P. v. Chavez
Filed 8/8/12 P. v. Chavez CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVE CHAVEZ,
Defendant and Appellant.
B232273
(Los Angeles
County
Super. Ct.
No. BA372061)
APPEAL from
a judgment of the Superior Court
of
County.
Barbara R. Johnson, Judge.
Affirmed with directions.
Jonathan B.
Steiner and Ann Krausz, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Steve
Chavez appeals from
the judgment entered upon his convictions by jury of two counts of
Code, § 69).
title="">[1] After granting appellant’s
prior felony strike, the trial court sentenced him to 16 months in
abused its discretion when it allowed defense witnesses to be impeached with
prior convictions of child-sex offenses, (2) the trial court improperly denied
his motion to reduce the charged offenses to misdemeanors, and (3) the abstract
of judgment must be corrected to reflect the trial court’s oral pronouncement
of judgment.
We affirm with directions.
FACTUAL
BACKGROUND
The
prosecution’s evidence
On April 22, 2010, Los Angeles Deputy
Sheriffs Eduardo Rodriguez and Juan Macias were working in the Los Angeles
County Jail, escorting inmates, including appellant, to their cells when the
inmates returned from court. They first
brought the inmates to the laundry room and then took them individually to
their cells. Deputy Rodriguez told
appellant to remain behind for questioning, as the deputy had noticed graffiti
in appellant’s cell. For security, the
deputies had him remove his clothing during questioning. He was cooperative at that time.
When questioning was completed,
Deputy Macias took appellant, un-handcuffed, back to his cell. On the way, appellant mumbled, “fucking
deputies.” The deputy asked him what he
said. Appellant turned and took a
fighting stance, holding his hands up and making fists. Deputy Macias pushed appellant away to throw
him off balance. Appellant then lunged
at the deputy, put him in a bear hug, tried to reach for the deputy’s
flashlight and began swinging his fists.
Deputy Rodriguez heard the commotion
and rushed to help Deputy Macias. They
got appellant to the ground where he continued to kick and punch at the
deputies, hitting Deputy Macias in his mouth.
Deputy Macias hit appellant in the face four or five times, causing the
deputy’s hand to swell. Appellant
continued fighting, despite the deputies telling him to stop. Deputy Rodriguez hit him in the ribs and
face. Finally, with the assistance of
several other deputies, appellant was subdued and handcuffed.
Appellant was then taken to the jail medical
clinic. From there, he was transferred
to the hospital, suffering from a two inch laceration to his head, a lost
tooth, swelling and redness to his legs near his knees, a collapsed lung, and
fractures of his nose and two ribs.
heard Deputy Rodriguez on the phone asking for appellant’s whereabouts. He then saw Deputy Rodriguez turn to Deputy
Macias and say that appellant was in court, but they would get him later and
“give him some flashlight therapy. . . .” Later that day, Ponce saw appellant naked in
the laundry room talking to the deputies.
When Ponce was back in his cell, he heard someone yelling, “stop,”
“that’s it,” “help,” and “ow.”
Inmate Luis Pena (Pena) was also not friends with
appellant, but was housed near appellant’s cell. At the time of the charged incident, he heard
a noise and from his cell saw appellant helplessly curled up on the ground
trying to cover his face, as he was being punched by five to six deputies. Pena did not see appellant punch or kick the
deputies. A deputy saw Pena looking out
of his cell and told him to get back to his bunk and face the wall. Pena did not see who started the fight and
did not report the incident.
defense witnesses with prior child-sex convictions
The
first prosecution witness at trial was Deputy Macias. When asked about his job assignment, he
testified that he was assigned to the module at county jail housing “sexual
predators,” to which testimony defense counsel objected. The trial court sustained the objection and
struck the testimony.
At
sidebar, the trial court told Deputy Macias not to mention anything about
sexual predators. The prosecutor
informed the trial court that he wanted to utilize prior convictions of defense
witnesses, Ponce and Pena, for impeachment.
On October 20, 2010, Pena had suffered a prior conviction of continuous
sexual abuse of a child (§ 288.5).
In 2008, Ponce had suffered a prior conviction of lewd acts on a child
(§ 288, subd. (a).). In an action
in 2010, he was convicted of both cruelty to a child (§ 273a) and
resisting arrest, and, in another action, of lewd acts on a child under 14
years of age (§ 288, subd. (a)).
Defense
counsel asked that the offenses be sanitized because of the prejudicial impact
of child-sex offenses. He argued that
appellant was acquitted of the offense for which he was incarcerated at the
time of the charged offenses and had never been convicted of any sexual
offense, but if the jury learned that two of his witnesses had such priors, it
might infer that appellant did also.
The
trial court denied the defense’s request, stating: “Well, I think that because [the] officer,
even though it was sustained, made that reference, that we can tell the jury
that this defendant has not been convicted of any sex crime; but I think that
it is relevant to these witnesses’ credibility as to whether or not, what type
of crime that they’ve been convicted of, especially when there’s resisting
arrest and especially when there’s a—when there’s three such crimes there. It goes to their credibility.” The trial court said that for impeachment
purposes the prosecutor could identify by name of the offense either Ponce’s
cruelty to child and resisting arrest convictions or the lewd act
conviction. The prosecutor opted to use
the lewd act conviction and refer to the other convictions simply as felonies.
At
the close of the People’s case-in-chief, defense counsel renewed his request to
sanitize the defense witnesses’ convictions of child-sex offenses because they
were “incredibly prejudicial,” particularly in light of the stricken testimony,
heard by the jury, that appellant was housed in the module housing sexual
predators. The trial court adhered to
its previous ruling but said that it was willing to instruct the jury that
appellant was not convicted of any sex offense.
Appellant
contends that the trial court abused its discretion in allowing defense
witnesses to be impeached with their prior child-sex offenses. He argues that under Evidence Code section
352, the evidence was unduly prejudicial and not as relevant as moral turpitude
offenses such as theft, which have as an element of the offense
dishonesty. Even if the trial court
abused its discretion in admitting evidence of the defense witnesses prior
child-sex offenses, there was no undue prejudice to appellant.
We review the trial court’s ruling on the admissibility of
evidence for impeachment purposes under the abuse of discretion standard. (People v. Kwolek (1995) 40
Cal.App.4th 1521, 1532 [review of Evid. Code, § 352 ruling];
1113 [relevance of evidence], disapproved on other grounds in
151.) Abuse occurs when the trial court
“exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d
68, 72.) “‘The weighing process under
section 352 depends upon the trial court’s consideration of the unique facts
and issues of each case, rather than upon mechanically automatic rules. . . . [Citation.]’”
(People v. Greenberger (1997) 58 Cal.App.4th 298, 352.)
Impeachment with prior convictions of crimes of moral turpitude
A witness
in a criminal trial may be impeached
with a prior felony conviction if the least adjudicated elements of that felony
necessarily involve moral turpitude. (
317 (Castro); People v. Bautista (1990) 217 Cal.App.3d 1, 5 [crime of moral
turpitude is crime that reveals a person’s dishonesty, general readiness to do
evil, bad character, or moral depravity].)
Moral turpitude involves a “‘general readiness to do evil’” (italics
omitted) which will support an inference of a witness’s readiness to lie. (Castro,
supra, at p. 314.) “Whether a
conviction involves such turpitude is a question of law; its answer depends on
the elements of each crime in the abstract, rather than the underlying facts of
the earlier prosecutions.” (
390.) A child molestation offense is a
crime of moral turpitude (People v.
Massey (1987) 192 Cal.App.3d 819, 823 [“It is well established that child
molesting in California law is a crime of moral turpitude for
impeachment . . .”]), thus making it admissible for impeachment
purposes.
While Ponce and Pena’s prior
convictions of child-sex offenses were admissible to impeach them, the trial
court still retained discretion under Evidence Code section 352 to exclude them
if it determined that the “probative value [of such evidence] [was]
substantially outweighed by the probability that its admission [would] (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; Castro,
supra, 38 Cal.3d at p. 307.)
Regardless of whether appellant’s
witnesses prior convictions should have been admitted, it is highly unlikely
the verdict would have been different had the court excluded that evidence or
sanitized it before admitting it.
1. Relevance of prior child-sex crimes
Relevant evidence is evidence having “any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid.
Code, § 210.) As previously stated, all
convictions of crimes of moral turpitude have some relevance. However, there are two types of moral
turpitude crimes, one being more relevant to credibility than the other. (Castro,
supra, 38 Cal.3d at p. 315.) One
type includes crimes in which dishonesty is an element, such as theft or perjury. (Ibid.) It directly undermines credibility as
commission of the crime has shown that the witness lies. The second type of moral turpitude crime is a
crime that does not specifically involve dishonesty, but instead indicates a
general readiness to do evil, from which a readiness to lie can be
inferred. (Ibid.) This type of crime
does not directly undermine credibility.
It therefore does not possess the same probative value on a witnesses’
credibility. (See Ibid.)
Among the factors the court may
consider in deciding the relevance for impeachment of a prior conviction is
“(1) whether the prior conviction reflects adversely on an individual’s honesty
or veracity; (2) the nearness or remoteness in time of a prior conviction; (3)
whether the prior conviction is for the same or substantially similar conduct
to the charged offense; and (4) what the effect will be if the defendant does
not testify out of fear of being prejudiced because of the impeachment by prior
convictions.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Where the witness to be impeached is not the
defendant, the primary factors the court should consider are numbers 1 and 2
above. (People v. Clair (1992) 2 Cal.4th 629, 654.)
Applying the Mendoza factors to nondefendants Ponce and Pena, we find their
child-sex convictions relevant. All of
their offenses occurred within a year or two before the charged offenses;
Pena’s occurring in late 2010 and Ponce’s in 2008 and 2010. Though those offenses do not have dishonesty
as an element, they are still probative of credibility because they reflect a
general readiness to do evil, and hence an inference of a readiness to lie. The initial question here is whether
that relevance is outweighed by prejudice.
Prejudice
Convictions of sex offenses against children are among the
most odious crimes. They are committed
against the most vulnerable in society, and the consequences of such crimes can
adversely affect children for life. So
reprehensible are such acts that child sex offenders are often mistreated in
prison by other inmates and viewed as the bottom of the prison inmate
hierarchy. Hence, commission of a sex
crime against a child can evoke an emotional response by jurors and a bias against
the witness far beyond that warranted by a general readiness to do evil.
Based on our discussion in part I.E., post, we need not decide whether the trial court committed
error. For the benefit of the trial
court, however, we note that because the witnesses’ prior child-sex offenses
have no honesty component, their probative value derives not so much from the
nature of the offenses but from the fact that they are felonies involving moral
turpitude. Thus, sanitizing those
offenses by referring to them as “felonies” would have eliminated any potential
prejudice that resulted from the nature of the crimes without sacrificing the
legitimate probative value derived from the readiness to do evil.
In
any event, had there been an abuse of discretion, it was harmless in that it is
not reasonably probable that appellant would have received a more favorable
verdict had the evidence been excluded.
(People v. Scheer (1998) 68
Cal.App.4th 1009, 1018–1019; People v.
Watson (1956) 46 Cal.2d 818,
836.) First, the evidence against appellant
was strong. Multiple police officers
testified as to his conduct during the altercation. Deputy Macias testified that appellant
precipitated the confrontation by taking a fighting stance and refusing to stop
fighting and allow the officers to subdue him.
Second,
the evidence of prior child-sex offenses did not relate to appellant, but to
the defense witnesses. Thus, while it
may have prejudiced Ponce and Pena’s credibility to the jury, it did not
directly prejudice appellant.
Third,
it is not as though Ponce and Pena were upstanding citizens that would likely
have been believed by the jury even if it did not learn of their child-sex
offenses. They were inmates in jail for
commission of felonies. Even without
impeaching them with the child sex-abuse felonies, it is more than doubtful
that they would have been believed over sheriff’s deputies sworn to uphold the
law.
Fourth,
in any event, Ponce and Pena’s testimony was weak on the critical question of
what precipitated the altercation.
Neither saw how the fight started.
This was critical evidence in determining whether the deputies were
appropriately responding to a violent inmate or had simply beaten appellant
without justification, as appellant contended.
Moreover, Ponce and Pena’s testimonies were impeached in other
respects. For example, there was
evidence that they were not in a physical location to be able to see that which
they testified to having seen.
Finally,
the jury had already heard that Ponce and Pena were housed in the sexual predator
module, though that evidence was stricken, jurors might still infer that
appellant and his witnesses were child-sex criminals. Thus, admission of Ponce and Pena’s prior
child-sex offenses was somewhat cumulative.
Appellant’s
principle argument at trial was that by impeaching his two witnesses with
child-sex offenses, the jury was likely to believe that appellant was also a
child sexual predator, and he would directly suffer prejudice. However, even if appellant’s concern was
justified, it was mitigated when the trial court instructed the jury that
appellant was acquitted of the crime for which he was held in custody when the
charged incident occurred.
II.
Reduction of felony to misdemeanor
Defense
counsel made a motion to reduce appellant’s convictions from a felony to a
misdemeanor, arguing that the officers suffered no serious injuries. The prosecutor argued that the charged
offenses did not require that injury occur, and the jury found that the
defendant resisted by use of violence, requiring the use of force against him.
The
trial court denied the motion, stating:
“I think the jury had an option to reduce it themselves by finding a
148, which is a lesser included offense which was given to them to do, and they
did not choose to do so. It’s not so
much whether or not the officers received injuries. It’s whether the threat of violence that can
be caused in a closed jail setting that can cause all kinds of havoc, and we’ve
heard about it more than once when inmates do not follow the orders and
commands of the officers involved. So
I’m not saying that—and I don’t know—I don’t know that in this case, when the
jury has decided it shouldn’t be a misdemeanor, that this is the case for
that.”
Appellant contends that the trial court improperly denied
his request to reduce his convictions to misdemeanors. He argues that it had discretion to do so and
failed to exercise that discretion because it rendered its decision because the
“jury ha[d] decided that it shouldn’t be a misdemeanor.” This contention lacks merit.
We
review the trial court’s decision whether or not to reduce a felony to a
misdemeanor for abuse of discretion. (
is a question of law to be decided by the trial court, not an issue of fact for
the jury. (People v. Burres (1980) 101 Cal.App.3d 341, 356, disapproved on
other grounds in People v.
Colantuono (1994) 7 Cal.4th 206, 220, fn. 11.)
“[S]ection
17 ‘vest[s] in the trial court discretion to sentence defendants convicted of
[wobblers] to state prison or to jail, without mention of standards for
exercise of that discretion.’
Nonetheless, the choice between felony and misdemeanor under section 17,
subdivision (b)(1), ‘is dependent on a determination by the official who, at
the particular time, possesses knowledge of the special facts of the individual
case and may, therefore, intelligently exercise the legislatively granted
discretion.’” (People v. Dent (1995) 38 Cal.App.4th 1726, 1730.) While this discretion is exceedingly broad,
“‘[t]he courts have never ascribed to judicial discretion a potential without
restraint.’ . . . ‘[A]ll exercises of legal discretion
must be grounded in reasoned judgment and guided by legal principles and
policies appropriate to the particular matter at issue.’” (Alvarez,
supra, 14 Cal.4th at p. 977.) “‘The burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational and
arbitrary. In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives.’” (
Among the
factors to be considered in exercising this discretion are “‘the nature and
circumstances of the offense, the defendant’s appreciation of and attitude
toward the offense, or his traits of character as evidenced by his behavior and
demeanor at the trial.”’ (
978.) The trial court must consider the
individualized considerations of the offense, the offender and the public
interest. (Ibid.) The trial court
should also, when appropriate, consider the general objectives of
sentencing. (Ibid.)
We start
with the basic proposition that the trial judge, sitting through the trial, is
in the best position to assess whether a wobbler should be considered a
misdemeanor or a felony. We cannot
substitute our judgment for that of the trial judge. (Alvarez,
supra, 14 Cal.4th at p. 978.)
Appellant’s
principal contention is that the trial court failed to exercise discretion
because its decision was based on the jury’s determination that appellant was
guilty of forcefully resisting arrest when, based upon the instructions given,
it could have found him guilty of only the misdemeanor, lesser included offense
of resisting an officer without force within the meaning of section 148.
We find no
error in the trial court giving consideration to the jury’s verdict as one
factor in assessing whether to reduce the offense to a misdemeanor. Nothing in the record suggests that the trial
court did not consider other relevant considerations. It did not say that it was bound by the
jury’s findings or that it considered nothing else. In fact, it stated that the determination of
whether appellant’s offenses were felonies or misdemeanors turned on more than
simply whether the deputies were injured.
The trial court pointed out that appellant’s violence in a closed jail
can cause havoc. These statements by the
trial court indicated that it considered more than just the jury’s
findings. In the face of a record which
does not affirmatively indicate that the trial court failed to consider all of
the appropriate factors, we presume that it considered all relevant criteria
(see People v. Superior Court (
knew and applied the correct statutory and case law (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430).
The facts of this case, which the trial court is
presumed to have considered, support its refusal to reduce the offenses to
misdemeanors. Appellant was incarcerated
in jail at the time of the incident and was supposed to follow instructions of
the officers in charge. Nonetheless, he
took a fighting stance, bear-hugged Deputy Macias, began kicking and punching
him and Deputy Rodriguez, ignored warnings to stop, hit Deputy Macias in the
face, injuring the deputy’s lip, and required five or more deputies to subdue
him. This incident took place in the
incendiary environment of a jail, where, as the trial court aptly observed,
violence can cause havoc. Finally,
appellant had a significant criminal record.
He was convicted, among other convictions, in 1996 of resisting a public
officer (§ 148, subd. (a)), in 2004 of making a criminal threat (§ 422), in
2006 of inflicting injury on a child (§ 273a), and in 2007 of making a criminal
threat. All of these convictions were of
crimes of violence or threatened violence.
These facts justified the trial court’s refusal to reduce appellant’s
convictions to misdemeanors.
Correction of abstract of judgment
Background
At the sentencing hearing, the trial court sentenced
appellant to the low term of 16 months on count 1 and a concurrent 16 months on
count 2. The abstract of judgment,
however, reflects that the two counts were sentenced consecutively.
Contention
Appellant contends that the abstract of judgment must be
corrected to reflect the sentence rendered by the trial court in its oral
pronouncement of judgment. The People
agree with appellant, as do we.
C. Oral pronouncement is paramount
Rendition
of judgment is an oral pronouncement. (People
v. Mesa (1975) 14 Cal.3d 466, 471.)
Entry of judgment in the minutes is a clerical function. (Ibid.;
of conviction and cannot add to or modify the judgment it purports to
summarize. (People v. Mesa, supra, at p. 471.)
The oral pronouncement of judgment controls over the abstract of
judgment. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) If a minute order or abstract of judgment
fails to reflect the judgment pronounced by the trial court, the error is
clerical and the record can be corrected at any time to make it reflect the
true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa, supra, at
p. 471; see also People v. Williams (1992)
10 Cal.App.4th 827, 830, fn. 3; People v.
Jack (1989) 213 Cal.App.3d 913, 915–916.)
D.
Conflict in oral pronouncement
The trial court
announced concurrent sentences on counts 1 and 2. The abstract of judgment reflects consecutive
sentences on those counts. Because the
abstract of judgment does not conform to the trial court’s oral pronouncement
of judgment, it must be corrected to reflect that the sentences on counts 1 and
2 are concurrent.
DISPOSITION
The judgment is
affirmed. On remand, the trial court is
directed to prepare a corrected abstract of judgment consistent with the
judgment orally pronounced by the trial court.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
Acting P. J.
DOI
TODD
_______________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
