P. v. Parsee

Filed 8/26/08 P. v. Parsee CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Mary H. Strobel, Judge. Affirmed.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

____________

Appellant Steven Parsee appeals from a judgment entered after a jury convicted him of count 1, selling heroin, a controlled substance, to wit. (Health & Saf. Code,  11352, subd. (a).)^[1] Appellant admitted a prior conviction pursuant to section 11370.2, subdivision (a), for violating section 11352, subdivision (a) and a prior conviction pursuant to Penal Code section 667.5, subdivision (b) for violating section 11350, subdivision (a).^[2] We find no error and affirm.

CONTENTIONS

Appellant contends that: (1) the trial court abused its discretion by permitting his impeachment with a 1987 conviction for receiving stolen property; (2) the trial court committed reversible error by instructing the jury pursuant to CALCRIM Nos. 220 and 222; and (3) the judgment must be modified to reflect 81 days of presentence custody credits.

FACTS AND PROCEDURAL BACKGROUND

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. On February 5, 2007, Los Angeles Police Department Officer Thomas Brown and another officer were in plainclothes monitoring a downtown location which had generated many complaints from business owners and residents regarding narcotics use. Over the past two years, the officers had made 200 arrests at that location for narcotics violations. At approximately 4:45 p.m., Officer Brown observed codefendant Robert Myers (Myers) attempting to get the attention of five or six people gathered on a street corner. Myers continued walking and stopped at the unzipped door of a tent in which appellant was sitting. Using binoculars, Officer Brown observed Myers removing one or two bills from his pants pocket and giving them to appellant in exchange for a blue balloon which was later found to contain heroin. Myers lifted the balloon to his nose then put it in his pocket. Myers reached into the tent and appellant dropped a rock of cocaine into Myerss hand. Fifteen feet from the tent, Myers began smoking cocaine in a glass crack pipe, at which time he was arrested by other officers contacted by Officer Brown. Two hundred thirty four dollars in currency was recovered from appellants pants pockets and a blue balloon containing heroin was recovered from Myerss pants pocket.

At an Evidence Code section 402 hearing, the trial court ruled that it would allow the People to introduce appellants 1987 conviction for receiving stolen property for impeachment purposes, over defense counsels objection. The trial court refused to allow the People to introduce evidence of a 1985 drug-related conviction.

Appellant testified in his defense that he did not sell rock cocaine or heroin to Myers. He also testified on direct examination that he had been convicted in 1987 for receiving stolen property.

DISCUSSION

I. The trial court did not abuse its discretion in allowing appellant to be impeached with his 1987 conviction for receiving stolen property

Appellant contends that the trial court abused its discretion in permitting him to be impeached with his 20-year-old conviction for receiving stolen property because the crime was remote in time and was so dissimilar to the charged offenses of sale of heroin and sale of cocaine base that the prior conviction had minimal probative value in determining whether appellant committed the current crimes. We disagree.

Evidence Code section 788 provides that [f]or the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . . Pursuant to Evidence Code section 352, the trial court has discretion to authorize the use for impeachment purposes of any felony conviction necessarily involving moral turpitude, even if the immoral trait is one other than dishonesty. (People v. Castro (1985) 38 Cal.3d 301, 306.) In determining whether to permit impeachment by admission of the prior convictions, the trial court considers: (1) whether the prior conviction reflects adversely on an individuals 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 impeachment by prior convictions. (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)

We review the trial courts ruling permitting impeachment of a witness by his prior convictions for abuse of discretion. (People v. Ballard (1993) 13 Cal.App.4th 687, 695.)

Convictions which rest on dishonest conduct, such as deceit, fraud, cheating, or stealing reflect adversely on a witnesss honesty and integrity. (People v. Beagle (1972) 6 Cal.3d 441 (Beagle).) Thus, a prior conviction for receiving stolen property is probative on the issue of credibility. (People v. Lassell (1980) 108 Cal.App.3d 720, 724.) But a crime committed long before that has been followed by a legally blameless life, should generally be excluded on the ground of remoteness. (Beagle, supra, at p. 453.) Here, appellant had not led a blameless life since his conviction for receiving stolen property in 1987. As the trial court noted, appellant had sustained multiple drug related convictions since 1987, a conviction for petty theft in 1991, and a misdemeanor conviction for use of a controlled substance pursuant to section 11550 as recently as 2004. When the prior conviction is for substantially similar conduct for which the accused is on trial, strong reasons arise for excluding those prior convictions because of the pressure on jurors to believe that the defendant probably committed the same crime again. (Beagle, supra, at p. 453.) Therefore, appellants argument that the prior conviction for receiving stolen property was too dissimilar to the current offense to warrant its use for impeachment is not persuasive. Indeed, at the same hearing, the trial court exercised its discretion to exclude a 1985 conviction for a violation of section 11352, subdivision (a) on the ground that the admission of that evidence had the potential for undue prejudicial effect outweighing its probative value, given the remoteness of the prior conviction and its similarity to the present crime. And, we note that rather than being deterred from testifying, appellant did testify in his defense.

We conclude that the trial court did not abuse its discretion by permitting appellant to be impeached with the prior conviction of receiving stolen property.

Even had the trial court erred in admitting the impeachment evidence, there is no probability that the result would have been different. (Evid. Code, 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was instructed that the prior conviction was admitted only for the purpose of considering appellants believability and we presume that the jury understood and followed the trial courts instructions. (People v. Pinholster (1992) 1 Cal.4th 865, 919.) Appellant urges that this was a close case because the jury requested a read back and acquitted him of the cocaine charge. But based on Officer Browns testimony that he had a clear view of appellant handing Myers a blue balloon which other officers later found contained heroin, the evidence on count 1 was strong that appellant sold heroin to Myers.

II. The trial court properly instructed the jury pursuant to CALCRIM Nos. 220 and 222

Appellant contends that CALCRIM Nos. 220 and 222 precluded the jury from considering a lack of evidence in determining whether a reasonable doubt existed to prove that appellant committed the crime. We disagree.

In determining whether jury instructions are correct, we look at the instructions as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos).) An instruction is misleading only if in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.)

CALCRIM No. 220 provides that the People must prove the defendant guilty beyond a reasonable doubt.^[3] CALCRIM No. 222 defines evidence as sworn testimony, admitted exhibits, and anything that the jury was instructed to consider. Appellant urges that CALCRIM No. 220s instruction to the jury to impartially compare and consider all the evidence that was received throughout the entire trial, when read in conjunction with CALCRIM No. 222, limited the jurys determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of evidence of guilt, thereby violating appellants due process right to be convicted only upon proof beyond a reasonable doubt.

We have previously disposed of the same argument in Campos. As here, the defendant in Campos did not object to CALCRIM No. 220 at trial and forfeited his claim. (Campos, supra, 156 Cal.App.4th at p. 1236.) Nevertheless, we recognized in Campos that reasonable doubt may arise from lack of evidence at trial as well as from the evidence presented and that CALCRIM No. 220 does not inform the jury otherwise. (Campos, supra, at p. 1238.) Rather, the jury is likely to understand that the determination of the defendants guilt beyond a reasonable doubt must be based on a review of the evidence presented. (Ibid.)

We conclude that the instructions, taken as a whole, were not likely to mislead the jury.

III. The correct number of days of conduct credits were awarded to appellant

Appellants contention that he was awarded 80 rather than 81 days of presentence conduct credit is incorrect.

In In re Marquez (2003) 30 Cal.4th 14, 25, our Supreme Court noted that if all conduct credit days are earned pursuant to Penal Code section 4019, subdivision (f), a term of six days will be deemed to have been served for every four days spent in actual custody. The court held that credits are given in increments of four days with no rounding upward. Thus, presentence custody credits are computed by dividing the number of days of actual custody by four, discarding any remainder, then multiplying the result by two. (In re Marquez, supra, at p. 26.) We are bound by the rulings of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Here, dividing 163 by four and discarding the remainder would amount to 40 days. Multiplying 40 days by two equals 80 days of conduct credit. Therefore the trial court correctly awarded appellant 80 days of conduct credit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

CHAVEZ

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^[1] All subsequent references are to the Health and Safety Code unless otherwise indicated.

^[2] The jury found appellant not guilty of count 2, sale of cocaine base in violation of section 11352, subdivision (a). The trial court struck four out of five prior prison term allegations as to counts 1 and 2 pursuant to Penal Code section 667.5, subdivision (b). Count 3 charged that codefendant Robert Myers, who is not a party to this appeal, had possessed a controlled substance in violation of section 11350, subdivision (a).

^[3] CALCRIM No. 220 provides in pertinent part: A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. (Italics added.)