P. v. Murphy

Filed 1/28/10 P. v. Murphy CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm Jr., Judge. Affirmed.

Pamela J. Voich, 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, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Daniel Edward Murphy appeals from the judgment entered following a jury trial that resulted in his conviction for assault with a deadly weapon. Murphy was sentenced to a prison term of eight years. His sole contention on appeal is that the trial court abused its discretion by allowing him to be impeached with a prior misdemeanor conviction for petty theft. Discerning no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples case.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. Zoila Zelada was employed as an electrocardiogram (EKG) technician at Good Samaritan Hospital in the City of Los Angeles. On the evening of December 24, 2008, Zelada was working at the emergency room front window, assisting patients with their paperwork. The emergency room was exceptionally busy.

Murphy sought care at the emergency room that evening. Because of the large number of patients waiting to be seen, Murphy was forced to wait several hours. Eventually, he was transferred to the area in which Zelada was working. Frustrated with the long wait, Murphy became very angry, loud, and obnoxious. Using profanity, he demanded to know whether there was a doctor or nurse to treat him. Zelada attempted to calm Murphy and assure him that a doctor would see him when finished attending to other patients. However, Murphy produced a pocket knife from his pants, got up from the gurney, and said he wished to kill the doctors and nurses, including Zelada. He waved the knife in Zeladas direction, so close to her that the knife slightly touched her thumb. Frightened, Zelada called for help and ran to the front desk. Murphy briefly chased Zelada, and then was escorted from the hospital by security. Zelada reported the incident to police, who came to the hospital to take a report. While they were present, Murphy telephoned, apologized, and stated he still wished to see a doctor. When Murphy returned to the hospital, he was arrested. A pocket knife was discovered in his jacket pocket.

b. Defense case.

Murphy testified in his own behalf. He admitted seeking treatment at Good Samaritan Hospital, becoming angry and belligerent due to the wait, and carrying the pocket knife on his person. He denied threatening Zelada or pulling his knife on her.

2. Procedure.

Trial was by jury. Murphy was convicted of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)).^[1] The jury deadlocked, and a mistrial was declared, on counts 2 and 4, making criminal threats and indecent exposure, respectively. At the Peoples request, those counts were dismissed in furtherance of justice ( 1385). In a bifurcated proceeding, the trial court granted Murphys Romero motion,^[2]striking the single strike prior alleged for purposes of sentencing under the Three Strikes law, but denied his motion to reduce the assault with a deadly weapon conviction to a misdemeanor. The trial court sentenced Murphy to a term of eight years in prison, i.e., the midterm of three years, plus a five-year serious felony enhancement ( 667, subd. (a)). It imposed a restitution fine, a suspended parole restitution fine, a court security assessment, and a criminal conviction assessment. Murphy appeals.

DISCUSSION

The trial court did not err by allowing Murphy to be impeached with evidence he had suffered a 2004 conviction for petty theft with a prior.

Murphy had suffered numerous prior convictions, some felonies, some misdemeanors.^[3] Murphy moved in limine to exclude evidence of his prior felony convictions on the grounds they were remote in time and unduly prejudicial under Evidence Code section 352. The People countered that Murphys entire criminal history was relevant and admissible. After hearing argument and considering the authorities cited by the parties, the trial court allowed Murphy to be impeached by just one of the convictions, the 2004 petty theft with a prior. The trial court explained, No witness is entitled to present himself or herself with a false aura of credibility. Because the 2004 theft was a crime of moral turpitude, it was relevant to the issue of Murphys credibility, and was not substantially more prejudicial than probative. The court precluded impeachment with the other convictions, reasoning that they were too remote. Accordingly, during cross-examination, the People elicited from Murphy that he had pleaded guilty to petty theft in 2004.

Murphy contends the trial court abused its discretion, as the evidence was more prejudicial than probative. We disagree.

When determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his or her testimony, including the witnesss character for honesty. (People v. Harris (2005) 37 Cal.4th 310, 337.) Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the courts discretion under Evidence Code section 352. (People v. Harris, supra, at p. 337.)

Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment. Together, they provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. [Citation.] [Citation.] (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) The trial court is guided by four factors when determining the admissibility of prior convictions: (1) whether the prior conviction reflects adversely on honesty or veracity; (2) whether the prior conviction is remote in time; (3) whether the prior conviction is for the same or substantially similar conduct; and (4) whether fear of prejudice will prevent the defendant from testifying. (Ibid.) These factors need not be rigidly followed. (Ibid.) Trial courts have broad discretion when ruling on the admissibility of prior convictions for impeachment purposes (People v. Hinton (2006) 37 Cal.4th 839, 887) and a trial courts ruling allowing a prior conviction to be used to impeach will not be disturbed unless the ruling exceeds the bounds of reason and results in a miscarriage of justice. (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091-1092; People v. Green (1995) 34 Cal.App.4th 165, 182-183.)

In the instant matter, all the relevant factors point to the conclusion that the evidence was properly admitted to impeach Murphy. Petty theft is a crime of moral turpitude and reflected adversely on Murphys credibility. (People v. Mendoza, supra, 78 Cal.App.4th at p. 925 [conviction of theft-related crimes is probative on the issue of credibility]; see generally People v. Gray (2007) 158 Cal.App.4th 635, 641.) Misconduct involving moral turpitude may suggest a willingness to lie, and is generally admissible to impeach. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) The conviction was not remote in time; it occurred in 2004, only four years before the charged offense. As to the third factor, the petty theft conviction was dissimilar to the charged assault with a deadly weapon conviction, diminishing any possibility of prejudice to Murphy from its admission. (People v. Mendoza, supra, at p. 926.) Finally, Murphy was not deterred from testifying. As Murphy points out, the jurys evaluation of the evidence turned largely on its conclusions about Murphys and Zeladas credibility, making evidence related to credibility particularly probative. The trial court was clearly aware of its discretion, carefully considered the issue, and precluded impeachment with all but one of Murphys numerous priors. The courts comments on the record demonstrate that it appropriately weighed and balanced the probative value of the evidence against the possibility of prejudice under Evidence Code section 352.

In sum, the evidence was relevant and not unduly prejudicial. That the evidence may have been damaging to Murphys case does not establish it was prejudicial within the meaning of Evidence Code section 352.   Prejudice as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponents position or shores up that of the proponent. The ability to do so is what makes evidence relevant.  (People v. Doolin (2009) 45 Cal.4th 390, 438.)    The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging.  [Citation.] [Citation.]  (Id. at p. 439; People v. Karis (1988) 46 Cal.3d 612, 638.) The trial court therefore did not abuse its discretion by allowing Murphy to be impeached with the 2004 petty theft with a prior conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[3] In 1974, Murphy was convicted of receiving stolen property. In 1977, he was convicted of use of a controlled substance and possession of paraphernalia, both misdemeanors, as well as felony second degree burglary. In 1978, he was convicted of receiving stolen property, robbery, grand theft auto, and burglary. In 1987, he was again convicted of misdemeanor use of a controlled substance. In 1992 and 1993, he was convicted of theft-related offenses. In 2004, he was convicted of petty theft with a prior.