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People v. Vilan10/24/2001
urt correctly ruled that the evidence was inadmissible. Vilan here provides no persuasive argument holding that driving under the influence with injury is a crime of moral turpitude. He concedes there is no authority supportive of his position.
Defense counsel below also contended that the fact that the witness was on probation when the incident occurred "goes to . . . his credibility." He suggested that the witness was lying about the incident so he would not be in violation of his probation term to violate no laws. The trial court ruled that this evidence was more prejudicial than probative. Even if the trial court abused its discretion in so ruling, we find no prejudice. The witness's veracity was impeached with two prior theft-related convictions. Moreover, any person involved in an assault has an incentive to make someone other than himself appear to be the aggressor and to portray himself as the innocent party in order to avoid involvement with law enforcement. This witness's incentive for doing this was no greater merely because he was on probation.
d. Of a Prosecution Witness's Probation Status
A female witness to the January 1998 incident testified that Vilan apologized for injuring the victim of that incident. She also testified that she saw Vilan hit the victim of the second charged incident over the head with a bottle after the latter threw Vilan's cousin up against the couch. Other testimony she offered will be discussed, post. Defense counsel sought to introduce evidence that this witness was on probation. He did not state when she was on probation or his theory of admissibility. The trial court denied his request. The ruling was correct.
Vilan here asserts that a blanket rule exists that any witness may be impeached with his or her probationary status. In support, he cites People v. Dyer (1988) 45 Cal.3d 26, 49-50; People v. Adams (1983) 149 Cal.App.3d 1190, 1193; and Davis v. Alaska (1974) 415 U.S. 308, 317-318. Dyer did not involve the issue of the witness's probationary status and is helpful only in that it reiterates the well-established and unassailable position that ". . . the defense is entitled to elicit evidence that a witness is motivated by an expectation of leniency or immunity . . . ." (People v. Dyer, supra, 45 Cal.3d at p. 49.) The issue here is whether every probationer necessarily has an expectation of leniency or immunity when he or she reports his or her observations of someone else committing a crime to the police or a jury. Dyer provides no answers to this.
Adams does not support Vilan's suggestion that the answer to this question is yes. In Adams, supra, 149 Cal.App.3d 1190, the People's primary witness, on probation for an offense similar to the charged crime, had a motive to lie about the defendant's involvement because the defendant claimed it was the witness, and not he, who committed the offense. Since the witness here was not involved in any wrongdoing in connection with either incident, she had no motive to lie about what occurred, even if she had been on probation during both.
Finally, in Davis v. Alaska, supra, 415 U.S. 308, again the State's witness was suspected by the police of being the culprit. As the People correctly point out, People v. Harris (1989) 47 Cal.3d 1047 makes clear the limits of Davis. In Harris, the court noted that the witness had not been offered any reward or immunity, nor benefits related to his probationary status in exchange for his testimony. (Id. at p. 1090.) The court held, "In the absence of any offer of proof . . . that [the witness] has been threatened with probation violation, or other sanctions, or had been offered incentives for his testimony, the trial court d
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