P. v. Barrera
Filed 12/13/12 P. v. Barrera CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
NELSON
BARRERA,
Defendant and Appellant.
A131818
(San
Francisco County
Super. Ct. No. 204141)
After
a jury trial, appellant was convicted of second
degree murder with personal use of a firearm, carrying a concealed firearm
with a prior misdemeanor firearms conviction, and carrying a loaded
firearm. (Pen. Code, §§ 187, subd.
(a); 12022.53, subd. (d); 12025, subd. (b)(1), and 12031, subd. (a)(1).)
life in state prison. He appeals, claiming that the trial court
erred in (1) instructing the jury with a modified version of CALCRIM No. 1403,
an instruction regarding the jury’s consideration of gang activity, and (2)
admitting into evidence the factual circumstances relating to appellant’s prior
misdemeanor conviction. We find no merit
in either contention, and hence affirm the conviction.
On
December 6, 2005, Robert Mariano, a 21-year-old resident of the
Mission District in San Francisco,
was shot dead by appellant after an argument between the two. The circumstances surrounding that shooting,
as developed in the trial of this case, will be discussed further below.
On
February 8, 2008, appellant
was charged with one count of second degree murder under section 187, subd.
(a), with personal use of a firearm (§ 12022.53, subd. (d)), and the other
two offenses noted above.
On
February 7, 2011, a jury
trial lasting about five weeks commenced.
Numerous witnesses testified for both the prosecution and the
defense. We will summarize the evidence
presented by both sides and the instructions given the jury insofar as they are
pertinent to the two legal issues before us.
Appellant
was born in El Salvador
in 1980 and moved to the United States,
specifically to
in 1998 at age 18. When he was in El
Salvador, he was a member of a group called
MS-13, and served as a “messenger†for it there. According to a San
Francisco police gang expert, in this country the
MS-13 group is a “subsection†of the Sureño gang, which congregates in San
Francisco in the vicinity of 20th
Street between Mission
and Valencia.
blue. The rival Norteños favor the color
red, do not welcome Sureños into their neighborhoods, and congregate around
24th Street between Mission and
Potrero in San Francisco. The Norteños refers to the Sureños as
“scraps,†and the two gangs are enemies.
Although
appellant lived in Oakland in 2005,
he often came to San Francisco both
to use a bank to send money to his sister in El
Salvador and also to meet his girlfriend,
Ester Portillo, who lived on Hampshire Street
in the Mission District of San Francisco, with her then nine-year-old son,
Javier.
Across
the street from Portillo and her son lived the Mariano family, which included
Robert Mariano, who was 21 in 2005, his girlfriend, mother, brother, sister,
brother-in-law, and several of their children.
Many people on that block, including Mariano, “claimed red,†meaning
that they either were members of or associated with the Norteño gang. One San Francisco Police Department gang
expert who testified for the defense opined that Mariano was an associate of
that gang.
Mariano
did not get along with appellant’s girlfriend, Portillo. They often had arguments because, among other
things, Mariano accused her of bringing men to the neighborhood who “claimed
blue,†i.e., that they were somehow associated with the Sureño gang. Mariano demanded that Portillo stop bringing
boyfriends into the neighborhood who might be allied with the Sureño
faction. Mariano also had arguments and
fistfights with several such men, including Francisco Ramos, the father of
Portillo’s son.
Sometime
in October 2005, a few months before the shooting death of Mariano, appellant
waived a blue rag out of Portillo’s apartment window. Mariano, who lived across the street, yelled
at him to “knock it off.â€
On
December 6, 2005, various
altercations began which ended with appellant shooting Mariano to death. First, Mariano and his girlfriend, Lena
Bergara, argued for several hours, after which Mariano “stormed out of the
house.†At around the same time,
Portillo and her son, Javier, were walking toward a store. Mariano followed them there, and argued with
Portillo. This argument continued when
Portillo exited the store and walked back to her apartment. Many neighbors in the area heard Mariano
yelling at Portillo near her apartment, although Portillo did not appear to be
afraid of him; in fact, Mariano was heard telling Portillo that he did not have
a problem with her and did not want to fight with her.
One
of the people in the neighborhood who heard the argument between Mariano and
Portillo was Mariano’s sister, Janet Mariano (hereafter Janet). She heard Mariano yelling at Portillo,
calling her names such as “hoe,†“bitch,†and “whore.†Mariano told Portillo to stop bringing “those
trouble-making scraps†(meaning, as noted above, Sureños) into the
neighborhood. Janet was embarrassed and
called up to Mariano’s girlfriend, Bergara, apparently hoping she could calm
Mariano down. Janet did not hear her
brother threaten Portillo or her nine-year-old son, Javier.
While
looking up at her building, Portillo made a call from her cell phone. At about that time, Janet, who was heading
down her front steps, saw appellant look out of the window of Portillo’s
apartment. A few minutes later,
appellant walked out of the building and addressed Mariano, saying: “What the
fuck is your problem?†Mariano promptly
took a “fighting stance,†albeit not lifting up his shirt, apparently not
armed, and not making any aggressive move toward Portillo or her minor
son. Rather, he raised his hands, moved
his fingers toward himself and said to appellant: “Let’s go nigga.†Appellant pulled out a gun he had put in his
waistband and shot Mariano four times.
Mariano fell to the ground and later died; no gun was found on him when
his body was examined about 10 minutes later by the police and paramedics.
Appellant
fled the scene and went to a nearby liquor store where he bought a red
cap. Over a month later, i.e., on January 25, 2006, appellant was
arrested when a car in which he was a passenger was pulled over by officers for
a traffic violation. The arresting
officers noted that the car he was travelling in had markings on the dashboard
that read both “MS†and “MS-13.†One of
the arresting officers also noted that appellant had the letter “M†tattooed on
his right shoulder and the letter “S†tattooed on his left shoulder. The same officer also found a piece of paper
containing “gang monikers†in appellant’s wallet.
Appellant
testified in his own defense. He
admitted shooting and killing Mariano on December 6, 2005, but asserted that he did not plan on
doing so. He testified that, when
Mariano said “Let’s go nigga,†he also reached into his waistband. Appellant thought Mariano had a gun there, so
he started shooting at him (he had already armed himself with the gun he had
bought earlier), and then ran from the scene.
He went into the store to buy the red hat, took a BART train to the
Fruitvale station in Oakland,
tossed the gun he had used into a gutter there, and decided to go to Los Angeles,
where his aunt lived and where he was later arrested.
Appellant
also testified that he was a member of and a “messenger†for the MS-13 gang
while he was a youth in El Salvador. However, after moving to Oakland,
he claimed that he did not engage in any gang activity. He explained that he got his tattoos in 2004
or 2005, i.e., about the time of the arguments with and shooting of Mariano,
because he had begun working for a paint company that had a number of other
Salvadoran workers, and he wanted to reassure them that he was not a “snitchâ€
for the police. He also admitted that he
owned an earring with the label “MS-13†on it, but claimed he never wore it.
He
went on to testify that he began dating Portillo in October 2004, and often
stayed overnight in her apartment in San Francisco;
soon thereafter, he realized that that neighborhood was predominately Norteño
in population. Portillo also told him about
the earlier problems she had had with Mariano regarding some of her prior
boyfriends, including his calling some of them “scraps.†Appellant testified that he had some concern
about this, because he did not want to have any problems when he visited with
Portillo in San Francisco.
Appellant
specifically denied ever waving a blue rag out of the window of his girlfriend
Portillo’s apartment.
According
to testimony from appellant, Portillo, and appellant’s mother, a few weeks
prior to the shooting, Mariano confronted appellant, Portillo, her
nine-year-old son, appellant’s mother, and Portillo’s nephew Edwin, at a bus
stop in the Mission District. Mariano,
who was in a vehicle with a Black male, pointed a gun at them and said
“Puronorte,†[sic] meaning “northside.â€
Appellant felt that Mariano was challenging him and, after that
incident, bought a gun to protect himself.
The factual
background regarding the two issues raised in this appeal, i.e., the giving of
a modified CALCRIM No. 1403 instruction and the admission of evidence regarding
appellant’s prior misdemeanor conviction will be discussed in the following
section of this opinion.
After being
instructed and hearing argument from counsel, on March 15, 2011, the jury found appellant guilty of second
degree murder, carrying a concealed weapon with a prior misdemeanor firearms
conviction, and carrying a loaded firearm.
The jury also found the personal use of a firearm allegation in the
information to be true.
On
April 6, 2011, the trial
court sentenced appellant to 40 years to life in state prison.
The
same day, appellant filed a notice of
appeal.
A.
Review.
As
noted above, appellant raises two issues in support of his claim that his
conviction was improper and should be reversed.
First, he contends that, for a variety of reasons, the trial court erred
in instructing the jury with a modified version of CALCRIM No. 1403. Secondly, he contends that the trial court
erred in allowing the prosecution to present evidence of appellant’s prior
misdemeanor conviction for carrying a loaded firearm.
With
regard to the alleged instructional error, clearly our standard of review is de
novo. (See People v. Burgener (1986) 41 Cal.3d 505, 538-540, disapproved on
other grounds in People v. Reyes
(1998) 19 Cal.4th 743, 754; People v.
Dieguez (2001) 89 Cal.App.4th 266, 274-280; see, generally, 5 Witkin, Cal.
Criminal Law (3d ed. 2000) §§ 663 & 664.) However, with regard to the admission of the
evidence relating to appellant’s prior conviction, our standard of review is
whether the trial court abused the discretion granted it by Evidence Code
section 352. (See, e.g.,
295-297 (Wheeler).)
B.
Properly Given.
The first reason—of several—why
appellant’s argument that the trial court erred in giving the modified version
of CALCRIM No. 1403 (hereafter No. 1403) fails is that such an objection was
clearly forfeited in the trial court.
The prosecution originally
requested that the court give No. 1403.
After the court and the prosecutor agreed on several initial changes in
that instruction, defense counsel spoke up and stated he was “going to object
to giving the instruction.†The trial
court promptly stated that “it is going to be given†and suggested that defense
counsel offer “any amendments that you would like to put in there to . . .
soften it of any of its effect.†Defense
counsel accepted that offer, and counsel and the court then discussed—and
agreed upon—several changes to it—indeed, one over the objection of the
prosecutor.
Defense
counsel then stated regarding No. 1403:
“I wanted to maybe give this some thought too in terms of adding
something regarding Mr. Mariano, since there was evidence induced [sic:
adduced] regarding his gang activity being an associate.â€
The
court then made this suggestion to defense counsel: “Why don’t you do this: Get on your computer,
then redo this. And put in a factor
regarding him that you think that you want.
And we’ll talk about it tomorrow.â€
Defense counsel responded: “Okay. Very good.†The parties then moved on to the next
proposed instruction, i.e., regarding carrying a concealed firearm.
The
following morning, the court inquired of the prosecutor whether he had gone
“through the instructions that we had discussed yesterday?†The prosecutor replied in the affirmative:
“Mr. Conroy [defense counsel] has given me his suggestion of how to modify the
gang instructions, and I’ll incorporate the changes. They’re
all fine.†(Emphasis added.)
Nothing
more was said on the subject of that instruction and the jury was thus
instructed with the agreed-upon modified version of No. 1403. Under these circumstances, any objection
defense counsel had to the giving of the modified version of No. 1403 was
forfeited.
Further,
under the circumstances of this case, some
version of No. 1403 had to be given.
In the multi-week trial of this case, over two dozen witnesses testified
for one side or the other. There were,
even moderately speaking, repeated references in their testimony to the two
gangs active in the community, i.e., the Norteño and Sureño gangs, their
colors, their views of one another, and the fact that appellant was clearly
associated with one such gang and the victim, Mariano, with the other. Under these circumstances, it was
appropriate if not necessary to instruct the jury with some version of No.
1403.
The
law is clear that a court may not give No. 1403 sua sponte but, if requested—as
it was here, by the prosecution—it must be given. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 (
Recently,
our colleagues in the Second District explained the pertinence of No. 1403
thusly: “California
courts have long recognized the potential prejudicial effect of gang
evidence. As a result, our Supreme Court
has condemned the introduction of such evidence ‘if only tangentially relevant,
given its highly inflammatory impact.’
[Citations.] Because gang
evidence creates a risk that the jury will infer that the defendant has a
of the charged offense, ‘trial courts should carefully scrutinize such evidence
before admitting it.’ [Citation.]
“Nonetheless,
evidence related to gang membership is not insulated from the general rule that
all relevant evidence is admissible if it is relevant to a material issue in
the case other than character, is not more prejudicial than probative, and is
not cumulative. [Citations.]
“Gang
evidence is relevant and admissible when the very reason for the underlying
crime, that is the motive, is gang related.
[Citation.] ‘ “[B]ecause a
motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.†[Citations.]’ [Citations.]
Gang evidence is also relevant on the issue of a witnesses
credibility. [Citations.]
“CALCRIM
No. 1403, as given here, is neither contrary to law nor misleading. It states in no uncertain terms that gang
evidence is not admissible to show that the defendant is a bad person or has a
on the issues germane to the gang enhancement, the motive for the crime and the
credibility of witnesses.†(
Cal.App.4th 1148, 1167-1168 (Samaniego);
cf. also People v. Garcia (2008) 168 Cal.App.4th 261, 275;
Cal.App.4th 400, 413.)
We
agree. For the reasons stated in
evidence of the different gang loyalties of appellant and his victim relevant
to the circumstances surrounding the death of the victim, it may well have been
error not to have instructed the jury with No. 1403, especially since the
content of the version given here had been agreed to by both parties.
Appellant
contends that it was error to give this instruction because the information did
not charge any offense under section 186.22, the section dealing with gang
participation or enhancement. This is
clearly incorrect; there is nothing in the language or the authority regarding
No. 1403 that suggests it may be given only in cases brought pursuant to that
section. Indeed, the holding of the
court in Samaniego makes this
point. Although one of several counts in
that case charged a violation of section 186.22, the Samaniego court made clear that this was not the only reason giving
No. 1403 was appropriate in that case.
It was also relevant and appropriate, that court held, regarding the
defendant’s “motive and credibility.†(
pp.1168-1169.) Just so here, because the
modified version of No. 1403 given here mentioned (in paragraphs 1 and 7)
Next,
appellant contends that the giving of No. 1403 was error because its “basic
premise†was “unsupported by sufficient evidence†and “[t]here was no
evidentiary foundation to support an instruction that gang evidence was
relevant to [the] credibility of Appellant’s belief that he needed to exercise
self-defense.†This argument also lacks
merit.
In
the first place, appellant’s arguments overlook that the essential purpose of
No. 1403, both in its original version and as revised per the agreement of the
parties and the court in this trial, is to make clear to the jury that the
admission of evidence related to gang membership and activities is not
intended, in and of itself, to be used adversely to the defendant. Put more succinctly, No. 1403 is, at its core,
an instruction designed to avoid undue prejudice to a defendant. Thus the key
phrase “limited purpose†in the introductory clause of both versions and the
key final paragraph in both versions: “You may not consider this evidence for
any other purpose. You may not conclude
from this evidence that the defendant or the victim is a person of bad
character or that either has a disposition to commit crime.â€
More
specifically regarding this contention, there certainly was “sufficient
evidence†before the jury regarding the gang loyalties of both appellant and
Mariano. Indeed, in the discussion
before the court regarding the rewording of No. 1403 to make it harmonious with
the evidence presented to the jury, it was defense
counsel who first suggested “adding something regarding Mr. Mariano, since
there was evidence induced [sic: adduced] regarding his gang activity being an
associate.†And exactly that was done
without, apparently, any objection by the prosecutor: the version of No. 1403
given to the jury included the phrase: “The victim acted in conformity with his
reputation as an associate of Norteño gangs.â€
This
addition, and indeed the entire text of the modified version of No. 1403 read
to the jury, was entirely consistent with, and indeed required by, the evidence
adduced at trial. Although we have not
undertaken a headcount, clearly a majority of the dozens of witnesses who
testified, including the relatives and friends of Mariano and appellant, were
repeatedly asked questions about the affiliations of those two young men with,
respectively, the Norteños and Sureños, how long they had lasted, where they
had started, what specific things each had said about his affiliation, the
marks or jewelry (e.g., “MS-13,†which relates to a subsection of the Sureño
gang) appellant had, etc., etc. And
substantive objection from trial defense counsel that gang evidence relating to
either appellant or Mariano was irrelevant or otherwise inappropriate.
In
short, the argument of appellant that “there was insufficient evidentiary
foundation to support several of the inferences [instruction No.1403]
authorized†is completely without merit.
So,
too, is appellant’s argument that No. 1403 was somehow inappropriate in this
case because it referenced witnesses’ “credibility,†necessarily including that
of appellant. In this connection,
appellant argues that (1) “there was no foundation to support the inference
that gang evidence was relevant to Appellant’s credibility when he said he
believed that he needed to exercise self-defense†and (2) “there was no
evidence that gang activity affected the credibility of the key witnesses, such
as Appellant.†But his counsel concedes:
“Appellant’s credibility was crucial here,†but then goes on to argue that the
jury’s determination of such “was thrown out of balance, when the jury was
incorrectly told that it could use gang evidence to determine Appellant’s
credibility.â€
But
what the jury was told via the penultimate paragraph of No. 1403 was that it
“may†consider “this evidence when you evaluate the credibility or
believability of a witness . . .,†phraseology consistent with
the standard version of No. 1403. In
view of the constant and repeated gang-related antagonism between appellant and
Mariano (including, e.g., appellant’s alleged waving of the blue rag out of the
window of an apartment opposite that of Mariano), clearly gang evidence
regarding his shooting of Mariano. As
our Supreme Court held in People v.
Carter (2003) 30 Cal.4th 1166, 1194: “Although evidence of a defendant’s
gang membership creates a risk the jury will improperly infer the defendant has
a criminal disposition and is therefore guilty of the offense charged—and thus
should be carefully scrutinized by trial courts—such evidence is admissible
when relevant to prove identity or motive, if its probative value is not
substantially outweighed by its prejudicial effect.†(See also People
v. Williams (1997) 16 Cal.4th 153, 193.)
Appellant
next argues that giving No. 1403 violated “due process.†First of all, this argument is clearly
forfeited because it was never made in the trial court. (See, e.g., People v. Thomas (2012) 53 Cal.4th 771, 816.) Second, and especially in view of the huge
amount of evidence adduced from many witnesses at the trial, the trial court
almost certainly had to give No. 1403 to, among other reasons, define for the
jury the very limited purposes for which they could—and the many reasons
regarding which they should not—consider
that evidence. There was clearly no
No. 1403.
Next,
appellant argues that the inclusion in the modified version of No. 1403 of the
phrase authorizing the jury to consider whether the gang evidence was relevant
to considering whether appellant “acted in the heat of passion†was error. Appellant argues that the inclusion of this
phrase “could have caused the jury to discount heat of passion because it believed
that Appellant, because he was a gang member, had a quicker trigger finger,â€
and also because the inclusion of that phrase in the version of No. 1403 given
(and also in the original version) (see CALCRIM No. 1403) is somehow
inconsistent with CALCRIM No. 570, an instruction which defines voluntary
manslaughter as a killing “because of [a] sudden quarrel or in the heat of
passion.â€
First
of all, once again appellant’s trial counsel never objected to that part of No.
1403 and, secondly, we see absolutely no inconsistency between No. 1403 and
CALCRIM No. 570. The latter states,
consistently with the applicable Penal Code statute, that voluntary
manslaughter is a killing committed in “heat of passion.†(§ 192, subd. (a).) No. 1403 is not in the slightest contrary to
this, as it simply permits a jury (i.e., “you may consider evidence of gang activityâ€) to decide whether “[t]he
defendant acted in the heat of passion.â€
(Italics added.)
Finally
regarding No. 1403, and in addition to the various responses to appellant’s
arguments on this issue, we agree with respondent Attorney General that there
was no prejudice to appellant in the giving of that instruction. In the first place, and as noted above, No.
1403 is essentially an instruction designed to guard against a jury’s
inappropriate consideration of gang-related
evidence that has been admitted, i.e., to tell them the
“may consider evidence of gang activity.â€
(No. 1403.) Secondly, the
evidence that appellant shot Mariano multiple times with a gun he had
apparently just placed in his waistband before coming out onto the street was
overwhelming. Many witnesses who
testified saw the shooting,
name="_ftnref7" title="">[7]
and it was also clear that Mariano was not armed. Under People
v. Watson (1956) 46 Cal.2d 818, 856, even if there was some instructional
error regarding the giving of No. 1403, in view of the overwhelming evidence of
appellant’s guilt—and his immediate flight, disposal of his gun, and exit to
Los Angeles—any such error was clearly harmless.
C. It
was not Error to Admit into Evidence the Circumstances Regarding
Prior Misdemeanor Conviction.
noted above, the only other issue appellant raises is that the trial court
erred in admitting “the factual circumstances†of his prior conviction.
During the course of the
presentation of appellant’s case, his counsel moved to exclude from evidence
his 2004 conviction under section 12025 for carrying a concealed firearm in a
car, arguing that such was not a crime involving moral turpitude. The matter was argued to the trial court and
it indicated, based on the holding of People
v. Robinson (2005) 37 Cal.4th 592 (Robinson)
that it was inclined to admit the evidence of that conviction. It stated:
“In an abundance of caution, I’m going to wait until the end of the
examination. Neither side should mention
the fact of the conviction. [¶] I’m
inclined, if it comes in, I would just let the fact of the conviction—it’s a
12025 conviction . . . . [¶] That doesn’t mean you can’t
go into the facts, Mr. Conroy [defense counsel], but I would at least limit it
to them. [¶] But whether it comes
in at all depends on what I hear in examination and cross-examination, just in
an abundance of caution; so there we are.â€
During the course
of his direct examination by his counsel, appellant testified that he did not
call the police after Mariano waved a gun at him at the bus stop because he had
“had a conviction of firearms before.â€
On cross-examination, the prosecutor explored the circumstances
surrounding that conviction; that examination was as follows:
“[The
Prosecutor]: Now you mentioned something
on the stand about having a prior weapon possession case. In fact, you were arrested and convicted of
having a weapon concealed in a vehicle, a gun in San Pablo
about a year earlier. Isn’t that right?
“A. Yes, sir.
That’s right.
“Q. And on that occasion, when you were arrested
in San Pablo, you were in a car
with two other men. Do you remember
that?
“A. Yes, sir.
“Q. And the two other men were young Latin
men. Is that true?
“A. Yes, sir.
“Q. And one of them had MS on his torso. Do you remember that?
“A. Yes, sir.
“Q. And you guys were dressed in blue. Isn’t that right?
“A. Yes, sir.
“Q. And you had a blue bandana with you; isn’t
that right?
“A. Yes, sir.
“Q. And you guys had—because I guess your tattoos
weren’t sufficiently visible, you wrote on your hands the number 13 and MS on
your hands?
“Mr.
Conroy [defense counsel]:
Objection. That assumes a fact
not in evidence that he was tattooed.
“The
Court: You can rephrase the question.
“Mr.
Clark [prosecutor]. Sure
“Q. At that time you guys wrote MS and 13 on your
hands; didn’t you?
“A. I don’t remember that I had that on my hands
but I believe that the report of the deputy say[s] that I had something. Probably, the other people, two occupants in
the car, they might have tattoos on their hands.â€
We disagree that
allowing this brief cross-examination of appellant was improper. As the trial
court noted, in Robinson our Supreme
Court—although affirming the trial court’s discretionary exclusion of the
evidence offered in that case—specifically held that a misdemeanor conviction
for possessing a concealed handgun is “a crime of moral turpitude and
therefore . . . relevant to the witnesses’ honesty and
veracity.†(Robinson, supra, 37 Cal.4th at p. 626.) As that court ruled very specifically in
prosecution for impeachment purposes (as it was not here—appellant conceded the
conviction himself on direct examination), that rule does not apply to evidence
of “impeaching misdemeanor misconduct.â€
(Wheeler, supra, 4 Cal.4th at
p. 300, fn. 14.) Indeed, appellant
concedes that this is the rule by stating, in his opening brief: “Accordingly,
under Wheeler, the proponent is not
allowed to introduce the actual misdemeanor conviction, but he is allowed to
introduce evidence of the facts underlying that misdemeanor to make up for the
fact that he is not allowed to introduce the actual conviction.â€
Appellant
then cites, in support of this principle, People
v. Cadogan (2009) 173 Cal.App.4th 1502, 1507 (Cadogan), where the court held:
“[T]he court properly allowed the impeachment of defendant based on
conduct involving moral turpitude.
Although defendant was improperly asked about his misdemeanor
convictions, defendant did not raise a timely hearsay objection to the
prosecutor’s questions and is therefore foreclosed from seeking relief on
appeal.†(See also id. at pp. 1514-1515.) In
373 (Chatman), our Supreme Court
summarized this rule—one very applicable here—in one succinct sentence: “Misdemeanor convictions themselves are not
admissible for impeachment, although evidence of the underlying
court’s exercise of discretion.
[Citation.]â€
This
statement in Chatman negates
appellant’s argument that “[o]nce Appellant admitted the misdemeanor
conviction,†pursuant to Evidence Code section 1101, subdivisions (a) and (b),
“the prosecution should not have been allowed to delve into the circumstances
surrounding it.†This contention is
explicitly refuted by the holdings of Wheeler,
Chatman, and Cadogan.
Appellant
argues that there was an abuse of discretion here even under the broad standard
of Evidence Code section 352 (section 352).
He argues that the trial court erred in allowing the prosecution “to
delve into the circumstances surrounding†appellant’s prior conviction once he
had admitted his conviction, because those facts were “less probative than
prejudicial, once Appellant admitted the crime.†We disagree. A trial court has “broad
discretion†under section 352. (See,
e.g., Chatman, supra, 38 Cal.4th at
p. 374; see also People v. Clark (2011)
52 Cal.4th 856, 932 [“Because the court’s discretion to admit or exclude
necessary to deal with the great variety of factual situations in which the
issue arises’ [citation], a reviewing court ordinarily will uphold the trial
court’s exercise of discretion.
[Citations.]â€].)
In
the exercise of that discretion, trial 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,
supra, 4 Cal.4th at pp. 296-297.)
Clearly, here, the brief questioning of appellant regarding the
circumstances of his prior misdemeanor arrest (less than two pages out of 55
pages of cross-examination in the reporter’s transcript) strongly suggests
there was no “undue time, confusion, or prejudice†involved in the brief
cross-examination of appellant regarding the factual circumstances of his prior
(and recent, i.e., a year before) misdemeanor conviction.
Appellant
then argues, albeit very briefly, that he received ineffective assistance of
counsel because, although that counsel moved in limine to exclude any evidence relating to appellant’s prior conviction
and renewed that motion before appellant testified, he did not object to the
limited and specific questions posed to respondent on cross-examination (quoted
above) regarding such. This argument
fails because of (1) the law just cited
and (2) the fact that timely and appropriate objections were made by trial
counsel before appellant’s brief testimony on
surrounding his 2004 conviction.
Finally,
appellant argues that the evidence regarding his prior conviction was
prejudicial. We do not need to reach
this issue because, as already noted, there was no error in admitting the
limited testimony regarding those circumstances. In any event, and assuming error in the
admission of this evidence, any such error was harmless for precisely the same
reasons noted above regarding instruction No. 1403. (See ante,
p. 13.)
The judgment is
affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
All subsequent statutory references are to the Penal Code.
Put another way, in view of the two specific claims of error presented by
appellant in his briefs to us, we will not summarize the entire evidence
presented in the lengthy trial of this case, but only that evidence, and the
trial court’s rulings regarding it, which are relevant to those two issues.
