THE PEOPLE, Plaintiff and Respondent, v. FRANKLIN BINGHAM,
A163112
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 9/26/23
CERTIFIED FOR PUBLICATION; Alameda County Super. Ct. No. 20-CR-012435
The erroneous exclusion of impeachment evidence, pursuant to
Defendant appeals from a judgment convicting him of infliction of corporal injury on a romantic partner (
impeachment evidence. However, we affirm the conviction because the error was harmless. We agree with the parties that the matter should be remanded for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by an amended information with one count of corporal injury to relationship partner (
I. Motion in Limine Evidentiary Rulings
At the motion in limine hearing on December 16, 2020, the People sought to introduce the victim‘s 911 call at trial. They argued it was admissible as an excited utterance under
(
Defendant opposed the People‘s motion to admit the 911 call, arguing it was hearsay, among other claims. Defendant also filed a motion in limine seeking to admit the victim‘s statements to the deputy district attorney recanting the statements she made in the 911 call.3 He argued the victim‘s statements were admissible under
At the hearing on the motions in limine, the trial court found the 911 call admissible under
On January 4, 2021, defense counsel filed a motion for reconsideration of the trial court‘s rulings to exclude the victim‘s inconsistent statements and prior convictions. The motion argued that the evidence was admissible for impeachment under
On January 7, 2021, in the middle of the trial, the victim sent an email to the deputy district attorney attaching a notarized affidavit stating: “I am declaring that Franklin Bingham did not assault me on September 19th, 2020. Franklin Bingham also did not burglarize anything of mine.” The defendant moved to admit the affidavit as impeachment evidence under
II. Trial Testimony
On September 20, 2020, Nader N. was working as a night manager at a hotel in Fremont. At 12:06 a.m., Nader saw Tracy L. come down to the hotel lobby. She was “terrified, she was scared, she was shaking and her face was full of blood.” She asked Nader to call 911. Nader recalled that five minutes before Tracy came down to the lobby, he saw a man exit the elevator and leave through the hotel‘s back door. Nader testified that the man seemed angry and that he pushed the door open very hard. Nader did not see the man‘s face because he was wearing a mask and looking away from Nader.
Nader gave Tracy a towel for her face because “blood was everywhere.” Nader called 911 and then gave the phone to Tracy. While Tracy was on the phone with 911, Nader went outside with a hotel security guard to see if the man who recently exited the hotel was in the parking lot. They did not find him. When the police arrived, Nader took them to Tracy‘s hotel room. The room was “messed up” with blood on the sheets and the towels. Nader told the police that the night before the incident he saw Tracy with her boyfriend, whom Nader described as “cold like ice.” The man whom Nader saw exit the hotel just prior to when the injured Tracy came to the hotel lobby had the same body shape and size as the person he saw with Tracy the previous night.
The prosecution played a recording of Tracy‘s 911 call. Tracy stated, “[M]y boyfriend beat me up and I need an ambulance.” She gave defendant‘s name and provided a physical description. She said he left the hotel in a black Dodge Avenger. Tracy explained, “[M]y boyfriend came into my room, so
Police officer Jacob Crow responded to the 911 call and found Tracy in the hotel lobby. Tracy “had blood coming from her face and was holding a towel to her head.” She “appeared scared and frightened.” She had cuts, bruising and swelling to her right eye and a burn mark on her left cheek. Officer Crow interviewed Tracy for about 20 to 30 minutes before she was taken to the hospital. She was coherent and did not appear to be under the influence of any illicit substance. Officer Crow went to Tracy‘s hotel room with Nader and saw a bed pillow covered in blood and several towels “soaked in blood.” Officer Crow attempted to obtain video surveillance footage from the hotel, but the hotel manager emailed him that the servers were down due to wildfires. He never obtained surveillance video.
Officer Crow broadcast defendant‘s description to other police officers. The next day, defendant was arrested when he was found next to the Dodge Avenger. Officer Crow booked defendant into jail. He searched defendant and the car. Officer Crow found two women‘s rings in defendant‘s pants pocket. In the car, he found a heavy black metal padlock and several phones.
Officer Nicholas Forsberg brought Tracy to the location where the car was recovered. Tracy identified the rings as hers. When Officer Forsberg showed Tracy the metal lock, her eyes welled up and she began to cry. He also observed that Tracy‘s right eye was swollen and had been sutured and bandaged. The police released the car and its contents to Tracy.
Phone records from the jail showed 246 calls between defendant and Tracy from September 21, 2020, to January 5, 2021, the day the trial began. In addition, there were 14 recorded jail video calls between defendant and Tracy between October and December 2020. During one of the video visits, Tracy showed defendant her body parts in a sexually suggestive manner.
On a September 25, 2020 recorded call between defendant and Tracy, defendant said, “You know I‘m sorry right.” Tracy responded, “Um, you know I, I wish li [sic] sounded like you were,” and then defendant said, “Now you know I am, look, Tracy. When everything happened, when did I stop?” Tracy said, “When you saw all the blood.” Defendant then said, “None of that shit happened,” and Tracy replied, “[W]hat what what what.” He then
During a November 6, 2020, recorded video visit, defendant said to Tracy, “Cause regardless of anything that ever happened between us, any ever single time right, you chose to talk to the cops still. We could have walked away from each other at anytime Tracy. We could have, you could have gone back to Arizona anytime you wanted to. You could have asked me for money to go back. I would have given it to you. You could have don‘t anything, you could have had the money to go back or never seen me again. But you‘ve always chose to come back to be with me or I‘ve always taken you
back no matter what‘s happened. No matter what. With every little secret, with every little lie, with every little bullshit with whatever the fuck you got going on in your life, I‘ve always chosen you. But I never would have ever put you in this situation, ever. I . . . definitely (unintelligible). . . .” (Sic.) Tracy said, “I would have never fuckin done what you did.” Defendant responded, “Nah but what you do it like hella worse and shit man. You hurt me all the time so bad Tracy.”
The defense called the assistant manager of the hotel, who testified that she was not on duty the night of the incident but was given contact information for Officer Crow and learned that he requested video surveillance footage. She testified that she emailed Officer Crow but he did not respond. She also explained that because the servers were down due to wildfires, it was not possible to download and supply copies of footage at the time. However, an off-site company handled the surveillance system, and it was possible to view and play back footage. The video footage would have remained available for 90 days, until December 20, 2020.
Defendant testified that he had been in an on-again, off-again relationship with Tracy for 11 years. He first went to the hotel to meet Tracy on the morning of September 19, 2020. He took Tracy to run some errands and then brought her back to the hotel. He drove the Dodge Avenger, which he stated was his car. Tracy asked defendant if he knew anyone who wanted to buy some rings, and she texted defendant, asking him to come back to the hotel. Defendant returned to the hotel about 8:30 p.m. that night. When he arrived, Tracy was not there, and he waited for her for about 20 minutes.
When Tracy returned to the hotel, she asked defendant to come up to her room. Defendant bought the rings from Tracy. Tracy needed money to go to Arizona. Earlier in the day, Tracy tried to talk to defendant about getting
back together, and he told her it was over for sure but he still cared about her and wanted to help her go back to Arizona.
Defendant testified that Tracy gave him the car and that everything in the car, including the metal lock, was his. He acknowledged that since his arrest he had numerous phone calls and video visits with Tracy and that they continued to talk at night during the trial. They made up, and defendant acknowledged that they tell each other “I love you” when they talk. Defendant admitted that he apologized to Tracy in the September 25, 2020 phone call but explained that he was referring to yelling at Tracy. When he asked Tracy, “When everything happened, when did I stop?” he meant when did he stop yelling at Tracy. When, during the November 6, 2020 video visit, Tracy said she would never do what he did, defendant understood her to be referring to when he “bucked her off” and yelled. When defendant said Tracy did worse to him, he was referring to Tracy‘s taking funds from their joint checking account, which they were saving for an apartment. Defendant
explained that he was mad at Tracy for talking to the police because she made false allegations.
When defendant was interviewed by Officer Crow after his arrest, he denied assaulting or hitting Tracy. Defendant told Officer Crow that Tracy had a bruise under her right eye and under her cheek before defendant arrived at the hotel. He did not tell Officer Crow that he “bucked” Tracy off him, and Officer Crow did not explain Tracy‘s injuries. The prosecution played a portion of defendant‘s recorded interview with Officer Crow. Defendant admitted he heard himself tell Officer Crow in his recorded interview that he had no idea how Tracy was injured. Defendant also acknowledged that if he told Officer Crow that he did not know why there was blood in the hotel room, “then [he] might have been less than truthful with the cop.”
Defendant admitted into evidence hospital records from the date of the incident, in which Tracy acknowledged use of methamphetamine, and records from the Department of Motor Vehicles. Although the department‘s records do not appear to be part of the appellate record, defense counsel argued in closing argument that the records stated Tracy was not the owner of the Dodge Avenger.
The jury found defendant guilty of infliction of corporal injury on a relationship partner (
trial court sentenced defendant to the upper term of four years, doubled due to the prior strike, for a total sentence of eight years.
DISCUSSION
I. Exclusion of Impeachment Evidence
Defendant argues the trial court abused its discretion when it excluded evidence of Tracy‘s statements to the prosecution recanting her claims made in her 911 call and evidence of Tracy‘s prior convictions. He argues the evidence was admissible under
The People concede that the trial court erred by not admitting the impeachment evidence. We agree with the parties. The trial court appeared to believe that the offered impeachment evidence was not admissible unless Tracy testified. However, “under [
However, the erroneous exclusion of evidence does not require reversal unless the error caused a miscarriage of justice. (
Cal.2d 818, 836 (Watson), to erroneous exclusion of evidence under
available evidence.” (Id. at p. 472.) The Corella court then concluded that there was prejudice under both the “reasonable probability” standard of Watson, supra, 46 Cal.2d at page 836, and the stricter “beyond a reasonable doubt” standard of Chapman, supra, 386 U.S. at page 24. (Corella, at p. 472.)
There are factual similarities between Corella and this case. However, we question Corella‘s prejudice analysis. On review of claims asserting the erroneous exclusion of evidence, reversal is only required where the error caused a miscarriage of justice. (People v. Richardson (2008) 43 Cal.4th 959, 1001, superseded by statute on another ground as stated in People v. Nieves (2021) 11 Cal.5th 404, 509.) “[A] ‘miscarriage of justice’ should be declared only when the court ‘after examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) Corella‘s conclusion that there was prejudice because the jury was prevented from “making a credibility determination based on all available evidence” does not appear to consider the entire record. (Corella, supra, 122 Cal.App.4th at p. 472.) To the extent it suggests that the erroneous exclusion of impeachment evidence against a key declarant offered under
We find that even if Tracy‘s statements recanting what she said in the 911 call and her prior convictions were admitted, it is not reasonably
probable that defendant would have obtained a more favorable outcome. The jury heard Tracy‘s statements on the 911 call explaining how defendant hit her using a heavy metal lock. They also heard testimony from Nader who saw Tracy injured and in distress when she came down to the hotel lobby. Nader testified that he saw a man, who seemed angry, leaving the hotel five minutes before Tracy came to the lobby. The man had the same body shape and size as the person he saw Tracy with the previous night. Officer Crow also described Tracy‘s injuries and his observations of her emotional state when he responded to the scene. Photographs of Tracy‘s injuries were admitted into evidence. A heavy metal padlock was discovered in defendant‘s car and he admitted it was his. Multiple bloody towels were found in the hotel room. Defendant admitted he was in Tracy‘s hotel room the night of the incident. Further, the jury heard a recorded phone call five days after the incident in which the defendant apologized to Tracy and asked, “[W]hen did I stop?” and she responded, “When you saw all the blood.” Defendant testified that he and Tracy had reconciled and were in frequent contact while defendant was in jail. The jury also heard a portion of defendant‘s recorded interview with the police in which defendant said he had no idea how Tracy was injured. Defendant then acknowledged in his testimony that he was “less than truthful with the cop” when he told the police he did not know why there was blood in the hotel room.
Finally, defense counsel impeached Tracy‘s credibility through the admission of records from the hospital stating that Tracy admitted methamphetamine use, which was inconsistent with her statement in the 911 call that she did not consume drugs the night of the incident. Defendant also admitted records from the Department of Motor Vehicles showing that the Dodge Avenger was not registered to her. Defense counsel argued during
closing argument that Tracy‘s statements to the 911 operator that she owned the car were not true.
There was strong evidence of defendant‘s guilt, and the jury received other impeachment evidence. We find that based on the entire record it is not reasonably probable that the jury would have acquitted defendant if it had learned of Tracy‘s prior convictions and that she recanted what she said on the 911 call after defendant was arrested and had apologized to her.
Defendant contends he is entitled to resentencing under amended
Defendant further contends that at his sentencing on July 8, 2021, the trial court imposed a $250 probation investigation fee under
DISPOSITION
Defendant‘s conviction is affirmed. The case is remanded for resentencing under
Jackson, P. J.
WE CONCUR:
Burns, J.
Chou, J.
A163112/People v. Franklin Bingham
A163112/People v. Franklin Bingham
Trial Court: Superior Court of the County of Alameda
Trial Judge: Kimberly Colwell
Counsel: Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Eric D. Share and Alisha M. Carlile, Deputy Attorneys General, for Plaintiff and Respondent.