People v. Smith CA4/1

Filed 11/20/15 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067220

Plaintiff and Respondent,

v. (Super. Ct. No. SCD245756)

JOSHUA SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura H.

Parsky, Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and

Respondent.
 A jury convicted Joshua Smith of corporal injury to a spouse, assault by means

likely to produce great bodily injury, false imprisonment by violence, and resisting or

delaying a peace officer. The trial court suspended imposition of sentence for three years

and placed defendant on formal probation, but also ordered that defendant serve 365 days

in local custody. Defendant contends the trial court erred by excluding impeachment and

character evidence regarding the victim and one of the arresting officers. He further

contends the prosecutor engaged in misconduct by indirectly commenting on defendant's

election not to testify. We reject these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution Case

The charges against defendant arose from a domestic violence incident that

involved his then-wife, Tanika Lee, on January 17, 2013. The trial court allowed Lee to

testify under Evidence Code section 1109 regarding prior instances of domestic violence

involving defendant.1 Defendant does not challenge the trial court's admission of those

prior instances.

1 Unspecified statutory references are to the Evidence Code.

Section 1109, subdivision (a)(1) provides: "Except as provided in subdivision (e)
or (f), in a criminal action in which the defendant is accused of an offense involving
domestic violence, evidence of the defendant's commission of other domestic violence is
not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to
Section 352."
2
 Prior Instances

Lee and defendant met in Redding, California, and dated for about two years

before marrying in 2012. Their dating relationship was "rocky" and defendant became

violent with Lee on several occasions. The first four or five instances involved defendant

pushing and shoving Lee and hitting her in the back. When she discussed the possibility

of calling the police, he told her he hit her in the back " 'on purpose so that there's no

marks.'. . . So there's nothing [she] can do about it." Lee did not call the police because

she thought it would be an "over-dramatic response."

On another occasion when Lee and defendant were arguing, he kicked her in the

stomach and chest, knocking the wind out of her.

Another time defendant was "reckless[ly]" kicking in Lee's direction, "[thinking]

he was being funny," when he kicked Lee in the face, leaving "a pretty good bruise all

around [her] mouth."

During one argument in Lee's house in Redding, she told defendant to leave, but

he refused. He laid on the bed and pressed his foot against Lee's throat, pinning her

against the wall. At some point during this argument, Lee threw a glass jar at defendant,

striking him and causing the jar to break. Lee had not consumed alcohol that day and

could not remember whether defendant had. She could not remember whether she threw

the jar before or after defendant began being physical with her on this occasion; if she

threw it first, this was the only occasion on which she initiated physical violence during

an argument with defendant.

3
 When Lee and defendant planned to move to San Diego, they visited and stayed in

a hotel while looking for apartments. During an argument at the hotel, defendant grabbed

Lee by the shoulders, threw her down on the floor, then grabbed her throat and applied

pressure. Neither had been drinking alcohol. Lee did not call the police because she was

embarrassed and did not know anybody in San Diego.

After Lee agreed to marry defendant, their relationship improved and the violence

stopped. They moved to San Diego early in 2012 and married at the courthouse in

August. They shared a two-bedroom apartment with another couple, Rachel Cusing and

Michael Van Dyck.

Two days after the wedding, Lee, defendant, and their roommates were swimming

at a friend's pool. Lee and the roommates were casually drinking cocktails by the pool,

but defendant "was really drinking," as if something had upset him. After defendant

disappeared for awhile, Van Dyck found him face down on the grass next to Lee's car; he

had broken off the side mirror. They all returned to the apartment, where defendant

became sick. Lee encouraged him to stay in the bathroom so he would not make a mess,

but defendant resisted. He grabbed her throat with both hands; pushed her to the ground;

straddled and strangled her; placed his knee on her throat; and hit her face six times. Lee

testified defendant stopped when Van Dyck knocked on the bedroom door.2 Lee crawled

into bed and fell asleep.

2 Van Dyck testified he did not knock on the door during the incident, but described
Lee's appearance the following day as "look[ing] beat up"—she had "black eyes" and
4
 The next morning, Lee's face was "completely black and blue" and swollen; she

"couldn't tell where [her] chin began and [her] neck ended." She also had trouble

swallowing and closing her jaw completely. Lee was scheduled to work that day, but

knew it would be obvious to everyone what had happened to her. She called her

supervisor and "made up some horrible story" about not being able to work because her

son had been hurt.3 Lee worried she would lose her job because she would not be able to

return to work for a while. She ultimately left that job as a result of the incident, but

found a new job a few months later.

There was no "memorable" violence between defendant and Lee between the

August 2012 incident and January 2013. By then, however, their relationship was

"exceptionally strained."

The January 17 Incident

On January 17, 2013, Lee worked a half-day at her new job. She unsuccessfully

tried to reach defendant throughout the morning to tell him that someone she met through

work might be interested in buying one of the puppies he was selling. She went home

after lunch and watched a movie in the living room while Van Dyck prepared dinner in

the kitchen for his girlfriend. Lee testified she drank one Coors Light with Van Dyck, but

"bruises everywhere"—and she was "having trouble walking." He did not see the bruises
on Lee the night before.

3 Lee's supervisor corroborated this.

5
explained there were other beer cans and bottles in the living room from when defendant

and Van Dyck drank together.4

Defendant arrived home, walked past Lee in the living room without saying a

word, and entered the bedroom and shut the door. Lee was irritated with defendant

because he had not gotten back to her about selling the puppy. A while later, Lee went to

the bedroom to get her phone charger. The door was locked, which caused Lee to

become concerned she would be unable to get ready for work the next morning. When

she knocked on the door, defendant let her in, and went back to bed. Based on the way

defendant jerked the door open and his other movements and mannerisms, Lee believed

he was drunk and irritable.

Lee pulled the covers off the bed and told defendant to leave the room; she usually

slept in the bedroom and defendant usually slept on the couch in the living room.

Defendant leapt off the bed toward Lee. She tried to leave the room, but defendant

grabbed her by the back of her clothing and pulled her back in. He then shoved Lee to

the ground and stomped on her legs. Defendant moved between Lee and the bedroom

door, put his arm around her neck in a chokehold, and began squeezing her neck tighter

and tighter. Defendant wrapped his other hand around Lee's face as if he was going to

snap her neck. Lee testified she did not know if she lost consciousness. She used her

4 Van Dyck testified he did not know how many beers Lee drank, but he thought she
was drunk because she slurred when she spoke to him in the kitchen. However, Van
Dyck said Lee was not slurring when he heard her on the phone 10 to 20 minutes later.
6
hands to pull defendant's hand away from her face and struggled to free herself.

Defendant let her go and she stumbled into the living room.

Defendant pushed Lee into the couch. They both looked at Lee's cell phone. Lee

grabbed it first and ran for the front door; defendant grabbed her arm, but she got away.

Lee called 911 and reluctantly reported defendant had pushed and hit her, and "jumped

up and down on [her] throat."5 Lee told the operator she did not need paramedics.

Van Dyck testified that after he heard Lee knocking on the bedroom door, he

heard a loud crash that sounded like a television or something metal had fallen in the

living room. Van Dyck walked to the living room to investigate, but everything looked

okay. He went back to the kitchen and resumed cooking until he left the house 10

minutes later. When he went to his car, he saw Lee crying and calling the police on her

cell phone.

San Diego Police Officer Gilbert Lorenzo responded to Lee's 911 call and found

her crying in the alleyway behind her apartment. He interviewed her inside the

apartment. Lee told Lorenzo defendant had jumped up and down on her, but did not

mention anything about strangling. Lorenzo testified Lee did not appear to be under the

influence of alcohol; he recorded that observation on a special domestic violence report

form.

Another police officer had already detained defendant. Officer John Call

transported defendant in a patrol vehicle from the front of the apartment building to the

5 The jury heard a recording of Lee's 911 call.
7
rear alleyway so that he could transfer defendant to Officer Lorenzo's vehicle. As Call

placed defendant in his patrol car, defendant began screaming that he was being falsely

accused. Call drove around to the back of the apartment and waited in the alleyway for

Lorenzo, who was still inside speaking with Lee. Once Lorenzo returned to the alleyway,

Call attempted to move defendant from his vehicle to Lorenzo's. When Call opened the

door of his car, defendant "kicked the door really hard open and tried to get out." Call

pushed defendant back into the vehicle. The next time Call removed defendant from the

vehicle, defendant lunged forward; Call pushed defendant against the vehicle. Defendant

struggled against Call, jerked back and forth, screamed, and was uncooperative. Lorenzo

grabbed defendant's arm to help Call calm him. Defendant told the officers, "take these

[handcuffs] off and I'll beat you guys' ass." Call and Lorenzo placed defendant face

down on the ground, and he became compliant. Defendant smelled strongly of alcohol.

The day after the incident, Lee went to the Family Justice Center, where she spoke

with domestic violence detectives Kevin McNamara and Silvia Vella. She did not tell

them defendant strangled her because she was embarrassed.6 Vella confronted Lee about

injuries on her neck and behind her ear and asked if anything had been placed around her

6 Detective McNamara, who had over 27 years of experience with the San Diego
Police Department, testified it is very common for domestic violence victims to minimize
what happened. He thought Lee was doing so during the January 18 interview,
particularly regarding strangulation.

8
neck.7 Lee cried, but did not answer. Vella took photographs of the bruises on Lee's

body. Lee testified all the bruising was caused by defendant on January 17.

Lee returned to the Family Justice Center on January 22 and spoke to Detective

Vella again. Vella took more photographs, which depicted more bruising and broken

blood vessels on Lee's arm, chest, neck, jaw, and behind her ear. The coloring of some of

the bruises suggested to Vella that the bruises were a few days old.

Lee was admitted to the hospital on January 23. She was given a CT scan of her

neck and treated with muscle relaxers and pain medication; she received a prescription

for a blood thinner as a precaution. She was released the next day. The day after that,

she moved back to Northern California. Lee and defendant later divorced.

The Defense Case

Defendant did not testify.

Juan Arevalo testified he worked in a pet store and knew defendant because they

previously traded animals. Arevalo stated Lee came into the pet store on January 19 and

told him about the January 17 incident. Arevalo testified he did not see any bruises on

Lee;8 Lee smoked three cigarettes in a short time; Lee appeared intoxicated because her

eyes were red and "heavy"; and Lee picked up a 55-pound bag of dog food with ease.

7 Detective Vella, who had over 24 years of experience with the San Diego Police
Department, testified regarding her extensive training and experience in identifying signs
of strangulation. She further testified bruises on Lee's chest, neck, and behind her ear were
consistent with strangulation with someone's hands (as opposed to with a ligature).

8 On cross-examination, Arevalo acknowledged seeing bruises on Lee in the
photographs that were taken on January 18.
9
 Rodney Erwin testified he had known defendant for about six years and Lee for

three or four. Around January 19, Lee met with Erwin and told him about defendant's

arrest. Erwin did not see any bruising on Lee, but acknowledged she said her neck and

back were sore. He asked to see Lee's bruises, but she did not want to lift her shirt to

show him.

Emily Brassieur testified she dated defendant's brother when Lee and defendant

lived in Northern California. Brassieur said Lee stopped by her house after work one day

and showed bruises on her hands, which Lee told her were caused by punching

defendant. On cross-examination, Brassieur acknowledged she and Lee were only casual

friends and admitted defendant slept with one of Brassieur's good friends when Lee and

defendant's relationship was "on and off."

The Prosecution Rebuttal Case

In rebuttal, Lee testified she never (1) discussed her and defendant's relationship

with Brassieur, (2) showed bruises on her hands to Brassieur, or (3) hit defendant.

Jury Verdict and Sentencing

The jury found defendant guilty of corporal injury to a spouse (Pen. Code, § 273.5,

subd. (a)), assault by means likely to produce great bodily injury (Pen. Code, § 245, subd.

(a)(4)), false imprisonment by violence (Pen. Code, §§ 236 & 237, subd. (a)), and

resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)).

The trial court suspended imposition of sentence for three years and placed

defendant on formal probation. The court also ordered that defendant serve 365 days in

local custody.

10
 DISCUSSION

I. Exclusion of Evidence of Lee's "Bad Character"

Defendant contends the trial court erred by excluding evidence of Lee's conduct

involving alcohol and drugs on occasions other than on January 17 and during the past

incidents admitted under section 1109.

A. Relevant Trial Court Proceedings

Defendant and the People filed competing motions in limine regarding the

admissibility of evidence showing Lee (1) was convicted of misdemeanor driving under

the influence (DUI) in 2011; (2) was arrested for (but not charged with) DUI in February

2013; (3) lied to a police officer during her February 2013 arrest, and (4) used drugs and

tested positive for opiates when she checked into the hospital on January 23.

Defendant's trial counsel argued the DUI conviction and arrest were admissible to

(1) establish Lee had a propensity for becoming intoxicated and, therefore, likely was

intoxicated on January 17; and (2) impeach Lee because "DUI [is] specifically admissible

as a crime of moral turpitude . . . ."9 The trial court disagreed, finding Lee's DUI

conviction inadmissible because it was not a felony conviction, and "to the extent that it

reflects some moral turpitude," the court balanced the section 352 factors and found the

evidence's probative value was substantially outweighed by the prejudicial effect and the

"risk of sidelining the jury into an issue that is not the focus of this case and this trial."

9 Defendant's original trial counsel, who withdrew before trial due to a conflict of
interest, made only the propensity argument. He acknowledged "[i]t would be silly" to
seek to introduce the DUI evidence for "honesty and veracity."

11
The court applied the same section 352 analysis to the February 2013 DUI arrest. The

court clarified, however, that it was "not excluding evidence of whether [Lee] was under

the influence of alcohol at the time of the incident in this case. That is certainly fair

game."

Defense counsel argued he should be allowed to cross-examine Lee regarding

whether she made false statements to police during her 2013 DUI arrest. Defense

counsel read from the police report,10 which apparently stated Lee denied being involved

in an accident, did not know where she was, and claimed to have had a passenger in the

vehicle even though the investigating officer believed that was not true. The trial court

excluded the evidence under section 352, explaining: "It isn't clear to the court based on

the proffer that that was a calculated lie to law enforcement or whether she was asleep

and passed out and so out of it that she didn't know where she was and didn't realize or

remember that there had been a collision, and we would get into all of those issues if we

opened the door to that in this trial. And those are completely irrelevant to the case and

would sidetrack the jury."

Finally, the People moved in limine to exclude evidence of Lee's prior drug use

"unless there is evidence presented that shows she was using drugs in this incident or if

drug use contributed to her injuries." Lee admitted during the preliminary hearing that

she snorted cocaine with defendant in the past. During argument on the motions in

limine, defense counsel stated he did not "plan on introducing any sort of drug use in the

10 The police report is not in the appellate record.
12
past, especially anything regarding snorting a line of cocaine," but noted Lee tested

positive for opiates when she was admitted to the hospital on January 23 and he intended

to ask her about that. The prosecutor noted the absence of any expert opinion indicating

the results of Lee's January 23 drug test suggest she was under the influence of any drug

on January 17. The court ruled that it would "not preclude the defense from asking [Lee]

whether she had used any type of controlled substance on the date of the offense," but

excluded the test results under section 352 absent "any further showing that they

indicated she used drugs on January 17."

B. Relevant Legal Principles

"A witness may be impeached with any prior conduct involving moral turpitude

whether or not it resulted in a felony conviction, subject to the trial court's exercise of

discretion under Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th 856,

931.) "[T]he admissibility of any past misconduct for impeachment is limited at the

outset by the relevance requirement of moral turpitude. Beyond this, the 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. Wheeler (1992) 4 Cal.4th 284,

296 (Wheeler), fn. omitted.) Additionally, "impeachment evidence other than felony

convictions entails problems of proof, unfair surprise, and moral turpitude evaluation

which felony convictions do not present. Hence, courts may and should consider with

particular care whether the admission of such evidence might involve undue time,

confusion, or prejudice which outweighs its probative value." (Id. at pp. 296-297.)

13
"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 exercise of discretion."

(Clark, at p. 932.)

"Evidence of a witness's drug use is inadmissible unless the testimony 'tends to

show that the witness was under the influence thereof either (1) while testifying, or (2)

when the facts to which he testified occurred, or (3) that his mental faculties were

impaired by the use of such narcotics.' " (People v. Panah (2005) 35 Cal.4th 395, 478.)

"[T]he court is not required to admit evidence, such as cocaine or marijuana use, 'that

merely makes the victim of a crime look bad.' " (People v. Hillhouse (2002) 27 Cal.4th

469, 496.)

Although character evidence is generally inadmissible, "[i]n a criminal action,

evidence of the character . . . of the victim of the crime for which the defendant is being

prosecuted is not made inadmissible . . . if the evidence is: [¶] (1) Offered by the

defendant to prove conduct of the victim in conformity with the character or trait of

character." (§ 1103, subd. (a)(1).) For example, a defendant charged with a violent

crime may introduce evidence of the victim's violent character to support a self-defense

claim. (See People v. Fuiava (2012) 53 Cal.4th 622, 698-699 (Fuiava).)

"[A] state court's application of ordinary rules of evidence—including the rule

stated in Evidence Code section 352—generally does not infringe upon" a defendant's

"general right to offer a defense through the testimony of his or her witnesses." (People

v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds in People v. Doolin

14
(2009) 45 Cal.4th 390, 421, fn. 22; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103

["Although completely excluding evidence of an accused's defense theoretically could

rise to [the level of impermissibly infringing on a defendant's right to present a defense],

excluding defense evidence on a minor or subsidiary point does not impair an accused's

due process right to present a defense."].)

C. Analysis

We find no abuse of discretion in the trial court's exclusion of evidence regarding

Lee's conduct involving alcohol and drugs. Significantly, the court did not exclude

evidence or preclude cross-examination that would have established Lee was using

alcohol or drugs on January 17 or during any of the prior instances admitted under

section 1109.

We are not persuaded Lee's 2011 misdemeanor DUI conviction and 2013 arrest

reflect moral turpitude. Our Supreme Court concluded in the context of attorney

disciplinary proceedings that "[c]onvictions for drunk driving . . . do not per se establish

moral turpitude." (In re Kelley (1990) 52 Cal.3d 487, 492, 494 [second DUI conviction

while still on probation for first conviction did not reflect moral turpitude]; see In re Carr

(1988) 46 Cal.3d 1089, 1090-1091 [attorney pleading no contest to two separate counts

of DUI did not reflect moral turpitude].) Defendant's reliance on People v. Forster

(1994) 29 Cal.App.4th 1746 is misplaced. The defendant in that case suffered three prior

felony DUI convictions and was on trial for a fourth alleged violation. (Id. at p. 1757.)

The Forster court distinguished In re Carr on the basis "it involved misdemeanor driving

under the influence, not the felony driving under the influence with three prior

15
convictions of driving under the influence." (Forster, at p. 1757.) Lee's single

misdemeanor conviction in 2011 and arrest in 2013 are more akin to the conduct in In re

Kelley and In re Carr than to the highly recidivist felony conduct in Forster.

Accordingly, we conclude the trial court did not abuse its discretion in finding Lee's DUI

conviction and arrest were not instances of moral turpitude for impeachment purposes.

We also find no abuse of discretion in the trial court's alternative ruling excluding

Lee's DUI conviction and arrest under section 352. The court was properly concerned

with the "risk of sidelining the jury into an issue that is not the focus of this case and this

trial." Lee's conviction two years before the incident and arrest one month later have

little probative value regarding whether Lee was intoxicated on January 17, compared to

their consumption of time and risk of prejudice. This is particularly true of Lee's arrest,

which has the added problems of proof not applicable to convictions. (Wheeler, supra, 4

Cal.4th at pp. 296-297; People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 (Lopez)

["evidence of mere arrests is inadmissible because it is more prejudicial than probative"],

italics added.)

We similarly find no error in the trial court's exclusion of evidence that Lee may

have lied to police during her 2013 arrest. The record does not make clear whether Lee

deliberately misled police or was simply disoriented. Given this uncertainty, the court

did not err in declining to "sidetrack the jury" on this ambiguous and collateral issue that

would have required its own mini-trial.

Finally, we conclude the trial court did not abuse its discretion in excluding

evidence Lee tested positive for opiates six days after the incident. As the court

16
observed, defendant offered no evidence indicating the positive test results established

Lee was under the influence on January 17. Defendant's argument that it shows she was

under the influence when she first reported the strangulation is unavailing because that is

not one of the recognized circumstances in which a witness's drug use is admissible. (See

People v. Panah, supra, 35 Cal.4th at p. 478.) Nor are we persuaded it should be

admissible under the circumstances here—defendant made no offer of proof about Lee's

opiate levels on the date of the incident and the impact it would have had on her ability to

accurately report the strangulation. Defendant was fully permitted to cross-examine Lee

about her drug use on the day of the incident and about the prior incidents admitted under

section 1109.

Defendant's "attempt to inflate garden-variety evidentiary questions into

constitutional ones is unpersuasive." (People v. Boyette (2002) 29 Cal.4th 381, 427

(Boyette).) The trial court's rulings did not prevent defendant from vigorously attempting

to impeach Lee. To the contrary, defendant's appellate brief acknowledges he argued

below that Lee (1) fabricated the domestic violence incident because she felt animosity

toward defendant; (2) lacked credibility because she did not report the strangulation to

police on the day of the incident or the day after, but rather, waited nearly one week; and

(3) lacked credibility about the amount of beer she drank the day of the incident. On this

record, defendant's claims of evidentiary error do not implicate his constitutional rights.

Even if we were to conclude the trial court erred, we would find no prejudice.

"Absent fundamental unfairness, state law error in admitting evidence is subject to the

traditional [People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask

17
whether it is reasonably probable the verdict would have been more favorable to the

defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439.) "As a

general rule, 'evidence which merely impeaches a witness is not significant enough to

make a different result probable . . . .' " (People v. Green (1982) 130 Cal.App.3d 1, 11.)

In addition to Lee's testimony regarding the January 17 incident, the jury (1) heard

Lee's testimony regarding prior incidents of domestic violence, which was corroborated

in part by Lee's former supervisor and Van Dyck; (2) heard a recording of Lee's 911 call

wherein she reported defendant "jumped up and down on [her] throat" (italics added);

(3) heard Van Dyck's testimony that he heard a crashing noise during the time Lee said

the incident occurred; (4) saw photographs depicting bruises on Lee, which Van Dyck

testified were not there before the incident; (5) heard Detective Vella's testimony that

Lee's injuries were consistent with strangulation, the bruising pattern was consistent with

manual strangulation as opposed to use of a ligature, and the coloration of the bruising on

January 22 indicated they were several days old; and (6) heard Detective McNamara's

testimony it is very common for domestic violence victims to minimize what happened to

them and that Lee appeared to be doing so regarding her strangulation. Based on the

totality of the evidence, it is not reasonably probable that exclusion of Lee's conduct

involving alcohol and drugs affected the verdict.

II. Exclusion of Officer Lorenzo's Domestic Violence Arrest

Defendant contends the trial court erred by excluding evidence showing Officer

Lorenzo was arrested for domestic violence. Defendant contends the evidence is relevant

and admissible (1) as general impeachment evidence because domestic violence is a

18
crime of moral turpitude (see People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402); and

(2) to show Lorenzo has a propensity toward violence such that defendant was entitled to

use self-defense against Lorenzo's alleged use of excessive force (see Lemelle v. Superior

Court (1978) 77 Cal.App.3d 148, 163 ["Evidence of an officer's tendency to violence . . .

is admissible in a prosecution in which the defendant is charged with battery on a peace

officer and resisting arrest."].)

A. Relevant Trial Court Proceedings

Before trial, defendant moved under Pitchess v. Superior Court (1974) 11 Cal.3d

531 to discover personnel information of Officers Call and Lorenzo regarding any

allegations of excessive use of force, dishonesty, or fabrication of evidence. The trial

court found no good cause to hold an in camera hearing because (among other reasons)

defendant did "not provide specific factual descriptions of the conduct of the officers"

regarding alleged use of excessive force. Defendant does not challenge this ruling on

appeal.

Defendant's original trial counsel contacted the prosecutor after he saw media

reports indicating Officer Lorenzo was arrested for domestic violence in April or May

2014. Lorenzo was arrested but never charged. The People advised defense counsel they

would not be disclosing material regarding the arrest under Brady v. Maryland (1963)

373 U.S. 83,11 and moved in limine to exclude it. Defendant argued he should be able to

11 Under Brady v. Maryland, supra, 373 U.S. 83, "the prosecution has a
constitutional duty to disclose to the defense material exculpatory evidence, including
potential impeaching evidence." (People v. Superior Court (Johnson) (2015) 61 Cal.4th
696, 709.)
19
review the arrest materials and cross-examine Lorenzo about them to support a self-

defense claim against the resisting arrest count.

The trial court directed the prosecutor to provide the arrest records for the court's

in camera review to determine whether Lorenzo's reported acts of domestic violence were

similar to defendant's excessive force claim. The prosecutor later reported he was still

working on gathering the documents and suggested he would consider limiting the

resisting arrest count to defendant's conduct with respect to Officer Call, thereby

rendering Lorenzo's character and conduct irrelevant. The trial court ruled it would

determine whether the evidence was relevant and whether it would review the evidence

in camera after it heard both officers' testimony.

During opening statement, the prosecutor referred to both officers when discussing

the resisting arrest count: "They're going to tell you that when they opened the door to

transport him from one of the vehicles to another police vehicle, that [defendant] pushed

the door open. He ran towards the police officer. He was resisting their efforts and

delaying them into trying to keep the peace and get him into custody."

Officer Lorenzo testified about a "scuffle" that initially involved only defendant

and Officer Call. Lorenzo saw defendant kick open the door of Call's vehicle and try to

exit, but Call pushed him back inside. As Lorenzo went to help Call, Call pulled

defendant out of the vehicle and defendant "was pretty much pulling away at Officer Call

during that point, and that's when [Lorenzo] put [his] hands on [defendant's] arms, kept

telling him to relax." When defendant continued struggling, both officers moved him to

the ground.

20
 After Officer Lorenzo testified, the People and the trial court determined the

resisting arrest count would relate only to defendant's response to Officer Call before

Lorenzo placed his hands on defendant. The court indicated it would conduct an in

camera review of the documents relating to Lorenzo's arrest to determine whether they

should be disclosed to defendant.

After conducting the in camera review, the trial court excluded evidence of Officer

Lorenzo's alleged domestic violence. Applying section 352, the court reasoned that

because the People were limiting the resisting arrest count to defendant's conduct before

Lorenzo touched defendant, evidence of Lorenzo's character for violence had minimal

relevance, if any. By contrast, the trial court stated that introduction of the evidence

would constitute an "undue consumption of time on an extraneous matter and would

distract the jury with issues that are not the focal point of this trial." Specifically, because

Lorenzo was never charged or convicted, the trial court was concerned the evidence

"would result in a mini-trial over whether or not Officer Lorenzo, in fact, engaged in that

alleged conduct."

Later during trial, Officer Call testified defendant kicked the vehicle door open

and quickly exited, prompting Call to push him back inside. Call said Officer Lorenzo

came to help at that point and they got defendant out of the car again. When defendant

lunged toward the officers, Call pushed defendant back against the vehicle. Call stated he

was "fairly certain" he had his hands on defendant at that point, but was not sure Lorenzo

did or whether Lorenzo helped push defendant against the vehicle. Call thought he might

21
have been "crowding" Lorenzo out so that Lorenzo could not reach defendant. Both

officers then moved defendant to the ground.

The trial court instructed the jury that to find defendant guilty of resisting arrest, it

must find he resisted, obstructed, or delayed Officer Call by doing at least one of the

following: "one, kicking the patrol vehicle open; [¶] two, trying to get out of the patrol

car; [¶] three, lunging forward once out of the patrol car; [¶] and four, being

uncooperative as Officer Call held the defendant up against the patrol vehicle." (Italics

added.)

During closing argument, the prosecutor limited his argument regarding the

resisting arrest count to defendant's conduct toward Officer Call. Defense counsel

acknowledged in closing, "Okay. So they're relying solely on the actions of Officer Call

before Officer Lorenzo appears."

B. Analysis

We conclude the trial court did not abuse its discretion by excluding Officer

Lorenzo's arrest under section 352.

We have reviewed the sealed records the trial court reviewed in camera. These

records show the facts underlying Officer Lorenzo's arrest were highly disputed and

uncertain, implicating the problems of proof of which our Supreme Court has warned.

(See Wheeler, supra, 4 Cal.4th at pp. 296-297; see also Lopez, supra, 129 Cal.App.4th at

p. 1523.) Determining whether Lorenzo engaged in domestic violence would have

required an extensive mini-trial that might have exceeded the length of defendant's trial,

which consisted of only two days of testimony.

22
 This substantial risk of undue time consumption outweighs the limited probative

value of Officer Lorenzo's arrest. Lorenzo's arrest had minimal relevance to support

defendant's self-defense claim to the resisting arrest count. First, the trial court accepted

the People's offer to limit the resisting arrest count to defendant's conduct before Lorenzo

ever touched defendant. Thus, Lorenzo's alleged subsequent use of excessive force is

irrelevant to a self-defense claim regarding defendant's prior conduct toward Officer Call.

(See People v. Hairston (2009) 174 Cal.App.4th 231, 238 ["A defendant can be convicted

under section 148 for each peace officer he obstructs, even if he engages in only one act

of obstruction."]; Yount v. City of Sacramento (2008) 43 Cal.4th 885, 899 (Yount) [where

defendant is lawfully arrested and resists arrest, " 'subsequent use of excessive force

would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness

of the criminal defendant's attempt to resist it' "].)

Second, contrary to defendant's concern that the prosecutor's opening statement

and the officers' testimony referenced defendant's conduct after Officer Lorenzo touched

defendant, the trial court specifically instructed the jury to limit its deliberations to

defendant's conduct toward Officer Call. We presume the jury followed this instruction.

(See People v. Yeoman (2003) 31 Cal.4th 93, 139.)

For the same reasons, we find no abuse of discretion in the trial court's exclusion

of Officer Lorenzo's arrest as impeachment evidence. Impeaching Lorenzo's testimony

would have served little purpose as it was nearly all corroborated by other witnesses or

physical evidence. His testimony about Lee's injuries was substantiated by Lee's

testimony, the detectives' testimony, and photographs. His testimony about defendant

23
resisting arrest was corroborated by Officer Call's testimony. And his testimony that Lee

did not appear intoxicated was corroborated by Van Dyck's testimony that Lee was not

slurring her speech when he saw her talking on the phone with police.12

Finally, for the same reasons discussed in part I.C., ante, we find unpersuasive

defendant's "attempt to inflate garden-variety evidentiary questions into constitutional

ones." (Boyette, supra, 29 Cal.4th at p. 427.)

III. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct by indirectly

commenting on the fact defendant did not testify at trial. The People contend defendant

forfeited this issue by failing to object on this ground during trial, but also address the

merits of his claim. Defendant argues in reply that he did not forfeit the challenge, but

even if he did, the forfeiture is the result of ineffective assistance of counsel.

A. Relevant Trial Court Proceedings

During closing, the prosecutor argued: "And look what he did to her, ladies and

gentlemen. You don't have to be an expert to realize what he did to her. You've all fallen

off a bicycle or walked into a table. These are huge bruises. These are significant

injuries. And this was the second worse beating he ever gave her. She testified to that.

The worst day of her life was the event two days after their wedding when even Michael

12 During closing argument, the prosecutor argued, without objection, that the
recording of Lee's 911 call indicates she was not intoxicated. We are unable to verify this
claim because, although the transcript of the call is in the appellate record, the recording
is not.
24
Van Dyck told you she had welts on her face. And you have not been given one reason to

vote not guilty in this case." (Italics added.) Defense counsel did not object.

Moments later, the prosecutor argued: "And so I just have some ideas, things that

I thought just in considering—in weighing the evidence just before I wrap up this portion

of my closing argument. And again, I suggest that there's been no evidence presented to

you to the contrary to support any other version of the events that were given through the

evidence you heard in this case from these witnesses." (Italics added.) Defense counsel

did not object.

Defense counsel addressed these points in his closing argument: "So the

prosecution put on their closing argument before me earlier this morning. I just want to

let you know that the prosecution did try and misguide you as to what we needed to prove

in this case. We are the defense. We don't have to prove anything in this case. The

burden of proof is on the prosecution to prove each and every element of the charges

against Joshua Smith beyond a reasonable doubt. So we don't have to explain that there's

another scenario that occurred that resulted in the injuries in this case. All that matters is

that the prosecution—we hold them to that standard beyond a reasonable doubt and they

don't shift that burden to the defense. And it would be a complete fallacy for them to do

otherwise."

The trial court instructed the jury with CALCRIM No. 220 regarding the People's

burden of proof: "A defendant in a criminal case is presumed to be innocent. This

presumption requires that the People prove a defendant guilty beyond a reasonable doubt.

[¶] . . . [¶] . . . In deciding whether the People have proved their case beyond a

25
reasonable doubt, you must impartially compare and consider all the evidence that was

received throughout the entire trial. Unless the evidence proves the defendant guilty

beyond a reasonable doubt, he is entitled to an acquittal and you must find him not

guilty."

The trial court instructed the jury with CALCRIM No. 355 regarding defendant's

right not to testify: "A defendant has an absolute constitutional right not to testify. He or

she may rely on the state of the evidence and argue that the People have failed to prove

the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact

that the defendant did not testify. Do not discuss that fact during your deliberations or let

it influence your decision in any way."

The court also instructed the jury with CALCRIM No. 222 that "[n]othing that the

attorneys say is evidence. In their opening statements and closing arguments, the

attorneys discussed the case, but their remarks are not evidence."

B. Relevant Legal Principles

1. Prosecutorial Misconduct

" 'Under California law, a prosecutor commits reversible misconduct if he or she

makes use of "deceptive or reprehensible methods" when attempting to persuade either

the trial court or the jury, and it is reasonably probable that without such misconduct, an

outcome more favorable to the defendant would have resulted. [Citation.] Under the

federal Constitution, conduct by a prosecutor that does not result in the denial of the

defendant's specific constitutional rights—such as a comment upon the defendant's

invocation of the right to remain silent—but is otherwise worthy of condemnation, is not

26
a constitutional violation unless the challenged action " 'so infected the trial with

unfairness as to make the resulting conviction a denial of due process.' " [Citation.]' "

(Fuiava, supra, 53 Cal.4th at p. 679.) "A prosecutor's 'argument may be vigorous as long

as it is a fair comment on the evidence, which can include reasonable inferences or

deductions to be drawn therefrom.' " (People v. Edwards (2013) 57 Cal.4th 658, 736.)

Failing to object to misconduct and to request an admonition that the jury

disregard the misconduct forfeits the issue on appeal, unless an objection would have

been futile or an admonition ineffective. (People v. Tully (2012) 54 Cal.4th 952, 1049;

Fuiava, supra, 53 Cal.4th at p. 679.)

2. Griffin Error

In Griffin v. California (1965) 380 U.S. 609 (Griffin), the United States Supreme

Court held the Fifth Amendment forbids a prosecutor from commenting on a defendant's

election not to testify in his own defense. (Griffin, at p. 615.) " 'Griffin forbids either

direct or indirect comment upon the failure of the defendant to take the witness stand.' "

(People v. Hovey (1988) 44 Cal.3d 543, 572, italics added.) Thus, for example, "a

prosecutor may commit Griffin error if he or she argues to the jury that certain testimony

or evidence is uncontradicted, if such contradiction or denial could be provided only by

the defendant, who therefore would be required to take the witness stand." (People v.

Bradford (1997) 15 Cal.4th 1229, 1339.) "If, however, the evidence could have been

contradicted by witnesses other than the defendant, the prosecutor may without violating

defendant's privilege against self-incrimination describe the evidence as 'unrefuted' or

'uncontradicted.' " (People v. Johnson (1992) 3 Cal.4th 1183, 1229 (Johnson).)

27
 Griffin does not "bar prosecution comments based upon the state of the evidence

or upon the failure of the defense to introduce material evidence or to call anticipated

witnesses." (Bradford, supra, 15 Cal.4th at p. 1339.) Thus, " ' "[a]s a general principle,

prosecutors may allude to the defense's failure to present exculpatory evidence"

[citation], and such commentary does not ordinarily violate Griffin or erroneously imply

that the defendant bears a burden of proof [citations].' " (People v. Mesa (2006) 144

Cal.App.4th 1000, 1006, fn. 2 (Mesa).)

3. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel under the Sixth

Amendment, a defendant bears the burden of showing: (1) trial counsel's performance

fell below an objective standard of reasonableness under prevailing professional norms;

and (2) the defendant suffered prejudice, that is, "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been

different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 692-694

(Strickland); People v. Hinton (2006) 37 Cal.4th 839, 876.)

In examining whether a defendant met his burden on the first prong, courts "must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." (Strickland, supra, 466 U.S. at p. 689; see People v.

Hinton, supra, 37 Cal.4th at p. 876.) We will not find ineffective representation "unless

there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver

(2001) 26 Cal.4th 876, 926.) " 'Whether to object to inadmissible evidence is a tactical

decision; because trial counsel's tactical decisions are accorded substantial deference

28
[citations], failure to object seldom establishes counsel's incompetence.' " (People v.

Williams (1997) 16 Cal.4th 153, 215.)

"It is not sufficient to show the alleged errors may have had some conceivable

effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability'

that absent the errors the result would have been different." (Mesa, supra, 144

Cal.App.4th at p. 1008.) The Strickland " 'reasonable probability' standard applies to the

evaluation of a Sixth Amendment claim of ineffective assistance of counsel, even when

defense counsel's alleged error involves the failure to preserve the defendant's federal

constitutional rights." (Mesa, at pp. 1008-1009.)

C. Analysis

By failing to object to the prosecutor's alleged Griffin error, defendant forfeited his

prosecutorial misconduct challenge on appeal. (Mesa, supra, 144 Cal.App.4th at p.

1006.) "Nothing in the record suggests an objection by [defendant's] counsel would not

have been sustained and followed immediately by an admonition to the jury to disregard

the argument or that these remedies would not have cured any prejudice." (Id. at p.

1007.) The challenge is, therefore, forfeited.

We are not persuaded by defendant's claim that this forfeiture resulted from the

ineffective assistance of counsel. First, defense counsel did not object to the alleged

Griffin error; rather, he directly addressed it in his own closing argument. This suggests

the lack of objection was the product of a tactical decision rather than an error.

Second, defendant has not established he was prejudiced by the lack of objection.

The trial court instructed the jury regarding defendant's constitutional right not to testify,

29
that the jury must not draw any inferences from defendant's exercise of that right, that the

People bear the burden of proof beyond a reasonable doubt, and that counsel's arguments

are not evidence. Had the trial court sustained an objection on the basis of Griffin, the

court likely would have repeated these instructions. This "may have had some marginal

benefit" to defendant. (See Mesa, supra, 144 Cal.App.4th at p. 1011). However, based

on the evidence of defendant's guilt (discussed in part I.C., ante), the breadth of the

prosecutor's entire closing argument, and the limited nature of the prosecutor's alleged

indirect Griffin error, we are not convinced it is reasonably probable the jury would have

reached an outcome more favorable to defendant had his counsel objected. (See, e.g.,

Mesa, at p. 1011.)

In any event, even if we were to reach the merits, defendant would not have

persuaded us that the prosecutor committed Griffin error. The prosecutor's statements to

the jury at issue—"you have not been given one reason to vote not guilty in this case" and

"there's been no evidence presented to you to the contrary to support any other version of

the events that were given through the evidence you heard in this case from these

witnesses"—are substantially similar to language the California Supreme Court has found

does not run afoul of Griffin. In Bradford, the court held the prosecutor's comment that

"there is no evidence to the contrary" did not constitute Griffin error because the lack of

evidence might have been overcome with evidence other than the defendant's testimony.

(Bradford, supra, 15 Cal.4th at pp. 1338-1339.) In Johnson, the court found no Griffin

error where the prosecutor argued "[t]he uncontradicted evidence is that the defendant

was there, that the defendant did kill [one victim], that the defendant did shoot [another

30
victim]. That is uncontradicted." (Johnson, supra, 3 Cal.4th at p. 1229.) The Johnson

court reasoned that because the defense theory was that someone else committed the

crime, defendant could have contradicted the prosecution evidence with alibi witnesses.

(Ibid.)

Citing Bradford and Johnson, the court recently found no Griffin error in the

prosecutor's argument that " '[i]f the defense had a plausible, reasonable explanation why

the defendant was in the yard that morning, they would have given it. They haven't.' "

(People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525.) The Sanchez court found the

defendant could have contradicted the prosecution evidence with testimony of an

associate of the defendant who was nearby when police apprehended the defendant. (Id.

at pp. 1526-1527.)

Similarly here, defendant's testimony was not the only evidence that could have

contradicted the prosecution evidence regarding what happened on January 17. For

example, defense counsel argued during closing that "[a]s to [the strangulation], [t]he

prosecution's relying solely on Detective Vella's training and experience on strangulation

cases." Defendant could have contradicted Vella with an expert of his own to testify

Lee's bruises were not consistent with strangulation. Similarly, defendant could have

called a law enforcement expert to contradict Detective McNamara's testimony that

domestic violence victims commonly minimize what happened to them, as he opined Lee

was doing. Finally, defendant could (and did) attempt to contradict the People's account

of what happened by cross-examining Van Dyck about his observations that day. The

prosecutor's reference to "these witnesses" during one of the challenged portions of his

31
closing argument further demonstrates the People's case was not strictly the "he said, she

said" scenario defendant now contemplates. Therefore, even if defendant had not

forfeited his prosecutorial misconduct challenge by failing to object to the prosecutor's

alleged Griffin error, we would still affirm.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

32