Opinion
F060835
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JODY BELT, Defendant and Appellant.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF126893A)
OPINION
THE COURT
Before Cornell, Acting P.J., Kane, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Jody Belt appeals from his conviction for writing checks knowingly drawn on an account with insufficient funds. (Pen. Code, § 476a, subd. (a).) He contends the trial court erroneously permitted, as impeachment evidence, introduction of his prior conviction for forgery. He also contends he is entitled to one additional day of presentence conduct credit under section 2933, as amended and effective on September 28, 2010. We disagree with both contentions and affirm the judgment in all respects. Factual and Procedural Background
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was charged with one count of willfully, unlawfully, and fraudulently making, drawing, uttering, or delivering to various payees, checks in an amount exceeding $200, drawn upon a certain credit union, without having sufficient funds in the credit union, with intent to defraud, between July 24, 2008 and August 15, 2008.
In pretrial motions, the prosecution requested that in the event appellant testified, they would be allowed to introduce evidence of three of appellant's prior felony convictions, suffered in 1999: 1) forgery (§ 470); 2) receiving stolen property (§ 496, subd. (a)); and 3) writing a check on an account with insufficient funds, the same crime charged at bar (§ 476a, subd. (a)).
The prosecution argued admissibility under Evidence Code section 788 of all three priors. Defense counsel admitted the prosecution was entitled to admit prior convictions of crimes of moral turpitude, but then argued for exclusion based on an Evidence Code section 352 (hereafter section 352) balancing test of prejudicial effect against probative value. Defense counsel further requested that only one of the prior convictions be admitted, as the remainder would be cumulative. Finally, defense counsel requested that any priors admitted be sanitized.
The trial court methodically set forth in the record its conclusion to allow introduction of the prior forgery and receiving stolen property convictions, and to exclude introduction of the prior insufficient funds check writing conviction. The court first found that each of the prior convictions was a crime of moral turpitude, and then weighed each under a section 352 balancing test on the record.
The trial court also noted it would consider in performing the section 352 analysis the remoteness of the prior convictions, as well as the similarity of the prior convictions to the offense charged. With respect to the forgery charge specifically, the court noted the charge "perhaps arguably, is similar in conduct [to the current charge] but without conduct as to the nature of that, the Court does not know whether or not similarity is a significant factor. And as to the charge itself, it does not appear to be one."
The trial court found that the forgery conviction and receiving stolen property convictions had probative value that outweighed their prejudicial effect and allowed their introduction. The trial court excluded the prior insufficient funds check writing conviction as more prejudicial than probative because of its similarity to the current offense, and declined to sanitize the two admissible priors with the reasoning that the jury may speculate that the sanitized offenses were similar or identical or even more heinous to the charged offense, "which might be more prejudicial to the defendant than that for which the convictions were entered."
Appellant testified at trial and the prosecution impeached him with the two prior convictions. The jury found appellant guilty of the single count of writing checks with insufficient funds.
At sentencing on August 5, 2010, the trial court sentenced appellant to the middle term of two years, and awarded appellant 129 days of presentence credit, broken down into 65 days of actual time served and 64 days of conduct credit. Discussion
I. Appellant's prior forgery conviction
Appellant asserts the similarity between forgery and writing checks with insufficient funds was so prejudicial that it outweighed the probative value of the prior forgery conviction as impeachment evidence. Appellant contends in the alternative the trial court should have sanitized the prior forgery conviction. He suggests a different outcome would have resulted had the jury heard only that appellant had a prior conviction for receiving stolen property and a prior conviction for a generic crime of moral turpitude, and cites to the fact the jury requested part of appellant's testimony be read back during deliberations as supporting evidence of this potential change in outcome. We disagree.
California Constitution article I, section 28, subdivision (f) "authorizes [for impeachment purposes] the use of any felony conviction which necessarily involves moral turpitude," (People v. Castro (1985) 38 Cal.3d 301, 306 (Castro)), "subject to the trial court's exercise of discretion under section 352." (Ibid.) "Thus, the threshold question is whether the prior felony necessarily involves moral turpitude. If the felony does involve moral turpitude, the application of Evidence Code section 352 requires the trial court to exercise its discretion in admitting or excluding the prior. The exercise of discretion under section 352 requires the trial court to determine probative value, appraise prejudicial effect and weigh one against the other. [Citation.] In determining whether otherwise admissible evidence should be excluded, the trial court on the record must determine if its probative value is substantially out-weighed by the probability that the admission will create substantial danger of undue prejudice." (People v. Parrish (1985) 170 Cal.App.3d 336, 347-348 (Parrish).) "In applying Evidence Code section 352, it must be kept in mind that Castro limits the precedential effect of Antick [People v. Antick (1975) 15 Cal.3d 79] by concluding „[t]he intention of the drafters of the initiative was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grated onto the code by the Antick line of decisions.' [Citation.]" (Parrish, supra, 170 Cal.App.3d at p. 349.)
"When 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. [Citations.]" (People v. Wheeler (1992) 4 Cal.4th 284, 296, superseded by statute on other grounds, as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460.) Such factors include, "(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) finally, what effect admission would have on the defendant's decision to testify." (Castro, supra, 38 Cal.3d at p. 307.)
Prior convictions may be included as impeachment evidence even where the underlying offenses are similar or identical to the offense at issue. (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.) "'No ... defendant who elects to testify in his own behalf is entitled to a false aura of veracity.' [Citation.]" (Id. at p. 590.)
"A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The trial court here properly found that forgery is a crime involving moral turpitude. (People v. Flanagan (1986) 185 Cal.App.3d 764; Parrish, supra, 170 Cal.App.3d at p. 349.) As to its section 352 analysis, we also find no fault.
In making its ruling on inclusion of the prior forgery conviction as impeachment evidence, the court clearly understood the parameters of its discretion and exercised it in accordance with Castro, supra, 38 Cal.3d 301. The trial court found the prior conviction not so remote in time as to require exclusion. The court further noted there were no details about the prior forgery conviction to determine whether the underlying conduct was similar to that of the offense charged, and reasonably concluded the offenses were sufficiently dissimilar on their face. The court reasonably exercised its discretion in finding the forgery conviction's probative value outweighed any prejudicial effect.
Section 476a, subdivision (a) (writing a check with insufficient funds) states in pertinent part: "Any person who for himself ... willfully, with intent to defraud, makes or draws or utters or delivers any check, or draft or order upon any bank or depositary, or person, or firm, or corporation, for the payment of money, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer . has not sufficient funds in, or credit with said bank or depositary, or person, or firm, or corporation, for the payment of such check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable [as a wobbler]."
Section 470 (forgery), subdivision (a) states in pertinent part: "Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery." Subdivision (d) states in pertinent part: "Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft ...."
Moreover, the decision to refuse to sanitize the conviction was also proper. "There is no automatic limitation on the . nature of prior convictions of crimes involving moral turpitude that may be used to impeach a witness. [Citations.]" (People v. Johnson (1991) 233 Cal.App.3d 425, 459.) The defense disputed only two of the elements of the charge — intent to defraud and knowledge of insufficient funds.Appellant's testimony that he had no intention of defrauding or harming the banks and that he believed he had sufficient funds in the account were the key pieces of evidence the defense presented demonstrating appellant's lack of intent or knowledge. His credibility was thus central to the matter's resolution. Admission of appellant's unsanitized prior conviction, therefore, 'was necessary to inform the jury fully as to defendant's credibility." (Ibid.)
The other elements the prosecution had to prove were: 1) appellant willfully made or drew a check on the credit union for the payment of money; 2) appellant acted for himself; and 3) when appellant made or drew the check there were insufficient funds in, or credit with, the credit union to cover full payment of the check and all other outstanding checks on that account. (CALCRIM No. 1970)
The court clearly understood its discretionary authority and exercised it in a reasonable manner. The decision to include the unsanitized forgery conviction was not arbitrary, capricious, nor patently absurd, and resulted in no miscarriage of justice. We find no abuse of discretion.
II. Appellant is not entitled to additional presentence credit
Amended section 2933 went into effect September 28, 2010, and gave qualifying prisoners confined in state prisons one day of presentence credit for each day of presentence confinement served. (Sen. Bill No. 76 (2010) § 1; § 2933, subd. (e)(1), (2), (3).) Prior to this amendment, and effective from January 25, 2010 through September 27, 2010, presentence credit was calculated under section 4019, which gave qualifying inmates two days of conduct credit for every four days of actual custody time. (Stats. 2009-2010, 3rd Ex. Sess., ch.28 (Sen. Bill No. 18) § 50, eff. Jan. 25, 2010; Sen. Bill No. 76, supra, § 2.) Although he was sentenced on August 5, 2010, that is, before the September 28, 2010 effective date, appellant contends he is retroactively entitled to the benefits of the amendment to section 2933. We disagree.
"Conduct credit" consists of the combined earned credit for good behavior and participation in qualifying work programs. (See People v. Johnson (2004) 32 Cal.4th 260, 263.)
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"A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]" (People v. Hayes (1989) 49 Cal.3d 1260, 1274; see also § 3.) The Legislature neither expressly declared, nor does it appear by "clear and compelling implication" from any other factors, that it intended the amendment to operate retroactively. Therefore, the amendment applies prospectively only. We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 2933. Disposition
The judgment is affirmed.