Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA052442, Clifford L. Klein, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Dashawn Lamar Brown appeals from the judgment entered following his convictions by jury on count 1 – grand theft of personal property (Pen. Code, § 487, subd. (a)) and count 4 – impersonation of a public officer, investigator, or inspector (Pen. Code, § 146a, subd. (b)). The court sentenced appellant to prison for two years. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
a. The Present Offenses.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 3:30 a.m. on April 10, 2006, Amjad Gharib, the manager of Los Angeles Parking Systems (Systems), was collecting money from Mohammed Alfadur, the manager of a Systems parking lot located in Hollywood at Schrader and Hollywood. Alfadur gave Gharib the money while the two were in Gharib’s black Lincoln which was parked in the lot.
A dark gray Ford Crown Victoria entered the lot. The car appeared to be an undercover police car and had yellow lights in its rear window. The car’s driver shined the car’s spotlight on Gharib and Alfadur. Alfadur raised his hands, which contained some of the money. The car later drove away. The money which Alfadur gave to Gharib, plus the money Gharib had obtained from other lots, totaled $7,000.
Gharib left and drove on the 101 freeway. He saw a dark gray Crown Victoria behind him. The car’s red and yellow lights, spotlight, and siren were operating, and the car’s horn was honking. Gharib heard someone on the car’s loudspeaker order him to pull over, and Gharib complied.
Appellant exited the Crown Victoria and approached the passenger side of the Lincoln. Appellant was wearing what appeared to be a sheriff deputy’s uniform with badges, and he was wearing a holster containing a gun. Gharib believed appellant was a police officer. Gharib asked appellant to open the Lincoln’s passenger door because its window did not work. Appellant opened the passenger door. Later, appellant, employing a ruse that he was conducting a drug investigation, entered the Lincoln, took the $7,000, and eventually drove away, stealing the money.
Appellant’s thumbprint was found above the door handle of the front passenger door of the Lincoln, and his fingerprint was found on the outside of the front passenger door near the window frame. About May 10, 2006, Gharib identified appellant from two photographic lineups as the person who had taken Gharib’s money. On May 30, 2006, police searched appellant’s home and found numerous police-related items.
Gharib apparently identified someone other than appellant in a third photographic lineup. Gharib indicated he had focused on that person’s eyes.
In appellant’s house, police found the following items: gun belts, numerous badges, a police baton, a Mag police-type flashlight, a loaded Glock.357-caliber revolver, and a.12-gauge shotgun. Police also found in the house Los Angeles County Sheriff’s badges, a card referring to a business sponsored by the Los Angeles County Sheriff’s Association, a green shirt bearing a nameplate with the name “S. Brown” with insignia symbolizing 10 to 15 years of service, a badge reflecting “Officer” and “Private Security, ” a badge reflecting “Master Firearms Training Academy Police Combat, ” and a green jumper bearing a sergeant’s insignia, a star-shaped badge, and the name Dashawn Brown. In appellant’s garage, police found a Mercedes with no license plates. Inside its trunk, police found a license plate reflecting “Los Angeles KMA/628.” Police also found, parked in the driveway outside the garage, a Crown Victoria with no license plates, but with police-type red and amber lights in the backseat with bracket holes behind the rear seat so the amber light could be mounted. In addition, police found in the garage, a blue light, a spotlight, yellow and green lights, a red light, and a crate containing portable emergency lights.
In about March 2008, Gharib saw appellant engaged in traffic security at a club near Cahuenga and Franklin. Gharib pointed appellant out to Alfadur and indicated appellant was “the police, the one who pulled me over.” Appellant was never a peace officer in California. Gharib identified appellant at trial.
b. Evidence of Appellant’s Prior Misconduct.
On May 7, 2003, appellant and a confederate(s) went to a Pacoima business. They arrived in vehicles that looked like Crown Victorias and police cars. One was a white Crown Victoria with flashing lights. Appellant was wearing a police-type vest and a holster. Appellant identified himself as a police officer and detained persons.
During an investigation of the above incident, police searched the above white Crown Victoria. The Crown Victoria had a screen between the front and back seats. The car also had a forward-facing orange light in the front near the rear view mirror, dual amber lights in the rear window, and a siren. Police found police-related items inside the car, including walkie-talkies, scanners, a laptop computer mounted on the front passenger seat, batons, and a bill of sale indicating appellant had bought the car from California Fugitive Warrants in 2008.
2. Defense Evidence.
Appellant, who had suffered a 2003 misdemeanor conviction for a crime of moral turpitude, presented a misidentification defense and testified as follows. Appellant was a bail enforcement agent and a private traffic safety officer. Appellant denied he detained Gharib or took money from him. On April 10, 2006, Gharib told a police officer that the suspect was 34 years old, seven feet one inch tall, and weighed 190 pounds. Appellant testified he was six feet one inch tall and weighed between 285 and 295 pounds. A Crown Victoria parked in appellant’s driveway when police searched his home belonged to his father and was inoperable.
When detectives interviewed appellant, a detective referred to an older police car that was “sitting in front with flats.” Appellant replied it was blue and that he bought it from a security company. However, at trial, appellant denied ever owning a Crown Victoria. At one point during the interview, appellant denied having anything in his house that said “police” on it. At trial, appellant admitted having a badge collection containing a sheriff’s badge. According to appellant, sheriffs were not police.
Henry Carranza, a friend of appellant who had known him for over 12 years, testified at the September 2009 trial as follows. Carranza did not recall having suffered a 1993 misdemeanor conviction for receiving stolen property; Carranza “must have been young.” Carranza thought appellant was about 31 years old. Carranza worked with appellant in bail recovery and traffic control.
In March or April 2006, Carranza worked with appellant handling motor traffic safety at the Shag club in Hollywood. During this time, Carranza saw Gharib. Carranza and appellant parked their motorcycles at the club, and Gharib parked his car next to the motorcycles. Carranza and appellant would “have contact” with Gharib’s car. Carranza and appellant also worked at a second club in Hollywood where they would park their motorcycles and Gharib would park his car next to them. Carranza had contact with Gharib’s car. Carranza testified appellant was “pretty much leaning on [Gharib’s car], or walking by it[.]” Carranza remembered that in April 2006, appellant leaned on Gharib’s black car. Carranza never saw appellant open or shut the doors of Gharib’s cars.
During cross-examination, the prosecutor asked Carranza whether Carranza told the defense investigator that Carranza did not know if Carranza was even working with appellant in Hollywood in 2006. Carranza replied, “I recall, but it’s been so long, ... we worked on and off, ... so it’s hard to know what month or day it was.” The prosecutor asked Carranza whether a person (apparently the defense investigator) asked if Carranza was working traffic control in Hollywood around April 9, 2006, or April 10, 2006. Carranza testified, “I said that I -- well, I did work with him around that year, but the date -- it was a while and -- oh, April, March, somewhere around there.” Carranza had no documentation he was working in Hollywood in 2006. The owner of the Shag club hired Carranza, but Carranza could not remember the owner’s name. Carranza did not remember the name of anyone who worked there, although Carranza had left that club probably six or seven months before testifying. Carranza never told anyone he worked as a Gardena reserve police officer.
3. Rebuttal Evidence.
In rebuttal, the defense investigator testified she spoke with Carranza on February 19, 2009. Carranza told the investigator it was possible Carranza worked with appellant around April 9, 2006, or April 10, 2006, but Carranza told the investigator that Carranza could not be sure about the dates. Carranza told the investigator that Gharib’s car was parked in front of the clubs where they would be working, and it was possible they could have touched the car. Carranza did not tell the investigator that Carranza was “definite” that Carranza saw appellant touch Gharib’s black car in April 2006. Carranza did not tell the investigator that Carranza worked in bail enforcement, but did tell the investigator that Carranza had been working as a Gardena reserve police officer for about eight years.
ISSUES
Appellant claims (1) the trial court erroneously admitted evidence of his prior misconduct, (2) the trial court erroneously admitted evidence of Carranza’s prior conviction to impeach him, and (3) cumulative prejudicial error occurred.
DISCUSSION
1. The Trial Court Properly Admitted Evidence of Appellant’s Prior Misconduct.
a. Pertinent Facts.
On September 17, 2008, the People filed a motion seeking to introduce evidence of prior misconduct by appellant under Evidence Code section 1101, subdivision (b). The written motion indicated that, based on the previously mentioned May 7, 2003, incident, appellant pled no contest to misuse of amber lights (Veh. Code, § 25279, subd. (b)(1)) and driving with a suspended license, and a jury convicted him of false imprisonment, vandalism, a bail agent not notifying authorities, and a bail agent forcing entry.
The written motion also indicated appellant was acquitted of other charges, including using a badge to impersonate an officer, and impersonating a police officer. The motion indicated the prior misconduct evidence was admissible on the issues of identity, intent, modus operandi, common scheme or plan, and lack of mistake.
During argument at the September 23, 2009, admissibility hearing, the prosecutor indicated the prior misconduct evidence was also admissible on the issue of appellant’s knowledge and his familiarity with the present crimes. Appellant argued no traffic stop occurred during the May 7, 2003, incident, and that that incident and the present case were not sufficiently similar to permit introduction of the prior misconduct evidence on the issue of identity under Evidence Code section 1101, subdivision (b).
The court indicated the present case was an identity case and appellant was not conceding the issue of identity. The court later stated, “... I think there are sufficient circumstances as to the May 7th incident. He did use flashing lights. He did use a very similar type of car, Crown Victoria. And there were three cars that came up. One of them was dark like the one here. He did have a vest, a holster, a badge, microphone in that case, where he used some sound amplification, the baton, and an official looking jacket. And then he did identify himself as a police officer.”
The court suggested that, in the present case, appellant did not say he was a police officer, but appellant permitted Gharib to reasonably infer appellant was a police officer. The court noted that, in the May 7, 2003, incident and the present case, appellant detained someone. The court later stated, “... I just do think there is sufficient -- under the identity standard.... So that will be admitted.” During its final charge, the court instructed the jury that evidence of uncharged behavior by appellant was admitted in evidence, i.e., he identified himself as a police officer on May 7, 2003.
The court also instructed the jury, inter alia, that if appellant “committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶]... [¶] The defendant was the person who committed the offenses alleged in this case.”
b. Analysis.
Appellant claims the trial court erroneously admitted evidence of his May 7, 2003, misconduct. We disagree. “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) The issue is essentially one of relevance. (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).) Rulings on relevance and Evidence Code section 1101 issues are reviewed for abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328; Lenart, supra, 32 Cal.4th at p. 1123.)
We have set forth the pertinent facts here and in our Factual Summary. We believe appellant’s May 7, 2003, misconduct and the present offenses shared common features sufficiently distinctive that they supported a rational inference the same person committed said misconduct and the present offenses. We note, inter alia, that, although appellant was acquitted of impersonating a police officer in the May 7, 2003, incident, during both that incident and the present offenses, he conveyed the impression he was a sheriff’s deputy. During the May 7, 2003, incident, and the present offenses, appellant falsely imprisoned a person. The court gave the jury an instruction limiting their consideration of the evidence to the issue of identity. The trial court did not abuse its discretion by admitting the evidence of appellant’s prior misconduct.
Moreover, even if the admission of the challenged evidence was error, it does not follow that we must reverse the judgment. The challenged evidence was admissible on other issues. For example, “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]... In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.) In the present case, the challenged evidence was admissible on the issue of appellant’s intent to commit the present offenses.
Moreover, the court admitted the challenged evidence on the issue of identity. However, Gharib identified appellant as the culprit during, inter alia, photographic lineups and trial. Appellant’s fingerprints were found on the front passenger door of Gharib’s Lincoln, consistent with Gharib’s testimony that appellant opened that door. The jury reasonably could have viewed as fabricated Carranza’s testimony suggesting an innocuous explanation for the evidence of appellant’s fingerprints on Gharib’s car. The facts the jury requested a readback of certain testimony and deliberated over the course of two days are consistent with a conscientious jury. Any error in admitting the challenged evidence was not prejudicial (cf. People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)), and application of the ordinary rules of evidence, as here, did not violate appellant’s right to due process (cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428).
2. The Trial Court Properly Admitted Carranza’s Prior Conviction As Impeachment Evidence.
After Carranza was sworn as a witness but prior to his testimony, the People indicated they wished to impeach him with a prior conviction for receiving stolen property. Appellant’s counsel indicated that “that’s not appropriate.” The prosecutor stated the prior conviction was not that recent, and indicated it was about 13 years old. The court noted Carranza was not the defendant; therefore, no prejudice would result from admission of the prior conviction. The court found the probative value of the challenged evidence outweighed any prejudicial value, and indicated the People could impeach Carranza with the fact he had suffered a misdemeanor conviction for receiving stolen property, a crime of moral turpitude. Carranza testified at trial on the issue of his prior conviction as indicated in the Factual Summary.
Appellant claims the trial court erroneously admitted impeachment evidence of Carranza’s prior conviction because it was remote and excludable under Evidence Code section 352. Assuming the issues are preserved for appellate review, we reject appellant’s claim.
Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352. (People v. Harris (2005) 37 Cal.4th 310, 337.) When a trial court resolves an Evidence Code section 352 issue, all that is required is that the record demonstrates the trial court understood and fulfilled its responsibilities under section 352. (People v. Williams (1997) 16 Cal.4th 153, 213.) We review the issue of a trial court’s admission of a prior conviction as impeachment evidence, as well as an Evidence Code section 352 issue, for abuse of discretion. (People v. Hinton (2006) 37 Cal.4th 839, 888; People v. Waidla (2000) 22 Cal.4th 690, 723-724.)
There is no dispute receiving stolen property is a crime of moral turpitude (People v. Turner (1990) 50 Cal.3d 668, 705); it was therefore relevant to the issues of Carranza’s honesty and veracity. (People v. Robinson (2005) 37 Cal.4th 592, 626.) The fact the prior conviction was 16 years old did not render it inadmissible. “[People v.] Antick [(1975) 15 Cal.3d 79] held that 16- and 18-year-old prior convictions were remote and inadmissible for impeachment [citation]. That holding, as pointed out, was ‘rejected’ by [People v. Castro (1985) 38 Cal.3d 301].” (People v. Decosse (1986) 183 Cal.App.3d 404, 411.) Remoteness is only one factor to be considered by the trial court in exercising its discretion in permitting impeachment for prior felony convictions (People v. Benton (1979) 100 Cal.App.3d 92, 97); we see no need to conclude otherwise with respect to a misdemeanor conviction.
Carranza’s testimony related to the contested issue of identity, since he suggested an innocuous explanation for the presence of appellant’s fingerprints on Gharib’s car. The prior conviction used to impeach that testimony did not involve the same kind of conduct as the present offense and, in any event, it was not appellant who was being impeached. The fact Carranza would be impeached with his prior conviction did not deter him from testifying, a fact which supports the trial court’s decision to admit the evidence. (Cf. People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) The content and context of the argument preceding the court’s ruling, and the ruling itself, adequately demonstrate the requisite reflection and weighing of Evidence Code section 352 factors. (People v. Montiel (1985) 39 Cal.3d 910, 924; People v. Clarida (1987) 197 Cal.App.3d 547, 551-553; People v. Johnson (1987) 193 Cal.App.3d 1570, 1573-1577.) The trial court did not abuse its discretion in admitting the challenged evidence.
Finally, even if the trial court erred by admitting the challenge evidence, Carranza’s testimony, as mentioned, related to the issue of identity. Leaving aside Carranza’s testimony, we conclude there was ample evidence identifying appellant as the person who committed the present offenses. Carranza testified he did not recall having suffered the prior conviction, then gave at best a weak admission that he had suffered the prior conviction. Any trial court error in admitting the challenged evidence was not prejudicial. (Cf. Watson, supra, 46 Cal.2d at p. 836.)
In light of our above discussion, we reject appellant’s claim that cumulative prejudicial error occurred.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J., ALDRICH, J.