Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF151052, Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Defendant Brett William Bowen (defendant) asserts that the trial court abused its discretion by permitting the prosecutor to cross examine him on details of a past crime. We will affirm.
FACTS AND PROCEDURAL HISTORY
Defendant was a prisoner at the California Rehabilitation Center on February 12, 2009. After Correctional Officer Thurman (Officer Thurman) observed defendant in a part of the prison where he was not permitted to be, he and Correctional Officer Beltran (Officer Beltran) escorted defendant to a holding cell. According to later testimony by the two officers, as he was about to be put in the holding cell, defendant kicked Officer Beltran and spat in his face.
On September 2, 2009, defendant was charged by information with two felonies: battery by gassing upon an employee of the state prison (Pen. Code, § 4501.1, subd. (a), count 1); and battery by a prisoner upon a nonprisoner (§ 4501.5, count 2.) Further, the information alleged that defendant had suffered a prior “strike” (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), in that on October 3, 2007, he had been convicted of a violation of section 422, making a criminal threat.
All further statutory references are to the Penal Code unless otherwise indicated.
On October 26, 2009, the prosecutor submitted a trial brief and a motion in limine seeking to introduce evidence of defendant’s prior conviction. The motion argued, among other things, for the admissibility of the prior (1) to show that defendant had acted similarly in similar situations and therefore had probably harbored the same intent in both instances; and (2) that, because making criminal threats is a crime of moral turpitude, “[a] certified copy of [defendant’s] conviction” should be admitted to impeach him “should he choose to testify.” On the issue of intent, the motion cited Evidence Code section 1101, subdivision (b); on the issue of impeachment, the motion cited Evidence Code section 788. The trial court appeared to have ruled that evidence of the prior conviction could be admitted for both purposes.
Although it is not absolutely clear from the record, it appears that the trial court’s formal ruling on the prosecutor’s motion in limine did not occur until after the defendant had actually testified in what appeared to have been an unrecorded Evidence Code section 402 hearing. In the posttrial hearing to settle the record, the trial judge and counsel discussed both (1) the ruling on the admission of defendant’s prior conviction for purposes of intent and impeachment, and (2) the later ruling on the proposed admission of testimony by the law enforcement officer who had been the victim in the 2007 offense.
Defendant’s jury trial took place between October 27 and October 30, 2009. Both correctional officers testified about the details of the February 12, 2009, kicking and spitting incident. In addition, Officer Thurman testified that, at the beginning of the incident, defendant said he was trying to return to the “chow hall” after the evening meal (which was not allowed) because he had lost his spoon. Officer Beltran testified that he found a spoon in defendant’s sock.
Defendant also testified. On direct, defendant’s counsel asked about defendant’s 2007 criminal threat offense: “You were put in state prison because you committed a crime? [¶]... [¶] And the crime you committed was criminal threats; right? [¶]... [¶] And you committed those criminal threats against somebody you found out was a peace officer? [¶]... [¶] Although he was in plain clothes, that’s not something you’re supposed to do, is it?” Defendant agreed with all of defense counsel’s statements. When counsel asked about the current charges, defendant denied kicking or spitting on Officer Beltran.
On cross examination, defendant at first said that he had told the officers he wanted to return to the chow hall to get his cup; on further questioning, he admitted that he may have told them he wanted to get his spoon. Later, defendant admitted that, in fact, his spoon was in his sock; but he said he did not feel it against his skin. Defendant also admitted that he had prior contact with Officer Beltran one or two weeks before the instant occasion, when the officer had threatened to take personal items from all the inmates in defendant’s housing unit if he did not disclose the name of a person with whom he had been fighting in the exercise yard. Defendant again denied that he had ever kicked or spat on Officer Beltran. When the prosecutor asked about defendant’s 2007 conviction for making terrorist threats against a person who turned out to be a Tulare County deputy sheriff, defendant testified that the deputy had not identified himself and denied that he had put the victim in a headlock or threatened to kill him. Defendant remembered pleading guilty to making a terrorist threat, but said he had not threatened anyone.
Following an unrecorded Evidence Code section 402 hearing, but still out of the presence of the jury, the prosecutor asked permission to call the Tulare County deputy sheriff as a rebuttal witness to impeach defendant’s testimony regarding the circumstances of his 2007 crime. Concerned that the officer might disclose information about “what he observed prior to his interaction with [defendant]” (defendant trying to take money out of the employees’ tip jar), defense counsel at first objected. In response, the trial court pointed out that “the defendant has somewhat opened the door by denying—in essence, denying that his admission of guilt was appropriate... [¶]... and I think he’s put in issue now whether or not he knew that [the deputy] was a police officer and whether or not he made threats on a police officer.” Defense counsel then agreed that the officer could be called so long as the attempted theft was not disclosed. The trial court granted permission for the Tulare County deputy sheriff to testify. In the end, the prosecution did not call him. At no point was evidence of defendant’s attempted theft introduced.
The court reporter was apparently dismissed while the parties reviewed the jury instructions with the trial court.
On October 30, 2009, the jury convicted defendant of count 2. It could not reach a verdict on count 1, and the trial court declared a mistrial as to that count. The jury also found true the allegation of defendant’s prior “strike” conviction. On December 9, 2009, the trial court sentenced defendant to the midterm of three years, doubled because of the prior strike, for a total of six years in state prison.
On June 2, 2010, appellate counsel filed a request with this court for an order for a “settled statement” of the details of the unrecorded Evidence Code section 402 hearing. Appellate counsel was particularly concerned about whether defense counsel had objected to the admission of the prior crimes evidence. On June 11, 2010, we granted appellate counsel’s request.
On July 6, 2010, the trial judge, the prosecutor, and defense counsel conferred on the record about what had taken place in the unrecorded hearing. The prosecutor recalled that she had been seeking to call Officer Anderson for two reasons: to prove intent under Evidence Code section 1101, subdivision (b); and for impeachment purposes. The trial court recalled that after conducting an Evidence Code section 352 analysis, it had concluded that the incident was more probative than prejudicial, particularly as to intent and to lack of mistake as to whether the 2007 incident had involved someone defendant knew was a police officer. Defense counsel’s recollection was similar; he recalled that the trial court had “applied 352 analysis, ” and that he had objected to the proposed admission of Officer Anderson’s testimony. The trial court then reiterated that, “based on [a] 352 analysis, if [it] did find and continues to find that the probative value outweighs any prejudicial effect that the—for the reasons stated—the prior conviction was probative and admissible and therefore was allowed on that basis.” The prosecutor pointed out that, in fact, the prior had been used only for impeachment purposes, since the Tulare County deputy sheriff had never been called to testify. Defense counsel agreed that this was correct.
DISCUSSION
Evidence Code Section 352 and the Standard of Review
Generally, Evidence Code section 352 provides for the exclusion of evidence 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.” (People v. Harrison (2005) 35 Cal.4th 208, 230.) More specifically, “[E]vidence of a person’s character... is inadmissible when offered to prove... conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) However, nothing in the statute “prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as... intent...) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
A trial court’s ruling under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Lewis (2009) 46 Cal.4th 1255, 1285; People v. Mungia (2008) 44 Cal.4th 1101, 1130.) The standard of review for the admission of evidence offered to impeach a witness is also abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).)
Intent
Defendant first argues that evidence of his prior crime was improperly admitted to prove intent. Relying upon Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926, he insists that, since he was contesting rather than admitting the charges that he kicked and spat upon Officer Beltran, his intent was not in issue. The People, relying upon People v. Ewoldt (1994) 7 Cal.4th 380, 400, footnote 4, superseded by statute on a different point as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505, point out that when a defendant pleads not guilty, unless he affirmatively lessens the prosecution’s burden of proof, he puts at issue every element of the charged offense. In our view, even if the admission for this purpose was erroneous, because the prior was also admitted to impeach his credibility—a use that is specifically authorized by statute—he suffered no miscarriage of justice.
Impeachment
As has long been established, evidence of a prior felony conviction may be admitted into evidence to impeach a witness’s credibility, including the credibility of a testifying defendant, so long as the prior was a crime of moral turpitude indicating a “‘general readiness to do evil.’” (People v. Castro (1985) 38 Cal.3d 301, 313-315; see also Evid. Code, § 788; accord, People v. Rogers (1985) 173 Cal.App.3d 205, 209; People v. Harris (1971) 20 Cal.App.3d 534, 538.) The trial court retains discretion to exclude a prior conviction for this purpose, but, as we have said, its decision is reviewed for abuse of discretion. (Rogers, at p. 209.) The decision “will not be disturbed except on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Analysis
There was no such showing here. While it does appear that there were dual reasons for the trial court’s initial decision to admit evidence of defendant’s prior crime, the decision was neither arbitrary nor absurd. Not only was admission authorized by statute, in the end—as defense counsel properly conceded—it was used only to impeach defendant’s credibility. And there was no confusion about the trial court’s reason for ruling that the Tulare County deputy sheriff could testify. Defendant had asserted, in essence, that his prior conviction was for a crime he had not committed. The deputy sheriff’s testimony was necessary to show that this assertion was false.
Although the decision to put his client on the stand was a strategic necessity in view of the current charges, it was defense counsel who questioned him about his conviction for making terrorist threats; and it was defense counsel who brought out the fact that the threats had been upon on a peace officer who was not in uniform, implying that his client may not have known that his victim was in law enforcement. Moreover, it was defendant who sought to minimize the facts of his prior offense. Thereafter, the prosecutor was free to question, and impeach, defendant on these points. (People v. Robinson (1997) 53 Cal.App.4th 270, 282-283.)
Impeaching defendant proved an easy task. He repeatedly contradicted himself or offered highly unlikely rationales for his behavior. Regarding the present charges, he said that at the time he was detained by Officer Thurman, he was returning to the chow hall because he had forgotten his cup. Then he admitted that he may have been going to retrieve his spoon as well as his cup. Later still, he admitted that the spoon was in his sock next to his skin, but said that he could not feel it and had forgotten it was there. Regarding his 2007 conviction, he agreed that he had pled guilty to making a terrorist threat, but then denied that he had ever threatened anyone. Finally, he insisted that his victim in the 2007 incident had never identified himself as a law enforcement officer, thus generating the prosecutor’s motion to call the Tulare County deputy sheriff in rebuttal. In sum, it was defendant’s own many inconsistent statements that brought his credibility into serious question.
Prejudice
Assuming only for the sake of argument, that the trial court should have excluded evidence of defendant’s prior conviction, we review such an error only to determine if it affected the verdict so as to work a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818, 836.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Ibid.)
For reasons similar to those that undermined his credibility, we find untenable defendant’s claim that it is reasonably probable that the jury would have reached a more favorable verdict absent the evidence of the details of his earlier crime. Neither the earlier conviction for making a criminal threat, nor the present offense of battery was, as defense counsel put it, “for singing too loud in the choir.” Because of this, beyond his inconsistencies and admission on cross-examination that he had an earlier contact with Officer Beltran because of a fight in the exercise yard, it is unlikely the jury would have returned a different verdict if it had not known the details of the prior offense.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., KING J.