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Filed 10/29/20 P. v. Smith CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RAYVAUGHN LEWIS 

SMITH,

 Defendant and Appellant.

 A156741

 (San Francisco County

 Super. Ct. No. 

 SCN229129)

Appellant Rayvaughn Lewis Smith (Appellant) appeals from the 

judgment entered following his conviction of assault with intent to commit a 

felony and other offenses. He contends the trial court erred in excluding 

evidence proffered to impeach the victim’s credibility. The court did not 

abuse its discretion.

PROCEDURAL BACKGROUND

In May 2018, the San Francisco County District Attorney charged 

Appellant by information with assault with intent to commit a felony against 

a person under the age of 18 (Pen. Code, § 220, subd. (a)(2); count one);1 child 

endangerment (§ 273a, subd. (a); count two); false imprisonment (§ 236; count 

1 All undesignated statutory references are to the Penal Code.
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three); and giving false information to a police officer (§ 148.9, subd. (a); 

count four).

A jury found Appellant guilty as charged. In March 2019, the trial 

court sentenced Appellant to a prison term of five years on count one, stayed 

the sentences on counts two and three pursuant to section 654, and imposed 

a jail term on count four with credit for time served equal to the length of the 

term.

FACTUAL BACKGROUND

According to the testimony at trial,2 the charges arose out of an April 

22, 2018 incident at a San Francisco parking structure. The victim, 16-yearold S.G., testified she and two female friends met up with Appellant at the 

parking structure. They drank and smoked marijuana until the victim’s 

friends left. She stayed behind to finish the marijuana cigarette she was 

smoking. Afterwards, as S.G. and Appellant walked toward the exit, he 

pulled her into a corner. He started pulling down her pants and exposed his 

penis. S.G. said, “We not fittin to do all that” and pulled up her pants; 

Appellant punched her in the face. She continued to try to pull her pants up, 

and he punched her several more times. They continued to struggle, while 

Appellant insisted they have sex and tried to remove her pants.

A building concierge monitoring a surveillance camera testified she saw 

a couple struggling in the garage. She approached the area and heard a 

female voice saying “stop,” and then called the police. A police officer 

testified he heard a man and woman screaming or arguing when he arrived 

on the scene. Appellant falsely identified himself and said S.G. was drunk 

and he was trying to take her home. S.G., whose face was red and swollen on 

2 We summarize only some of the evidence admitted at trial, which is 

sufficient for resolution of the issues on appeal.
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the left side, said Appellant had tried to rape her. During a custodial 

interrogation, Appellant initially denied any misconduct, but he admitted 

striking S.G. when the interrogating officer told him the parking structure 

had a surveillance camera.

Appellant testified S.G. called him on April 22, 2018, and asked him if 

he would sell her some marijuana. They flirted and talked about having sex. 

Appellant met up with S.G. and her friends and they walked into a parking 

structure to hang out. The group drank alcohol and the girls smoked 

marijuana. After 30 minutes to an hour, S.G.’s friends left. One said, “I’m 

going to leave you guys to do what you do,” which Appellant understood to be 

a reference to sex. After S.G.’s friends left, he asked her, “Are you ready to do 

that?” and she responded, “Yes.” They consensually kissed and touched each 

other sexually, but then S.G. said she was late getting home and did not want 

to have sex that night. Appellant admitted that, after further argument, he 

punched S.G. twice. He testified he hit S.G. because he was upset she had, as 

he described it, led him on. He never tried to have sex with her after he hit 

her.

DISCUSSION

Appellant’s sole claim on appeal is that the trial court abused its 

discretion by denying admission of proposed impeachment evidence—to wit, 

an incident during which S.G. allegedly tasered a fellow student 

approximately one month after the events underlying the charged offenses. 

The trial court did not abuse its discretion.

I. Background

Before trial, Appellant sought to admit evidence of, as described by the 

trial court, a “juvenile [delinquency] matter [in which] the complaining 

witness is alleged to have brought a TASER to school and Tased a classmate.” 
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The court expressed its understanding that the alleged basis for admissibility 

was to impeach S.G.’s credibility. The court stated, “this is a case where the 

primary charge is that the defendant assaulted the complaining witness. So 

what we’re talking about, or what seems to be most at issue, is the credibility 

of the parties. It’s going to be, it looks like, one person’s word against 

another.” Defense counsel confirmed that was one of the asserted bases for 

admissibility, but she argued the evidence was also admissible as character 

evidence of S.G.’s propensity for violence under Evidence Code section 1103. 

The argument was based on Appellant’s assertion that S.G. pushed him 

during the incident. Defense counsel argued the evidence of the tasering

would tend to prove S.G. was lying if she denied shoving Appellant. Defense 

counsel said they would need to call the victim of the tasering as a witness if 

S.G. denied the tasering.

The prosecutor argued the tasering evidence was a “fairly weak” attack 

on S.G.’s credibility, jurors would be confused about the relevance of the 

evidence, and, because the incident had not been adjudicated, admission of 

the evidence would require “a trial within a trial.” Regarding the 

impeachment value of the evidence, the prosecutor argued the tasering 

incident was weak evidence of “moral turpitude” because S.G. acted out of 

anger after the victim “laughed at a racist joke that was made by one of his 

friends.” The prosecutor continued, “the reason why assaults are considered 

moral turpitude is because it’s a readiness to do evil [and] a disregard for 

other people. Here, she was prompted, emotionally, to act. It was 

unreasonable and illegal for her to do so, but it wasn’t a random act of 

violence . . . .” Previously, the prosecutor had told the trial court that if the 

defense were permitted to present evidence of the tasering incident, the 

prosecution would ask its expert witness a series of questions to explain 
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S.G.’s behavior. The prosecutor argued, “it is quite common for those who 

have experienced this type of trauma who are still in a traumatic state to 

overreact to stressors and act in a way that they normally would not, but for 

the fact that they are still emotionally dealing with what happened to them 

initially.” The prosecutor asserted that “probably a day” of the trial would be 

consumed addressing the tasering incident, while defense counsel argued the 

evidence would not consume much time.

The trial court excluded evidence of the tasering incident, stating, “I 

have very carefully weighed the probative value versus the prejudicial value 

of this evidence, and my ruling is that under Evidence Code Section 352, I’m 

going to exercise my discretion and exclude any evidence that the 

complaining witness Tased a fellow student at school.” The court also made 

additional comments explaining why the defense counsel’s character evidence 

theory failed, given that “this is not a self defense case.”

II. Analysis

At the outset, Appellant argues, “the trial court only considered the 

evidence for its use as propensity evidence. The court never conducted the 

separate and independent analysis of whether the evidence was admissible to 

impeach the complaining witness.” Appellant concedes the propensity theory 

of admissibility was weak and does not assert error as to that theory on 

appeal. But Appellant argues the trial court erred in failing to consider the 

impeachment basis for admissibility. We disagree the record shows the court 

failed to consider that basis. The trial court articulated defense counsel’s 

impeachment theory at the outset of the discussion, both counsel argued both 

theories of admissibility, and the court’s Evidence Code section 352 reasoning 

applies on its face to both theories of admissibility. We will not presume that 

in making its ruling the trial court was only considering the evidence’s 
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probative value as character evidence under Evidence Code section 1103. 

(People v. Giordano (2007) 42 Cal.4th 644, 666 [“On appeal, we presume that 

a judgment or order of the trial court is correct, ‘ “[a]ll intendments and 

presumptions are indulged to support it on matters as to which the record is 

silent, and error must be affirmatively shown.” ’ ”]; People v. Stowell (2003) 31 

Cal.4th 1107, 1114 [“we apply the general rule ‘that a trial court is presumed 

to have been aware of and followed the applicable law.’ ”].)

Appellant also argues it was an abuse of discretion to exclude evidence 

of the tasering incident under Evidence Code section 352. Under that 

section, the trial court “in its discretion may exclude evidence if 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.) 

Appellant argues the tasering incident was probative on the issue of S.G.’s 

credibility as evidence of past misconduct. Under Evidence Code section 210, 

“relevant evidence” includes “evidence relevant to the credibility of a 

witness.” It is also well established that “ ‘a witness’ moral depravity of any 

kind has “some tendency in reason” [citation] to shake one’s confidence in his 

honesty. . . . [¶] There is . . . some basis . . . for inferring that a person who 

has committed a crime which involves moral turpitude [even if dishonesty is 

not a necessary element] . . . is more likely to be dishonest than a witness 

about whom no such thing is known.’ ” (People v. Wheeler (1992) 4 Cal.4th 

284, 295 (Wheeler).)

The prior misconduct in the present case resulted in a misdemeanor 

juvenile proceeding, but the inference that “[m]isconduct involving moral 

turpitude may suggest a willingness to lie . . . is not limited to conduct which 

resulted in a felony conviction.” (Wheeler, supra, 4 Cal.4th at pp. 295–296; 
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see also People v. Hall (2018) 23 Cal.App.5th 576, 589 [“Misdemeanor 

misconduct involving moral turpitude may suggest a willingness to lie, which 

is relevant to the credibility of a witness or hearsay declarant.”].) 

Nevertheless, “a misdemeanor—or any other conduct not amounting to a 

felony—is a less forceful indicator of immoral character or dishonesty than is 

a felony. Moreover, impeachment evidence other than felony convictions 

entails problems of proof, unfair surprise, and moral turpitude evaluation 

which felony convictions do not present. Hence, courts may and should 

consider with particular care whether the admission of such evidence might 

involve undue time, confusion, or prejudice which outweighs its probative 

value.” (Wheeler, at pp. 296–297; accord People v. Contreras (2013) 58 

Cal.4th 123, 157, fn. 24; Hall, at p. 589.)

At the outset, we observe that evidence of the tasering incident was 

only minimally probative regarding S.G.’s credibility. Although it does not 

appear the trial court concluded the incident involved no moral turpitude,3

Appellant does not argue S.G.’s conduct involved any actual dishonesty. 

Instead, any relevance was based on the incident’s tendency to show a

“ ‘general readiness to do evil.’ ” (People v. Castro (1985) 38 Cal.3d 301, 315.) 

Prior misconduct that is “ ‘assaultive in nature’ ” does “ ‘not weigh as heavily 

in the balance favoring admissibility’ ” as misconduct involving “ ‘dishonesty 

or some other lack of integrity.’ ” (Ibid.) Although the tasering incident 

appears to reflect some readiness to use violence, respondent observes S.G. 

3 The determination whether conduct involves moral turpitude is a legal 

question. (People v. Gray (2007) 158 Cal.App.4th 635, 640.) The trial court’s 

exclusion of the evidence under Evidence Code section 352 suggests the court 

either determined or assumed for purposes of its analysis that the conduct 

involved moral turpitude and, therefore, had at least some minimal 

relevance.
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was provoked because the victim laughed at a racist joke, and the prosecutor

told the trial court its expert was prepared to testify the assault on April 22, 

2018 increased the likelihood that S.G. would act out in violent ways.4 The 

trial court could reasonably have concluded the already extremely weak 

impeachment value of the tasering incident was furthered diminished by 

those circumstances.

As respondent argues, admission of evidence of the tasering incident 

also risked undue prejudice. First, the connection between the incident and 

S.G.’s credibility was so tenuous that the trial court reasonably could have 

been concerned that the jury would be confused about the reason for 

admission of the evidence of the incident. Second, given the lack of a clear 

connection to S.G.’s credibility, there was a risk the main effect of the 

evidence would be to make the jury hostile to S.G. Finally, the trial court 

could reasonably have found admission of evidence of the tasering incident 

risked undue consumption of time. Although Appellant argued below and on 

appeal that presentation of evidence regarding the incident would not require 

substantial time, the prosecutor told the trial court it would present rebuttal 

witnesses and also ask its expert witness about the incident. The trial court 

reasonably could have concluded admission of the evidence would result in a 

not insignificant distraction for evidence of almost no legitimate probative 

value.

4 Appellant argues the tasering incident was particularly probative of S.G.’s 

credibility because it occurred only a month after the underlying events. But 

the expected expert testimony actually made the proximity to the assault a 

factor that reasonably could be viewed as diminishing the probative value of 

the tasering.
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The trial court did not abuse its discretion in excluding evidence of the 

tasering incident under Evidence Code section 352.5

DISPOSITION

The judgment is affirmed.

5 Appellant also contends exclusion of evidence of the tasering incident 

violated his federal constitutional right of confrontation. However, “[t]he 

federal Constitution’s confrontation right is not absolute; it leaves room for 

trial courts to impose reasonable limits on a defense counsel’s crossexamination of a witness.” (People v. Sapp (2003) 31 Cal.4th 240, 290.) 

Prohibiting cross-examination on this one point of marginal relevance did not 

violate Appellant’s right of confrontation.
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SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BURNS, J.

(A156741)