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People v. Shoemaker8/26/1982
ovocation. Evidence of the circumstances surrounding Kelly's alleged attack on the elderly couple would, it is urged, bolster defendant's theory and support his contention Kelly attacked him in the bedroom. Defendant argues testimony of the attack on the elderly victims was of a qualitatively different nature than the other evidence of Kelly's previous attacks on his ex-spouse and girl friend. The subsequent attack was on strangers to Kelly in a nondomestic context. Thus, it was more akin to Kelly's alleged assault on defendant in this case. A comparison of the subsequent attack with Kelly's earlier assaults, defendant asserts, demonstrates that the subsequent character evidence was not cumulative.
Absent a clear showing of abuse, we are compelled to uphold the trial court's exercise of discretion under section 352. (People v. Barrow, supra, 60 Cal. App. 3d at p. 995.)
We discern no such abuse here. Two defense witnesses testified Kelly was a violent, dangerous person who had committed prior assaults. The jury learned of the charges Kelly faced arising from the alleged assault on the elderly couple, and that Kelly had two prior assault convictions. The court instructed the jury it could consider evidence of Kelly's violent character on the issue of whether he was the aggressor in the fight with defendant.
Under these circumstances, the trial court could reasonably find, as it did, that the prejudicial impact of testimony by the victims of Kelly's alleged assault would far outweigh whatever minimal probative value the testimony had. In light of the multiplicity of charges against Kelly, and the fact he had not yet been tried, undue consumption of time, as well as confusion of the issues and the jury, was substantially certain to result. Moreover, contrary to defendant's assertions, the testimony was in fact cumulative. The jury had already been presented with ample evidence
of Kelly's character for violence. (See People v. Smith, supra, 249 Cal. App. 2d at pp. 403-405.)
We agree with defendant that he has a due process right to present evidence material to his defense so long as the evidence is of significant probative value. (People v. Reeder, supra, 82 Cal. App. 3d at p. 553.) However, as the Reeder court emphasized, a defendant has no constitutional right "to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352." (Ibid.) We cannot say the court abused its discretion when it ruled the testimony of the subsequent assault was so different from the facts of the present case that its probative value was "relatively slight."
Moreover, in light of the abundant evidence presented that Kelly was a violent person, any error (and we find none) in the failure to admit testimony of the subsequent incident could not be prejudicial to defendant. (People v. Smith, supra, 249 Cal. App. 2d at p. 405.) Defendant's damning admissions to his neighbor and the police constitute overwhelming evidence of his guilt. Thus, any conceivable error depriving defendant of a due process right to present this character evidence would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].)
The judgment is affirmed.
Disposition
The judgment is affirmed.
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