Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 99F08750
CANTIL-SAKAUYE , J.
A jury convicted defendant Jose Guadalupe Camacho of eluding a pursuing peace officer and driving under the influence of alcohol or a drug. The jury found that he had 10 prior serious or violent felony convictions and had served two prior prison terms. A count of taking a motor vehicle without the owner’s consent was dismissed in the interest of justice after the jury declared its inability to reach a verdict. Defendant was sentenced to state prison for two years plus a consecutive term of 25 years to life.
On appeal, defendant contends the trial court erred by allowing the prosecutor to cross-examine him about the facts of his prior convictions. We shall affirm the judgment and order correction of the abstract of judgment to properly reflect defendant’s presentence credits.
FACTS
The facts of the present offenses are not at issue and may be briefly stated. On an evening in October 1999, defendant entered a closed portion of a Sacramento freeway on foot, got into a maintenance worker’s unattended truck, drove away on the freeway and on local city streets, proceeded recklessly through several red lights, and parked at the Sacramento County jail where he surrendered to pursuing peace officers. An officer opined that, when apprehended, defendant appeared to be under the influence of an intoxicant. A criminalist determined that a blood sample taken from defendant contained methamphetamine.
After defendant was charged with the offenses, he arranged for the posting of a bail bond but he failed to appear for court proceedings in November 1999. The bail bondsman later received information that defendant was hiding near Mexicali, Mexico. In October 2000, the bondsman and immigration officials spotted defendant near a small village. When the immigration officials tried to apprehend defendant, he fled the area in a truck at high speed. The bondsman did not succeed in his attempts to capture defendant, who was not returned to court until August 2005.
Court documents were admitted and expert fingerprint testimony was elicited to establish that defendant had been convicted of the 10 charged prior convictions. Thus, in an April 1986 proceeding, he had been convicted of two robberies, two attempted robberies and five assaults; and in a December 1992 proceeding, he had been convicted of assault with a firearm.
Defendant testified on his own behalf that his consumption of methamphetamine caused him to behave irrationally, believe that he was being followed or persecuted, and experience memory lapses. At the time of the instant offenses, he believed he was being pursued by people with a gun. In response, he ran onto the freeway, got into a vehicle and drove off, heading for the county jail where he thought help would be available. Defendant did not recall having been pursued by officers, but he believed that he had told them of his fear of being kidnapped.
Defendant also admitted the charged prior convictions, stating, “I was 17, made some bad choices, and I suffered those convictions. . . . [¶] . . . [¶] I mean it was a one-night incident that took approximately six hours.”
Defendant explained his failure to appear in court by stating, “I didn’t come to court because I was afraid of the three-strike law and that people wouldn’t believe my story, because it seemed like nobody believed me.”
A psychiatrist testified that, on the day before the incident, he evaluated defendant at a mental health treatment facility and diagnosed him as suffering from amphetamine-induced psychotic disorder, which mimics paranoid schizophrenia and can result in paranoid delusions. A forensic psychiatrist who reviewed defendant’s medical records but did not interview him reached the same diagnosis.
DISCUSSION
I.
Defendant contends the trial court deprived him of a fair trial when it permitted the prosecutor to question him about the facts of his prior convictions. We are not persuaded.
Background
Prior to trial, the trial court heard in limine motions regarding the admissibility of defendant’s prior convictions for impeachment. Following tentative rulings as to the extent of permissible impeachment and defense counsel’s expression of uncertainty whether he would seek bifurcation of the prior convictions, the prosecutor made a motion to bifurcate. When the trial court expressed its belief that bifurcation was necessary, in that some of the priors were far more serious than the current charges, defense counsel responded that he was “not making a motion to bifurcate.” After the prosecutor argued that she had a right to request bifurcation, and suggested that the defense appeared tactically to be seeking jury nullification, the trial court ordered bifurcation and noted that it appeared to be highly appropriate in this case. Later during in limine motions, defense counsel indicated that he was “opposed” to bifurcation.
Defendant was arraigned on an amended information that alleged, among other things, 10 prior strike convictions and two prior prison terms. Defendant denied the truth of each allegation.
The trial court had previously ruled that the prosecution could offer evidence of defendant’s 1999 flight to avoid prosecution and his absence from the court’s jurisdiction until 2005 as tending to show his consciousness of guilt of the present offenses. When the court ordered both counsel to advise their witnesses not to mention the three strikes law, defense counsel inquired whether defendant could answer truthfully that he had absented himself, not because he was guilty of the present crimes, but because he “found out he was a three striker and [was] looking at life in prison.” The court ultimately ruled that defendant could explain his flight as motivated by the fear of a life sentence, as a result of the operation of the three strikes law.
Following this in limine ruling, which allowed the jury to hear testimony concerning the issue of penalty and punishment, the prosecutor withdrew her motion to bifurcate, evidently concluding that under the circumstances the jury should be allowed to learn the nature of the prior convictions. The trial court ruled that the entire case would be tried in a unitary proceeding.
After the jurors were selected and sworn, the trial court read them the amended information including the prior conviction allegations. The court noted that defendant had entered a denial to each allegation.
Court documents were admitted and expert fingerprint testimony was elicited to establish that defendant had been convicted of the 10 charged prior convictions.
Defendant testified on his own behalf. Regarding the prior convictions in 1986, defense counsel asked, “And is it indeed true that at that time you suffered the nine serious convictions that were referenced?” Defendant answered, “Unfortunately, yeah. I was 17, made some bad choices, and I suffered those convictions.” Defense counsel next asked whether the “convictions” had occurred “all at the same time,” and defendant explained that “[t]he criminal conduct . . . was a one-night incident that took approximately six hours,” when he “was 17.” When asked about his punishment for those offenses, defendant responded that he did not “know the technicality of going to prison,” but he acknowledged that he “did go to the California Youth Authority,” which paroled him on December 12, 1989.
With respect to the allegation that he did not remain free from custody for a five-year period, defendant testified, “Well, there was a ‘92 incident.” He explained that in 1992 he “suffered another conviction” and “was sent to the CDC, California Department of Corrections.”
Defendant testified to his version of the present offenses, including his belief that “helicopters . . . up in the sky . . . were following” him. He also explained his failure to appear in court by stating, “I didn’t come to court because I was afraid of the three-strike law and that people wouldn’t believe my story, because it seemed like nobody believed me.”
During her initial cross-examination, the prosecutor pressed defendant for more details of the “bad choices” that had resulted in the 1986 prior convictions. Specifically, she asked him if he recalled, during those incidents, a codefendant firing two or three gunshots through the front door of a residence.
Outside the jury’s presence, defense counsel objected “as to the facts of these convictions being the subject of cross-examination. The fact of the conviction was brought into [sic] impeach, but we’re not having a trial on what he did or didn’t do. The conviction is the only thing relevant.”
The prosecutor countered that defendant opened the door when he said he had made bad choices. “When he went into the facts, he opened the door.”
The trial court ruled: “That’s correct. Had you simply asked him, did you suffer a conviction of robbery or four counts of robbery, whatever it was at that time, that would have been the end of it. But you have gone into that. You have opened it.”
When defense counsel protested that he had simply asked defendant what he had been convicted of, the court responded, “I remember the words, bad choices. Now, I don’t know who said it, whether you, him, or perhaps both.” Defendant’s objection was noted and overruled.
In addition to the incident of defendant and some friends shooting a gun through someone’s front door, the jury heard evidence of them robbing a convenience store using a shotgun to frighten the clerk; defendant driving to a restaurant where a friend fired a shotgun but no money was obtained because the business was closed; a robbery of another convenience store; and the robbery of a Lyon’s restaurant in which a confederate shot and wounded an employee. These incidents resulted in nine separate convictions. The jury also heard evidence that, in 1992, defendant was convicted following an incident in which his brother shot someone for simply telling defendant to slow down as he drove by.
Analysis
“If a defendant chooses to testify, the People may impeach his credibility by showing that he has previously been convicted of a felony. Even here, however, impeachment evidence of prior felony convictions must be limited to identification of the conviction, and ‘the courts will be zealous to insure that the prosecuting attorney is not permitted to delve into the details and circumstances of the prior crime [citation]. . . .’ [Citation.]” (People v. Schader (1969) 71 Cal.2d 761, 773, italics added.)
Defendant contends the trial court abused its discretion, and deprived him of due process and a fair trial, when it ruled that he had “opened the door” to further cross-examination that exceeded the bounds of Schader, in that it delved into the details of prior crimes. Defendant claims his objection should have been sustained because such cross-examination was irrelevant. We disagree.
In the trial court, defendant did not object on the ground that admission of the facts of the prior convictions would deprive him of due process or a fair trial. On appeal, defendant may claim that the asserted error in overruling his relevance objection had the additional legal consequence of depriving him of due process and a fair trial. (People v. Partida (2005) 37 Cal.4th 428, 435.) For reasons we explain, we conclude the relevance objection was properly overruled.
“‘“Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]” [Citation.]’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.)
Defendant claims the facts of the prior convictions were irrelevant, and “added nothing of consequence,” because he had “admitted the convictions and acknowledged the obvious, that criminal behavior is a bad choice.” We are not persuaded.
When arraigned on the operative pleading, defendant formally denied the truth of each prior conviction. Thus, evidence that each had occurred was relevant to an issue of consequence to the determination of this action. (Evid. Code, § 210; cf. People v. Daniels (1991) 52 Cal.3d 815, 857-858.) Defendant’s ensuing acknowledgment of the priors during his direct examination may have made certain facts elicited on cross-examination cumulative, but it did not make the facts irrelevant. “‘Evidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352.’” (People v. Scheid (1997) 16 Cal.4th 1, 15, quoting In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) Defendant did not object that the evidence was cumulative; any such contention is forfeited. (Evid. Code, § 353; People v. Holt (1997) 15 Cal.4th 619, 666-667.)
In his reply brief, defendant reasons that, because the prosecutor’s burden was simply to prove “the fact that [defendant] suffered the convictions alleged and that he did not remain free of custody for ten years thereafter,” the facts underlying the convictions were “no part of the People’s burden and thus these facts were not relevant to the enhancing allegations based on the prior convictions. [Citation.]”
Defendant next claims he “did not advert in any way to facts of the prior convictions, and, thus, there was no basis to cross-examine him about them.” This claim disregards the record.
On direct examination by his counsel, defendant claimed the criminal conduct underlying nine of the prior convictions had occurred “all at the same time,” during “a one-night incident that took approximately six hours,” when he “was 17.” On cross-examination, the prosecutor elicited evidence that the priors had arisen, not from a single incident, but from a series of seemingly unrelated acts against separate and several victims: a shooting at a residence, a robbery of a convenience store, an attempted robbery of a restaurant, a robbery of a second convenience store, and a robbery and wounding of an employee of a second restaurant. By portraying this crime spree as one incident lasting six hours, defendant minimized the conduct and opened the door to the clarifying cross-examination that followed.
Defendant cites to People v. Fusaro (1971) 18 Cal.App.3d 877, disapproved on other grounds in People v. Brigham (1979) 25 Cal.3d 283 at page 292, in which this court explained that a prosecutor’s “deliberate asking of questions calling for inadmissible and prejudicial answers is misconduct.” (People v. Fusaro, supra, at p. 886.) For the reasons we have stated, the answers sought by the prosecutor in this case were not inadmissible and her asking of the questions was not misconduct.
II.
Our review of the record discloses an error on the abstract of judgment. At sentencing, the trial court orally awarded defendant 586 days of custody credit and 292 days of conduct credit. The abstract reflects only 578 days of custody credit and 86 days of conduct credit calculated pursuant to Penal Code section 2933.1. The abstract must be corrected to reflect the presentence credits orally awarded, and to reflect that conduct credit is calculated under Penal Code section 4019. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect 586 days of custody credit and 292 days of conduct credit pursuant to Penal Code section 4019. The court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND , P.J., HULL , J.
However, evidence that defendant committed acts comprising serious felonies has some “tendency in reason to prove” that, in due course, he was convicted of those very felonies. (Evid. Code, § 210; see People v. Carter, supra, 36 Cal.4th at pp. 1166-1167.) Defendant’s claim that the evidence is not relevant has no merit.