Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Ct. No. SCS202445, Laura J. Birkmeyer, Judge. Affirmed.
HUFFMAN, Acting P. J.
A jury convicted Jose Luis Beaver of one count of residential burglary (Pen. Code, §§ 459, 460) and one count of receiving stolen property (§ 496, subd. (a)). The trial court sentenced Beaver to 30 years to life in state prison.
All statutory references are to the Penal Code unless otherwise indicated.
Beaver appeals, contending that the trial court erred by: (i) permitting the prosecutor to impeach his testimony with seven 18-year-old burglary convictions; (ii) failing to instruct the jury on the lesser included offense of trespassing; and (iii) relying on a flawed definition of "reasonable doubt" in instructing the jury. We find Beaver's contentions to be without merit and affirm.
FACTS
On the morning of May 12, 2006, Susan Harshman, who lived in an apartment complex located on Oaklawn Avenue in Chula Vista, awoke to find her cell phone and Dell laptop computer missing, and the door to her apartment ajar. Harshman immediately called police to report the theft.
As Beaver was acquitted of burglarizing the Harshman residence, we recount these facts solely for their bearing on the receiving stolen property conviction.
On the morning of May 14, 2006, 16-year-old Rosa V., who lived in the same apartment complex, observed a stranger, later identified as Beaver, standing near the open door of her apartment. She "thought that he was one of the workers who worked around the building" and asked him to close the door so her dog would not get out. Rosa's aunt, Patricia Munoz, went to see who Rosa was talking to and saw Beaver standing "a few steps inside" of the apartment. Munoz asked Beaver why he was there, and Beaver responded that he was "looking for [his] friend Jorge." Beaver "looked like he didn't expect [her] to be there" and took out a cell phone as if he was going to make a call. Munoz told Beaver to leave, and he complied. Rosa called the police. When an officer responded, Munoz pointed out Beaver standing in the complex's parking lot.
Officer Craig Rolain arrested Beaver and searched a backpack Beaver was carrying. Inside the backpack, Rolain found a power pack and converter for a Dell computer, wire cutters, and two inoperable cell phones, along with clothing and various toiletry items. Rolain found two more cell phones on Beaver's person. One of the phones was indentified as the phone taken from Harshman's apartment. That same day, Harshman's computer was located by a neighbor on top of a car in the carport at the Oaklawn apartment complex.
Rolain compared the wire cutters to marks on the door of Munoz's apartment and formed the opinion that the wire cutters had been used as a wedge to pry the door open.
In the defense case, Beaver testified that he went to Munoz's apartment looking for family members of an acquaintance, Jorge Gonzales, and that he had no intention to steal anything from the apartment. He stated that he knocked on the door, the door opened, and a young lady motioned for him to come inside. He asked whether Jorge Gonzales was there, and Munoz told him he was not, said she was going to call the police, and asked him to leave. Beaver stated that Jorge Gonzales had given him one of the phones, and he had recently found two others in a nearby dumpster, along with the computer power cord. A defense expert witness disputed the prosecution evidence concerning wire cutters, explaining that even if the wire cutters could have made the marks on the door, they could not have made them with the door closed, and the wire cutters would not have been able to defeat a dead-bolted door without doing severe damage to the door (e.g., the damage that would result from prying open a dead-bolted door with a crowbar), which was not present. Another resident of Munoz's apartment testified that she had locked the door with the deadbolt when she left earlier that morning.
I
DISCUSSION
Beaver contends that the trial court abused its discretion by permitting the admission of seven of his prior convictions as impeachment. We address this contention below after setting forth the relevant procedural history and the applicable legal principles.
On March 30, 1989, Beaver pleaded guilty to 10 separate counts of burglary. According to a proffer by the prosecutor, the offenses corresponded to a series of residential burglaries committed between October 7, 1988 and November 6, 1988.
Prior to trial in February 2007, the prosecution moved to be permitted to impeach Beaver's credibility, should he testify, with the 10 burglary convictions. Beaver's counsel objected, arguing that the convictions were too remote to shed any light on Beaver's present credibility. She also highlighted the "extreme prejudice" that would result from impeaching a defendant on trial for residential burglary with 10 previous residential burglary convictions. Defense counsel added that if the convictions were admitted over her objection they should at least be "sanitized" and referred to at trial as either "several" "prior felonies" or, if that was unacceptable, "theft-related offenses."
The prosecutor contended that all 10 of the burglary convictions, as crimes of "moral turpitude," were admissible as impeachment under California law, and that any remoteness was neutralized by a more recent misdemeanor driving under the influence (DUI) conviction, a conviction for unlawful possession of a syringe under the Business and Professions Code, and an arrest that did not result in a conviction. The prosecution also objected to sanitizing the offenses because it would not "give the jury the full flavor" of the prior conduct.
There was some confusion in the trial court as to the specifics of Beaver's criminal history. The trial court, in making its ruling, specifically identified the offenses pertinent to the remoteness inquiry as "a DUI offense in October of 2000 and a Business and Professions Code [section] 4140 offense in October 2005." The court also referenced a "parole hold" in 1998, and stated its assumption that the parole hold "relat[ed] to the DUI." The trial court's rendition of the relevant offenses is adopted by the Attorney General on appeal, and we assume that it is accurate for purposes of this appeal as well. The trial court did not rely on the arrest cited by the prosecutor, and the Attorney General does not argue that the arrest is relevant to the inquiry on appeal.
The trial court ruled that the 1989 convictions were not so remote as to preclude admissibility because Beaver had "not led a legally blameless life" subsequent to the convictions. The court, however, was "very concerned that the jury will use" the evidence of prior convictions "for the wrong purposes." Consequently, the court required that the offenses be referenced in front of the jury as "theft-related felonies" (not residential burglaries) and stated that it was "going to reduce [the number of convictions] to seven." The court added that it would, upon request, give a limiting instruction with respect to the jury's use of the prior convictions. (See CALCRIM No. 316.)
In light of the trial court's ruling, Beaver acknowledged, during direct examination, that he had been convicted of "theft-related offenses." On cross-examination, the prosecutor again raised the issue, getting Beaver to admit that on March 30, 1989, he had "sustained seven felony theft-related convictions." The prosecutor highlighted the seven convictions for the jury in closing argument, stating: "You . . . heard that [Beaver] suffered seven felony theft-related convictions, which you may also consider in determining whether he is being honest with you as he explained his story yesterday." Defense counsel brought the matter up a final time in her closing argument, attempting to minimize the significance of the prior convictions.
In the wake of the passage of Proposition 8 in 1982, California law broadly permits impeachment of the credibility of a witness with prior felony convictions, even when the witness is the criminal defendant, subject only to two limitations. (See Cal. Const., art. I, § 28, subd. (f) ["Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment"]; People v. Castro (1985) 38 Cal.3d 301, 310 (Castro); Evid. Code, § 788.) First, only convictions that demonstrate "moral turpitude" — including, but not limited to the trait of dishonesty — are relevant to a defendant's credibility as a witness, and are therefore admissible at trial for impeachment purposes. (Castro, supra, at pp. 314-315.) This is because under the "modern justification" for the practice of impeachment with prior convictions, the relevance of a prior conviction is that the conviction demonstrates a " 'general readiness to do evil,' " i.e., "moral turpitude," that supports an inference that the witness " 'is of bad character and unworthy of credit.' " (Id. at p. 314, italics omitted.)
Second, even when a prior crime involves moral turpitude, the trial court retains discretion under Evidence Code section 352 to exclude evidence of the prior offense "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (See People v. Hinton (2006) 37 Cal.4th 839, 888; Cal. Const., art. I, § 28, subd. (d) ["Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Section[] 352"]; Castro, supra, 38 Cal.3d at p. 309.) " '[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes,' " and " 'in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.' " (Hinton, supra, at p. 887.)
In evaluating, under Evidence Code section 352, the "probative value" and "danger of undue prejudice" of a defendant's prior conviction, a trial court should consider the four factors set forth by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441 (Beagle): "(1) Whether the prior conviction reflects adversely on an individual's 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 at p. 644 (Muldrow), citing Beagle, supra, at p. 453.) While these factors were originally set forth prior to the passage of Proposition 8, they " ' "remain relevant to any application of [Evidence Code] section 352" ' " in this context. (Muldrow, supra, at p. 644; see People v. Wheeler (1992) 4 Cal.4th 284, 296 (Wheeler) [stating that "[w]hen exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area," and citing Beagle for the pertinent factors].)
To evaluate the trial court's exercise of discretion in permitting Beaver to be impeached with the prior burglary convictions, we analyze the proffered impeachment under each of the Beagle factors. (See Wheeler, supra, 4 Cal.4th at p. 296 [requiring trial courts to consider, as applicable, the Beagle factors].)
As already noted, a conviction must demonstrate moral turpitude for it to have any bearing on dishonesty, and thus be admissible as impeachment. (See Castro, supra, 38 Cal.3d at p. 314.) Otherwise, the conviction is inadmissible as a matter of law. (Ibid.; People v. Maestas (2005) 132 Cal.App.4th 1552, 1556.)
The current appeal concerns Beaver's prior burglary convictions. Clearly, when a burglary conviction rests on a jury's finding of an underlying criminal intent to commit theft (a species of deceit), the first Beagle factor favors admission. (See People v. Gurule (2002) 28 Cal.4th 557, 608 ["theft crimes necessarily involve an element of deceit"].) As our Supreme Court has noted, however, because the offense of burglary constitutes the entry of a building with the intent to commit not only theft, but also any other felony, "[a] conviction for burglary does not therefore necessarily involve an intent to deceive, defraud, lie, steal, etc.," and thus may not be particularly relevant to credibility. (People v. Holt (1984) 37 Cal.3d 436, 453; but see Muldrow, supra, 202 Cal.App.3d at p. 645 [stating that an act of burglary constitutes "not only acts of moral turpitude under modern law, but, more specifically, acts of dishonesty"].)
While it is unclear from the record whether Beaver's prior burglary convictions involved an underlying finding of an intent to commit theft, we believe that the defense suggestion to sanitize the prior burglaries (if admitted over defense objection) as "theft-related," requires an inference to that effect. (See People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523 [" 'We must indulge in every presumption to uphold a judgment' "].) Indeed there seemed to be no dispute in the trial court that the prior burglary convictions arose out of an intent to steal. Consequently, the first Beagle factor — the nature of the impeaching offenses — favored admission.
The next Beagle factor — nearness or remoteness in time — favored exclusion. Beaver's convictions occurred in 1988, almost two decades prior to his testimony in the instant case. Consequently, the convictions were clearly remote in time. (People v. Burns (1987) 189 Cal.App.3d 734 at p. 738 ["a conviction that is 20 years old . . ., certainly meets any reasonable threshold test of remoteness"].) Nevertheless, it is well established that "convictions remote in time are not automatically inadmissible for impeachment purposes"; even a "fairly remote" prior conviction may be admissible "if the defendant has not led a legally blameless life since the time of the remote prior." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 (Mendoza); Beagle, supra, 6 Cal.3d at p. 453.)
The Attorney General points out that Beaver did not lead a "legally blameless life" after his 1989 convictions, as he suffered a misdemeanor DUI conviction (Veh. Code, § 23152) and a conviction for the "minor offense" of possessing a hypodermic needle (Bus. & Prof. Code, § 4140).
While reasonable minds can differ on the weight to be given to the remoteness factor, in the final analysis it is a matter for the trial court to resolve in the exercise of its broad discretion. (Mendoza, supra, 78 Cal.App.4th 918, 925 [convictions which are remote in time are not automatically inadmissible for impeachment].) The prior felony convictions in this case are old, which would weigh against their use. On the other hand, Beaver has had some criminal convictions since his release from prison after his 10 burglary convictions. We cannot say the trial court's decision to allow impeachment with the sanitized prior felony convictions was an abuse of discretion based on the age of those convictions.
The similarity between a prior conviction and the present charge no longer mandates exclusion as it once did prior to passage of Proposition 8. (See People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.) However, similarity remains a significant factor in the discretionary analysis.
Here, the trial court took reasonable steps to reduce the potential prejudice that would have existed if the jury had been informed that Beaver had prior convictions for residential burglary. The trial court "sanitized" the prior convictions by referring to them as "theft related felonies." Thus the jury was never informed the prior convictions arose from any form of burglary. Beaver's prior convictions did involve moral turpitude and denominating them as theft related informed the jury of their relevance to the character trait of honesty without unnecessarily acknowledging they were for "similar" offenses. (People v. Green (1995) 34 Cal.App.4th 165, 182 (Green).)
Where, as here, the defendant ultimately testified at trial, "the fourth factor identified in Beagle is inapplicable." (See People v. Phillips (1985) 41 Cal.3d 29, 55 [stating that "defendant was not deterred from testifying, so the fourth factor identified in Beagle is inapplicable"].)
The trial court spent considerable time determining the extent to which the prosecutor would be permitted to impeach Beaver with his prior felony convictions. The court noted that it was "very concerned" that the jury would consider the prior burglary convictions "for the wrong purposes," and attempted "to slightly minimize the prejudicial value" by ruling that only seven of the prior burglary convictions would be admitted in partially sanitized form.
Once again, reasonable minds could differ on whether to permit the use of one, seven or even 10 prior convictions for impeachment. There is, however, no statutory or case law established limitation on the precise number of prior convictions which can be used for impeachment. (Mendoza, supra, 78 Cal.App.4th at p. 927.) In Green, supra, 34 Cal.App.4th at page 183, the court allowed the use of six prior felony convictions for impeachment.
At the end of the analysis, it is not the number of convictions used, but the question of whether there was undue prejudice by the use of any number of convictions such that we can say the trial court abused its discretion. We cannot find an abuse of discretion on this record. The prior convictions were probative of credibility and were used only for that limited purpose. It cannot reasonably be said that allowing the use of seven prior convictions was more prejudicial than any other number. In Mendoza, supra, 78 Cal.App.4th at page 923, it appears the court found the use of nine prior convictions to be appropriate impeachment. In any event, we are satisfied the trial court's decision in this case, which was made after careful consideration, was not an abuse of the very broad discretion the trial court has in weighing the probative value of evidence against any potential for undue prejudice.
II
Beaver next contends the trial court erred when it refused to instruct on the lesser offense of trespass under section 602.5. Beaver recognizes that trespass or unlawful entry under section 602.5 is not a lesser included offense of residential burglary under the elements test. (People v. Pendleton (1979) 25 Cal.3d 371, 381-382.) He argues, however that based on the language of the accusatory pleading in this case, unlawful entry is a lesser included offense of residential burglary. The trial court denied Beaver's requested instruction relying on People v. Birks (1998) 19 Cal.4th 108. We find the trial court correctly applied controlling Supreme Court authority and reject Beaver's contention of instructional error.
The charging document in this case alleged in count 2: "On or about May 14, 2006, Jose Luis Beaver did unlawfully enter [the] residence [of] Rosario Mendez with the intent to commit theft in violation of PENAL CODE SECTION 459." (Italics added.)
Section 602.5 provides in part: "Every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or the person in lawful possession thereof, is guilty of a misdemeanor."
Beaver contends that the addition of the word "unlawfully" to the language in count 2 incorporates the concept of trespass or unlawful entry that is not statutorily an element of residential burglary. As noted by the trial court the Birks opinion has expressly rejected that argument in a case in which the charging document included the words "willfully and unlawfully." The court stated:
"It appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony [citation], can be perpetrated without committing any form of criminal trespass [citation]. [Citations.] Nor did the allegations set forth in Count 1 of the instant information necessarily include criminal trespass. Count 1 simply alleged that defendant 'did willfully and unlawfully enter a commercial building . . . with intent to commit larceny and any felony.' " (Birks, supra, 19 Cal.4th 108 at p. 118, fn. 8.)
While the court's opinion does not include extensive analysis of the argument, its holding is crystal clear, trespass/unlawful entry is not made a lesser included offense of residential burglary by the addition of the word "unlawfully" to the charging language for such offense. Accordingly, we find the trial court correctly refused Beaver's requested instruction.
III
Finally, Beaver contends the court denied him due process by instructing the jury on the burden of proof by using CALCRIM No. 220. Essentially he argues the language of CALCRIM No. 220 impaired his ability to rely on the absence of evidence as a basis for reasonable doubt.
CALCRIM No. 220 as given to the jury provides:
"The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the 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."
Specifically Beaver complains about the portion of the instruction which tells the jurors they "must impartially compare and consider all the evidence that was received throughout the entire trial." Beaver contends that language impaired his ability to persuade the jurors that there was reasonable doubt based on an absence of evidence in the prosecution's case. This court dealt with the same argument in People v. Westbrook (2007) 151 Cal.App.4th 1500, 1509. In Westbrook we rejected the identical challenge to CALCRIM No. 220. Interestingly Beaver does not deal with Westbrook in his briefing even though the case was properly cited in the respondent's brief. We have evaluated Beaver's contention in light of our opinion in Westbrook and we are satisfied that this challenge to the jury instruction was properly rejected in that opinion. We continue to adhere to the views expressed in Westbrook and reject Beaver's arguments. We find the jury was properly instructed on the burden of proof.
DISPOSITION
The judgment is affirmed.
I CONCUR: NARES, J.
IRION, J.
I dissent because the trial court's ruling permitting Joe Luis Beaver's testimony to be impeached with seven nearly two-decade-old convictions, each of which was essentially identical to the charge in the instant case, violated his right to a fair trial. (People v. Muldrow (1988) 202 Cal.App.3d 636, 650, fn. 6 ["While we preserve the jury's right to know whether [the] defendant is capable of dishonesty, we must also preserve [the] defendant's right to a fair trial"].) With the rare confluence of numerosity, remoteness, and identity of the prior convictions at issue in this case, virtually every conceivable variable that we use to guide trial courts in applying their discretion under Evidence Code section 352 as to prior convictions offered for purposes of impeachment strongly favored exclusion of the evidence. Yet the majority concludes that even in this extreme situation, reversal is unwarranted. The consequences of this ruling are stark. If we are to affirm the admission of these convictions for purposes of impeachment, I cannot conceive of any realistic circumstance in which we could reach the opposite conclusion.
It is difficult to imagine a more unduly prejudicial use of prior conviction impeachment than occurred in the instant case. The trial turned on the jury's determination of Beaver's intent in entering Patricia Munoz's apartment. The evidence as to Beaver's intent, however, was thin. According to witnesses, Beaver walked a few steps into the apartment, said he was looking for a friend, and took out a cell phone as if to make a call, when informed that his friend was not there. Beaver was then asked to leave, complied and remained in the parking lot as Munoz called police.
On the strength of the prosecution's evidence of Beaver's conduct, it is unlikely the jury would have convicted Beaver of residential burglary. The jury was provided with an additional piece of information, however, that easily explains its verdict. The jury was told, repeatedly, that Beaver had previously been convicted of seven "theft-related felonies." What conclusion was the jury to draw other than that Beaver was a thief, and that he entered Munoz's apartment with the intent to steal?
It is a long-standing principle of American jurisprudence that a defendant should be convicted only upon evidence of his commission of the charged crime, not on the generic suspicion that inevitably arises from evidence of past wrongdoing. (See, e.g., Michelson v. U.S. (1948) 335 U.S. 469, 475-476 [recounting common-law tradition applicable throughout American jurisdictions]; Loper v. Beto (1972) 405 U.S. 473, 482, fn. 11 [recognizing that if an accused " 'is forced to admit that he has a 'record' of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility' "].) Even "the usual suspects" are entitled to a fair opportunity to dispute the government's charges. Yet because of the admission of evidence regarding Beaver's prior convictions, there is a strong possibility that he will serve a 30-year-to-life prison sentence for crimes he committed (and served a sentence for) almost 20 years ago. If this is not "undue prejudice," I do not know what is. (Evid. Code, § 352, italics added.)
In my view, the trial court's ruling " 'pose[d] an intolerable "risk to the fairness of the proceedings' " and " 'the reliability of the outcome.' " (People v. Jablonski (2006) 37 Cal.4th 774, 805 [delineating bounds of trial court discretion under Evid. Code § 352].) Beaver is entitled to a new trial that focuses on his guilt or innocence of the present charge, not his past wrongdoing.