Filed 9/2/26 P. v. Flemming CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102788
Plaintiff and Respondent,
(Super. Ct. No. 19FE017955)
v.
JONATHAN FLEMMING,
Defendant and Appellant.
A jury found defendant Jonathan Flemming guilty of first degree murder after a
trial at which he testified in his own defense. On appeal, Flemming argues that the trial
court erred in two respects when it allowed the prosecution to impeach his testimony with
evidence of his prior juvenile adjudications. First, he claims that, while the conduct
underlying a juvenile adjudication may be used to impeach, the fact of a juvenile
adjudication may not. Second, Flemming contends that the trial court should have
excluded the evidence of his prior juvenile adjudications under Evidence Code
section 352.1 We conclude that Flemming forfeited his first argument by failing to object
on that basis below. His second argument fails on the merits because the trial court could
properly conclude that the evidence’s probative value was not substantially outweighed
by its potential prejudicial effect.
1 Undesignated statutory references are to the Evidence Code.
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BACKGROUND
The People charged Flemming with murder (Pen. Code, § 187, subd. (a)) and
alleged that he personally used a deadly and dangerous weapon in committing the offense
(id., § 12022, subd. (b)(1)).
Before trial, the People moved in limine to admit for impeachment purposes
Flemming’s three felony juvenile adjudications, sustained in September 2017, for
receiving a stolen vehicle or equipment, carjacking, and assault by means of force likely
to produce great bodily injury. The People argued that each of these offenses was a
crime of moral turpitude. At a pretrial hearing, the trial court agreed that the prior
offenses were crimes of moral turpitude and stated that they were “not too remote.”
Defense counsel replied: “I would object under [Evidence Code section] 352 as not
remote, but it’s simply because Mr. Flemming was very young, was very young at the
time of the present alleged offense in this case. Looks like he was a juvenile at least for
the 2017 carjacking – well, it indicates he did time in [j]uvenile [h]all, but the danger here
is that if a jury hears an allegation of a carjacking and a force although not a strike, an
allegation of a force likely, an incident, there’s a danger that they would have serious ill
will against him just based upon those offenses or convictions alone and convict him
based on those convictions irrespective of the facts in the current case. And so under
[Evidence Code section] 352, I would state that the prejudice is too great and outweighs
any probative value.”
The prosecutor responded: “They are fairly recent. There is a pattern of felonious
activity by Mr. Flemming. I think the jury should know if he were to take the stand it is
directly relevant to his credibility, these particular felony adjudications. If the Court or
[defense counsel] would like to sanitize that, the People would be willing to call it a
crime of moral turpitude or whatever. [Defense counsel] and I can come up with
phrasing, but I believe the People should be able to impeach [Flemming] with these
crimes should he take the stand.”
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The trial court ruled: “I am fully aware of my obligation under Evidence Code
section 352, and in looking at these convictions, again, they are all crimes of moral
turpitude. They do bear on [Flemming]’s believability and credibility should he decide to
testify in this case. He should not be cloaked with a false aura of believability and
credibility having committed these crimes which bear specifically on his credibility and
believability as a witness, so under Evidence Code section 352, I find these convictions to
be substantially more probative than prejudicial as to the issue of his credibility, and I
would permit the People to use them to impeach [Flemming] should [he] decide to testify
in this case.”
Flemming testified at trial. Defense counsel asked Flemming, “back in 2017 you
had – right around that time you had a couple of problems with the law; right?”
Flemming answered affirmatively. On cross-examination, the prosecutor asked
Flemming, “One of the questions your attorney asked you, I think he said something to
the effect of you’ve had some previous run-ins with the law, but in fact, in 2017 you were
previously convicted of three separate felonies involving moral turpitude; correct?”
Flemming answered yes. Defense counsel made no objection.
The jury found Flemming guilty of first degree murder and found true the weapon
enhancement. The trial court sentenced him to 25 years to life for murder plus one year
for the weapon enhancement.
Flemming timely appealed.
DISCUSSION
I.
Flemming argues that the trial court erred by admitting evidence of his prior
juvenile adjudications to impeach his testimony. Citing People v. Sanchez (1985)
170 Cal.App.3d 216 and People v. Lee (1994) 28 Cal.App.4th 1724, he submits that the
conduct underlying his juvenile adjudications was admissible to impeach but that the
adjudications themselves could not be admitted for that purpose.
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We agree with the Attorney General that Flemming forfeited this claim by failing
to object on these grounds in the trial court. “[A] challenge to the admission of evidence
is not preserved for appeal unless a specific and timely objection was made below.”
(People v. Anderson (2001) 25 Cal.4th 543, 586.) “[A]n ‘ “objection must be made in
such a way as to alert the trial court to the nature of the anticipated evidence and the basis
on which exclusion is sought, and to afford the People an opportunity to establish its
admissibility.” ’ [Citations.] A general objection to the admission or exclusion of
evidence, or one based on a different ground from that advanced at trial, does not
preserve the claim for appeal.” (People v. Marks (2003) 31 Cal.4th 197, 228.) Here,
Flemming’s sole objection to the evidence came at a pretrial hearing at which Flemming
argued that “the prejudice is too great and outweighs any probative value” under
section 352. Flemming did not argue, as he does now, that the prior juvenile
adjudications were inadmissible to impeach because they did not qualify as prior
convictions or that only the conduct underlying those adjudications, and not the
adjudications themselves, could be admitted. Nor did Flemming object to the phrasing of
the question when the prosecutor asked him whether he had been “previously convicted
of three separate felonies involving moral turpitude.” Accordingly, Flemming has
forfeited this claim on appeal.
This conclusion is consistent with the reasons underlying the requirement that
parties make specific and timely objections. As courts have explained, “ ‘[t]he objection
requirement is necessary in criminal cases because a “contrary rule would deprive the
People of the opportunity to cure the defect at trial and would ‘permit the defendant to
gamble on an acquittal at his [or her] trial secure in the knowledge that a conviction
would be reversed on appeal.’ ” ’ ” (People v. Myles (2021) 69 Cal.App.5th 688, 696,
quoting People v. Partida (2005) 37 Cal.4th 428, 434.) Here, had Flemming timely
objected on the grounds now asserted, the prosecutor could have introduced evidence of
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Flemming’s prior conduct or reformulated his question when conducting his cross-
examination.
Flemming also urges us to reach the merits of his claim, even if we conclude that
it is forfeited. We decline to do so. (§ 353, subd. (a) [“A verdict or finding shall not be
set aside, nor shall the judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless: [¶] [t]here appears of record an objection to or
a motion to exclude or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion”]; People v. Williams (1998)
17 Cal.4th 148, 161, fn. 6 [although “[a]n appellate court is generally not prohibited from
reaching a question that has not been preserved for review by a party[,] … it is in fact
barred when the issue involves the admission [citation] or exclusion [citation] of
evidence”].)
II.
Flemming alternatively contends that the trial court abused its discretion in
admitting evidence of his juvenile adjudications under section 352.
“A witness may be impeached with any prior conduct involving moral turpitude
whether or not it resulted in a felony conviction, subject to the trial court’s exercise of
discretion under Evidence Code section 352.” (People v. Clark (2011) 52 Cal.4th 856,
931.) Section 352 authorizes a trial court to “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.” “[T]he admissibility of any past misconduct for
impeachment is limited at the outset by the relevance requirement of moral turpitude.
Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in
individual cases is broad.” (People v. Wheeler (1992) 4 Cal.4th 284, 296, fn. omitted.)
A trial court’s admission of impeachment evidence under section 352 is reviewed
for abuse of discretion. (People v. Johnson (2015) 61 Cal.4th 734, 766.) “Because the
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court’s discretion to admit or exclude impeachment evidence ‘is as broad as 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.” (People v.
Clark, supra, 52 Cal.4th at p. 932.) The admission of impeachment evidence will be
reversed only if the trial court “ ‘exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v.
Ledesma (2006) 39 Cal.4th 641, 705.)
Emphasizing that he was only 16 years old when he committed the acts leading to
his juvenile adjudications, Flemming maintains that the trial court “misweighed the
competing section 352 considerations” and failed to consider “recent developments in
brain science [that] call into question the value of juvenile misconduct or adjudications as
proof of moral turpitude.” In his view, juvenile misconduct should be understood as
attributable to a minor’s immaturity and not reflective of a trait of dishonesty.
We perceive no abuse in the trial court’s exercise of its discretion. Flemming does
not dispute that the offenses at issue were crimes of moral turpitude; and he did not argue
below that his youth diminished the relevance of his prior adjudications as impeachment
evidence. At the hearing, Flemming noted his young age at the time of the charged
offense and the fact that his prior offenses were committed when he was a juvenile, but
his section 352 argument centered on his contention that admission of the prior
adjudications for carjacking and assault would result in significant undue prejudice. In
ruling, the court explained that the evidence did “bear on [Flemming]’s believability and
credibility” and concluded that it was “substantially more probative than prejudicial as to
the issue of his credibility.” On the record before the trial court, we discern nothing
irrational or arbitrary in this reasoning.
Finally, Flemming contends that the admission of his prior adjudications resulted
in a fundamentally unfair trial and violated his due process rights. To the extent this
claim is premised on the unpreserved evidentiary issue discussed above, this due process
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argument is also forfeited. (See People v. Partida, supra, 37 Cal.4th at p. 431 [“To the
extent … [the defendant] argues that due process required the court to exclude the
evidence for a reason not included in the trial objection, that argument is forfeited
because he did not object to the evidence on that basis at trial”].) Insofar as Flemming
contends that the erroneous admission of the evidence under section 352 violated his due
process rights, we reject this contention. (See People v. Riccardi (2012) 54 Cal.4th 758,
809 [“The routine and proper application of state evidentiary law does not impinge on a
defendant’s due process rights”], abrogated on another ground by People v. Rangel
(2016) 62 Cal.4th 1192.)
DISPOSITION
The judgment is affirmed.
/s/
FEINBERG, J.
We concur:
/s/
EARL, P. J.
/s/
RENNER, J.
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