Opinion
D072681
04-24-2018
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO SMITH, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF35416) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Alberto Smith of possession of a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)) and found true that Smith had a prior serious felony conviction (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)). The trial court sentenced Smith to a prison term of six years.
On appeal, Smith contends the trial court abused its discretion in allowing his prior conviction to be admitted as impeachment evidence because its prejudicial effect outweighed any probative value. We conclude the trial court did not abuse its discretion in admitting evidence of Smith's prior conviction. We therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Because Smith does not challenge the sufficiency of the evidence to support his conviction or otherwise challenge the jury's verdict on the evidence presented, we focus our discussion on the evidentiary issue presented on appeal.
In 2015, Smith was incarcerated at Centinela State Prison in Imperial County. His imprisonment followed a 2006 conviction in Los Angeles of attempted murder, which resulted in a prison sentence of life with the possibility of parole for the attempted murder conviction, plus 25 years to life for personally and intentionally discharging a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)).
At Centinela, Smith was assigned to a cell shared with another inmate. During a random cell search, a correctional officer found an inmate-manufactured weapon with a sharpened metal tip hidden on a shelf with clothing and other property belonging to Smith. During a subsequent prison disciplinary proceeding, Smith admitted to possessing the weapon and claimed his cellmate was unaware of its existence.
An Imperial County grand jury indicted Smith, charging him with a single offense of custodial possession of a weapon in violation of Penal Code section 4502, subdivision (a).
In anticipation of Smith testifying at trial, defense counsel filed a motion in limine to exclude evidence of Smith's prior conviction for attempted murder as impeachment evidence on the basis that the prejudicial effect would outweigh any probative value. At the hearing on the motion, counsel asked that, at a minimum, the court "sanitize" the prior conviction.
The court denied the motion in limine, allowing the prosecution to solicit testimony about the prior conviction if Smith testified. The court reasoned that to exclude the evidence would give Smith "a false [aura of] veracity." As the court explained, "[w]hen you intend to kill another human being, that has bearing, I think, on a person's honesty . . . ." The court also declined to "sanitize" the conviction, although the court noted it was an "interesting" issue. The court believed that simply referring to the conviction as a "felony conviction for a crime of moral turpitude" or a "felony conviction for a crime of violence which included the element of intent to kill" would only lead the jury to speculate about the true nature of the conviction.
Smith did testify and, on direct examination, admitted suffering a prior conviction for attempted murder. Smith admitted he brought the weapon into his cell, but explained it was hidden in a discarded paper bag with some magazines that he picked up in a common room. Smith testified that, by the time he saw the weapon, he was locked in his cell for the night and he decided to discreetly throw it in the trash the next day. According to Smith, he did not alert a correctional officer because he was worried he would be blamed regardless of his explanation and was concerned about being hurt by other inmates. A correctional officer found the weapon during a routine cell search the following day before Smith had an opportunity to throw it in the trash.
The prosecution also asked Smith about his prior conviction during cross-examination, without asking any questions regarding the circumstances of the offense. The court instructed the jury that the fact of a witness's prior conviction of a felony may be considered "only in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
DISCUSSION
Smith's sole challenge on appeal is to the admission of evidence of his prior conviction for impeachment purposes. He contends the evidence should have been excluded as overly prejudicial. We review the trial court's evidentiary ruling for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655 (Clair).) Applying this standard of review, we do not substitute our judgment for that of the trial judge and will not disturb the trial court's ruling "unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
Pursuant to the California Constitution, "[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f), par. (4); see Evid. Code, § 788 ["For 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."].) As explained by our Supreme Court, however, this broad evidentiary standard is governed by two principal constraints.
First, the Supreme Court explained in People v. Castro (1985) 38 Cal.3d 301 (Castro) that the due process clause of the Fourteenth Amendment limits the admissibility of prior felony convictions to only those that support an inference of the witness's "readiness to lie." (Castro, at pp. 314-315.) To meet this standard, the Court in Castro held that the prior felony conviction must involve a crime of "moral turpitude." (Ibid.) To determine whether a crime involves moral turpitude, the court may consider only whether the least adjudicated elements of the conviction necessarily involve the presence of moral turpitude, i.e., "dishonesty, a ' "general readiness to do evil," ' ' "bad character," ' or 'moral depravity.' " (People v. Gabriel (2012) 206 Cal.App.4th 450, 456.)
The continued existence of this federal constitutional limitation is questionable in light of a post-Castro decision in the United States Supreme Court which implicitly held there is no such due process limitation in the federal context. (Green v. Bock Laundry Machine Co. (1989) 490 U.S. 504, 509-527; see People v. Wheeler (1992) 4 Cal.4th 284, 296, fn. 6.) Nevertheless, California courts, including the California Supreme Court, have continued to apply the "moral turpitude" limitation. (See People v. Edwards (2013) 57 Cal.4th 658, 723-724 [applying Castro]; Clair, supra, 2 Cal.4th at p. 654 [same].) Because Smith does not dispute that his prior conviction involves moral turpitude, the continued applicability of the "moral turpitude" constitutional limitation is of no import to our decision here.
Second, even if the prior conviction involves moral turpitude, its admissibility is subject to exclusion under Evidence Code section 352 if the court concludes that its probative value on the issue of credibility is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (Castro, supra, 38 Cal.3d at pp. 312-313; see People v. Collins (1986) 42 Cal.3d 378, 381 (Collins).)
In exercising its discretion under Evidence Code section 352, the trial court should consider several factors, including "(1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) . . . what effect admission would have on the defendant's decision to testify." (Castro, supra, 38 Cal.3d at p. 307.) These factors are not "rigid standards" that must be applied, but are merely suggested factors to be considered. (Ibid.; see People v. Green (1995) 34 Cal.App.4th 165, 182.)
The court properly considered these factors and did not abuse its discretion in admitting evidence of Smith's prior conviction. A conviction for attempted murder unquestionably involves moral turpitude. (See, e.g., People v. Hinton (2006) 37 Cal.4th 839, 886-888 (Hinton); People v. Olmedo (1985) 167 Cal.App.3d 1085, 1098.) Smith does not contend otherwise. Instead, he argues that the balancing test under Evidence Code section 352 weighs in favor of exclusion: the conviction had limited probative value because it was remote in time and did not directly relate to the issue of honesty and the potential prejudicial effect was "extreme," especially in light of the court's decision to not "sanitize" the prior conviction.
We reject Smith's argument that the court abused its discretion under Evidence Code section 352. The record reflects that the trial court gave due consideration to the issue and engaged in a thoughtful analysis applying the proper standards. There is no bright-line time limitation on the use of prior convictions and Smith fails to cite a single decision holding an 11-year-old conviction is too remote. The court's finding that Smith's prior conviction in 2006—approximately 11 years before his trial—was not too remote is not unreasonable. (See, e.g., People v. Johnson (1987) 193 Cal.App.3d 1570, 1574-1578 [10-year-old conviction not too remote]; People v. DeCosse (1986) 183 Cal.App.3d 404, 412 [12-year-old conviction not too remote].)
Although an attempted murder conviction—in contrast to a felony offense expressly including an element of dishonesty—does not directly prove Smith's readiness to lie, it nevertheless "indicates a 'bad character' and 'general readiness to do evil' " that could support the inference "that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known." (Castro, supra, 38 Cal.3d at p. 315.)
Finally, the offenses of attempted murder and possession of a weapon in prison are not so similar to create an unreasonable risk that the jury would inevitably conclude that Smith's prior conviction demonstrates he is guilty of possessing a weapon in prison. Because the record does not indicate any other prior felony convictions available for impeachment, excluding the one prior conviction would have given Smith a " ' "false aura of veracity." ' " (Hinton, supra, 37 Cal.4th at p. 888.) Considering the totality of the circumstances, the court conducted a careful balancing test and did not abuse its discretion in denying the motion to exclude evidence of the prior conviction.
Likewise, we cannot say the trial court abused its discretion in declining to "sanitize" the conviction by requiring the prosecution to refer to the prior conviction as a "crime of moral turpitude" or simple "felony conviction" without indicating it was the specific offense of attempted murder. In deciding whether it is necessary to sanitize prior convictions, the trial court may consider whether the prior conviction is identical or substantially similar to the current charges, such that prejudice is more likely. (People v. Johnson (1991) 233 Cal.App.3d 425, 458-459 [courts must "scrutinize with care the impeachment use of prior convictions of crimes identical to a charged offense because of the heightened prejudice, [but] no rule dictates their exclusion"]; People v. Massey (1987) 192 Cal.App.3d 819, 825 [no error in sanitizing prior sexual assault convictions when defendant on trial for sex crimes].) Here, Smith's prior conviction was not so similar to his charged offense as to require the court to sanitize the prior conviction. As the trial court noted, sanitizing a prior offense does not remove all prejudicial effect and may lead a jury to speculate about the prior conviction, potentially to the defendant's detriment. Even if a different trial court could conceivably reach the opposite conclusion, and decide to sanitize the prior conviction, the trial court's conclusion here was not so arbitrary or capricious that it amounted to an abuse of discretion.
Additionally, Smith does not establish prejudice resulting from the trial court's ruling on the admissibility of his prior conviction. The admission of prior convictions for impeachment is reviewed under the familiar standard of People v. Watson (1956) 46 Cal.2d 818, 836, which requires us to determine whether it is reasonably probable the defendant would have obtained a more favorable result absent the admission of the prior conviction. (Collins, supra, 42 Cal.3d at p. 391 & fn. 12; People v. Williams (2009) 170 Cal.App.4th 587, 612 (Williams).)
Here, the evidence of Smith's guilt was clear: he admitted—both in the prison administrative proceeding and at trial—that he possessed the weapon and knew it was a weapon. Although he claimed he was concerned about the consequences and possibility of retribution if he turned the weapon over to correctional officers, he offers no authority to suggest this is a proper defense to the charged offense, and the jury was free to reject his claim in any event. Given the clear evidence of guilt, it is not reasonably probable the jury would have reached a different result absent the brief references to his prior conviction. Moreover, the court instructed the jury it could not consider the fact of the conviction for any purpose other than evaluating Smith's credibility. Absent evidence to the contrary, we presume the jury understood and followed the court's instruction to consider this evidence only for the purpose of evaluating credibility and, therefore, Smith was not prejudiced. (See, e.g., Williams, supra, 170 Cal.App.4th at p. 613.)
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.