Opinion
A167641
11-21-2023
THE PEOPLE, Plaintiff and Respondent, v. MARQUIS ODELL BANKS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 22CR005067)
Rodriguez, J.
A jury convicted Marquis Odell Banks of several felonies, including assault with a semiautomatic firearm, and found true sentencing enhancement allegations; the trial court sentenced Banks to prison. On appeal, he contends his convictions must be reversed because the court erroneously allowed the prosecution to introduce his aggravated assault conviction into evidence for impeachment. We disagree and affirm.
We provide an overview here and additional facts in the discussion of Banks's sole claim on appeal.
Banks was charged with shooting from a motor vehicle, assault with a semiautomatic firearm, and possession of a firearm by a felon. At trial, the parties presented the following evidence:
In April 2022, Banks, two young women, and a minor boy were hanging out at a friend's house. Eventually, Banks was asked to leave; he got into a car with the women and boy. While on the freeway, Banks argued with one of the women, and he began shooting - several bullets went through the windshield, and one grazed the woman's head. They pulled off the freeway and parked, whereupon he pointed a gun at everyone and ordered them out of the car. He fired a shot into the air; when one of the women begged to be let go, he shot her in the leg.
The other woman tried to walk away, but he ordered her to return and put a gun to her head. He took her to a car, made her get in, told her that he" 'wanted'" her, and asked her to prostitute for him. She persuaded him to drive her back to their friend's house, and she was eventually able to get out of the car when police cars drove by. Banks drove away. Later, a police officer found him lying in the street and screaming. He had crashed his car into a tree, and a gun lay five feet away from him. He expressed dismay when he learned the police had found a gun.
Banks testified he and the other three people left the house and went to see a car "sideshow." When the woman began to drive recklessly, Banks scolded her because he did not want to get pulled over and arrested due to the boy having guns in the car. The woman yelled at Banks, and he told her to take him home. On the way, the boy clutched a gun and whispered in the driver's ear; she said," 'it's good.'" Banks thought this was her giving the boy the okay to rob him.
The boy pointed a gun in Banks's direction and demanded "everything." Banks grabbed the boy's wrist, the gun fired three times, and its magazine fell out. The car pulled off the freeway, and Banks - holding the boy's unloaded gun - ordered everyone out. He began to walk away when he noticed the boy point another gun at him; Banks ran - hearing a gunshot as he fled - and one of the women ran with him. When they were able to stop running, she apologized and said she had nothing to do with the robbery. They walked to a nearby friend's apartment, where Banks's car was parked. She asked him to drive her back to their friend's house, and he agreed. He still had the unloaded gun because it had not occurred to him to get rid of it. The woman got out of the car, and Banks drove away. He began driving back to his friend's apartment when he turned on the heater because he was cold. The windshield began to fog up, and he bent over to wipe it when the car crashed into a tree. He opened the car door, got out, and lay on the ground. He threw the gun because he was concerned about the reaction of police and because, as a felon, he was not allowed to possess a gun. Banks acknowledged suffering a 2019 conviction for assault with force likely to produce great bodily injury (2019 conviction).
The jury convicted Banks, and the trial court sentenced him to 13 years and eight months in prison.
DISCUSSION
Banks contends the trial court erred by admitting evidence concerning his 2019 conviction. Specifically, he argues the "evidence was inadmissible because its prejudicial impact far outweighed its probative value." We disagree.
Before trial, the prosecution filed a motion to impeach Banks with evidence of several prior felony convictions, including his 2019 conviction. Defense counsel, in turn, sought to exclude any prior convictions for impeachment purposes; they argued crimes of violence, as compared to fraud or theft, were less probative of credibility, and the 2019 conviction was similar to the current charges, creating a risk the jury could use it as propensity evidence. The trial court granted the prosecution's motion.[ It concluded that, while a theft conviction might more directly bear on credibility, crimes of moral turpitude are relevant to veracity and should be admitted as impeachment evidence. The court also determined the 2019 conviction was not substantially similar to the current charges. At trial, Banks admitted the 2019 conviction, and the jury was instructed it could consider the evidence in assessing his credibility.
The trial court also permitted the prosecution to impeach Banks with evidence of his prior convictions for domestic violence and vehicle theft; it excluded evidence of his prior conviction for human trafficking. Banks does not challenge these rulings.
Prior felony convictions are generally admissible to impeach a witness's credibility. (Evid. Code, § 788, undesignated statutory references are to this code; People v. Beagle (1972) 6 Cal.3d 441, 453-454.) Factors to consider include "whether [the prior conviction] reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (People v. Clark (2011) 52 Cal.4th 856, 931.) Of course, a trial court retains discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." (§ 352.) In this context, prejudice "refers 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." (People v. Thomas (2023) 14 Cal.5th 327, 363, internal quotation marks omitted.) We review a court's decision to admit or exclude impeachment evidence for abuse of discretion. (Clark, at p. 932.)
Banks concedes his 2019 conviction was "a crime of moral turpitude and relevant to the issue of credibility." Thus, the only issue is whether the trial court abused its discretion by declining to exclude the evidence under section 352. It did not. Not only was the conviction probative of credibility, but it was also recent - occurring only three years before the current offenses. Indeed, it was the most recent of the three prior convictions admitted as impeachment. A series of moral turpitude crimes is more probative than a single offense, and excluding the 2019 conviction would have given the jury a distorted view of Banks's credibility. (People v. Hinton (2006) 37 Cal.4th 839, 888.)
We are unpersuaded the probative value of the evidence was substantially outweighed by the probability of a substantial danger of undue prejudice. (§ 352.) The trial court did not abuse its discretion in determining the 2019 conviction was not substantially similar to the present charges. In any event, even though similarity "is a factor for the court to consider when balancing probative value against prejudice, it is not dispositive." (People v. Clark, supra, 52 Cal.4th at p. 932.) And the jury was instructed it could consider the impeachment evidence for the purpose of assessing witnesses' testimony. (Indeed, defense counsel impeached a prosecution witness with a prior felony conviction.) We presume the jury followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Given this record, we have no difficulty concluding the trial court did not abuse its discretion by admitting the 2019 conviction as impeachment evidence. Having reached this result, we need not consider the parties' harmless error arguments.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Fujisaki, Acting P. J. Petrou, J.