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Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph AGUILAR, Defendant and Appellant.

Cr. 32845.

Decided: February 28, 1979

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Joseph Levine, Deputy State Public Defender, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

Appellant, Ralph Aguilar, appeals from the judgment (order granting probation) entered following a jury trial in which he was convicted of selling heroin. (Health & Saf.Code, § 11352.) The appeal lies. (Pen.Code, § 1237, subd. (1).) Appellant contends that “[p]rejudicial error was committed when the trial court refused to allow [his] character witness to testify as to his opinion of, and appellant's reputation in the community for, non-involvement with narcotics.”


On October 21, 1976, Los Angeles County Deputy Sheriff Salvador Saiz contacted Manuel Sandoval in the course of a narcotics investigation. Deputy Saiz was operating in an undercover capacity and Sandoval was unaware that he was dealing with a law enforcement officer. Sandoval informed Deputy Saiz that he could arrange a heroin purchase. Deputy Saiz gave Sandoval $100, and together they drove to appellant's home.

Deputy Saiz remained in the vehicle while Sandoval approached appellant who was in his driveway working on his car. Sandoval apparently handed something to appellant but Deputy Saiz could not identify the item. Appellant went into his home and Sandoval returned to Saiz' vehicle. Within minutes appellant emerged from the house, approached Saiz' vehicle, and handed Sandoval five balloons containing heroin. Sandoval gave four balloons to Deputy Saiz and Sandoval and Saiz left. Appellant was arrested at a later date.

At trial appellant denied that he gave Sandoval any heroin.2


Appellant contends that the trial court committed prejudicial error by refusing “to allow a character witness to testify as to his opinion of, and appellant's reputation in the community for, non-involvement with narcotics.” During trial appellant called Quenton Gutierrez, who testified that he had known appellant for about five years and that they had lived in the same general area during that five-year period. After Gutierrez stated that he was aware that appellant was accused of selling heroin, appellant's counsel asked Gutierrez “Do you have an opinion, based on your background and knowledge of him, as to whether he is the type that is involved in narcotics?” The prosecutor objected that the question “was improper.” Appellant's counsel explained that he intended to ask Gutierrez whether he had an opinion whether appellant was involved in narcotics, or whether he had a reputation in the community for being involved with narcotics. The court ruled that the question was inappropriate and improper because the court had not “seen or heard an offer of proof that qualifie[d] [Gutierrez] to testify in that area; and it [[[[was] inappropriate character testimony if [counsel was] talking about whether or not [appellant] engage[d] in narcotic trafficking.” After appellant's counsel offered to establish a strong foundation for Gutierrez' opinion testimony the prosecutor objected that although “[they] were labeling that character evidence,” it had nothing to do with character and that it “[had] to do with the ultimate charge … involved.” The court reiterated that it would sustain objections “about whether [appellant] engage[d] in the narcotics traffic,” although it would permit appellant's counsel to present evidence of appellant's reputation for “truth and veracity or something like that …”

Respondent argues that the questions which appellant's trial counsel sought to ask were “impermissible as they were designed to elicit evidence of past conduct” and that the Evidence Code does not authorize a defendant to introduce “evidence of past conduct to prove conduct in conformity to such past conduct.”

We disagree. While it is true that a defendant may not introduce evidence of past conduct to prove that he acted in conformity with such conduct, appellant did not seek to present such evidence. The trial court ruled that appellant could not present evidence of his reputation for involvement in trafficking or selling narcotics. Appellant asserts that the admissibility of such evidence was recognized in People v. Gin Shue (1943) 58 Cal.App.2d 625, 631-634, 137 P.2d 742. Gin Shue, who was charged with the unlawful possession of opium, called several character witnesses. The trial court permitted Gin Shue to ask such witnesses if they knew “the general reputation of [Gin Shue] for the traits involved” in the crime of possessing opium.3 (Id. at p. 633, 137 P.2d at p. 747.) The witnesses who were familiar with Gin Shue's reputation for the traits involved indicated that it was “good” or “excellent.” Gin Shue was convicted, and he complained on appeal that the trial court erred in allowing the prosecutor to ask his character witnesses, during cross-examination, whether they had heard that he had been arrested or charged with various crimes. Gin Shue took the position that on direct examination he was specifically limited to interrogating the witnesses as to their knowledge of his reputation for possessing opium. The appellate court rejected his contention and stated: “We do not so interpret the questions. The witnesses were asked as to their knowledge of the reputation of the accused in relation to the traits involved in the offense charged. Included within that question, as would be true with any criminal charge, is necessarily the trait of being a law abiding citizen.” (Id. at p. 634, 137 P.2d at p. 747.) The court further reasoned that despite the fact that the questions were awkwardly phrased and that “it would have been better practice to have informed the witnesses more specifically of the traits … [t]he record indicate[d] that they understood that appellant's reputation as a law abiding citizen was the subject of inquiry.” Here, appellant's counsel also mentioned to Gutierrez that appellant had been charged with the sale of heroin prior to asking Gutierrez his opinion as to whether appellant was the type to become involved in narcotics activity.4 Thus, under the rationale applied in Gin Shue, appellant should have been permitted to question Gutierrez as to his “opinion … as to whether [[[[appellant was] the type that [was] involved in narcotics.”

Furthermore, even if we were to reject the assumption underlying the Gin Shue holding—that there is a character trait “of being a law abiding citizen”—appellant could argue that he was entitled to present evidence of his character as a law abiding citizen, with a propensity to abide by the laws. Evidence Code section 1102 authorizes a defendant to present evidence of his character or a trait of his character.5 The Law Revision Commission's comment to Evidence Code section 11016 defines a person's character as “his propensity or disposition to engage in a certain type of conduct” and explains that character evidence is “offered as a basis for an inference that [[[[a person] behaved in conformity with that character on a particular occasion.” (See Cal.Law Revision Com. com. to Evidence Code section 1101, Derring's Ann.Evid.Code (1966 ed.) p. 6; 29B West's Ann.Evid.Code (1966 ed.) p. 9.) Of course, we recognize that any character evidence offered by a defendant to prove his innocence must be relevant to the offense for which the defendant is being tried. (See People v. Cordray (1962) 209 Cal.App.2d 425, 439, 26 Cal.Rptr. 42, where the appellate court upheld the trial court's exclusion of evidence that Cordray—who was charged with the possession of marijuana—had an exemplary scholastic record.) But had appellant been permitted to prove that he was not the type of person who was involved in narcotics trafficking and therefore to prove impliedly that he was a law abiding citizen, such evidence would have been relevant to prove that he was unlikely to violate the law (Health & Saf.Code, § 11352) which prohibits the sale of heroin.7

Respondent argues that any error by the trial court in precluding appellant from questioning Gutierrez regarding evidence “would have had very little persuasive force.” But “evidence of the character of the defendant … though weak .. may be enough to raise a reasonable doubt in the mind of the trier of fact concerning the defendant's guilt. And, since his life or liberty is at stake, the defendant should not be deprived of the right to introduce evidence even of such slight probative value.” (Cal.Law Revision Com. com. to Evidence Code section 1102, Deering's Ann.Evid.Code (1966 ed.) p. 9; 29B West's Ann.Evid.Code (1966 ed.) p. 13.) Respondent also argues that any such error should not be deemed prejudicial because the evidence against appellant was compelling in that “the entire narcotics transaction was witnessed by [[[[Deputy Saiz] who saw appellant accept payment and then deliver the heroin to Sandoval in the … presence of [Deputy Saiz].” We disagree. While the prosecution's case against appellant may have been strong, it was less than compelling. Gutierrez and Sandoval, who were at appellant's home at the time of the sale, each corroborated appellant's version of the events which then transpired. Given such evidence we conclude “that it is reasonably probable that a result more favorable to [appellant] would have been reached in the absence of the error.” (Compare People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, 254, and People v. Wagner (1975) 13 Cal.3d 612, 620, 119 Cal.Rptr. 457, 532 P.2d 105.)


The judgment of conviction is reversed.

I dissent. I am unwilling to say the court below abused the discretion granted to it by Evidence Code section 352 in excluding the proffered evidence. In any event I do not agree that the exclusion of this evidence resulted in a miscarriage of justice in the instant case. (People v. Watson (1956) 46 Cal.2d 818, 834-837, 299 P.2d 243.)


1.  We state the facts in the light most favorable to the People as the prevailing party below (People v. Caudillo (1978) 21 Cal.3d 562, 570-571, 146 Cal.Rptr. 859, 580 P.2d 274.)

2.  The prosecution called Sandoval to testify in rebuttal. Sandoval testified, on direct examination, that he met appellant once, sometime in October 1976, at appellant's house on McDonnell Street. During cross-examination Sandoval testified that appellant never gave him any narcotics and that Sandoval never gave appellant any money.

3.  In examining one witness, for example, Gin Shue's lawyer stated “[T]he defendant here is charged with having in his possession a preparation of opium․ Do you know what his general reputation is in this community for dealing—[By] [t]he Court: For the traits involved. [By Gin Shue's lawyer]: For the traits involved. You can derive what they are from the charge.” (Id. at p. 632, 137 P.2d at p. 746.)

4.  Although the phrase “involved in narcotics” might be subject to attack on the ground that it is ambiguous, the trial court recognized that the phrase, as used at trial, referred to narcotic “trafficking” rather than legal “involvement” in narcotics.

5.  Evidence Code section 1102 provides in pertinent part:“In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.”

6.  Subdivision (a) of Evidence Code section 1101, which is pertinent to this discussion, provides:“(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.”It is interesting to note that in drafting the Evidence Code, the Law Revision Commission's research consultant recommended that the Legislature adopt a provision like that found in Uniform Rule of Evidence 47 which authorizes a criminal defendant to introduce “evidence of a trait of an accused's character ․” (Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. VI, Extrinsic Policies Affecting Admissibility (Mar. 1964) 6 Cal.Law Revision Com.Rep. (1964) pp. 627, 651, 661.) But the Law Revision Commission subsequently recommended that the Legislature adopt a revised version of Uniform Rule 47 which authorized a criminal defendant to present “evidence of his character” as well as evidence of “a trait of his character” to prove his innocence. (Id. at pp. 614-616.) The latter recommendation is in accord with the text of, and the comment to, Evidence Code section 1102. (See Cal.Law Revision Com. com. to Evidence Code section 1102, Deering's Ann.Evid.Code (1966 ed.) pp. 8-10, 29B West's Ann.Evid.Code (1966 ed.) pp. 12-14.)

7.  According to Professor Wigmore, courts traditionally allowed a criminal defendant to ask character witnesses about the defendant's likelihood to commit the crime in question. Although the practice seemingly fell into disuse, Wigmore indicates that it regained acceptance by some American courts. (See 1 Wigmore, Evidence (3d ed. 1940) § 59, p. 462 and fns. 2, 3, 4, and 7 Wigmore, Evidence (Chadbourn rev. ed. 1978) § 1981, pp. 208-209.) To our knowledge, the California decisions which most closely approach acceptance of the just-mentioned practice are People v. Gin Shue, discussed above, and People v. Jones (1954) 42 Cal.2d 219, 266 P.2d 38. The Jones court held that it was error to exclude a psychiatrist's opinion that because Jones was not a sexual psychopath, he was unlikely to have violated Penal Code section 288. The Law Revision Commission cited Jones approvingly in recommending that the California Evidence Code should authorize criminal defendants to use evidence in the form of an opinion to prove their character. Furthermore, neither Evidence Code section 1102, which authorizes the admission of opinion evidence by a criminal defendant, nor the Law Revision Commission's comment thereto suggests that only an expert's opinion is admissible in this context. (Evid.Code, § 1102; Cal.Law Revision Com. com. to Evidence Code section 1102, Deering's Ann.Evid.Code (1966 ed.) pp. 8-10; 29B West's Ann.Evid.Code (1966 ed.) pp. 12-14.)

COBEY, Acting Presiding Justice.

POTTER, J., concurs. ALLPORT, Associate Justice, dissenting.

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Docket No: Cr. 32845.

Decided: February 28, 1979

Court: Court of Appeal, Second District, Division 3, California.

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