Not to be published

DISCUSSION

I.

The issue at trial was not whether Kyle had been terribly abused, but by whom. Defendant’s sole defense was third party culpability; that is to say, he contends that it was Kyle’s three caretakers who had perpetrated the atrocities and that Kyle’s account ascribing responsibility to him was uncorroborated. As he frames it, the issue was identity. He was the only defendant in the dock, as if he were the surrogate stand-in defendant for the other three. In a motion in limine, he offered strong evidence to support his theory of the caretakers’ guilt—their guilty pleas. The trial court, however, disallowed the evidence, concluding the guilty pleas were irrelevant and prejudicial to the defense. We agree with defendant the guilty pleas are probative defense evidence that should have been admitted. We conclude, however, the exclusion of the evidence was not prejudicial.

“To withstand a challenge under Evidence Code section 352, evidence of a third party’s culpability ‘need only be capable of raising a reasonable doubt of [the] defendant’s guilt.’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 609.) Here the trial court was required to weigh the evidence of the guilty pleas’ probative value against the dangers of prejudice, confusion, and the undue consumption of time. “Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled.” (Ibid.)

The trial court seemed to believe that the evidence was not relevant, a position advocated by the Attorney General on appeal. The court remarked, “[O]bviously in this case the D.A.’s theory is that Mr. Waiters in some instances acted through others. She’s proceeding on an aiding and abetting theory, obviously. [¶] And so I just don’t see how it would ever be admissible. So unless you can come up with something that would be --would show that somehow it’s relevant and actually wouldn’t be appropriate to admit, I don’t want any reference to that.” The Attorney General echoes the same point, arguing that the evidence was “not relevant to prove or disprove a disputed fact of consequence at appellant’s trial . . . .”

As defendant points out, the identity of those who perpetrated the crimes is certainly a “fact of consequence” at trial. The fact that Kyle’s three caretakers admitted their guilt and were convicted of the charged crimes supports the essence of his defense that they were responsible and is therefore relevant. It is true that the guilty pleas do not exonerate defendant because, as the trial court observed, the prosecution’s theory was that defendant was an additional perpetrator, and he aided and abetted their crimes. But exoneration is not the test of relevancy. We concur with defendant that if it was relevant for the prosecution to introduce evidence that Carmen, Kelly, and Michael committed the alleged crimes, it was equally relevant for the defense to introduce evidence that they admitted their guilt by pleading guilty and by accepting convictions for their crimes. The trial court erred by finding the evidence irrelevant pursuant to Evidence Code section 350.

Evidence Code section 352 guides the trial court’s exercise of discretion. Relevant evidence should be admitted unless its probative value is substantially outweighed by the probability that its admission will “(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Ibid.) “ ‘Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 684, quoting People v. Reeder (1978) 82 Cal.App.3d 654, 553.)

There is scant evidence the trial court weighed each of the factors set forth in Evidence Code section 352. It would have taken but a few moments to take judicial notice of the convictions. Moreover, the defense evidence was consistent with the prosecution’s position that the three caretakers committed the charged crimes, and therefore there was no risk of confusing the issues or misleading the jury. On the other hand, the evidence was relevant and significant to the defense position that it was the very three who admitted their guilt who were solely responsible for the crimes.

Rather, the court took on the advocate’s role, concluding that the evidence would be harmful to the defense despite the defense assessment that the pleas bolstered its case. Later during the trial, the court denied defendant’s attempt to include the pleas in the jury instructions. The court explained: “I just think there is too much danger of a juror thinking that way, that, well -- and I’m not suggesting that this is true, I’m just saying that this is a possibility -- that a juror would say, well, those folks, at least they had the guts to stand up and take responsibility for what they did and be held accountable, and Mr. Waiters didn’t, so he should be considered in a negative light because he didn’t step forward and take responsibility. That worries me that that sort of thinking might come into play, so I really think that it’s better not to mention the fact that there have been guilty pleas.” In short, the trial court excluded the defense evidence because it believed it would be prejudicial to the defense. By trumping defendant’s tactical decision with its own, understating its relevance, and failing to conduct a thorough Evidence Code section 352 analysis, the court denigrated defendant’s right to present all relevant evidence of significant probative value.

The Attorney General cites to CALCRIM No. 373, an instruction the court gave to the jury as follows: “The evidence shows that other persons may have been involved in the commission of the crime[s] charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about, nor draw any inferences from whether those other persons have been or will be prosecuted or convicted. Your duty is to decide whether the defendant on trial here committed the crime[s] charged.” In the Attorney General’s view, CALCRIM No. 373 supports the exclusion of the guilty pleas.

Not so. Defendant was not asking the jurors to speculate about the other perpetrators; indeed, he asked just the opposite for he proffered evidence that would end any speculation. He hoped to introduce the very evidence that would validate his theory that Kyle’s caretakers were guilty of the criminal course of conduct they inflicted on him for the months they held him captive. Cases involving the speculative involvement of codefendants and those involving third party culpability evidence prejudicial to the defendant are inapposite. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1322.)

Nevertheless, defendant vastly overstates the likely impact of the exclusion of the defense evidence. We reject his argument that uninformed about whether or how the other three were punished, the jury was more inclined to convict him as a stand-in for them all and to provide a sense of justice to their victim. As just mentioned, the jury was instructed not to speculate about whether the others had been prosecuted and to focus exclusively on whether defendant committed the charged crimes. (CALCRIM No. 373.) We must assume the jurors upheld their oath to follow the law. (People v. Estrada (2006) 141 Cal.App.4th 408, 414, fn. 4.) While the instruction does not support exclusion of the guilty pleas, it dispels the notion that the jury convicted defendant as a stand-in.

More important than the hypothetical question whether the jurors would punish defendant for the sins of his friends is the abundance of evidence that incriminated them quite apart from their own guilty pleas. Kyle testified at length about each caretaker’s role in beating, burning, starving, and torturing him. He ascribed minimal responsibility to Michael while identifying Carmen as the central figure in the ongoing abuse. Carmen, according to Kyle, was ably assisted by Kelly. The prosecution extracted a horror story from Kyle about what he endured during the many months he was zip-tied and then chained, and how all three caretakers participated to varying degrees and at different times. There was no dispute at trial that the caretakers had committed a laundry list of unspeakable crimes. The physical evidence left no room for doubt and corroborated Kyle’s testimony. The investigating police officers described a terrible stench of urine and feces when they entered the Schumacher residence. And they confiscated many of the tools and chemicals used to torture Kyle, including the bat with blood on it, the bleach, and the lighter fluid. They found marijuana throughout the house and blood near the fireplace. In addition, Kelly lied to the officers and Carmen absconded. In short, the jury was well-informed that Carmen, Michael, and Kelly had committed atrocious crimes against Kyle. Because so much of the focus of the trial was on how, where, and when the three caretakers inflicted such grueling punishment on their young charge, we conclude the introduction of the guilty pleas would have only confirmed what the jury already knew. We find the guilty pleas were duplicative of the mountain of evidence that pointed to their culpability, and thus their impact on the jury would have been de minimis. Any error in excluding the evidence therefore was harmless beyond a reasonable doubt.