Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03498
BUTZ, J.After a joint trial before two juries, defendants Raymond Nelson Coleman and Andre Marcus Allen were found guilty of first degree murder (Pen. Code, § 187) and second degree robbery (§ 211). Coleman’s jury made a special finding that he intentionally and personally discharged a firearm causing great bodily death or injury, while Allen’s jury acquitted him of the firearm enhancement. (§ 12022.53, subd. (d).) Each defendant was sentenced to life in prison without the possibility of parole for first degree murder and Coleman received an additional 25 years to life for the firearm enhancement. The sentence for each defendant’s robbery conviction was stayed pursuant to section 654.
Undesignated statutory references are to the Penal Code.
Defendants appeal, contending the trial court erred in allowing impeachment with a prior conviction, in excluding proffered expert testimony, in instructing the jury, and in imposing court security fees and parole revocation fines. We shall strike the parole revocation fine for each defendant, and otherwise affirm the judgments.
FACTUAL BACKGROUND
On December 12, 2004, Dwayne Harvey was shot and killed while sitting in his parked car at Fourth Avenue Park in Sacramento. He was shot nine times by two different weapons--a .40-caliber semiautomatic handgun and a .38-caliber revolver. Shell casings or bullets from each weapon were recovered from Harvey’s body and his car.
Prosecution’s case
One of the prosecution’s main witnesses was Sammy Anderson, a friend of both defendants who pleaded guilty to being an accessory to murder (§ 32) in return for his truthful testimony and a one-year jail sentence. According to Anderson, on the night of the murder, Anderson, Coleman, and Allen went to the Fourth Avenue Park to consummate a drug deal that Coleman had arranged with the victim Harvey. It was Coleman’s idea to kill Harvey. While waiting for Harvey to arrive, Anderson decided to leave and was walking away from the park when Harvey’s car pulled up. Anderson saw Allen shoot Harvey from outside of the car, near the passenger door, and after a pause, heard more rounds of gunfire. Anderson did not see Coleman with a gun that night, but was with Coleman the next day in the same park when Coleman picked up a gun from the grass and hid it in a car parked on the street.
Testimony from eyewitnesses revealed that one of the defendants was seen searching Harvey’s pockets and car after the shooting, and was holding a black revolver in his hand. The person searching Harvey was wearing a long, black coat with black pants, which matched a description of what Coleman was wearing the night of the shooting. The other man had on a black coat with fur trim on the hood, which matched a description of what Allen was wearing on the night of the shooting. One witness said that two men walked up to Harvey’s car, and then he heard two rounds of different sounding shots. Two witnesses also testified that Allen made statements to the effect that he shot Harvey.
Defense case
Defendant Coleman testified in his own defense. He stated that on the night of the shooting, he called Harvey to buy crack cocaine and arranged to meet him at the park with Allen and Anderson. As they were waiting for Harvey, Coleman overheard Allen whisper to Anderson that “he was going to do the dude” but did not see Allen carrying a gun and did not believe what Allen said. When Harvey’s car arrived, Anderson was walking away. Allen approached the car and Coleman followed behind him. Allen walked to the passenger side of the car, reached into the window, and fired shots into the car. After firing about five shots, Coleman saw Allen move to the front of the car and begin firing again with what sounded like a different gun. Coleman insisted that at no time did he have a gun. When Allen ran away, Coleman opened the driver’s door and pulled Harvey out of the car. He decided to look for drugs or money in the vicinity. Finding none, Coleman took Harvey’s cell phone.
Defendant Allen testified that Coleman was carrying a black revolver with him that evening when they went to meet Harvey. When Harvey arrived at the park, Coleman walked up to the car, while Allen stayed behind. Allen heard three gunshots, and then heard more gunshots as he ran away from the park. He knew that Coleman intended to rob Harvey that night.
DISCUSSION
I. Impeachment by Prior Conviction
Before testifying, Coleman moved to exclude evidence of a prior conviction sustained in 2003 for possession of a concealed firearm (§ 12025, subd. (b)). Coleman argued that under Evidence Code section 352, “the probative value [would] be substantially outweighed by the probability that it will have undue consumption of time . . . [¶] . . . a danger of undue prejudice . . ., confusing issues or misleading the jury.” He also argued that the conviction has “little or no credibility [or] impeachment value.” The trial court overruled the objections and admitted the prior felony conviction for impeachment.
Coleman contends that “[t]he [trial] court prejudicially erred by permitting [him] to be impeached with a prior conviction of possessing a concealed handgun” because “it was likely to lead to the impermissible propensity inference that [he] had a gun during Harvey’s murder,” thus undermining his defense that he was unarmed.
Any witness in a criminal trial may be impeached with a prior felony conviction. (Evid. Code, § 788; People v. Sizelove (1955) 134 Cal.App.2d 104, 108.)The rationale is that the conviction is relevant to the jury’s assessment of the witness’s credibility, since the offense reflects on honesty and veracity. (People v. Castro (1985) 38 Cal.3d 301, 314 (Castro).)
Subject to the court’s discretion under Evidence Code section 352, any felony involving moral turpitude, or a “general readiness to do evil,” may be used for impeachment. (Castro, supra, 38 Cal.3d at p. 314, italics omitted; People v. Beagle (1972) 6 Cal.3d 441, 452-454.) In exercising its discretion to admit prior convictions for impeachment, the trial court should be guided by the four factors set out in Beagle: (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) what effect admission would have on the defendant’s decision to testify. (Castro, supra, 38 Cal.3d at p. 307, citing Beagle, supra, 6 Cal.3d at p. 453.)
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
A trial court’s decision to admit or exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Mendoza (2007) 42 Cal.4th 686, 699.) A trial court’s exercise of discretion will not be disturbed unless the court exceeds the bounds of reason such that the result manifests an injustice. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
Here, the admission of the prior conviction did not prevent Coleman from testifying and is a crime of moral turpitude (People v. Robinson (2005) 37 Cal.4th 592, 626), both of which support the trial court’s decision. Moreover, Coleman’s prior felony conviction occurred in 2003, only one year before the murder of Harvey. The short length of time between these incidents weighs heavily in favor of admitting the conviction. (People v. Burns (1987) 189 Cal.App.3d 734, 737-738.) Further, Coleman’s prior conviction for possession of a concealed weapon bore little similarity to the charged offenses of murder and robbery. Therefore, admission of the prior conviction would not result in undue prejudice against Coleman. (People v. Castro (1986) 186 Cal.App.3d 1211, 1216-1217.)
Coleman argues that admission of the prior conviction was highly prejudicial because it showed a “predisposition” to carry firearms, thereby eviscerating his defense that he did not have a gun. But at the time the prior was admitted, the trial court cautioned the jury that Coleman’s prior felony may only be used to evaluate the witness’s credibility. The trial court gave a similar instruction again at the end of the trial. We presume the jury followed the trial court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.)
Since all of the Beagle factors strongly favored admission of the prior conviction, and there was little danger of prejudice, we find no abuse of discretion.
II. Exclusion of Expert Testimony
The prosecution called Scott MacLafferty, a homicide detective with the City of Sacramento Police Department, as a witness. On cross-examination, counsel for Coleman asked, “[I]s it fair to say that when a person is dealing drugs or making a drug run and they have drugs in the car and at a nighttime location, on occasion in your experience [as a former narcotics officer for four and a half years] have you seen that [a] drug dealer would have a weapon in the car?” The prosecutor objected on the grounds of relevance.
The trial court sustained the objection, stating, “To draw the inference that [other drug dealers] in some cases have possessed guns that this victim did I think is just sheer speculation. So I would exclude it under relevance. In addition, under [Evidence Code section] 352 unless there is evidence, and I have not been presented any at this point, this stage of the trial, nor have I heard from counsel, if there is no evidence that the victim possessed a firearm, I think this kind of evidence would be confusing and misleading to the jury . . . [¶] . . . and it would confuse them into believing that there might be a self-defense issue when, at least as far as I’m aware, there is none here.”
Coleman contends that the trial court prejudicially erred “by excluding expert testimony that drug dealers in the circumstances of [his] case are commonly armed” in violation of his “constitutional rights to present defense evidence and to a fair trial.” He asserts that an affirmative answer to the question would have supported his theory that Harvey had a gun inside his car that night, thereby bolstering his defense that he did not personally shoot the victim.
A trial court’s decision to admit or exclude evidence is a matter committed to its discretion “‘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.’” (People v. Brown (2003) 31 Cal.4th 518, 534.)
As the trial court correctly noted, Coleman submitted no evidence whatsoever there was a gun in Harvey’s car. A search of Harvey’s car after the shooting failed to yield any weapons. Because counsel’s hypothetical question lacked an evidentiary foundation, “‘[t]he inference which defendant sought to have drawn from the [proffered evidence] is clearly speculative, and evidence which produces only speculative inferences is irrelevant evidence.’” (People v. Babbitt (1988) 45 Cal.3d 660, 682.)
Assuming arguendo the trial court erred in excluding the evidence, the error could not have been prejudicial under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Whitson (1998) 17 Cal.4th 229, 251.)
Coleman is incorrect that the error is one of constitutional dimension and that Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] applies. Generally, the erroneous exclusion of some defense evidence as to an element of an offense is evaluated by the traditional standard of review set forth in Watson, not the more stringent “harmless beyond a reasonable doubt” standard for federal constitutional error set forth in Chapman. The application of the ordinary rules of evidence does not infringe on a defendant’s due process rights (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Cunningham (2001) 25 Cal.4th 926, 999), and therefore the Watson test applies (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103).
Even if Detective MacLafferty gave an affirmative answer to defense counsel’s compound and confusing hypothetical, the evidentiary value of this testimony would have been inconsequential. No witness saw Allen reach for or pick up a second gun after shooting Harvey. On the contrary, Allen testified that Coleman had a gun when he approached Harvey, and another witness stated that the man who robbed Harvey after the shooting (which Coleman admitted to) was armed with a gun. Given the total dearth of evidence that Harvey was armed, the jury was unlikely to change its verdict based on the unsurprising truism that drug dealers often carry guns with them when consummating nighttime drug deals. Any error was certainly harmless.
III. Instructional Error
A. CALCRIM No. 220
Allen contends that Judicial Council of California Criminal Jury Instruction (2006) CALCRIM No. 220 defining reasonable doubt, which the trial court gave to the jury, fails to satisfy due process because it “convey[s] to the jurors a definition of proof beyond a reasonable doubt that is diluted and . . . [may violate] the strictures of [In re] Winship [(1970) 397 U.S. 358 [25 L.Ed.2d 368] [holding that due process requires government must prove beyond a reasonable doubt every element of a charged offense]].” He argues that the instruction departs from section 1096’s instruction of reasonable doubt and “obscures the scope given to individual subjectivity . . ., increases intolerably the ambiguity in the phrase ‘abiding conviction,’ and overall fails to convey the necessary impression of subjective certitude the evidence must induce in the jurors in order to satisfy the due process requirement of proof beyond a reasonable doubt.”
A comparison of CALCRIM No. 220 and section 1096 yields no significant difference between them. Both instructions define reasonable doubt as an “abiding conviction” that the charge is true, and caution that the jurors need not eliminate all possible doubt to arrive at a finding of guilt. As the commentary to CALCRIM No. 220 states: “This instruction is based directly on Penal Code section 1096 . The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative. . . . The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language.” (Com. to CALCRIM No. 220 (Aug. 2006 rev.) p. 44, italics added.) We agree with that evaluation.
In People v. Guerrero (2007) 155 Cal.App.4th 1264, this court rejected the same argument Allen makes here, i.e., that CALCRIM No. 220 fails to accurately describe the reasonable doubt standard. We held that “CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. . . . The instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant.” (Id. at p. 1268.) Allen presents no persuasive reason to depart from Guerrero.
B. CALCRIM No. 358
The trial court read CALCRIM No. 358, as follows: “You have heard evidence that defendant [Allen] made an oral or written statement before the trial. You must decide whether or not defendant made any of those statements, in whole or in part. If you decide that defendant made such a statement, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.”
Allen contends the trial court erred in giving this instruction because, unlike CALJIC No. 2.71, CALCRIM No. 358 fails to differentiate “admissions” from “statements” and favors the prosecution by creating an impression that written or recorded evidence is more reliable than oral statements.
CALJIC No. 2.71 (7th ed. 2003) read: “An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]”
“When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) “‘[T]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’” (Ibid.)
It is settled law that the trial court is required to instruct the jury that evidence of oral admissions should be viewed with caution. (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) As the cases cited by Allen indicate, written or recorded admissions are exempt from such a cautionary admonition. (People v. Hines (1964) 61 Cal.2d 164, 173, disapproved on different grounds in People v. Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40; People v. Gardner (1961) 195 Cal.App.2d 829, 831-833.) The last sentence of CALCRIM No. 358 incorporates both of these concepts and thus accurately reflects the state of the law.
We disagree with Allen that he was prejudiced by the instruction’s use of the word “statements” rather than “admissions.” The colorless phrase “statements” has less of a stigmatizing effect on a juror’s view of defendant’s utterances than the word “admissions” and thus actually favors the defendant. This language, along with the instruction that a defendant could not be convicted based on his out-of-court statements alone, actually assisted Allen by informing the jurors that they must critically examine his oral statements before accepting them as evidence or using them to convict him. A defendant may not complain of error in his favor. (See People v. Lee (1999) 20 Cal.4th 47, 57.)
Finally, we reject Allen’s claim that the instruction favored the prosecution by “inducing the jurors to accept [written or recorded statements] uncritically as prosecution evidence.” The jury was instructed that the prosecution must prove each piece of evidence beyond a reasonable doubt before it could be used to convict defendant. Therefore, the jury was properly told that it could not accept written or recorded statements as evidence until the prosecution met its burden of proof.
IV. Imposition of Court Security Fee
The trial court stayed each defendant’s sentence for the robbery conviction under section 654. The trial court then imposed $40 in court security fees on each defendant, pursuant to section 1465.8, for the murder and robbery convictions. Both defendants contend that the $20 court security fee imposed on the robbery count must be stayed because the trial court stayed sentencing on this count under section 654.
In pertinent part, section 1465.8 provides: “(a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .”
This court has previously rejected the same argument in People v. Crittle (2007) 154 Cal.App.4th 368. In Crittle, we held that “Section 654, which prohibits multiple punishment for the same act or course of conduct and generally bars the use of a conviction for ‘any punitive purpose’ if the sentence on that conviction is stayed [citation], does not apply to a court security fee because that fee is not punishment.” (Id. at p. 370, italics added.) Therefore, “even though the trial court stayed the punishment for defendant’s robbery conviction, it was required to impose a $20 court security fee based upon that conviction.” (Id. at p. 371.) We reaffirm the holding in Crittle and, therefore, reject defendants’ argument.
V. Imposition of Parole Revocation Restitution Fine
The trial court sentenced both defendants to life without the possibility of parole. The trial court imposed a $5,000 parole revocation restitution fine on Coleman and a $10,000 parole revocation restitution fine on Allen under section 1202.45, but suspended those fines unless parole was revoked. Defendants contend that the respective parole revocation fines should be stricken because their sentence deprives them of the possibility of parole. The People agree.
In pertinent part, section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine . . . assess an additional parole revocation restitution fine . . . .”
It is now settled that section 1202.45 does not apply to a defendant who has received a sentence of life imprisonment without possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) We shall order the parole revocation fines to be stricken.
DISPOSITION
The trial court is directed to prepare corrected abstracts of judgment for defendants Coleman and Allen striking the respective parole revocation restitution fines imposed under section 1202.45. The trial court shall forward a certified copy of the corrected abstract of judgment for each defendant to the
Department of Corrections and Rehabilitation. In all other respects, each of the judgments is affirmed.
We concur: NICHOLSON, Acting P.J., ROBIE, J.