Filed 10/20/14 P. v. Johnson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B245924
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA056784)
v.
CLARENCE B. JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Hayden A. Zacky, Judge. Affirmed as modified.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________
INTRODUCTION
Clarence B. Johnson appeals from the judgment on his conviction of criminal
threats. On appeal he raises four separate grounds. First, appellant argues it was an
abuse of discretion for the trial court to restrict defense counsel’s inquiry into an
eyewitness’s history of self-cutting as a basis of attacking the witness’s credibility.
Second, appellant asserts the trial court erred in limiting defense counsel’s cross-
examination of the alleged victim’s prior felony conviction for vandalism. Third,
appellant contends it was prosecutorial misconduct for the prosecutor to repeatedly and
improperly use leading questions during his direct examination of the alleged victim.
Finally, appellant asserts the judgment could not order compliance with a protective order
because such an order was outside the court’s jurisdiction. As we shall explain, only the
claim with respect to the protective order has merit. Consequently, we strike the
protective order and affirm the modified judgment. We order the abstract of judgment to
be corrected accordingly.
FACTUAL BACKGROUND
I. Events in Appellant’s Apartment
On July 10, 2012, at around 3:00 a.m., Adam Christenson placed a 9-1-1 call after
hearing what sounded like people “screaming for their lives” in the apartment next door.
Clarence B. Johnson (appellant) and Traci Tidmore Allen (Allen) were together in the
apartment next to Christenson’s. They had been dating for a week. Another women, also
named Traci,1 was at the apartment with appellant and Allen. Earlier that night, at around
9:00 p.m., the three of them were using crack cocaine.
At around 3:00 a.m., an altercation occurred between Allen and appellant. Allen
was in bed. Appellant told Allen to turn around and face the wall. When Allen asked
why, appellant jumped on top of her and began to hit her. Appellant swore at Allen and
said he would kill her. Allen said she already had a brother in prison and appellant
replied that Allen might not live to see him again. Appellant told Traci to get a knife and
1
Traci did not testify at the preliminary hearing or trial.
2
said he would cut Allen’s throat. This knife was under appellant’s pillow on the bed.
While appellant was on top of Allen, the knife fell off the bed and became stuck between
the bed and the wall.
After the knife fell, Allen got up from the bed. At this time, appellant’s godson,
Josh,2 entered the apartment. Allen attempted to leave, but appellant told Josh to not let
Allen out. Josh held the door and refused to let Allen leave. Allen screamed that she
wanted to be let out of the apartment.
Allen ran to the window and saw Lu’Shown Malveaux (Malveaux)3 drive up in
Allen’s car. Allen banged on the window and yelled for help. Malveaux testified that
she heard Allen yell, “I want to go home. I want to go home. Help me. He said he’s
going to kill me. There’s a knife under the pillow.”
II. Events in Allen’s Car Leading to Appellant’s Arrest
Allen testified Josh let her out of the apartment and appellant followed her outside.
Allen got into the passenger seat of the car. Appellant stood outside the car on the
driver’s side where the window was open. Allen thought appellant would take the keys,
so she grabbed them out of the ignition and ran out of the car. Appellant chased her
down the alley. Appellant caught up with Allen and grabbed her hair. Allen fell and the
two “tussled” over the keys. He was on top of her, swearing and threatening to kill her.
Allen threw the keys towards Malveaux. Appellant stood up. Allen retrieved the
keys and ran to the car. She got into the driver’s seat. Malveaux moved to the back seat.
Appellant got into the passenger’s seat. Appellant made threatening statements to Allen
while she drove. She asked him to get out of the car, but he refused. She drove toward
Malveaux’s house. While she drove, appellant was hitting her in the face with the back
of his hand. While driving to Malveaux’s house, Allen saw a police car and began
flashing her lights. She told them she needed help; they directed her to pullover.
2
Josh did not testify at the preliminary hearing or the trial.
3
Malveaux is Allen’s close friend and was returning Allen’s car to her that night.
3
Allen told Deputy Burchett and Deputy Klumpf that appellant was “beating” her.
Appellant told the deputies that he was arguing with Allen because she had been “hitting
on” his son. Appellant said he never threatened Allen. The deputies arrested appellant.
Appellant was charged with three crimes: criminal threats, in violation of Penal
Code section 422; false imprisonment, in violation of Penal Code section 236; and assault
by means likely to produce great bodily injury, in violation of Penal Code section 245,
subdivision (a)(4).
III. Procedural Background
At trial, appellant was convicted of making unlawful threats in violation of Penal
Code section 422. He was acquitted of false imprisonment and assault with force likely
to produce great bodily injury. Appellant timely filed this appeal.
DISCUSSION
I. Abuse of Discretion Standard
With respect to a trial court’s rulings under Evidence Code sections 350 and 352,
this court applies the abuse of discretion standard. (People v. Duff (2014) 58 Cal.4th 527,
558; People v. Montes (2014) 58 Cal. 4th 809, 869.) The California Supreme court has
established, “It is axiomatic that a court has wide discretion to exclude evidence as
substantially more prejudicial than probative. Its ruling therefore will be sustained on
review unless it falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th
1198, 1226.) A trial court’s admissibility determination may not be reversed on appeal
unless the defendant shows that the court exercised its discretion in an arbitrary,
capricious, or patently absurd manner which resulted in a manifest miscarriage of justice.
(Evid. Code, § 353, subd. (b); People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
II. The Trial Court Did Not Err in Excluding Evidence of Malveaux’s
History of Self-Cutting
Appellant asserts the trial court abused its discretion by restricting defense counsel
from inquiring into Malveaux’s history of self-cutting. Appellant argues self-cutting is a
condition that commonly coexists with mental health disorders. Appellant believes the
4
jury relied heavily on Malveaux’s testimony to corroborate Allen’s account of the events
and subsequently convict appellant. Appellant suggests that had the jury known of
Malveaux’s self-cutting and mental health history, the jury would have questioned her
credibility as a reliable eyewitness and the trial’s outcome would have been different.
A. The Trial Court’s Evidence Code Section 402 Hearing
During the trial, the prosecution notified the court and defense counsel that
Malveaux had scars from cutting herself when she was younger.4 Defense counsel
requested the court’s permission to cross-examine the witness on her mental health
issues. The trial court ordered a hearing pursuant to Evidence Code section 402. 5 The
court observed, “I am not a mental health expert. However, I think in layman’s terms, if
a person is bipolar or schizophrenic, I think any layman would know that may affect a
person’s perception and ability to recall. [¶] However, cutting is something different.
Cutting is a physical manifestation that somebody does to their body in reaction to
something, and that something is pure speculation on my part and yours because we don’t
know. I can’t even say whether or not a person cuts as a result of any type of mental
health issue. A person may cut because they are frustrated. They may cut because they
are in a group home and they’re lonely. I don’t know. [¶] So we can have a 402 with
her, but . . . I don’t think it’s relevant. But when she gets here we will do a quick
hearing.”
At the section 402 hearing, Malveaux stated she told the prosecutor and two
deputies she used to cut herself when she lived in a group home. She testified that she
had seen a psychiatrist earlier in the year and was diagnosed with some kind of mental
4
Malveaux was 19 years old at the time of the trial.
5
“The court may hear and determine the question of the admissibility of evidence
out of the presence or hearing of the jury; but in a criminal action, the court shall hear and
determine the question of the admissibility of a confession or admission of the defendant
out of the presence and hearing of the jury if any party so requests.” (Evid. Code, § 402,
subd. (b).)
5
illness. When asked which mental illnesses she had, Malveaux responded that she did
not remember and would have to look at her records.
The court then interjected: “Let me stop for one second here. [¶] You know, I
don’t want to go into your own personal private medical history, but I think the question
is this. Do you have any type of mental disease or disorder that would affect your ability
to perceive or recall anything that happened?
“[Malveaux]: No.
“The Court: So your cutting is a physical manifestation of some kind of mental
trauma or as a result of things that you have gone through in your life?
“[Malveaux]: Yes.
“The Court: And is that what you were treated for?
“[Malveaux]: Yes.”
Defense counsel then asked Malveaux if she was currently seeing a doctor on a
regular basis; whether she was on medication; whether she was on medication in July;
and whether she has ever been diagnosed with “something like bipolar schizophrenia.”
Malveaux said “No” to each of these questions. The court ruled “the fact that [Malveaux]
may have engaged in cutting in the past is irrelevant.”
B. Analysis
We assume from the record that the trial court excluded evidence of Malveaux’s
self-cutting on the basis of Evidence Code section 350.6 Under Evidence Code section
350, “[n]o evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
Evidence Code section 210 defines relevant evidence as evidence relevant to the
6
When the prosecutor first informed the court of Malveaux’s history of self-cutting,
he stated, “the People’s position is that it is just not relevant.” After the Evidence Code
section 402 hearing, the trial court concluded, “the fact that [Malveaux] may have
engaged in cutting in the past is irrelevant and we are not going to get into that.”
6
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) Witnesses cannot “be examined on matters that are irrelevant to the
issues in the case.” (People v. Mayfield (1997) 14 Cal.4th 668, 755.) We review trial
court decisions regarding Evidence Code section 350 for abuse of discretion. (People v.
Duff, supra, 58 Cal.4th at p. 558.)
Under Evidence Code section 780, the court or jury may consider in determining a
witness’s credibility any matter that has any tendency to prove or disprove the
truthfulness of her testimony at trial. (Evid. Code, § 780.) This includes the extent of the
witness’s ability to perceive, to recollect, or to communicate any matter about which she
testifies. (Evid. Code, § 780, subd. (c).)
It is not contested that a witness’s mental health can affect her ability to perceive
or recall events. Appellant relies on People v. Newton to argue psychiatric testimony
should be admitted “liberally in favor of the defense.” (People v. Newton (1966) 244
Cal.App.2d 82.) However, this does not mean that any and all evidence of a witness’s
mental health history is subject to scrutiny at trial. In People v. Anderson (2001) 25
Cal.4th 543, the California Supreme Court recognized, “It is a fact of modern life that
many people experience emotional problems, undergo therapy, and take medications for
their conditions. ‘A person’s credibility is not in question merely because he or she is
receiving treatment for a mental health problem.’” (Id. at p. 579.)7
7
The federal courts apply similar standards to the admission of mental health
evidence. For example, in United States v. Moore (1st Cir. 1991) 923 F.2d 910, the First
Circuit held the district court “has broad discretionary authority to prohibit cross-
examination,” including the extent to which it allows examination about a witness’s
condition of mental instability. (Id. at p. 913.) In United States v. Bari (2d Cir. 1984)
750 F.2d 1169, the Second Circuit found the trial court did not abuse its discretion by
restricting cross-examination on a witness’s prior hospitalization for schizophrenia. (Id.
at pp. 1178-1179.) In United States v. Smith (D.C. Cir. 1996) 77 F.3d 511, the D.C.
Circuit held “a history of mental illness is not necessarily admissible as impeachment
evidence.” (Id. at p. 516.)
7
The California Supreme Court has determined that “a witness may be cross-
examined on that subject, if such illness affects the witness’s ability to perceive, recall or
describe the events in question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-592;
People v. Herring (2005) 36 Cal.4th 96, 116-117; People v. Anderson, supra, 25 Cal.4th
at pp. 608-609 (conc. opn. of Kennard, J.).) Here, the trial court did not arbitrarily restrict
defense counsel from inquiring into Malveaux’s history of self-cutting. First, the nature
of self-cutting does not necessarily reflect a diminished or questionable ability to perceive
and recall events. Courts distinguish “a mental illness that causes hallucinations or
delusions [as] generally more probative of credibility than a condition causing only
depression, irritability, impulsivity, or anxiety.” (People v. Anderson, supra, 25 Cal.4th
at p. 609 (Kennard, J., concurring).) For example, “[a] psychotic’s veracity may be
impaired by lack of capacity to observe, correlate or recollect actual events. A paranoid
person may interpret a reality skewed by suspicions, antipathies or fantasies. A
schizophrenic may have difficulty distinguishing fact from fantasy and may have his
memory distorted by delusions, hallucinations and paranoid thinking. A paranoid
schizophrenic, though he may appear normal and his judgment on matters outside his
delusional system may remain intact, may harbor delusions of grandeur or persecution
that grossly distort his reactions to events.” (United States v. Lindstrom (11th Cir. 1983)
698 F.2d 1154, 1160.) Defense counsel asked Malveaux whether she has ever been
diagnosed with “something like bipolar schizophrenia.” Malveaux said she had not.
Malveaux’s history of self-cutting as an adolescent may indicate she had
depression or anxiety, or as the court explained, the self-cutting could have been entirely
unrelated to any mental health disorders. The fact that a witness has depression or
anxiety is not enough to question her credibility and capacity to perceive and recall
events. (People v. Anderson, supra, 25 Cal.4th at p. 579; see also United States v. Butt
(1st Cir. 1992) 955 F.2d 77, 82.) On appeal, appellant relies on the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) to
argue self-cutting is a condition that commonly co-exists with certain mental health
disorders. However, appellant did not raise this argument at the Evidence Code section
8
402 hearing. Even if we assume this argument is not waived on appeal, appellant did not
provide evidence or argue that self-cutting affects a witness’s perceptions, memory or
ability to communicate.
In Anderson, the fact that the witness suffered “mental anguish” did not, standing
alone, require the trial court to permit defense counsel to inquire into her mental health
history in front of the jury. (See People v. Anderson, supra, 25 Cal.4th at pp. 578-579.)
Here, Malveaux testified that she did not have bipolar disorder or schizophrenia. The
court asked Malveaux if she had any disorders that affected her ability to perceive and
recall events. Malveaux said, “No.” On appeal, appellant contends that it is “inefficient
to ask the subject of an inquiry whether he or she has a mental condition that inhibits the
ability to perceive and recall facts.” However, it was appellant’s burden to raise and
argue this issue during the Evidence Code section 402 hearing. He did not. Moreover, in
People v. Pack (1988) 201 Cal.App.3d 679, defense counsel sought to inquire about a
witness’s records to see if there is a material issue with credibility. (Id. at p. 686,
disapproved on other grounds by People v. Hammon (1997) 14 Cal.4th 1117.) The court
held this minimal showing that the witness “received treatment for some mental health
problem” is not enough to justify an inquiry into a witness’s private mental health
records. (Ibid.)
Furthermore, courts find evidence of “mental instability relevant to credibility”
when “during the time-frame of the events testified to, the witness exhibited a
pronounced disposition to lie or hallucinate, or suffered from a severe illness, such as
schizophrenia, that dramatically impaired her ability to perceive and tell the truth.”
(United States v. Butt, supra, 955 F.2d at pp. 82-83.) There is nothing in the record to
indicate that Malveaux had such a disposition when she witnessed appellant threaten
Allen or when she testified at trial. Moreover, appellant did not make such a showing or
raise this argument at trial during the section 402 hearing.
Finally, in conducting the 402 hearing, the court also assessed Malveaux’s mental
soundness during her testimony. The record affirmatively shows the trial court balanced
9
the probative value of Malveaux’s past of self-cutting with the prejudicial effect such
evidence could have had on the jury. We conclude there was no abuse of discretion.
III. The Trial Court Did Not Err in Limiting Defense Counsel’s
Cross-Examination of Allen’s Prior Felony Conviction
A. Allen’s Prior Drug Use and Mental Health History
In July 2012, Allen was addicted to crack cocaine. Six hours before the July 10th
incident between Allen and appellant, Allen smoked crack. At trial, Allen admitted that
when she smoked crack, she was prone to having hallucinations or delusions, including
paranoia. Allen testified she was not hallucinating on July 10, 2012.
Before September 2009, Allen was diagnosed with bipolar disorder. In 2012, she
was taking Prozac but ran out of the medication a couple of days before the incident. At
the time of the trial, Allen was sober and receiving treatment for her bipolar disorder,
depression and substance addiction.
B. Allen’s Prior Felony Conviction and The Trial Court’s Evidence Code
section 352 Ruling
In 2009, Allen was convicted of felony vandalism for damage to her mother’s
house. At trial, defense counsel wanted to question Allen on five areas of underlying
facts concerning the vandalism conviction: (1) Allen broke into the house; (2) one of
Allen’s siblings had a restraining order against her; (3) Allen locked all the doors,
preventing anyone else from entering; (4) when a detective tried to talk to Allen, Allen
said she wanted to talk to a “real detective,” not an actor; and (5) Allen told the police her
cousin was going to shoot her. The trial court allowed defense counsel to inquire as to
some of the facts but not the five specific areas defense counsel wanted to address.
The court explained, “Typically, when it comes to impeaching a witness based on
a prior felony conviction involving moral turpitude, the witness is confronted with the
case number, the date of conviction and asked, were you convicted of a violation of
felony vandalism in violation of 594(a) of the Penal Code? Yes or no. That’s typically
the extent of the testimony that’s allowed to impeach a witness.”
10
Because the trial court allowed the prosecutor to inquire into some of the
underlying facts of Allen’s vandalism conviction, the trial court permitted defense
counsel to do the same. The court provided a list in writing to the attorneys indicating
which facts could be asked of Allen regarding her vandalism conviction. The court
allowed questions of whether Allen was experiencing mental health issues the day of the
vandalism; whether Allen was using drugs at the time; whether Allen “enter[ed] the
location and beg[an] smashing property and throwing plates[;]” whether Allen
“shatter[ed] several windows at the location[;]” and whether “the motivation behind
[Allen’s actions] was because [she] was upset she had loaned her mom $10,000.” The
court stressed that it “wouldn’t allow . . . the entire incident to be re-litigated.”
The court concluded, “[A]nything else above and beyond what’s already been
asked, I’m going to exercise my discretion under [Evidence Code section] 352. It’s an
undue consumption of time. The probative value is substantially outweighed by
prejudice, and the undue consumption of time.”
Appellant contends that had the jury heard certain underlying facts of Allen’s 2009
vandalism conviction, the jury would have likely interpreted Allen’s claims against
appellant as a product of drug-induced paranoia. The Attorney General argues the trial
court acted within its discretion and any possible error was harmless.
C. Analysis
We review trial court decisions regarding Evidence Code section 352 for abuse of
discretion. (People v. Montes (2014) 58 Cal.4th 809, 869.) In criminal proceedings, any
prior felony conviction of any person can be used for the purposes of impeachment. (Cal.
Const., art. I, § 28.) Under Evidence Code section 788, prior felony convictions can be
used to attack a witness’s credibility.8 (Evid. Code, § 788.) However, using evidence of
8
The four Evidence Code section 788 exceptions for when a witness’s prior felony
conviction cannot be used do not apply to Allen. These exceptions are “(a) A pardon
based on [her] innocence has been granted to the witness by the jurisdiction in which
[she] was convicted. [¶] (b) A certificate of rehabilitation and pardon has been granted
to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of
11
prior felony convictions for impeachment purposes is still subject to limitation by
Evidence Code section 352. (People v. Castro (1985) 38 Cal. 3d 301, 307.)
Because the trial court allowed in evidence of Allen’s vandalism conviction, the
issue concerns whether the trial court erred in restricting defense counsel from inquiring
into additional underlying facts of that conviction — such as Allen telling the police her
cousin was going to shoot her or that one of Allen’s siblings had a restraining order
against Allen.
To be admissible for impeachment, Allen’s past misconduct must involve moral
turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317 [A witness’ prior conviction is
only admissible for impeachment purposes “if the least adjudicated elements of the
conviction necessarily involve moral turpitude”].) The California Supreme Court defines
moral turpitude as a “readiness to do evil” or a “moral depravity of any kind.” (People v.
Lang (1989) 49 Cal.3d 991, 1009.) Without delving into the specific circumstances and
motivations of Allen’s past misconduct, we assume that her vandalism conviction meets
the moral turpitude requirement. (See People v. Campbell (1994) 23 Cal.App.4th 1488,
1496 [holding that felony vandalism involves moral turpitude].)
Beyond “the relevance requirement of moral turpitude . . . the latitude [Evidence
Code] section 352 allows for exclusion of impeachment evidence in individual cases is
broad.” (People v. Clark (2011) 52 Cal. 4th 856, 931.) 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” (People v. Collins (1986) 42
Cal.3d 378, 389), a reviewing court ordinarily will uphold the trial court’s exercise of
discretion. (People v. Hinton (2006) 37 Cal.4th 839, 888.)
Appellant relies on People v. Wheeler (1992) 4 Cal.4th 284 to argue pursuant to
Article I, section 28 of the California Constitution, statutory prohibitions on impeachment
Title 6 of Part 3 of the Penal Code. [¶] (c) The accusatory pleading against the witness
has been dismissed under the provisions of Penal Code Section 1203.4 , . . . [¶] (d) The
conviction was under the laws of another jurisdiction and the witness has been relieved of
the penalties and disabilities arising from the conviction pursuant to a procedure
substantially equivalent to that referred to in subdivision (b) or (c).” (Evid. Code § 788.)
12
with conduct evidence other than felony convictions no longer apply in criminal cases.
We disagree. In Wheeler, the issue was whether evidence of prior misdemeanor
convictions – not underlying facts of the convictions—should be allowed in for
impeachment purposes. (Id. at p. 288.) The California Supreme Court specifically
stated, “By its plain terms, section 28(d) [of the California Constitution] requires the
admission in criminal cases of all ‘relevant’ proffered evidence unless exclusion is
allowed or required by an ‘existing statutory rule of evidence relating to privilege or
hearsay, or Evidence Code, [s]ections 352, 782 or 1103,’ or by new laws passed by two-
thirds of each house of the Legislature.” (Id., at p. 292, italics omitted.)
Here, the evidence of Allen’s past misconduct was subject to limitation by
Evidence Code section 352. The trial court explicitly stated it “wouldn’t allow . . . the
entire [vandalism] incident to be re-litigated” because it would be “an undue consumption
of time.” We conclude the trial court did not abuse its discretion in limiting defense
counsel’s cross-examination of Allen’s vandalism conviction. Appellant asserts further
questioning would have elicited that Allen’s 2009 conviction was a product of drug-
induced paranoia and a similar inference could be made for appellant’s case. Defense
counsel was not barred from drawing such an inference for the jury.
During the vandalism incident, Allen was experiencing mental health issues, was
not on her prescribed medication and was under the influence of drugs. Those three
factors were also present when Allen claimed appellant threatened her. The trial court
did not preclude defense counsel from eliciting testimony of these three factors. Not only
did the trial court allow defense counsel to cross-examine Allen on the fact that she was
convicted of felony vandalism, but the trial court also permitted defense counsel to ask
Allen about her drug use, mental health issues and medication during the vandalism
incident. Defense counsel wanted to discredit Allen’s testimony by showing the jury that
(1) Allen’s vandalism conviction stemmed from a drug-induced paranoia and (2) Allen
was suffering from a similar drug-induced paranoia on the night she accused appellant of
threatening her. Defense counsel had ample opportunity to draw this inference and make
this argument. The trial court only barred defense counsel from asking about five
13
underlying facts of Allen’s vandalism conviction: (1) Allen broke into the house; (2) one
of Allen’s siblings had a restraining order against her; (3) Allen locked all the doors,
preventing anyone else from entering; (4) when a detective tried to talk to Allen, Allen
said she wanted to talk to a “real detective,” not an actor; and (5) Allen told the police her
cousin was going to shoot her. In addition to the three factors connecting the vandalism
conviction to Allen’s account of appellant’s threats, defense counsel was also allowed to
ask about Allen’s actions in smashing property, throwing plates and shattering windows
when she vandalized her mother’s home. In her closing statements, defense counsel
argued her drug-induced paranoia theory and described why and how Allen’s behavior
was irrational. In view of the evidence appellant was allowed to present and counsel’s
argument to the jury, appellant has not shown that the trial court erred in limiting defense
counsel’s cross-examination of Allen’s vandalism conviction.
A trial court “need not expressly weigh prejudice against probative value or even
expressly state that it has done so, if the record as a whole shows the court was aware of
and performed its balancing function under Evidence Code section 352.” (People v.
Edwards (2013) 57 Cal.4th 658, 724.) The record reflects the trial court expressly
referred to the weighing process in exercising its discretion to limit the cross-
examination.
Even if the trial court erred, the error was harmless and the judgment should be
affirmed. A trial court’s erroneous exclusion of defense evidence is reviewed under the
Watson standard, which states an error is harmless if it does not appear reasonably
probable a result more favorable to the defendant would have been reached absent the
error.9 (People v. Watson (1956) 46 Cal.2d 818, 837.)
9
Appellant also asserts that this limitation in Allen’s cross-examination constitutes
a Confrontation Clause violation and the Chapman standard should be used. (Chapman
v. California (1967) 386 U.S. 18, 24 [“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt”].) We disagree. The Sixth Amendment’s Confrontation Clause
guarantees the right of an accused in a criminal prosecution to be confronted with the
witnesses against him. “The main and essential purpose of confrontation is to secure for
14
Appellant’s main objective in asking Allen about the circumstances of her
vandalism conviction was to discredit her testimony. Yet of the three charged crimes,
appellant was only convicted of criminal threats. With respect to this charge, Allen’s
testimony was not the sole basis of evidence. This conviction was also corroborated by
Malveaux’s testimony. Malveaux testified to hearing Allen tell her of appellant’s threats
towards Allen. Malveaux also witnessed appellant threaten Allen. Malveaux testified
that while she was in the car with Allen and appellant, Allen said appellant “was going to
kill her and that she doesn’t know what happened.” Malveaux testified that appellant
responded, “You’re damn right I’ll kill you, bitch.” Allen said, “My son is a police
officer.” Appellant replied, “I don’t give a fuck. You don’t know my family.” Malveaux
testified that she was frightened by the situation and was “looking for the police” while
they were driving. Thus, because defense counsel was able to connect her paranoia
theory with Allen’s vandalism conviction and because there was another corroborating
eyewitness, we hold the error was harmless.
IV. Appellant’s Claim of Prosecutorial Misconduct
Appellant claims the prosecutor committed misconduct when he repeatedly asked
leading questions during his direct examination of Allen. The Attorney General argues
the opponent the opportunity of cross-examination.” (Davis v. Alaska (1974) 415 U.S.
308, 315.) The Confrontation Clause does not guarantee a “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.) Nor does the Confrontation Clause “prevent a trial
judge from imposing any limits on defense counsel’s inquiry into the potential bias of a
prosecution witness. On the contrary, trial 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
issue, the witness’s safety, or interrogation that is repetitive or only marginally relevant.”
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679.) The trial court’s limitation of
defense counsel’s cross-examination did not violate the Confrontation Clause because
appellant was given and exercised his opportunity to confront and cross-examine Allen.
Thus, the Chapman standard should not be applied.
15
appellant forfeited his claim of prosecutorial misconduct because defense counsel failed
to make such an objection at trial and did not request an appropriate admonition.
A. Appellant Did Not Preserve His Prosecutorial Misconduct Claim for
Appeal
Generally, a defendant preserves a prosecutorial misconduct claim for appeal
when the defendant makes a timely and specific objection and asks “the trial court to
admonish the jury to disregard the impropriety unless doing so would be futile or an
admonition would not cure the harm.” (People v. Whalen (2013) 56 Cal.4th 1.) Defense
counsel did not make a timely and specific objection to the repeated use of leading
questions during Allen’s direct examination. Nor did she object to the entire direct
examination. For the objections defense counsel did make, she did not request an
admonition. Moreover, appellant does not claim that any objection or any request for
admonition would have been futile. As a result, appellant did not preserve his claim of
prosecutorial misconduct for appeal.
B. Appellant’s Prosecutorial Misconduct Claim Is Not Preserved By His
Claim of Ineffective Assistance of Counsel
To overcome forfeiture, appellant asserts his claim is preserved for appeal because
defense counsel’s failure to object constitutes ineffective assistance of counsel. With
respect to ineffective assistance of counsel claims, the California Supreme Court has
established, “[i]f the record on appeal ‘“‘sheds no light on why counsel acted or failed to
act in the manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation,’ the
claim on appeal must be rejected.”’” (People v. Vines (2011) 51 Cal. 4th 830, 876 citing
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The California Supreme
Court explained that “it is inappropriate for an appellate court to speculate as to the
existence or nonexistence of a tactical basis for a defense attorney’s course of conduct
when the record on appeal does not illuminate the basis for the attorney’s challenged acts
or omissions, a claim of ineffective assistance is more appropriately made in a habeas
16
corpus proceeding, in which the attorney has the opportunity to explain the reasons for
his or her conduct.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
A claim of ineffective assistance of counsel is shown when the defendant
establishes both of the following: (1) counsel’s representation fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, a determination more favorable to defendant would have
resulted. (People v. Huggins (2006) 38 Cal.4th 175, 205-206; Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694.)
First, with respect to defense counsel’s performance, “[t]he proper standard for
judging attorney performance is that of reasonably effective assistance, considering all
the circumstances. . . . Judicial scrutiny of counsel’s performance must be highly
deferential, and a fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time. A court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” (Strickland v. Washington, supra,
466 U.S. at p. 669.)
Here, the issue is whether “the record on appeal affirmatively discloses that
counsel had no rational tactical purpose” for not objecting more frequently to the
prosecutor’s leading questions or for not objecting to the entire direct examination.
(People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
1. Objecting more frequently to the prosecutor’s leading
questions
With respect to whether defense counsel should have objected more frequently
during Allen’s direction examination, the “failure to object to leading questions certainly
does not indicate incompetency; rather it sometimes is considered good trial technique
not to object.” (People v. Chavez (1968) 262 Cal.App.2d 422.) Because defense counsel
did object to some of the prosecutor’s leading questions, we can discern from the record
17
on appeal that defense counsel might have had a rational tactical purpose to not
repeatedly and frequently object to leading questions during Allen’s direct-examination.
2. Objecting to the entirety of Allen’s direct examination
As for whether there was a rational tactical purpose for not objecting to the entire
direct examination as prosecutorial misconduct, appellant points out that defense counsel
stated on the record she understood the nature and gravity of the prosecutor’s conduct.
Following the trial court’s ruling on the extent of questioning allowed on the underlying
facts of Allen’s prior felony conviction, defense counsel stated, “Now that [the
prosecutor] mentioned that I repeatedly objected based on leading, I really believe that
[the prosecutor] is feeding information into the mouth of the witness and I don’t
appreciate it. And I repeatedly objected. And I really hope that [the prosecutor] follows
the rules of evidence and not lead the subsequent witnesses.”
In response, the trial court judge stated, “Both parties are well aware of the
California Evidence Code and the rules contained therein. Whoever has a witness on
direct cannot ask leading questions. [¶] . . . You objected at the appropriate time and I
sustained your objections when appropriate. Just both sides be cognizant, if it’s your
witness, do not ask leading questions.” Defense counsel then resumed her cross-
examination of Allen.10
Appellant is not arguing that this exchange was enough to preserve his claim of
prosecutorial misconduct. Rather, appellant claims that defense counsel’s act of
recognizing the issue and raising it with the trial court while failing to make the
appropriate objection or legal argument is proof that her omissions lacked a rational
tactical purpose. However, “[f]ailure to object rarely constitutes constitutionally
ineffective legal representation.” (People v. Boyette (2002) 29 Cal.4th 381, 424.)
Moreover, defense counsel’s recognition of the prosecutor’s leading questions and
voicing it to the court does not indicate that her representation was objectively deficient.
10
This discussion was held outside the presence of the jury.
18
She may have thought it was more strategic to object during the direct examination rather
than afterwards. Objecting to the entire direct examination and asking for certain
portions to be stricken may have resulted in the prosecutor going back and reasking
questions. This could have given the prosecutor a better opportunity to emphasize certain
points of Allen’s testimony with the jury or it could have irritated the jury.
Even assuming defense counsel should have objected, appellant failed to
demonstrate defense counsel’s omission resulted in prejudice. The California Supreme
Court has stated “[p]rejudice is shown when there is a ‘reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” (People v. Lucas (1995) 12 Cal.4th 415, 436, citing In re Harris (1993) 5
Cal.4th 813, 832-833.)
Appellant has not shown there was a reasonable probability that but for those
leading questions on Allen’s direct examination, appellant would have had a more
favorable result. (Strickland v. Washington, supra, 466 U.S. at p. 695.) Appellant was
convicted of criminal threats. Even if defense counsel objected to the entirety of Allen’s
direct examination, it is unlikely that appellant would have obtained a better result
because of Malveaux’s corroborating testimony. Malveaux testified she witnessed
appellant say to Allen, “You’re damn right I’ll kill you, bitch.” Of the three charges
against appellant, appellant was only convicted of the charge where there was an
independent witness. The prosecutor did not ask leading questions on the direct
examination of this separate witness.
The Sixth Amendment guarantee to effective assistance of counsel “ ensure[s] that
criminal defendants receive a fair trial[,]” not a perfect trial. (Strickland v. Washington,
supra, 466 U.S. at p. 689.) Appellant has not demonstrated that his counsel’s failure to
object to prosecutorial misconduct for asking leading questions during Allen’s direct
examination rendered his trial fundamentally unfair. Nor has appellant established the
lack of objections “so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” (Id. at p. 686.)
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V. Error in the Judgment
Appellant argues the abstract of judgment should not order compliance with a
protective order because such an order is outside the court’s jurisdiction. The Attorney
General does not contest this and states the abstract of judgment should be amended to
reflect the actual sentence imposed. We agree.
The minute order from appellant’s sentencing indicates that he was to “obey the
protective order issued in this or any other case” and that he was “served with a copy of
the protective order in open court.” However, the record does not indicate that the trial
court actually imposed a protective order as part of appellant’s sentence. When there is a
discrepancy between the court’s oral pronouncement and the minute order or abstract of
judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181,
185-186.) These minor, clerical errors are easily and appropriately corrected by order of
this court. (Id. at pp. 185-188.)
DISPOSITION
The judgment is modified to strike the protective order. As modified, the
judgment is affirmed. The superior court is directed to prepare an amended abstract of
judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation.
WOODS, J.
We concur:
PERLUSS, P. J. SEGAL, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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