California Court of Appeal May 4, 2016 No. D067752Unpublished
Filed 5/4/16 P. v. Zepeda CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067752
Plaintiff and Respondent,
v. (Super. Ct. No. SCS270978)
ELIAS ZEPEDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Francis M.
Devaney, Judge. Affirmed.
Amanda L. Fates, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Elizabeth M.
Carino and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
One afternoon, defendant and appellant Elias Zepeda was crossing a street with his
two young sons when a driver nearly hit them. Zepeda confronted, fought and stabbed
the driver, and was charged with numerous offenses. A jury rejected his self-defense
claims and convicted him of assault with a deadly weapon (Pen. Code,1 § 245,
subd. (a)(1); count 2), with two enhancements (infliction of great bodily injury, §12022.7,
In the alternative, Zepeda contends this ruling interfered with his right to receive
effective assistance of counsel. He argues defense counsel's questions arguably "opened
the door" to the admission of the evidence, and that without any apparent tactical reason,
his counsel had failed to make a specific objection under Evidence Code section 352.
I
EVIDENTIARY RULINGS ON IMPEACHMENT QUESTIONS
A. Legal Principles
We utilize an abuse of discretion standard to review the trial court's rulings
determining the relevance and admissibility of evidence. (People v. Green (1980) 27
Ca1.3d 1, 24-25; People v. Garcia (2001) 89 Cal.App.4th 1321, 1334.) The court abuses
such discretion in deciding whether to admit evidence only when it acts in an "arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."
8
(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).) The admissibility of
evidence that is offered for impeachment is decided in the trial court's discretion. (Ibid.)
The jury was entitled to evaluate matters relevant to the truthfulness of the
witnesses' testimony. (Evid. Code, § 780.) By testifying, Zepeda put his credibility in
issue. (Rodriguez, supra, 20 Ca1.4th 1, 9.) Even if a fact bears upon the credibility of a
witness, it may be deemed to be a collateral matter to the charges. (Ibid.) The court in
Contreras took note that it is not a proper subject of cross-examination to question a
witness " 'upon collateral matters for the purpose of eliciting something to be
contradicted.' " (Contreras, supra, 58 Cal.4th at p. 154.) The real question is whether the
evidence alleged to be collateral in nature could give rise to any substantive inference
about the defendant's guilt of the charged offenses. (Id. at p. 153.)
When a trial court decides whether to exclude evidence offered for impeachment
on the ground that it is collateral or irrelevant, the court's considerations generally include
whether the probative value of such evidence "is 'substantially outweighed' by its
prejudicial, 'confusing,' or time-consuming nature." (Contreras, supra, 58 Cal.4th at
p. 152; Evid. Code, § 352; People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
B. Arguments and Analysis
Zepeda argues that on this set of facts, his violation of the DVRO was entirely
collateral to the assault and battery charges, as well as the attempted murder count.
(Contreras, supra, 58 Cal.4th at p. 153 [a matter is "collateral" if it has no logical bearing
on any material, disputed issue].) He claims that the prosecutor strategically decided not
to object when he testified on direct examination about his relationship with his children,
9
even though the matter was essentially irrelevant. Zepeda accordingly claims that the
trial court should have reined in the prosecutor's questioning when he thus attempted to
get into irrelevant matters. (See People v. Wells (1949) 33 Ca1.2d 330, 340
[" 'Legitimate cross-examination does not extend to matters improperly admitted on
direct examination. Failure to object to improper questions on direct examination may
not be taken advantage of on cross-examination to elicit immaterial or irrelevant
testimony.' "]; People v. Steele (2002) 27 Ca1.4th 1230, 1248-1249.)
Zepeda argues he was unduly prejudiced when these irrelevant matters were
placed before the jurors, because they might have engaged in speculation about why he
was subject to a DVRO, or impermissibly surmised that he had a violent disposition in
general. He further complains that no limiting instruction was given to assist the jury, but
apparently none was requested. The jury deliberated for almost two full days and asked
several questions, including a request for read back of Zepeda's testimony, which he
argues shows it was a close case.
In Contreras, the court took the view that "a determination that impeachment or
other evidence should be excluded as 'collateral' inherently involves the balancing
contemplated by Evidence Code section 352." (Contreras, supra, 58 Cal.4th at p. 154.)2
Zepeda's defense counsel did not object under Evidence Code section 352 when the
prosecutor questioned Zepeda about his knowledge and violation of the DVRO.
2 Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." 10
However, there was a general continuing objection noted for the record at the time of the
ruling on the motions in limine, which apparently was understood by the court and
counsel as including irrelevance objections.
Admittedly, both the issues of whether Zepeda had a great relationship with his
sons and whether he had violated the DVRO were of marginal relevance to the charges
sent to the jury. However, on viewing the record as a whole, we cannot say that the
evidence about the DVRO had no logical bearing on the material and disputed issues
raised by the charges, including the self-defense claim. Zepeda testified he helped raise
his kids, while in actuality, he was prohibited from seeing them. When Zepeda presented
his testimony about his self-defense beliefs, he allowed the jury to evaluate his
credibility. In impeachment of his testimony about the ultimate asserted fact, that his
self-defense was justified, matters directly going to his credibility were within the
legitimate scope of inquiry. (See Rodriguez, supra, 20 Ca1.4th 1, 18-19 (dis. opn. of
Kennard, J.).) This could include such family matters he raised.
Where an abuse of discretion is claimed, the discussion implies there were
discretionary choices for the trial court. Otherwise competent, thoughtful trial judges
could reach different conclusions on the admissibility of evidence in a given situation.
The question is not whether a different result could have been reached, but rather whether
the trial court's decision was arbitrary or irrational. In reviewing the ruling, we presume
the trial court understood the problems presented and evaluated the appropriate factors.
(Evid. Code, §210 [relevant evidence is that having a "tendency in reason to prove or
11
disprove any disputed fact that is of consequence to the determination of the action"];
Evid. Code, § 664 [presumption that official duty has been regularly performed].)
Here, the evidentiary issue was not expressly presented to the trial court in terms
of relevance of the evidence compared to its probative value, since no objection was
made under Evidence Code section 352. Because of the nature of the problem presented,
and the previous discussions with counsel, the court made an implied determination that
these references to the DVRO during cross-examination did not create a danger of undue
prejudice that substantially outweighed their probative value. (Contreras, supra, 58
Cal.4th 123, 149-153.) In this context of asserted self-defense, the trial court had
discussed the problems of "opening a door" to potentially irrelevant matters with counsel,
and it conscientiously discussed the matter at sidebar when it again arose. As presented,
the DVRO information was not unduly inflammatory or prejudicial. It was explained
further in closing arguments, according to the parties' different points of view. The jury
was instructed on how to evaluate the witnesses' testimony.
Although a different evidentiary ruling would certainly have been possible on this
record, Zepeda has not shown an abuse of the trial court's "broad discretion" in allowing
the cross-examination and impeachment to proceed in this manner. (People v. Lewis,
supra, 26 Cal.4th 334, 374.)
II
ARGUMENTS CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL
Zepeda next contends his trial counsel was ineffective for bringing up matters that
allowed the prosecutor to ask broad impeachment questions, and for compounding the
12
problem by failing to make adequate objections. Even assuming adequate relevance
objections were raised, he contends a more specific objection under Evidence Code
section 352 would have been required to afford him effective assistance of counsel.
(People v. Barnett (1998) 17 Cal.4th 1044, 1130.) He further argues the record does not
demonstrate that counsel had any strategic or tactical reasons for allowing that area of
inquiry.
A. Applicable Standards
To show that trial counsel's performance was constitutionally defective, an
appellant must prove: (1) counsel's performance fell below the standard of
reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland
v. Washington (1984) 466 U.S. 668, 687-688.) It is the defendant's burden to prove the
inadequacy of trial counsel, and defendant's burden is difficult to satisfy on direct appeal.
Competency is presumed unless the record affirmatively excludes a rational basis for trial
counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349 (Ray); People v.
Musselwhite (1998) 17 Cal.4th 1216, 1260.) We reverse on the ground of inadequate
assistance on appeal only if the record affirmatively discloses no rational tactical purpose
for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas);
see Ray, supra, at p. 349.) An appellate court generally cannot fairly evaluate counsel's
performance at trial based on a silent record. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267.)
A decision on whether to object to evidence is often a tactical one. (People v.
Catlin (2001) 26 Cal.4th 81, 165; People v. Hillhouse (2002) 27 Cal.4th 469, 502; People
13
v. Frierson (1991) 53 Cal.3d 730, 749 ["[I]n the heat of a trial, defense counsel is best
able to determine proper tactics in the light of the jury's apparent reaction to the
proceedings. The choice of when to object is inherently a matter of trial tactics not
ordinarily reviewable on appeal."]; People v. Ghent (1987) 43 Cal.3d 739, 772 ["[A]
mere failure to object to evidence or argument seldom establishes counsel's
incompetence."].)
B. Analysis
Zepeda first argues that his trial attorney was ineffective because a specific
objection to the impeachment questioning about the DVRO, as more prejudicial than
probative, would clearly have been meritorious. (Evid. Code, § 352.) He points out that
a relevancy objection alone, such as his continuing objection appeared to be, does not
preserve a claim of error under Evidence Code section 352. (See People v. Mills (2010)
48 Ca1.4th 158, 194.)
The trial court called a sidebar during the impeachment questioning, and later gave
defense counsel an opportunity to make a record on the issue. Counsel merely responded
that he understood the ruling but disagreed that any door had been opened on the DVRO
matter. On appeal, Zepeda argues this was an inexplicable failure to make a correct
record on an essential issue, particularly since the guilty plea to the DVRO violation
count was made to prevent the jury from hearing about it.
The record does not support Zepeda's contention that there was deficient
performance by counsel or resulting prejudice. First, it is not entirely clear that an
objection under Evidence Code section 352 to the impeachment questioning, if made,
14
would have been sustained, in light of the apparent effort by the defense to present
Zepeda as a devoted father who was trying to protect his sons from being harmed by the
driver. Defense counsel chose to explain why the family members were together on that
day, when the altercation arose. The DVRO matter did not lead to an undue consumption
of time, and it was somewhat relevant to give context to the events.
Even if we were to assume that a proper objection did exist, the record does not
provide us with any information from which we could determine whether Zepeda has met
his burden to show ineffective assistance of counsel on this issue. All we know from this
record is that Zepeda's counsel did not object. The record appears to support the People's
argument that Zepeda's trial counsel's decision not to object to the impeachment question
was a reasonable one. (Ray, supra, 13 Cal.4th at p. 349.) He may not have objected
because he did not want to draw undue attention to the DVRO or the reasons why it was
issued. He reasonably could have believed it was tactically sound to avoid further
highlighting the matter by objecting. We cannot simply assume ineffective
representation without a record that shows trial counsel's reasoning.
Since we generally defer to the tactical decisions of trial counsel, and since there is
no record disclosing a lack of a rational purpose for Zepeda's trial counsel's failure to
object, we cannot conclude that trial counsel was ineffective. (See Lucas, supra, 12
Cal.4th at pp. 436-437.) In any event, since we do not find the trial court abused its
discretion in allowing the impeachment questioning, Zepeda cannot show that his trial
counsel's failure to assert objections constituted ineffective assistance of counsel. (See
People v. Carter (2005) 36 Cal.4th 1215, 1257, fn. 29.)
15
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
16
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions, finding no abuse of discretion in the trial court's evidentiary rulings regarding cross-examination about a restraining order and no ineffective assistance of counsel.
Issues
Did the trial court abuse its discretion by allowing cross-examination regarding a domestic violence restraining order?
Was the defendant denied effective assistance of counsel due to trial counsel's questioning and failure to object to the cross-examination?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Finding no prejudicial error or ineffective assistance of counsel in this record, we affirm the judgment of conviction.”
“The admissibility of evidence that is offered for impeachment is decided in the trial court's discretion.”