People v. Burke10/3/2002
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Although Burke asserts the trial court should have required the prosecutor to accept his proposed stipulation that he was aware of the risks of drinking and driving, he does not cite, and we are unaware of, any case holding that a prosecutor can be required to accept a defendant's stipulation regarding a certain fact in lieu of admission of evidence proving that fact. Rather, People v. Edelbacher (1989) 47 Cal.3d 983, 1007 stated: "The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness." Because the trial court could reasonably conclude the probative value and persuasive effect of the evidence on Burke's 1987 and 1997 convictions and Gutierrez's testimony exceeded the stipulation proposed by Burke, the trial court did not abuse its discretion by not requiring the prosecutor to accept that proposed stipulation. (People v. Garceau, supra, 6 Cal.4th at p. 182.) Furthermore, Burke did not offer to stipulate that he acted with gross negligence, an element of a section 191.5, subdivision (a) offense. (Edelbacher, supra, at p. 1007.) Because the prosecutor had the burden to prove beyond a reasonable doubt that Burke committed that offense, the trial court properly declined to "tie his hands" by requiring him to accept the proposed stipulation, which would have precluded the prosecutor from forcefully and persuasively presenting the strongest possible case against Burke. (Ibid.) Similarly, the trial court also did not abuse its discretion by rejecting Burke's proposed alternative stipulation, i.e., that the preliminary hearing transcript of Gutierrez's 1986 testimony be read to the jury rather than have him testify as a witness at the instant trial. The trial court could reasonably conclude that such an alternative would be "stale," as argued by the prosecutor, and would preclude the prosecutor from forcefully and persuasively presenting his case. (Garceau, supra, at p. 182.) Furthermore, the trial court could reasonably conclude the presentation of Gutierrez's 1986 preliminary hearing testimony by means of his live testimony, rather than reading the transcript, would not be unduly inflammatory or prejudicial. Gutierrez's testimony at trial was properly allowed by the court, permitting the prosecutor to make a persuasive case on the section 191.5, subdivision (a) charge against Burke.
D
Burke also asserts the trial court's admission of evidence on his 1987 and 1997 convictions and allowance of Gutierrez's testimony violated his federal and state constitutional rights to due process. However, because Burke did not raise that constitutional issue at trial, we conclude he has waived it for purposes of this appeal. (People v. Rudd, supra, 63 Cal.App.4th at p. 628 ["constitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal"]; People v. Kipp, supra, 26 Cal.4th at p. 1130; People v. Earp, supra, 20 Cal.4th at p. 878; People v. Williams, supra, 16 Cal.4th at p. 250; People v. Ramos, supra, 15 Cal.4th at p. 1170; People v. Davis, supra, 10 Cal.4th at pp. 501-502, fn. 1; People v. Rodrigues, supra, 8 Cal.4th at p. 1155; People v. Garceau, supra, 6 Cal.4th at pp. 173, 179; People v. McPeters, supra, 2 Cal.4th at p. 1174; People v. Ashmus, supra, 54 Cal.3d at pp. 972-973, fn. 10; People v. Gordon, supra, 50 Cal.3d at pp. 1264-1265; In re Grayden N., supra, 55 Cal.App.4th at p. 605; United States v. Olano, supra, 507 U.S. at p. 731.) We decline Burke's invitation to nevertheless address the merits of that contention.
III.
The Trial Court Did Not Abuse Its Discretion by Allowing a Witn
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