pressing it to her throat and telling her to say
her last words.
Eventually, defendant let Doe shower. Defendant had sex with Doe again, and
Doe let him because she was scared and wanted him to stay calm and let her go to work.
Defendant then drove Doe to work, at which point she called Jackie, who came to pick
her up. Doe told Jackie some of what had occurred and asked for a plane ticket to return
to Mexico. Jackie told Doe she needed to tell the police, and eventually Jackie called the
police.
B. Cross-Examination and Exclusion of Evidence
When defendant’s counsel asked Doe, “did you lie to your employer when you got
your job?”, the trial court asked the attorneys to approach for a bench conference.
Defense counsel explained she did not intend to ask Doe whether she was in the country
illegally. The trial court reasoned the next logical question would be “why,” and
suggested holding a hearing outside the presence of the jury to determine Doe’s reason
for lying on the job application. The court also indicated it intended to exclude evidence
of the job application if Doe gave the false information because her immigration status
did not permit her to work legally in the country.
The parties discussed the public policy of excluding evidence of witnesses’
immigration status so that those working illegally are comfortable coming forward to
report and testify about crimes, then the parties paused to look up the relevant statute.
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The prosecutor then cited Evidence Code section 351.4.1 After reviewing the statute, the
trial court explained: “I think at the end of the day, looking at [section] 351.4, that the
probative value of her giving a name that’s different than her birth name is less than its
prejudicial effect. [¶] I also think that it contravenes the statutory intent of [section]
351.4, as well as the constitutional provisions that relate to that, so I’m not going to allow
you to go into it.” Defense counsel and the court then further discussed the statutory
language, before the court again recommended an in camera hearing, and the parties
agreed. Nobody mentioned that section 351.4 had been repealed by its own terms 10
days earlier. (See § 351.4, former subd. (c); Stats. 2018, ch. 12, § 2.)
In camera, Doe testified that she gave a false name on her job application: “I
came to this country on vacation, but then the pandemic came, and they closed the
border, and I wasn’t able to go back to Mexico, and I decided to work for a bit and make
some money while I was here, take advantage of the opportunity.” Doe then clarified
that she visited the United States on a tourist visa, not a work visa.
Defense counsel emphasized that Doe did not give a false name because she
needed to work to support herself or her family, suggesting the circumstances were
beyond the scope of the public policy of excluding evidence of immigration status. The
trial court disagreed, finding “the probative value is outweighed by the prejudicial effect”
and excluded evidence Doe used a false name and a false social security number on the
job application.
Cross-examination continued with defense counsel continuing to attack Doe’s
credibility. Doe admitted lying to defendant about wanting to marry him, after the trial
court overruled the prosecution’s objection to the line of questioning. Doe admitted that
she stayed up all night with defendant after using methamphetamine and then called in
1 Undesignated statutory references are to the Evidence Code.
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sick to work the next day. Defense counsel also delved extensively into inconsistencies
between Doe’s trial testimony and what she reported to the police investigator shortly
after the incident.
II. DISCUSSION
A. Exclusion of Testimony About Job Application
Defendant contends the trial court abused its discretion by prohibiting his counsel
from questioning Doe about using a false name on a job application. Specifically,
defendant argues: (1) the trial court erroneously relied on section 351.4, which had
recently been repealed, and (2) the court erroneously excluded the evidence under section
352. We disagree.
1. Section 351.4
As the parties note on appeal, but did not mention in the trial court, section 351.4
was not in effect at the time of trial. Defendant contends the trial court excluded
evidence of Doe’s job application “solely because it found the evidence was inadmissible
under section 351.4,” and this reliance on a repealed statute was reversible error.
Defendant misunderstands section 351.4 and misinterprets the trial court’s reasoning.
The version of section 351.4 in effect until 10 days prior to the ruling at issue in
this case provided:
“(a) In a criminal action, evidence of a person’s immigration status shall not be
disclosed in open court by a party or his or her attorney unless the judge presiding over
the matter first determines that the evidence is admissible in an in camera hearing
requested by the party seeking disclosure of the person’s immigration status.
“(b) This section does not do any of the following: [¶] (1) Apply to cases in which
a person’s immigration status is necessary to prove an element of an offense or an
affirmative defense. [¶] (2) Limit discovery in a criminal action. [¶] (3) Prohibit a
person or his or her attorney from voluntarily revealing his or her immigration status to
the court.
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“(c) This section shall remain in effect only until January 1, 2022, and as of that
date is repealed.” (Former § 351.4; see Stats. 2018, ch. 12, § 2.)
In essence, section 351.4 is a procedural statute requiring an in camera hearing to
determine the admissibility of “evidence of a person’s immigration status” that the person
does not want to disclose. Section 351.4 only authorizes exclusion of evidence if no in
camera hearing is held. The trial court held an in camera hearing in this case, so there
was no basis to exclude evidence pursuant to section 351.4. Defendant misunderstands
the statute when he suggests section 351.4 played a substantive role in the exclusion of
evidence.
Defendant also misinterprets the trial court’s ruling. Even before the parties
identified and discussed section 351.4, the trial court had already explained that it would
not permit defense counsel to question Doe about the job application if she gave false
information because of her immigration status. After looking at section 351.4, the court
repeatedly explained the basis of its ruling as its finding “that the probative value of her
giving a name that’s different than her birth name is less than its prejudicial effect.” This
finding relies on section 352 and has no basis in section 351.4.
In fact, even before the enactment of section 351.4, courts excluded evidence of
immigration status to avoid undue prejudice. For example, in Velasquez v. Centrome,
Inc. (2015) 233 Cal.App.4th 1191, the trial court found evidence of the plaintiff’s
immigration status “ ‘highly, highly prejudicial,’ ” (id. at p. 1201) but denied a motion in
limine to exclude the evidence because an expert testified that immigration status could
have had an impact on the hospital’s decision whether to perform a lung transplant, a key
issue in the case. (Id. at pp. 1197-1202, 1214-1215.) When the expert testified at trial, he
clarified that the hospital’s official policy prohibited consideration of immigration status,
making the plaintiff’s immigration status irrelevant. (Id. at pp. 1207-1208.) The
plaintiff’s counsel moved for a mistrial, but the trial court denied the motion because the
jury had only heard about the plaintiff’s immigration status during voir dire and no such
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evidence had been adduced. (Id. at p. 1208.) The appellate court reversed the trial
court’s denial of the motion for a mistrial, reasoning: “cases both in California and in
multiple other jurisdictions have recognized the strong danger of prejudice attendant with
the disclosure of a party’s status as an undocumented immigrant.” (Id. at p. 1213; accord
Rodriguez v. Kline (1986) 186 Cal.App.3d 1145, 1148 [“evidence relating to citizenship
and liability to deportation almost surely would be prejudicial to the party whose status
was in question”]; Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 462, disapproved
on another ground in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4. [reversing
judgment and remanding for new trial with different judge where “the court recited a
veritable litany condemning and impugning the character of undocumented immigrants,
including plaintiff, who place a burden upon the taxpayers by obtaining educational,
medical, housing, and other services”].)
The trial court’s ruling recognized the potential danger of injecting Doe’s
immigration status into the case. Contrary to defendant’s argument, this prejudicial effect
was the primary basis for the exclusion of evidence regarding Doe’s job application. The
trial court added: “I also think that it contravenes the statutory intent of [section] 351.4,
as well as the constitutional provisions that relate to that,” which, in context, suggests the
court carefully considered its ruling because both sections 351.4 and 352 create
exceptions to the “Right to Truth-in-Evidence” in article I, section 28, subdivision (f)(2)
of the California Constitution. (See Legis. Counsel’s Dig., chaptered version of Sen. Bill
No. 785 (2017-2018 Reg. Sess.), at

[“Because this bill may exclude from a criminal action information about a person’s
immigration status that would otherwise be admissible, it requires a 2/3 vote of the
Legislature”].)
While this concern for the statute’s legislative purpose suggests the trial court was
not aware of the repeal of section 351.4, the oversight is immaterial here. The hearing
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mandated by section 351.4 was also authorized by section 402, and, indeed, the trial court
suggested holding such a hearing before it even considered section 351.4. In these
circumstances, when statutes in effect justified the trial court’s actions and the court did
not clearly rely on the repealed statute, we may not presume the trial court’s
consideration of a repealed statute formed the basis for its ruling. Rather, “[a] ruling by a
trial court is presumed correct, and ambiguities are resolved in favor of affirmance.”
(Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.)
Accordingly, we conclude the trial court did not abuse its discretion by relying on the
repealed section 351.4.2
2. Section 352
Instead, we interpret the trial court’s ruling as excluding evidence of Doe’s job
application under section 352. Under section 352, “[t]he 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.” “ ‘[T]he
latitude section 352 allows for exclusion of impeachment evidence in individual cases is
broad. The statute empowers courts to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.’ ” (People v. Ayala (2000)
23 Cal.4th 225, 301.) “Because the court’s discretion to admit or exclude impeachment
evidence ‘is as broad as necessary to deal with the great variety of factual situations in
which the issue arises’ [citation], a reviewing court ordinarily will uphold the trial court’s
2 We also note defendant would be unable to show prejudice, in any event, because the
Legislature reenacted section 351.4 later that year in substantially identical form, except
without the sunset provision in section 351.4, former subdivision (c). (Stats. 2022, ch.
168, § 2.) The reenactment took effect immediately as an urgency statute. (Stats. 2022,
ch. 168, § 3.) This means, even were we to reverse defendant’s conviction and remand
for a new trial, the trial court would be required to consider section 351.4 on remand.
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exercise of discretion.” (People v. Clark (2011) 52 Cal.4th 856, 932.) A trial court does
not abuse its discretion under section 352 unless it rules in an arbitrary, capricious, or
patently absurd manner. (People v. Johnson (2019) 8 Cal.5th 475, 521.) Defendant has
not met this high bar here.
As explained above, evidence of a person’s immigration status creates significant
danger of undue prejudice. We also consider immigration related conduct to be only
weakly probative in a case involving domestic abuse. In People v. Villa (2020)
55 Cal.App.5th 1042 (Villa), the defendant was charged with domestic violence and
sought to introduce evidence the victim had applied for a U visa, which “would permit
her to remain temporarily in the United States on the basis of her status as the victim of
domestic violence who was assisting law enforcement with an investigation or
prosecution of the offense.” (Id. at p. 1050; see id. at pp. 1045-1050; 8 U.S.C.
§ 1101(a)(15)(U); 8 C.F.R. § 214.14 (2022).) The trial court considered the evidence
relevant “because it suggested a potential motive for Doe to fabricate or exaggerate her
abuse.” (Villa, supra, at p. 1048.) But, the trial court determined “its limited probative
value was far outweighed by ‘the tendency of that particular item to open up a massive
inquiry requiring an undue consumption of court time and tending to confuse issues and
invite jury speculation.’ ” (Ibid.)
The appellate court agreed the evidence of the victim’s visa application had
limited probative value, especially given the other corroborating evidence in the case.
(Villa, supra, 55 Cal.App.5th at p. 1053.) The court also concluded the trial court’s
“concerns about admitting the evidence were well founded.” (Ibid.) The evidence would
have required additional testimony exploring the victim’s immigration status and her
knowledge of the U visa program, likely consuming an undue amount of time. (Ibid.)
The attorneys would have had to educate the jury about the U visa program to determine
whether it gave the victim a strong reason to lie about the abuse, likely confusing or
misleading the jury. (Ibid.) Finally, even though the jury already knew the victim was an
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undocumented immigrant, the U visa evidence still created some danger of undue
prejudice because jurors may “not have wanted to convict [the defendant] if they thought
doing so would be tantamount to granting [the victim] permanent status in the United
States.” (Id. at pp. 1053-1054.) The court concluded “the probative force of the evidence
[the victim] submitted an application for such a visa is significantly outweighed by the
risks of prejudice to the victim and of confusing the jury and taking up undue trial time to
explain the potential for bias.” (Id. at p. 1054.) Therefore, “the trial judge did not act
arbitrarily or capriciously in deciding to exclude the evidence for those reasons.” (Ibid.)
The evidence in this case of Doe’s job application has even less probative value
than the evidence in Villa. The visa in Villa could only be obtained if the victim was a
domestic violence victim cooperating with the prosecution, giving a motive to lie
specifically about the domestic violence. By contrast, Doe giving false information on a
job application had no connection to her testimony about domestic violence. “While
collateral matters are admissible for impeachment purposes, the collateral character of the
evidence reduces its probative value and increases the possibility that it may prejudice or
confuse the jury.” (People v. Lavergne (1971) 4 Cal.3d 735, 742.) Doe’s lying on a job
application to circumvent federal law says little about her truthfulness in making criminal
allegations.
Evidence of Doe’s job application also carries a greater risk of undue prejudice
than the evidence in Villa, where the jury already knew the victim was an undocumented
immigrant. The Villa court still concluded evidence of the victim’s application for a visa
carried the risk of undue prejudice because of the risk jurors would be biased if they
knew a guilty verdict would grant the victim residency. Here, the jury was not yet aware
of Doe’s immigration status, so allowing evidence of Doe’s job application would
introduce the entire “strong danger of prejudice attendant with the disclosure of a party’s
status as an undocumented immigrant.” (Velasquez, supra, 233 Cal.App.4th at p. 1213.)
Because the trial court in this case had more justification for excluding evidence of Doe’s
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job application than the trial court in Villa had for excluding evidence of the victim’s U
visa application, we echo the Villa court in concluding: “Certainly, in this case the trial
judge did not act arbitrarily or capriciously in deciding to exclude the evidence for those
reasons.” (Villa, supra, 55 Cal.App.5th at p. 1054.)
B. Constitutional Right of Confrontation
Defendant also contends that the trial court violated his Sixth Amendment right of
confrontation by prohibiting cross-examination of Doe about her job application.
Defendant did not raise this constitutional right in the trial court, so the People contend
defendant has forfeited this argument. Defendant responds that no objection was
required, citing People v. Partida (2005) 37 Cal.4th 428. Partida held that appellate
courts may consider whether an objected-to evidentiary ruling had the legal consequence
of violating a constitutional right, even if that constitutional right was not invoked in the
trial court. (Id. at pp. 436-439.) But, a defendant may not assert a different theory for the
admission of evidence than he asserted at trial. (Id. at p. 438.) Accordingly, we will
address whether the trial court’s exclusion of evidence regarding Doe’s job application as
more prejudicial than probative violated defendant’s right of confrontation. We conclude
it did not.
“Generally speaking, the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15,
20.) “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 679.) This means “ ‘reliance on . . . section 352 to exclude
evidence of marginal impeachment value . . . generally does not contravene a defendant’s
constitutional rights to confrontation and cross-examination.’ ” (People v. Riccardi
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(2012) 54 Cal.4th 758, 809-810, disapproved on another ground in People v. Rangel
(2016) 62 Cal.4th 1192, 1216.) “A trial court’s limitation on cross-examination
pertaining to the credibility of a witness does not violate the confrontation clause unless a
reasonable jury might have received a significantly different impression of the witness’s
credibility had the excluded cross-examination been permitted.” (People v. Quartermain
(1997) 16 Cal.4th 600, 623-624.)
Here, Doe’s testimony and defense counsel’s cross-examination gave the jury
reason to doubt Doe’s credibility. She lied to her cousin and Jackie that she was traveling
with defendant and his mother to meet his family in Modesto because they would not
have allowed her to stay with defendant alone. She admittedly lied to defendant about
wanting to marry him, and the trial court allowed that questioning over the prosecution’s
objection. Doe admitted she stayed up all night with defendant after using
methamphetamine and then called in sick to work the next day. Defendant’s counsel also
delved extensively into inconsistencies between Doe’s trial testimony and what she
reported to the police investigator shortly after the incident. Even on direct examination,
Doe testified inconsistently about her own bad acts, for instance stating she had never
used methamphetamine but later admitting she had used methamphetamine once before.
Given this evidence impugning Doe’s credibility, adding testimony about a false
name and social security number on a job application, which we have already concluded
had only marginal probative value, would not have given the jury a significantly different
impression of her. Accordingly, we conclude the trial court did not violate defendant’s
right of confrontation.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
KRAUSE, J.
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