P. v. Oliver

Filed 2/7/08 P. v. Oliver 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

----

Fifty-nine-year-old Donald James Oliver (defendant) told the jury he was in a diabetic blackout when he walked into a bank, gave the teller a note announcing the robbery and threatening that there was a bomb at his feet, and walked out with bait money recorded by the bank. After defendant testified he did not intend to steal any money, he had a good head on his shoulders, and he would not steal, the trial court reversed its earlier ruling excluding evidence of three prior robbery convictions, admitted the evidence, and gave limiting instructions to the jury. On appeal, defendant argues that admission of the prior crimes evidence, including the robberies and a forgery conviction, constitutes an abuse of discretion. We disagree and affirm.

FACTS

Defense counsel portrayed his client as an old, sick man and argued he did not fit the stereotype of a robber. The facts are somewhat bizarre. According to defendant, on the day of the robbery he was released at 6:00 a.m. from a hospital where he had been treated for heart problems and diabetes, took a bus to the homeless shelter where he lived, attended religious services, and had breakfast. He went to a public health office to obtain medication for tuberculosis.

A bank employee testified defendant approached a teller and handed her a note reading, This is a bank robbery. Bomb sitting at my feet. Do not tell - do not tell anyone for five minutes. The teller showed the note to the other employee, who alerted the bank manager they had been robbed. The teller gave defendant the bait money and eventually set off a silent alarm. The manager followed defendant out of the bank and summoned the help of a nearby police officer.

Defendant walked into a pawnshop and asked to use the telephone to call a cab. When refused, he asked a man for a ride. A police sergeant approached the two men and, with his gun drawn, ordered them to get down on the ground. Defendant told the sergeant, I was alone. He wasnt involved. Another officer who arrived at the scene took the bank bills confiscated from defendant and found the demand note in some nearby shrubbery. Defendant was taken into custody. He testified he could not remember what happened between the time he left the public health office and his arrest. He claimed he ate a candy bar at some point and the sugar ended the blackout. He could not remember where he had the candy or what kind of candy it was. At the time of his arrest he did provide his name, Social Security number, and other identifying information. The only evidence of defendants medical condition was his testimony; there was no expert medical evidence introduced at trial.

Defendant committed three robberies in 1973 and admitted to a 1988 forgery conviction. He testified that in 1993 he was twice convicted of driving under the influence, and in 2001 he was convicted of disturbing the peace. The trial court initially ruled that the 1973 robberies were too remote to be admissible, but concluded that the 1988 forgery conviction was relevant to his credibility.

When asked by defense counsel if at any time on the day of the robbery he intended to steal money from a bank, defendant responded: No, I did not. I did not plan to steal any money, no. At - sir, a bank robbery, when I could barely walk a block, theres - does not make sense and I have a good head on my shoulders. I wouldnt do that. I dont know what happened but it was unplanned. The prosecutor urged the court to admit evidence of the prior robberies because defendants testimony opened the door to impeachment.

The court conducted additional research to resolve the issue and, after lunch, gave an exhaustive analysis of the admissibility of the priors. The judge explained: . . . I had earlier excluded the admissibility of the robbery priors from 1973 under Evidence Code 352 largely because they were remote. I dont know the record but also in mind that they were so similar to the current charge that I was - I didnt want the jurors to be misled. But here it does seem to me the defendant has asserted his good character, and it has in effect misled the jury, potentially misled the jury about his own past.

Its not just his words. I was watching Mr. Oliver and it seemed to me that he was addressing the jurors and he was asserting - I took it to mean he was asserting his good character, asserted to them that this sort of behavior is inexcusable. I cant explain it. He wouldnt do this sort of thing.

The court was aware of the significance of factors bearing on the admissibility of inflammatory priors, particularly where, as here, they are quite similar to the charges before the jury. It reiterated its concern that the priors were very remote and occurred when defendant was a much younger man. But because defendant had presented himself to the jury as a person who would not commit such a robbery, the court allowed the prosecution to introduce the evidence to impeach defendants credibility.

The court instructed the jury as follows: The fact of a conviction for robbery may not be used as evidence that the defendant committed the crime in this case, nor can you use it to prove that he had a propensity to commit robberies or he has a likelihood [of] such a propensity.

Rather if you find that the witness has been convicted of a prior felony, you may consider that fact only in evaluating the credibility and believability of a witnesss testimony. The fact that theres a conviction does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether the fact makes the witness less believable. The People still have the burden of proving the defendants guilt beyond a reasonable doubt as for that - for the charge in this case.

The jury convicted defendant of robbery. He accepted a plea agreement whereby the three strikes allegation was dismissed and his maximum term of imprisonment would be 10 years. He waived his right to appeal the sentence. In this appeal, he urges us to reverse the conviction because, in his view, evidence of his prior offenses should not have been admitted.

DISCUSSION

Article I, section 28 of the California Constitution permits the impeachment of witnesses in criminal cases with a prior felony conviction involving moral turpitude. (People v. Rivera (2003) 107 Cal.App.4th 1374, 1379.) [T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes, and must exercise that discretion on motion of the defendant. The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded. (People v. Collins (1986) 42 Cal.3d 378, 389.) We review the courts ruling admitting evidence of the prior felony convictions for an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.)

The Attorney General points out the well-settled proposition that robbery is a crime of moral turpitude. (People v. Jackson (1985) 174 Cal.App.3d 260, 266.) Misconduct involving moral turpitude may suggest a willingness to lie and therefore is relevant to a witnesss honesty and veracity. (People v. Vera (1999) 69 Cal.App.4th 1100, 1103.) The trial court reversed its initial ruling excluding the evidence for this very reason. Once defendant testified and portrayed himself as someone who, in those circumstances, would not steal, the court allowed the evidence to impeach him. Specifically, the court believed that the four convictions for crimes involving moral turpitude suggested defendant might be willing to lie and present a false faade.

The record reflects that the trial court carefully considered the issue not once, but twice. It allowed both sides extensive argument and conducted its own independent legal research. The court evaluated all the relevant factors and evidenced a thorough understanding of the dangers of admitting such evidence. The courts thoughtful analysis counters any notion that it abused its discretion in failing to understand the law or the facts or to properly consider the possible consequences of admitting the evidence.

Thus, the question is whether the court abused its discretion as a matter of law by allowing three 33-year-old convictions and one 18-year-old conviction to impeach defendant. Defendant insists the evidence was too remote to be probative and too prejudicial to be admissible. He contends the court misinterpreted his testimony and did not appreciate the critical fact that he was not suffering from diabetes and his other ailments in his 20s when he committed his first three robberies. He maintains that he told the jury he would not have committed the bank robbery knowing his frail condition precluded an escape and he was not trying to portray an unblemished past.

The court, like us, was obviously troubled by the age of the convictions. For that reason, it initially excluded the evidence. But the question before us is not whether we would have admitted the evidence, but whether the trial court abused its discretion in doing so. The court emphasized that defendants body language exacerbated the false impression created by his testimony that he was incapable of robbing a bank. We, of course, cannot assess defendants body language or the impression he projected other than to read the words he spoke to the jury. Based on his testimony alone, we agree with the trial court that he misled the jury, and to the extent that intangible factors such as body language and eye contact bolstered the courts assessment, we conclude the court was well within the bounds of reason to allow the prosecutor to impeach defendant with his prior convictions, albeit they were as old as 33 years.

Moreover, the court cautioned the jurors to limit their consideration of the evidence. They were expressly admonished that they could not consider the prior convictions as evidence defendant committed the charged offense or that he had a propensity to do so. Rather, they were entitled to use the evidence to evaluate his credibility. We must assume the jurors followed the limiting instructions.

Although it is an unusual case in which convictions this old can be properly admitted, this is such a case. Defendants lopsided and self-serving testimony opened the door to impeachment. The court engaged in a painstaking analysis of the admissibility of the prior convictions acutely concerned about the issue of remoteness. Under these circumstances, we cannot say the court abused its discretion.

DISPOSITION

The judgment is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.