Opinion
2d Crim. No. B162218.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. HENRY A. AREVALO, Defendant and Appellant.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephen A. McEwen, Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
Henry A. Arevalo appeals from the judgment entered after a jury found him guilty of second degree robbery (Pen. Code, § 211). After the jury found him guilty, he admitted that he had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to four years in state prison, consisting of the low term doubled under the Three Strikes law. He contends the trial court erred in allowing him to be impeached with a prior sustained juvenile petition, and in refusing to instruct the jury on petty theft as a lesser included offense of robbery. We affirm.
FACTS
On March 4, 2002, Arevalo approached Frank Cedeno on the street, nudged his arm, and asked him how much money he had. When Cedeno replied that he had none, Arevalo said, "[t]hats too bad" and put his hand into his right front pocket. Arevalo again asked Cedeno how much money he had, and Cedeno again replied that he had none. Arevalo asked Cedeno if he had a watch, and he replied that he did not. Arevalo then asked, "what do [you] have?" Cedeno responded that he had a pager. Arevalo told him he "didnt want to have to use what he had." When Cedeno asked Arevalo what he had in his pocket, Arevalo told him, "[l]ets go to the garage and I will show you." Cedeno nudged his girlfriend Nubia Flores and said, "lets go." When Cedeno and Flores began to walk away, Arevalo touched Cedeno on the shoulder with his left hand while his right hand remained in his pocket. Cedeno and Flores feared that Arevalo had a weapon in his pocket.
Arevalo told Flores to "[t]ell your boyfriend not to get crazy with me." Cedeno, frightened that Arevalo had a weapon, gave him his pager. After he did so, Arevalo told them to leave. Shortly thereafter, Arevalo was apprehended and identified by Cedeno. The pager was found nearby.
Arevalo testified that he had approached Cedeno and Flores, tapped Cedeno on the arm, and asked him for money. After Cedeno replied that he only had credit cards, Arevalo asked Cedeno if he had a watch because he wanted to know what time it was. Cedeno replied that he did not have a watch, and Arevalo again asked him for some money while he had his hands in his pockets. According to Arevalo, Cedeno asked him, "what do you got?" Arevalo interpreted this question as a threat, and told Flores to "tell your boyfriend not to do anything stupid or get crazy with me." He testified that he also told Cedeno, "[b]rother, you dont want to know what I got." After Cedeno again told Arevalo that he did not have any money, Arevalo asked him, "[w]ell, what do you got? Can you help me out with something? Anything?" In response, Cedeno gave him his pager. Arevalo attempted to return the pager, but when he turned around, Cedeno and Flores were gone. He left the pager on a nearby window ledge. He subsequently told the police that he had asked Cedeno for money, and admitted that he had been somewhat aggressive.
DISCUSSION
Prior Juvenile Adjudication as Impeachment Evidence
In anticipation of Arevalos testimony, the trial court held an Evidence Code section 402 hearing to determine whether a 1991 juvenile adjudication for robbery should be admitted as impeachment evidence. Arevalo sought exclusion of the prior on the grounds that it was not a felony conviction and that it should be excluded under Evidence Code section 352 as too remote in time. The court concluded that the fact of the prior would be admitted, but that it should be sanitized due to the similarity of the prior and the charged crime, pursuant to Evidence Code section 352.
Accordingly, the court allowed the prosecution to ask Arevalo whether he had suffered a prior juvenile adjudication for a crime involving moral turpitude. After Arevalo admitted that he had, on questioning from his attorney he revealed that the prior was for a "211." He further indicated that he did not understand what constituted a crime of moral turpitude. The trial court agreed with the prosecution that defense counsel had "opened the door" to the conduct underlying the prior by eliciting this testimony, and indicated it would allow such questioning unless Arevalo stipulated to the fact of the prior. After Arevalo agreed, the court informed the jury "that Mr. Arevalo suffered a prior petition involving a felony for a crime of moral turpitude, on or about September 13 of 1991."
Arevalo contends the trial court committed prejudicial error in admitting the fact of his prior juvenile adjudication because that fact is inadmissible hearsay. The prosecution responds that Arevalo failed to object to the evidence on hearsay grounds, that the evidence was properly admitted, and that any error in admitting the evidence was harmless.
We reject respondents contention that the proper objection was not posited. In bringing the objection, counsel asserted that the prior could not be treated as a felony conviction, which would have rendered it admissible for impeachment purposes under an exception to the hearsay rule (see People v. Allen (1986) 42 Cal.3d 1222, 1270), and argued that "unless the People want to proceed with it in the way that they would use an adult misdemeanor that rose to the level of moral turpitude, by presenting witnesses from that, I dont think it should be proceeded on as a conviction and allowed to be used to impeach my client." These statements are sufficient to preserve an objection to the prior on hearsay grounds.
On the merits, however, Arevalos claim fails. Although juvenile adjudications generally are not admissible for impeachment, the conduct underlying a juvenile adjudication for a crime involving moral turpitude is admissible for that purpose, subject to the restrictions imposed by Evidence Code section 352. (People v. Lee (1994) 28 Cal.App.4th 1724, 1739-1740.) The trial court in this case erroneously ruled that the fact that Arevalo had suffered a prior sustained petition was admissible, but it precluded inquiry into the substance of the crime. Arevalo initially objected to this ruling. But, he subsequently stipulated to the fact that he had suffered a prior sustained petition for an offense involving moral turpitude. In exchange, the prosecution was precluded from informing the jury that the adjudication was for robbery, or from presenting any evidence regarding the specific conduct underlying the adjudication. Certainly, evidence of the conduct underlying Arevalos prior robbery adjudication would have undermined his credibility more than his admission that a prior petition had been sustained against him for an unidentified crime involving moral turpitude. Accordingly, while the court erred in concluding that the fact of the prior was admissible, Arevalo benefited from that error.
Moreover, Arevalos trial testimony regarding the incident corroborated the victims in several respects. For instance, Arevalo testified that he told Flores to warn Cedeno "not to do anything stupid or get crazy with me," and further admitted telling Cedeno, "brother, you dont want to know what I got." The jury rejected his defense that he was merely an aggressive panhandler, and it is not reasonably probable that a different result would have been reached had the evidence of his prior been excluded. Any error in admitting the evidence was therefore harmless. (People v. Lee, supra, 28 Cal.App.4th at p. 1740.)
Failure to Instruct on Petty Theft
Arevalo also contends the court erred in failing to instruct the jury on petty theft as a lesser included offense of robbery.
The trial court must instruct the jury on lesser included offenses whenever there is substantial evidence from which a reasonable jury could conclude that a lesser offense, and not the greater offense, was committed. (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) Robbery is the taking of personal property in the possession of another, either from his person or in his immediate presence, by force or fear. (Pen. Code, § 211; CALJIC No. 9.40; People v. Nguyen (2000) 24 Cal.4th 756, 761.) Petty theft is the taking of property valued at less than $400 with the specific intent to permanently deprive the owner of it. (Pen. Code, §§ 487, 488.) According to Arevalo, the jury could have concluded from the evidence that he lacked the intent to take the victims property by force or fear and that he was guilty at most of aggressive panhandling. Aggressive panhandling does not amount to petty theft, however. If, as Arevalo testified, he had no intent to take the pager but only sought it if Cedeno would give it to him, he was not guilty of any crime. The trial court thus had no sua sponte duty to give a petty theft instruction as a lesser included offense of robbery.
The judgment is affirmed.
We concur: GILBERT, P.J. and YEGAN, J. --------------- Notes: The court in Lee noted that the underlying conduct may not be admissible in cases in which the defendant was honorably discharged by the Youthful Offender Parole Board pursuant to Welfare and Institutions Code section 1772. (Lee, p. 1739.) Here, as in Lee, the record is silent on this point.