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People v. Rizo4/24/2002
t a defense. Although completely excluding evidence of an accused's defense theoretically could rise to that level, excluding defense evidence on a minor or subsidiary point does not. Accordingly, absent such a complete exclusion, the proper standard of review for erroneous exclusion of defense evidence is whether it is reasonably probable the jury would have reached a more favorable verdict had the evidence been admitted. (People v. Fudge, supra, 7 Cal.4th 1075, 1102-1104.)
Similarly, not every restriction on a defendant's right of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of the witness's credibility, the trial court's exercise of its discretion in restricting cross-examination does not violate the Sixth Amendment. (People v. Frye (1998) 18 Cal.4th 894, 946.)
Finally, exclusion of defense evidence pursuant to Evidence Code section 352 does not infringe on the defendant's due process right to present a defense. Although defendants note authority which states section 352 must bow to a defendant's right to present evidence (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599), that principle only applies where the evidence has "significant probative value" and "does not mean the court must allow an unlimited inquiry into collateral matters . . . ." (People v. Marshall (1996) 13 Cal.4th 799, 836.) A court will not disturb a trial court's exercise of discretion under section 352 unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (People v. Frye, supra, 18 Cal.4th 894, 948.) When a trial court misapplies section 352 to exclude defense evidence, the applicable standard of prejudice is whether it is reasonably probable the verdict was affected. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
2. Evidence of prosecution contacts with Santoyo
Santoyo initially testified he saw Salvador hand something to Ivan, Victor, and Cesar before they started shooting but did not see Salvador hand anything to Jesus. After a recess of several days, the prosecutor asked Santoyo whether he remembered telling the police on the morning following the shooting that Jesus did have a gun but did not fire it. Santoyo confirmed he had said that to the police and that it was accurate. He said he had not testified to that effect before because he was confused. Santoyo also said Jesus was with the others when they began shooting.
On cross-examination, the defense brought out the fact that during the recess Santoyo had been contacted at the jail by the prosecutor and his investigator. They spent about an hour at the jail and talked about the case. Then the prosecutor and investigator took Santoyo out to eat at a restaurant for about an hour and paid for his lunch. According to Santoyo, they did not talk about the case during lunch but did talk about it briefly while driving to the restaurant. One of the others asked Santoyo if he was sure about what he had said in his testimony and told him he had said something different.
Counsel for Jesus requested a hearing pursuant to Evidence Code section 402 (section 402) regarding the change in Santoyo's testimony. Counsel offered to prove that, after Santoyo initially testified, the prosecutor told counsel for Victor he was very concerned about the inability of his witnesses to identify Jesus holding or firing a gun and was going to have to ask Santoyo ques
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