People v. Ortiz CA2/7 ( 2021 )

Filed 4/28/21 P. v. Ortiz CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301348
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146242)
v.
JULIO CESAR ORTIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed.
Lise M. Breakey, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Michael C. Keller and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Defendant Julio Cesar Ortiz1 appeals from a judgment of
conviction entered after the jury found him guilty of possession of
a firearm by a felon and unlawful possession of ammunition. Ortiz
contends the trial court violated his due process rights by denying
his motion for a mistrial after the prosecutor questioned Ortiz
about his bail status, whether his prior conviction was a strike,
and whether he served time in prison. Ortiz also argues the
prosecutor committed misconduct by badgering him in cross-
examination as to whether the sheriff’s deputy who had pulled him
over was lying and by eliciting the deputy’s testimony that he
would not risk losing his job by lying. Finally, Ortiz asserts the
trial court abused its discretion under Evidence Code section 352
and violated his confrontation rights under the Sixth and
Fourteenth Amendments by precluding defense counsel from
questioning the deputy about a complaint made against the
deputy. Although the prosecutor’s questioning was improper,
there was no prejudice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution Case
On April 24, 2018 at approximately 4:00 a.m. Los Angeles
County Sheriff’s Deputy Jaime Fernandez was in his patrol car on
patrol in the City of Lynwood. Deputy Fernandez saw a white car
with dealer’s license plates make a right turn without signaling.
He conducted a traffic stop to issue a citation.
1 Ortiz’s trial attorney identified Ortiz as Julio Cesar Chavez
in his notice of appeal. However, Ortiz testified his name is Julio
Cesar Ortiz, and the information, verdict forms, and abstract of
judgment identify him as Julio Cesar Ortiz.
2
Deputy Fernandez testified Ortiz was the driver of the car.
Jose Rodriquez and Victor Perez were passengers. When Deputy
Fernandez asked Ortiz for his driver’s license, Ortiz stated his
license was suspended and “he had a warrant out of San
Bernardino.” Deputy Fernandez asked Ortiz to exit the car and
“escorted him out” by touching him on his forearm. Deputy
Fernandez searched Ortiz and recovered two .32-caliber bullets
from Ortiz’s left pocket. Ortiz told Deputy Fernandez “the bullets
were for the range.” Deputy Fernandez handcuffed Ortiz, placed
him in the patrol car, and called for backup. Two other deputies
arrived in their patrol cars approximately two minutes later to
help detain the three men. Deputy Fernandez searched Ortiz’s car
and noticed the console cover near the steering wheel was slightly
ajar. He found a gun “wedged into the console.” The .32-caliber
semi-automatic gun was unloaded with “two magazines wedged in
the holster.” Each magazine was loaded with six bullets. Deputy
Fernandez took photographs of the gun, magazines, and bullets in
the magazines, but not the bullets recovered from Ortiz’s pocket.
The photographs were shown to the jury and admitted into
evidence.
Deputy Fernandez returned to his patrol car where Ortiz
was seated and read a Miranda2 waiver of rights form to him.
Ortiz circled “yes” and wrote his initials to indicate he understood
the advisements and wanted to “talk about what happened.”
Deputy Fernandez said to Ortiz, “I recovered a firearm in the
vehicle. It was already rendered safe and placed in the backseat of
my patrol car.” Ortiz responded, “Yeah, the gun is mine.” Ortiz
added, “It wasn’t loaded.” Ortiz signed his name on the waiver
2 Miranda v. Arizona (1966) 384 U.S. 436.
3
form and wrote on the back of the form, “The gun is mine.” During
booking, Ortiz told Deputy Fernandez he carried the gun for
protection.
B. The Defense Case
Ortiz testified that at approximately 2:00 or 3:00 on the
morning of April 24, 2018, he was driving in his car with his two
friends after leaving a sports bar. Ortiz had purchased the car
from a dealership on March 5. The car had dealer’s license plates
and a temporary document reflecting the sale by the dealer on the
right side of the windshield. A photograph of the front windshield
with the sale document was shown to the jury and introduced into
evidence.3
As he was driving, Ortiz heard sirens and a command on the
patrol car’s loudspeaker to pull over. When Ortiz pulled over,
Deputy Fernandez approached Ortiz’s car with his gun out of its
holster and pointed down. Deputy Fernandez asked Ortiz for his
license and car registration. Ortiz responded, “I don’t have my
license. It’s actually suspended, sir.” Deputy Fernandez told Ortiz
to place his hands on the steering wheel, and Ortiz complied.
Deputy Fernandez opened the car door and grabbed Ortiz’s arm to
pull him out of the car. Deputy Fernandez pulled Ortiz’s left arm
behind Ortiz’s back and placed his gun against Ortiz’s neck.
Deputy Fernandez told Ortiz’s friends, “Do not move. If you guys
move, I will blow his head off.” Deputy Fernandez handcuffed
Ortiz, placed him on the ground, and called for backup. When the
other deputies arrived, they searched Ortiz’s friends. The deputies
3 On cross-examination, Deputy Fernandez testified he did not
notice the document affixed to the car’s windshield.
4
placed Ortiz in in the backseat of Deputy Fernandez’s car and his
two friends in another patrol car.
Deputy Fernandez and another deputy searched Ortiz’s car
“for like an hour.” Deputy Fernandez then approached Ortiz and
asked, “Whose car is this?” Ortiz replied, “Mine. It’s my car.”
Deputy Fernandez stated, “Three or one goes to jail.” Ortiz
understood that meant “one of us goes to jail or all three of us go to
jail.” Ortiz responded, “Why? My car is not stolen.” Deputy
Fernandez said, “No. I found something.” But Deputy Fernandez
did not show Ortiz what he had found. Deputy Fernandez then
drove Ortiz to the Lynwood sheriff’s station. Ortiz first learned he
was charged with possessing a gun and ammunition at the station
when he saw the other deputies “like celebrating for a gun,” and
they asked him, “Where did you get it at? How did you get that
one?”
Ortiz denied he had two bullets in his pocket. Further,
Deputy Fernandez did not give him a Miranda waiver form to sign
or initial. Ortiz did not write, “The gun was mine.”
Ortiz admitted that on January 8, 2004 he pleaded no
contest to possession or purchase of cocaine for sale; on
January 5, 2006 he pleaded guilty to attempted carjacking; and on
February 27, 2011 he pleaded guilty to commercial burglary.
On cross-examination, Ortiz stated he went to the Lynwood
sheriff’s station to make a complaint against Deputy Fernandez for
putting a gun to his neck, but “they [had] him waiting for a while.”
Ortiz left before his turn because he had to pick up his daughter.
He did not again attempt to file a complaint.
5
C. Rebuttal Testimony
On rebuttal, Deputy Fernandez denied he placed a gun on
Ortiz’s neck. He also denied he had planted a gun in Ortiz’s car or
ammunition in Ortiz’s pocket. He did not forge Ortiz’s signature
or initials on the Miranda waiver form or write the confession. He
would jeopardize his employment if he planted evidence and
falsely brought a case against Ortiz.
D. The Verdict and Sentence
The jury found Ortiz guilty of possession of a firearm by a
felon (Pen. Code,4 § 29800, subd. (a)(1); count 1) and unlawful
possession of ammunition (§ 30305, subd. (a)(1); count 2). In a
bifurcated proceeding, Ortiz admitted he suffered a 2006
conviction of attempted carjacking (§§ 215, 664).
The trial court sentenced Ortiz on count 1 to 32 months in
state prison (the lower term of 16 months doubled under the three
strikes law (§ 667, subds. (b)-(j))). The court imposed a consecutive
16-month term on count 2 (one-third the middle term doubled), but
the court stayed it pursuant to section 654.
Ortiz timely appealed.
DISCUSSION
A. Prosecutorial Misconduct
“‘“A prosecutor commits misconduct when his or her conduct
either infects the trial with such unfairness as to render the
subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the trier
4 Further statutory references are to the Penal Code.
6
of fact.”’” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 657;
accord, People v. Hoyt (2020) 8 Cal.5th 892, 943.) “‘Although it is
misconduct for a prosecutor intentionally to elicit inadmissible
testimony [citation], merely eliciting evidence is not misconduct.’”
(People v. Chatman (2006) 38 Cal.4th 344, 379-380 (Chatman);
accord, People v. Hawthorne (2009) 46 Cal.4th 67, 98 (Hawthorne),
disapproved on another ground in People v. McKinnon (2011)
52 Cal.4th 610, 637-643.)5 “To preserve a claim of misconduct for
appeal, a defendant must make a timely objection and ask the
court to admonish the jury, unless an objection would have been
futile and a request for admonition ineffective.” (People v. Flores
(2020) 9 Cal.5th 371, 403 (Flores); accord, People v. Potts (2019)
6 Cal.5th 1012, 1035.)
We review a trial court’s rulings on prosecutorial misconduct
for an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718,
792-793; People v. Alvarez (1996) 14 Cal.4th 155, 213.) Even if
there was prosecutorial misconduct, a defendant’s conviction will
not be reversed “‘unless it is reasonably probable that a result
more favorable to the defendant would have been reached without
the misconduct.’” (Flores, supra, 9 Cal.5th at p. 403; accord, People
v. Young (2019) 7 Cal.5th 905, 932-933.)
5 The Supreme Court in Chatman observed that where the
prosecutor elicits inadmissible evidence but does not do so
intentionally, this is not a question of prosecutorial misconduct,
but rather, is more properly analyzed as a question of whether the
evidence was admissible. (Chatman, supra, 38 Cal.4th at pp.
379- 380.) However, the court noted the analysis would be the
same under either rubric. (Ibid.)
7
B. Ortiz Was Not Prejudiced by the Prosecutor’s Improper
Questions About Ortiz’s Bail Status, Prior Strike Conviction,
and Prison Time
1. Trial court proceedings
The prosecutor asked Ortiz during cross-examination
whether he had posted bond. Before Ortiz could answer, the trial
court sustained defense counsel’s objection. The prosecutor also
asked Ortiz whether his prior conviction for attempted carjacking
was a strike. The court sustained defense counsel’s objection, but
Ortiz responded that it was. The court then struck Ortiz’s answer.
The prosecutor followed up, “You were convicted of that and you
went to state prison?” The court sustained defense counsel’s
objection, and Ortiz did not answer.
At sidebar, the trial court asked the prosecutor, “This line of
questioning, beginning with the fact that there was a strike and
now that [Ortiz] went to prison, what is the relevance of both
information?” The prosecutor answered, “It’s just—it’s just what
happened. I didn’t think that those items were excluded. I know
that the facts—that the underlying convictions were excluded or
where they were, et cetera, but that’s—.” The court interjected,
“Usually, it’s the prosecution who insists on nothing being
mentioned about a strike or any prior conviction being strikes.
You brought it up on your own, but I have to believe there’s a
reason for it. [¶] But any mention of anything beyond the fact
that he was convicted of a felony is irrelevant. Remember, it’s
coming in for impeachment purpose[s] and case law is very clear
as it relates to impeaching a witness; it’s merely the conviction of a
felony and not anything more.”
At this point defense counsel stated, “At no time since I’ve
been an attorney have I ever seen anybody ask clients about
8
prison strikes or—or bail. All this stuff is prejudicial, it’s not
probative. I would ask the court for a mistrial.” The prosecutor
responded, “[A]s to the strikes and the prison, I will accept a
limiting admonition—motion to strike and ask the court then to
admonish the jury. . . . I wouldn’t object to any kind of pinpoint
instruction to ignore that. [¶] As for the bond, the reason I was
asking for was because he has not—he has spent a lot of money on
this case, this case is 14 months old and with all of these and the
amount of time he has spent and the—to then not make a
complaint, that’s why I was just trying to establish. And so the
court and the defense attorney shut me down on there so I just
moved on.”
The court stated, “So let me deal with one issue at a time.
[¶] The more recent one, which is inquiring about the bond,
nothing precludes you from questioning him on what actually you
were doing, in that ‘Did you file a complaint? Did you file a
lawsuit?’ Those are ripe for you to cross-examine him on. [¶] If he
says, I didn’t because I didn’t have the money then that’s when it
can come in, but you didn’t establish that. So . . . I will sustain my
ruling in that without further grounds, it’s irrelevant that he
bonded out. So that’s to clarify that. [¶] As to the motion for
mistrial, I actually think it hurts the People, frankly. . . . When
the word ‘strike’ was mentioned, jurors are often wondering is this
a third-strike case? Would this relatively minor case . . . be the
one to send him [away] . . . for 25 years to life. I don’t actually
think it prejudices [Ortiz] in any way, even collectively, regarding
it and I will also admonish the jurors. [¶] And if you can prepare
a pinpoint instruction, if you want me to advise them that or to
remind them that questions asked [are not] evidence. [¶]
Sometimes, strategically, I know lawyer’s position is it’s better to
9
just not ring the bell again and just ignore it because it’s really
questions. None of the answers were indicated so there’s really
nothing to strike in terms of answers. But whatever you feel is
appropriate, I’m fine with giving it. [¶] But the motion for
mistrial is denied at this point.” Defense counsel did not request a
pinpoint instruction.
2. Ortiz failed to show prejudicial misconduct
We agree with Ortiz the prosecutor asked improper
questions about whether Ortiz had posted a bond, Ortiz’s prior
strike conviction, and whether Ortiz served prison time. Although
the prosecutor should have known this line of questioning was
improper, it does not appear from the record that the prosecutor
intentionally elicited inadmissible evidence. (See Hawthorne,
supra, 46 Cal.4th at p. 98; Chatman, supra, 38 Cal.4th at pp. 379-
380.) Further, Ortiz has not shown it is reasonably probable the
jury would have reached a more favorable result absent the
questioning. (Flores, supra, 9 Cal.5th at p. 403; People v. Young,
supra, 7 Cal.5th at pp. 932-933.) The trial court sustained defense
counsel’s objections to the questions about posting bond and prison
time before Ortiz could answer. Ortiz admitted his prior
conviction for attempted carjacking was a strike, but his answer
was stricken by the trial court. The trial court instructed the jury
with CALCRIM No. 222 to disregard any questions as to which the
court sustained an objection and any testimony stricken from the
record. We presume the jury followed the court’s instructions.
(Flores, at p. 405; People v. Potts, supra, 6 Cal.5th at p. 1037.) And
Ortiz’s admission on cross-examination that attempted carjacking
is a strike is only minimally more prejudicial than his testimony
that he was convicted of attempted carjacking.
10
The trial court therefore did not abuse its discretion in
denying Ortiz’s motion for a mistrial based on prosecutorial
misconduct. (People v. Clark (2011) 52 Cal.4th 856, 990 [“‘A trial
court should grant a mistrial only when a party’s chances of
receiving a fair trial have been irreparably damaged, and we use
the deferential abuse of discretion standard to review a trial court
ruling denying a mistrial.’”]; People v. Cowan (2010) 50 Cal.4th
401, 459 [trial court did not abuse its discretion in denying motion
for mistrial in absence of showing of prejudice].)
C. The Prosecutor’s Improper Questions Concerning Whether
Deputy Fernandez Was Lying Do Not Warrant Reversal
1. Trial court proceedings
The prosecutor asked Ortiz during cross-examination, “So
basically you’re saying that . . . what Deputy Fernandez said on
the stand is a complete lie?” Ortiz answered, “I am not calling it a
lie. He’s probably a mistake. Mistaken.” The prosecutor then
asked Ortiz the following series of questions:
“Q So when [Deputy Fernandez] said he found the bullets in
your pocket, that was a lie, right?
“A Yes.
“Q When he said that he found the gun in your car, that was a
lie?
“A Yes. I never seen that gun before.
“Q When he said that you signed a Miranda form and confessed
that the gun was yours, that was a lie then?
“A It’s also a lie.
“Q So he . . . [¶] . . . [¶] totally made that up?
“A Yes, he did.
11
“Q And when he said that you—you told him that you used that
gun—that you have that gun for protection, that was a lie?
“A Yes.
“Q And that when he told us about how you said that the gun
wasn’t even loaded, that was a lie too?
“A Yes. I never had no—I didn’t even thought [sic] that there
was a gun that I was getting arrested for.
“Q So the whole time that this deputy is testifying, not just here
but at the preliminary hearing, . . . [¶] . . . [¶] he is totally lying
under oath; right?
“A Yes.
“Q And he’s putting a case on you?
“A Yes.”
On rebuttal, the prosecutor asked Deputy Fernandez if he
had planted the gun or ammunition or forged the Miranda waiver
form, to which Deputy Fernandez responded he had not. The
prosecutor then inquired, “If you were to put a gun to someone’s
neck and tell the occupants of a car ‘don’t move or I’m going to
blow his head off,’ would you be fired for that?” Deputy Fernandez
initially answered “No,” then when asked if he would “possibly be
fired for that,” he answered, “Possibly.”
The prosecutor then asked the following questions:
“Q Would your employment be in jeopardy if you did conduct
yourself in such a manner?
“A Yes, perhaps.
“Q And would your employment be in jeopardy if you planted
evidence and falsely brought a case against a defendant?
“A Yes.”
12
At this point defense counsel asserted repeated objections on
relevance grounds, but the trial court overruled the objections and
allowed the following questions:
“Q Would your employment be in jeopardy— [¶] . . . [¶] if you
wrongfully arrested somebody?
“A Yes.
“Q And can you afford to lose your job? [¶] . . . [¶]
“A No.
“Q You have a family to feed?
“A Yes.”
In her closing argument, the prosecutor argued as to Deputy
Fernandez’s veracity: “When someone tells a lie like that, they
usually have a motive—don’t they—to put their entire life on the
line. Not life, but their career. And that would perjury, right? He
comes to court, he sits in front of you all and the judge, myself and
takes an oath to tell the truth and then totally lie about that, not
just today but at the preliminary hearing as well? And he would
do that to someone he’s never met? Just to put a case on somebody
he’s never met? It doesn’t make any sense and it doesn’t add up.”
In her rebuttal argument the prosecutor asserted, “The
conduct that [Ortiz] alleges as to what Deputy Fernandez did—
assaulted him with a firearm, made a criminal threat, planted or
fabricated evidence, forged a written confession, wrongfully
arrested him, brought false charges against him, lied under oath
at the preliminary hearing, lied under oath to all of you—and, yet,
the first time that he tells anybody about this story is 14 months
later, here, at trial, yesterday.” The prosecutor added, “Those are
heinous accusations that he’s made. And I have never said that
Deputy Fernandez is a great guy, but there is no doubt that he
13
would be subject to criminal prosecution, losing his job, et cetera, if
he did the things that the defendant alleged he did.”
2. The prosecutor’s improper questioning was not
prejudicial
“[C]ourts should carefully scrutinize ‘were they lying’”
questions in context. They should not be permitted when
argumentative, or when designed to elicit testimony that is
irrelevant or speculative. However, in its discretion, a court may
permit such questions if the witness to whom they are addressed
has personal knowledge that allows him to provide competent
testimony that may legitimately assist the trier of fact in resolving
credibility questions.” (Chatman, supra, 38 Cal.4th at p. 384;
accord, People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 319
(Gonzales and Soliz).) The Chatman court explained, “If a
defendant has no relevant personal knowledge of the events, or of
a reason that a witness may be lying or mistaken, he might have
no relevant testimony to provide. No witness may give testimony
based on conjecture or speculation. (See Evid. Code, § 702.) Such
evidence is irrelevant because it has no tendency in reason to
resolve questions in dispute. (Evid. Code, § 210.)” (Chatman, at
p. 382.) But “[a] party who testifies to a set of facts contrary to the
testimony of others may be asked to clarify what his position is
and give, if he is able, a reason for the jury to accept his testimony
as more reliable.” (Ibid.) The Chatman court reasoned, “A
defendant who is a percipient witness to the events at issue has
personal knowledge whether other witnesses who describe those
events are testifying truthfully and accurately. As a result, he
might also be able to provide insight on whether witnesses whose
14
testimony differs from his own are intentionally lying or are
merely mistaken.” (Ibid.; accord, Gonzales and Soliz, at p. 319.)
Ortiz concedes defense counsel did not object to the
prosecutor’s cross-examination of Ortiz regarding whether Deputy
Fernandez was lying and “putting a case” on him. Ortiz has
therefore forfeited his claim of prosecutorial misconduct.
(Gonzales and Soliz, supra, 52 Cal.4th at p. 318 [failure to object to
“were they lying” questions forfeited claim on appeal]; Hawthorne,
supra, 46 Cal.4th at p. 97 [same].) But even if the claim were
preserved for appeal, the prosecutor’s misconduct did not rise to
the level of reversible error. (Gonzales and Soliz, at p. 319.)6
The prosecutor’s “was he lying” questions were
argumentative and improperly elicited speculative testimony
because Ortiz “did not personally know or have any connection
with” Deputy Fernandez. (See People v. Gonzales and Soliz,
supra, 52 Cal.4th at p. 319; People v. Zambrano (2004)
124 Cal.App.4th 228, 240-241 (Zambrano) [prosecutor’s “were they
lying” questions were irrelevant and “served no purpose other than
to elicit defendant’s inadmissible lay opinion concerning the
officers’ veracity”].) Thus, Ortiz could not provide any insight on
whether Deputy Fernandez “might be inaccurate or mistaken, or
whether he knew of any bias, interest, or motive for [Deputy
Fernandez] to be untruthful.” (Chatman, supra, 38 Cal.4th at
p. 383.) In Chatman, for example, the Supreme Court found the
“were they lying” questions appropriate because the defendant
knew the other witnesses, who were friends or relatives, and the
6 Because we decide Ortiz’s contentions on the merits we do
not reach whether it would have been futile for defense counsel to
object to the prosecutor’s questioning of Ortiz or Ortiz’s claim of
ineffective assistance of counsel.
15
defendant was able to provide reasons why the witnesses testified
as they did. (Id. at p. 383.) As the court explained, “[T]he ‘were
they lying’ questions were brief and were generally precursors to
follow up questions as to whether defendant knew of any reason
the witnesses had to lie.” (Ibid.)
Zambrano, supra, 124 Cal.App.4th 228 is directly on point.
There, the prosecutor asked the defendant multiple “was he lying”
questions and called the police officer in rebuttal to testify he was
not lying and would likely be terminated if he lied during an
investigation. (Id. at pp. 234-235.) The Court of Appeal concluded
the questions constituted prosecutorial misconduct because they
served no evidentiary purpose, and instead were used “to berate
defendant before the jury and to force him to call the officers liars
in an attempt to inflame the passions of the jury.” (Id. at p. 242.)
The prosecutor’s questioning of Ortiz similarly asked Ortiz merely
to repeat his opinion that Deputy Fernandez was lying without
providing any information on why Deputy Fernandez might lie.
And, as in Zambrano, “[t]he misconduct was exacerbated when the
prosecutor called [the officer] in rebuttal to testify that he was not
lying and would not risk losing his job by lying.” (Ibid.) Here, the
prosecutor elicited from Deputy Fernandez that he would not
jeopardize his job by lying because he had a family to feed.
Further, as in Zambrano, the prosecutor raised Ortiz’s
inadmissible testimony in her closing argument to attack his
credibility. (See ibid. [“The misconduct was further compounded
when the prosecutor revisited defendant’s inadmissible testimony
in her rebuttal closing argument.”].) Thus, the prosecutor
“committed misconduct under state law” by using “a ‘reprehensible
method’ to persuade the jury on the issue of defendant’s and the
officer’s credibility.” (Id. at p. 243.)
16
However, the prosecutorial misconduct does not warrant
reversal because it is not reasonably probable the jury would have
reached a result more favorable to Ortiz had the misconduct not
occurred. (Gonzales and Soliz, supra, 52 Cal.4th at p. 319;
Zambrano, supra, 124 Cal.App.4th at p. 243.) The People
presented Deputy Fernandez’s testimony, photographs of the
recovered gun, magazine, and ammunition (except for the
ammunition recovered from Ortiz’s pocket), and the Miranda
waiver form on which Ortiz wrote, “The gun is mine.” Ortiz’s
defense was based entirely on his testimony, which contradicted
that of Deputy Fernandez in every pertinent respect.7 Ortiz was
unable to offer any explanation for why Deputy Fernandez had a
motive to point a gun at Ortiz, plant evidence in his car, or forge
his signature and initials on the Miranda waiver form. And Ortiz
admitted he had three prior convictions, including for attempted
carjacking and commercial burglary. Thus, even absent the
improper “was he lying” questions, it is not reasonably probable
the jury would have believed Ortiz’s implausible version of events.
D. The Trial Court Did Not Abuse Its Discretion in Excluding
Unsubstantiated Allegations as Impeachment Evidence
1. Trial court proceedings
Defense counsel sought to cross-examine Deputy Fernandez
about a complaint made by Abraham Tinajero that was disclosed
in response to Ortiz’s Pitchess8 motion. After the prosecutor
7 As discussed, the court also admitted a photograph of the
sale document on Ortiz’s windshield, but Ortiz never challenged
the lawfulness of the stop.
8 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
17
objected, the trial court asked defense counsel for an offer of proof,
and defense counsel stated, “[Tinajero] was driving in Huntington
Park[.] He said two deputies stopped him[.] He was unable to
recall the reason for the stop. Deputies asked him for his license
registration, proof of insurance. He was asked to step out of the
vehicle, after providing the documents to the deputy. The deputy
searched, handcuffed and placed Mr. Tinajero in the backseat of
the patrol car. . . . The officer spent about 30 minutes searching
the vehicle.” Defense counsel added, “The officers also searched
his wallet during that time. The deputies threw a lot of Mr.
Tinajero’s property onto the hood of his vehicle during the search.
When the deputies finished searching the vehicle, they released
him and told him he was free to leave, and Mr. Tinajero discovered
$100 missing from his wallet. [¶] After the deputies left the
location, he filed the complaint with the sheriff’s department in
Lynwood, and, apparently, there was an investigation where Mr.
Tinajero was . . . notified that the sheriff’s investigation found no
fault with the deputy regarding this complaint.” Defense counsel
argued she had good faith belief the incident did occur. But she
acknowledged she would not be able to call Tinajero to testify
because he was not in court and she did not subpoena him.
The court ruled, “[T]he implication, putting aside what the
sheriff’s department determined, what I heard you saying
is . . . before the search, [Tinajero] had a hundred dollars and
after the search, $100 was missing. [¶] . . . If true, I would
concede . . . this is a crime of moral turpitude. My problem with
this scenario is this hasn’t been litigated. This hadn’t been
adjudicated so that the accusations have been established, and
that hasn’t happened. And I think we all know when it comes to
impeachment, accusations alone isn’t enough. [¶] So based on
18
your offer of proof, specifically what you said, it’s also going to be
denied.” Defense counsel asked, “I’m not able to ask the deputy
whether or not to his knowledge, he’s been made aware of that
people made complaints against him?” The court responded, “Yes.
It is unduly prejudicial; under [Evidence Code section] 352, it’s
unfair to inquire about that when the basis of your questions are
these unsubstantiated allegations.”
2. The trial court did not abuse its discretion
“‘The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.’ (Evid. Code, § 352.).” (People v.
Hardy (2018) 5 Cal.5th 56, 87; accord, People v. Bell (2019)
7 Cal.5th 70, 105.) “‘[T]he trial court is vested with wide discretion
in determining relevance and in weighing the prejudicial effect of
proffered evidence against its probative value. Its rulings will not
be overturned on appeal absent an abuse of that discretion.’”
(Hardy, at p. 87; accord, Bell, at p. 105.)
The trial court did not abuse its discretion in barring defense
counsel from questioning Deputy Fernandez about Tinajero’s
allegations. As the court noted, Tinajero’s allegations were not
adjudicated, and Tinajero was not under subpoena to testify as to
his version of events. Ortiz’s reliance on People v. Castain (1981)
122 Cal.App.3d 138, 142-143 is misplaced. In Castain, the Court
of Appeal concluded the trial court abused its discretion in
excluding testimony from an individual who claimed the police
officer who arrested the defendant for battery and resisting arrest
had used excessive force on another occasion. (Id. at pp. 142-143.)
19
In contrast, defense counsel here sought to examine Deputy
Fernandez, not Tinajero, about what Tinajero said in a hearsay
document.
Likewise, the trial court’s ruling did not violate Ortiz’s
confrontation rights under the Sixth and Fourteenth
Amendments. Delaware v. Van Arsdall (1986) 475 U.S. 673, relied
on by Ortiz, is inapposite. The United States Supreme Court in
Van Arsdall held the trial court’s exclusion of “all inquiry into the
possibility that [the witness] would be biased as result of the
State’s dismissal of his pending public drunkenness charge”
violated the defendant’s rights under the Confrontation Clause.
(Id. at p. 679.) As in People v. Castain, supra, 122 Cal.App.3d 138,
the court in Van Arsdall considered the scope of examination of a
percipient witness to show the witness’s bias, not limitations on
questioning about what a third person alleged the percipient
witness had done.9
9 Ortiz contends he suffered cumulative prejudice because the
trial court violated his due process rights by denying his mistrial
motion; the prosecutor committed misconduct in violation of his
due process rights; and the trial court violated his confrontation
rights by prohibiting him from cross-examining Deputy Fernandez
about Tinajero’s allegations. Because we reject Ortiz’s claims of
error (and conclude the “was he lying” questions were not
prejudicial), there was no cumulative prejudice. (People v. Powell
(2018) 6 Cal.5th 136, 194 [no cumulative prejudice where “[a]ny
errors, actual or arguable, were minor”]; People v. Edwards (2013)
57 Cal.4th 658, 746 [no cumulative prejudice because there was no
error, or if assuming error, there was no prejudice]; People v. Tully
(2012) 54 Cal.4th 952, 1021-1023 [defendant did not suffer
cumulative prejudice where there was no error or, if error, no
individual prejudice].)
20
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
21