People v. Simon

184 Cal. App. 3d 125, 228 Cal. Rptr. 855, 1986 Cal. App. LEXIS 1898

• Court: California Court of Appeal
• Decided: August 7, 1986
• Docket: D002454
• Status: Published

Opinions

Opinion

WIENER, J.

Defendant Leo Simon appeals after a jury found him guilty of second degree murder (Pen. Code, §§ 187, 189)¹ and found that he used a firearm in the commission of the murder (§ 12022.5). The issue in this case involves the admissibility of a prior assault committed by Simon directed against a person other than the victim. While potentially admissible to negate Simon’s claim of self-defense, we have determined that the procedures surrounding the court’s determination of its admissibility and the limiting instructions given to the jury were insufficient. Accordingly, we reverse.

Factual and Procedural Background

In the early morning hours of March 10, 1984, Simon shot and killed Phillip Soto at Petrea Saunders’ apartment. He dragged Soto’s body downstairs and placed it near the apartment building’s trash dumpster. He also placed Soto’s pistol and certain other belongings nearby. Shortly thereafter, he phoned the police and reported the shooting. Simon then obtained an attorney and surrendered himself to police.

Simon was charged with murder. At trial, Simon conceded shooting Soto but argued the killing was excusable because he shot Soto in self-defense.

Saunders had been Simon’s girlfriend for nearly three years. Several hours before the shooting, Saunders met Soto, a casual acquaintance, at a bar and invited him to her apartment. Soto was having car trouble and had no place to spend the night. When they arrived, Saunders began fixing some breakfast for Soto while he sat on a couch reading a magazine. At some point, Saunders observed Soto with a pistol on his lap which he covered with the magazine.

After closing the bar he owned and operated, Simon arrived at Saunders’ apartment approximately 20 minutes after Saunders and Soto. It is at this point that the various witnesses’ versions of the morning’s events begin to diverge. Trudy Burgess, Saunders’ next door neighbor testified that she was awakened shortly before 4 a.m. by the sounds of an argument coming from Saunders’ apartment. Burgess recognized the voices of Simon and Saunders. She then heard a gunshot followed by Saunders’ crying. Saunders then yelled something like, “God damn it, Bill.”

Simon testified that Saunders removed a chain lock and admitted him to the apartment when he arrived. As he entered the apartment he noticed Soto sitting on the couch. As Simon listened to something Saunders was saying, he turned and saw Soto point a pistol at him. He immediately drew his own gun from a holster and fired in self-defense.

Saunders gave several separate interviews to the police and testified at both the preliminary hearing and at trial. Her descriptions of the events varied significantly. Her testimony at trial largely corroborated Simon’s. She stated that when she saw Soto draw his gun and point it at Simon, she screamed, “Oh, Phil.” Simon responded by drawing his own gun and firing at Soto. In her earlier statements, Saunders indicated that Simon was angry at finding Soto in the apartment and an argument ensued. She became disgusted and walked away. She then heard a gunshot and turned to see Simon standing over Soto with a gun in his hand.

In support of Simon’s self-defense theory, several witnesses testified as to Soto’s known drug usage and his propensity for aggressive behavior. Two witnesses testified as to a confrontation in a bar between Soto and one of the witnesses in which Soto pulled a gun on the victim, placed it to his head, and “flicked” the hammer.

In support of its theory of the case and over defense objection,² the prosecution introduced evidence of a prior incident involving Simon and Peter Ashton. Ashton was at Saunders’ apartment early one evening when Simon arrived. Simon became angry at finding Ashton there and pulled a gun on him. According to Simon’s and Saunders’ trial testimony, Ashton was selling drugs to Saunders when Simon arrived. Simon had been attempting to help Saunders with her drug problem and was enraged by those “friends” who continued supplying her. Ashton claimed he was at Saunders’ apartment to collect on a $40 loan. He denied any drugs were involved but provided few details on why Simon became angry other than that he wanted to know why Ashton was there. Saunders was impeached by her prior statements to police indicating that Simon had accused her and Ashton of having a sexual relationship. She attributed Simon’s anger and his pulling the gun on Ashton to this accusation.

Discussion

I

This case is another in a long series in which a defendant challenges the admission of a prior criminal act committed by him and the People seek to justify its admission by demonstrating that the prior act is relevant to prove something other than the defendant’s general propensity to commit crimes. (See generally People v. Harvey (1984) 163 Cal.App.3d 90, 100 [208 Cal.Rptr. 910].) Simon’s challenge here involves the admissibility of evidence of the prior incident in Saunders’ apartment involving Peter Ashton. Simon claims the Ashton incident was relevant only to prove his disposition to assault people with a handgun, which is a purpose specifically prohibited by Evidence Code section 1101, subdivision (a). The People respond that the evidence was relevant on the issues of Simon’s intent and motive for the murder and, more particularly, to rebut Simon’s claim of self-defense. (See ante, fn. 2.)

(1) It is well settled that evidence of a defendant’s uncharged acts is not admissible to show he had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).) To fall within the exceptions created by subdivision (b), the “other acts” evidence must have a tendency to prove or disprove a disputed material fact and not merely be cumulative. The trial court must also determine that its probative value outweighs its prejudicial effect. (People v. Alcala (1984) 36 Cal.3d 604, 631-632 [205 Cal.Rptr. 775, 685 P.2d 1126].) Of particular relevance to this case, subdivision (b) has been interpreted to allow the admission of “other act” evidence which tends to negate a defendant’s claim of self-defense. (People v. Wells (1949) 33 Cal.2d 330, 341-342 [202 P.2d 53]; People v. Sam (1969) 71 Cal.2d 194, 206 [77 Cal.Rptr. 804, 454 P.2d 700].) In Wells, for instance, a defendant’s prior malicious assault on a prison guard was admitted to negate his claim of self-defense with respect to the charged offense, also an assault on a prison guard.

Ordinarily, determining the relevance of proffered “other act” evidence presents solely a question of law for the court because the defendant does not dispute the fact of the prior act but merely argues its legal inadmissibility. (See, e.g., People v. Alcala, supra, 36 Cal.3d at pp. 629-630; People v. Harvey, supra, 163 Cal.App.3d at p. 99.) Occasionally, a defendant will claim he did not commit the other uncharged act(s), in which case a question of fact will be presented which must be resolved by the jury before it can draw any inference regarding defendant’s commission of the charged offense.³ (See, e.g., People v. Wade (1959) 53 Cal.2d 322, 330 [1 Cal.Rptr. 683, 348 P.2d 116]; People v. Donnell (1975) 52 Cal.App.3d 762, 111 [125 Cal.Rptr. 310].) Here, however, we deal with neither of these two typical situations. Simon admits the fact of the earlier assault on Ashton but contends his state of mind or motive for the assault makes the prior incident irrelevant. He asserts his assault on Ashton was motivated by his desire to keep Saunders away from drug dealers. He testified at trial that drugs were in Saunders’ apartment when he encountered Ashton on the couch. Saunders’ trial testimony corroborates Simon but her earlier statements to police indicate the assault was motivated by Simon’s jealousy at finding another man in his girlfriend’s apartment. Ashton’s testimony reveals no clear motive for the assault. He specifically denied, however, that there were any drugs present. While there is no dispute Simon pointed a gun at Ashton, the objective circumstances surrounding the assault—which give rise to inferences concerning Simon’s motivation or reasons for the assault—are hotly contested.

There was no evidence in the present case that Soto was selling drugs to Saunders. If one accepts Simon’s testimony that the assault on Ashton was motivated by his desire to keep Saunders away from drug dealers, the Ashton incident is not relevant to prove any disputed factual issue in Soto’s killing. If, however, the assault on Ashton was motivated by jealousy, the two incidents are sufficiently similar to suggest that Simon was the aggressor thereby negating his self-defense claim.⁴ Thus, Simon’s motive in assaulting Ashton is a critical preliminary factual issue which must be resolved before the Ashton incident can be deemed admissible.

Evidence Code section 400 et seq. set forth the procedures to be utilized when the admissibility of certain evidence turns on the determination of some “preliminary fact.” Here, the manner in which the Ashton incident occurred is the preliminary fact on which the admissibility of the prior act evidence turns. Section 403 addresses this situation. Subdivision (a) provides: “The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [H] . . . [11] (4) The proffered evidence is of. . . [the] conduct of a particular person and the preliminary fact is whether that person ... so conducted himself.” Subdivision (c)(1) goes on to provide that “[i]f the court admits the proffered evidence under this section, [i]t . . . [m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.”

The record does not reflect any recognition by the parties that the section 403 procedure applied to the prior act evidence in the present case. The trial court made no preliminary finding on the sufficiency of the evidence as required by subdivision (a), and the jury was never instructed consistent with subdivision (c)(1). All this is hardly surprising in view of the fact that, as far as we are aware, no case has ever suggested application of section 403 to prior act evidence.

It is true the trial court gave a modified CALJIC No. 2.50 instruction telling the jury that evidence of the Ashton incident was admitted for the limited purpose of demonstrating Simon’s intent and motive. But this “limiting” instruction could only confuse the jury because it failed to acknowledge the disputed factual issue, thereby suggesting that evidence of the Ashton incident was probative of Simon’s intent and motive regardless of which version of the facts the jury decided to accept. The instruction is doubly confusing because, even if the People’s version is accepted, the Ashton incident does not demonstrate Simon’s intent or motive but merely tends to negate one proffered motivation, i.e., Simon’s claim of self-defense. (See ante, fn. 4.)

We need not resolve Simon’s contention that the trial court should be required to instruct the jury sua sponte in accordance with subdivision (c)(1) of Evidence Code section 403 in cases involving prior act evidence on the theory that such evidence is so inherently prejudicial that imposition of a sua sponte duty is justified. Here, the prejudice to Simon inhering in the lack of a (c)(1) instruction is compounded by the misleading nature of the CALJIC No. 2.50 instruction. In any event, given the novelty of the proposition, we cannot fault defense trial counsel here for failing to request a (c)(1) instruction. Considering these circumstances, including the trial court’s failure to independently evaluate the sufficiency of the evidence under subdivision (a) and the critical impact of the evidence on this trial, we must reverse.

II

We have determined that the judgment must be reversed to give Simon the benefit of a trial court evaluation of the sufficiency of the evidence indicating that he assaulted Ashton for jealous motives. If the trial court determines that such evidence would be sufficient to support a jury finding that the incident occurred in the manner alleged by the People, Simon is entitled to a jury properly instructed on the preliminary fact it must find in order to even consider the prior act evidence and on the purpose for which such evidence may be considered. For the benefit of the court on retrial, we comment briefly on the standard of proof to be utilized by both the trial court and jury in making their respective preliminary fact evaluations.

Substantial Supreme Court precedent supports the conclusion that the People need only establish the relevance of the “other act” evidence by a preponderance of the evidence. The court first considered the standard of proof question in People v. Lisenba (1939) 14 Cal.2d 403 [94 P.2d 569]. In the context of rejecting a defendant’s contention that prior criminal offenses must be proved beyond a reasonable doubt, the opinion merely noted that proof of such prior bad acts must be “substantial.” (Id., at pp. 431-432.) This same nebulous standard was reiterated in the plurality opinion in People v. Albertson (1944) 23 Cal.2d 550, 579-581 [145 P.2d 7], Justice Traynor’s concurring opinion, however, necessary to achieve a majority for the reversal of the defendant’s conviction, clearly applies a preponderance-of-the-evidence test. (Id., at p. 581 (“evidence . . . was insufficient to enable a reasonable jury to conclude that it was more probable that defendant committed the [prior] assault than that he did not”).)

The preponderance standard was explicitly adopted and applied by the court in a series of cases decided in the mid-to-late 1960’s. Typical is the discussion in People v. Durham, supra, 70 Cal.2d at p. 187, fn. 15: “Although a person charged with crime cannot be convicted thereof unless he is proved guilty beyond a reasonable doubt, other uncharged offenses introduced to show the existence of some element of the charged crime need only be proved by a preponderance of substantial evidence.” (Accord People v. Polk (1965) 63 Cal.2d 443, 451 [47 Cal.Rptr. 1, 406 P.2d 641]; People v. Haston (1968) 69 Cal.2d 233, 253 [70 Cal.Rptr. 419, 444 P.2d 91]; People v. Cavanaugh (1968) 69 Cal.2d 262, 273-274, fn. 9 [70 Cal.Rptr. 438, 444 P.2d 110]; People v. McClellan (1969) 71 Cal.2d 793, 805 [80 Cal.Rptr. 31, 457 P.2d 871]; see also People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 12 [127 Cal.Rptr. 135, 544 P.2d 1335].)⁵

Our research has disclosed two cases which appear to depart from this otherwise consistent line of authority. In People v. Wade, supra, 53 Cal.2d 322, the court discussed the admissibility of evidence of collateral criminal offenses in the following terms: “It is the general rule that evidence of a collateral crime is inadmissible in a criminal prosecution for the asserted reason that its tendency to inflame and prejudice the jury outweighs its evidentiary value. (People v. Albertson, 23 Cal.2d 550, 576 [145 P.2d 7].) An exception to this rule is found, however, where the evidence of the prior or collateral criminal act is relevant to prove a specific and ascertainable feature of the crime on which the prosecution is founded, such as lack of mistake, motive or intent. The connection of the accused with the collateral offense put into evidence must, however, be clear and convincing. (People v. Albertson, supra, 23 Cal.2d 550, 577.)” (Id., at p. 330, italics added.)

Interestingly, no mention of a “clear and convincing” standard is found in Albertson at page 577, nor does Wade accord any effect to Justice Traynor’s concurring opinion in Albertson which clearly applied a “preponderance” test. (See ante, p. 132; cf. People v. Harris, supra, 71 Cal.App.3d at p. 966.) Wade's reference to a “clear and convincing” standard then remained dormant for a decade until it reappeared in People v. Terry (1970) 2 Cal.3d 362, 396 [85 Cal.Rptr. 409, 466 P.2d 961], again without any supporting analysis as to why such a standard is appropriate.

Technically, the reference to a “clear and convincing” test in Wade and Terry is dicta. In both cases, the court concluded that the evidence was sufficient to connect the defendant with the prior uncharged offense. Necessarily, the result would have been the same even had a “preponderance” standard been applied. Moreover, analysis of the standard of proof issue is nonexistent in both cases. Wade erroneously cites Albertson as support for a “clear and convincing” test and Terry merely cites Wade.

In considering this issue, we have also reflected on the institutional effects of our choice of standards in a case such as this where we have apparently conflicting guidelines from the Supreme Court.⁶ We could opt for the more exacting standard on the theory that a criminal defendant is entitled to the benefit of the doubt as to any ambiguity in the law. (See, e.g., People v. Moreland (1978) 81 Cal.App.3d 11, 17-18 [146 Cal.Rptr. 118].) Since the present case is being reversed on other grounds, use of the “clear and convincing” test on retrial would protect against a possible second reversal in the event Simon is again convicted. On the other hand, adopting the stricter test might create a ground for reversal in numerous cases which would otherwise be affirmed. If the Supreme Court views Wade and Terry as aberrations—which seems likely—our adoption of the “clear and convincing” test would force a grant of review in order to avoid such reversals. Given our institutional role, we believe it more prudent to follow the well-traveled “preponderance” path illuminated by decisions beginning with Lisenba and Albertson and continuing through Haston and Durham. We leave it to the Supreme Court if it so chooses to resurrect the “clear and convincing” language of Wade and Terry and, in so doing, to explain the basis for the stricter test.

Accordingly, on retrial, the trial court should first determine whether the evidence of the Ashton incident is sufficient to allow the jury to determine by a preponderance standard that Simon’s assault on Ashton was motivated by jealousy. If it does so determine, the court may and if requested must instruct the jury that unless it determines by a preponderance of the evidence that Simon’s motivation was jealousy, it must disregard the evidence of the Ashton incident.

In view of our conclusion that a retrial is necessary, we need not address Simon’s additional contention that the evidence was insufficient to warrant instructing the jury on first degree murder. In view of the jury’s verdict acquitting him of first degree murder, he will be subject at most to a conviction of second degree murder on retrial. (See Pen. Code, §§ 687, 1023; see generally Stone v. Superior Court (1982) 31 Cal.3d 503 [183 Cal.Rptr. 647, 646 P.2d 809].)

Disposition

Judgment reversed.

Kremer, P. J., and Butler, J., concurred.

1 All statutory references are to the Penal Code unless otherwise indicated.

2 Simon argued at trial that evidence of the Ashton incident was irrelevant and inadmissible or, if marginally relevant, its prejudicial effect clearly exceeded its probative value. The trial court tentatively ruled that the evidence would not be admissible as part of the prosecutor’s case-in-chief but could come in on rebuttal if Simon asserted a self-defense theory. At that point, without waiving his initial objection, defense counsel conferred with Simon and then indicated that if the evidence was to come in at all, he would prefer that it be included in the direct testimony of the prosecution’s witnesses.

3 In such cases it is generally unnecessary to instruct the jurors that if they believe the defendant, the prior act evidence should be disregarded; clearly if the defendant cannot be connected to the prior act, admission of evidence concerning it will not normally prejudice him. (Cf. People v. Harris (1977) 71 Cal.App.3d 959, 965-966 [139 Cal.Rptr. 778].) The situation is markedly different where, as here, the defendant admits the prior act but disputes the manner in which it occurred. In such a situation, the danger of prejudice in the absence of a clarifying instruction is significant. Here, for instance, the jury collectively or jurors individually may have believed Simon’s version of the Ashton incident but nonetheless considered the evidence for the purpose of showing Simon’s intent to commit assaults with handguns.

4 To the extent the People are arguing that the Ashton incident is independently admissible to prove Simon’s motive and intent in killing Soto, we reject the contention. The trial court was correct in ruling that evidence of the Ashton incident was admissible, if at all, only to rebut Simon’s claim of self-defense. The mere pointing of a gun at Ashton, whatever the circumstances surrounding it, had no tendency to prove that Simon intended to kill Soto. And nothing in Simon’s conduct toward Ashton suggests a motive for killing Soto. (Cf. People v. Durham (1969) 70 Cal.2d 171, 187-189 [74 Cal.Rptr. 262, 449 P.2d 198] (evidence of prior crimes admissible to show that defendant’s motive in shooting a police officer was to avoid apprehension); People v. Gonzales (1948) 87 Cal.App.2d 867, 877-878 [198 P.2d 81] (evidence of prior rape admissible to demonstrate defendant’s motive in killing person who knew of the rape).)

5 The inclusion of the word “substantial” appears to add nothing of substance to the preponderance test; to be legally sustainable all findings must be supported by “substantial” evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 575-578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Use of the word is undoubtedly traceable to the Lisenba and Albertson decisions which required “substantial" proof of the commission of prior bad acts. Not surprisingly, virtually all of the cited cases referencing the preponderance standard refer to Albertson and Lisenba in support of that proposition.

6 We recognize that each of the Supreme Court’s references to the “clear and convincing” test have occurred in the context of connecting the defendant to the crime. One could thus posit a reconciliation of the two apparently inconsistent lines of cases by suggesting that the circumstances of the prior offense itself need only be proved by a preponderance of the evidence whereas defendant’s commission of the offense must be established by clear and convincing proof. We find this attempted reconciliation both unpersuasive and unworkable. First of all, it is clear the standard has not been applied by the Courts of Appeal in the suggested manner. (See, e.g., People v. Donnell, supra, 52 Cal.App.3d at p. 777 (“In the instant case there was a preponderance of substantial evidence that defendant committed the [prior] robbery.”).) Moreover, admissibility of collateral offense evidence normally depends both on the fact that the defendant committed the offense and that the circumstances of that offense are sufficiently similar to permit the desired inference as to motive, intent, etc., to be drawn. We can conceive of no rational basis for utilizing a different standard of proof depending on the nature of the preliminary fact which determines whether the evidence can be offered.