Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA060054, John Vernon Meigs, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Kym Anthony Dent appeals from the judgment entered upon his convictions by jury of kidnapping for ransom (Pen. Code, § 209, subd. (a), count 1) and robbery (§ 211, count 3). Appellant admitted having suffered three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to life with the possibility of parole as to count 1, consecutive to a midterm, three-year, determinate sentence as to count 3. Sentencing on the three prior prison term enhancements was stayed. Appellant contends that (1) the trial court abused its discretion by refusing to allow the defense to cross-examine the victim regarding two prior theft-related convictions, thereby denying him the right to present a defense and to due process, (2) the trial court erred in failing to stay execution of sentence on count 3 pursuant to section 654, and (3) the trial court abused its discretion by denying appellant’s request for concurrent sentencing on counts 1 and 3.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found firearm allegations within the meaning of sections 12022, subdivision (a)(1), 12022.53, subdivision (b) and 12022.5, subdivision (a)(1) to be not true. The trial court granted a defense section 995 motion and dismissed a count for kidnapping to commit robbery (§ 209, subd. (b)(1), count 2).
We remand for resentencing and otherwise affirm.
FACTUAL BACKGROUND
At approximately 7:30 a.m. on November 2, 2004, Wayne Coleman arrived at the garage he owned and operated, Andrews Complete Auto Center. Sometime between 8:00 a.m. and 8:15 a.m., Coleman saw a white Ford Aerostar drive into the parking lot of his business. Appellant was a passenger in the vehicle, which was being driven by codefendant Randy E. Harris. Harris got out of the vehicle, approached Coleman, and asked him to check some engine noise in his vehicle. Coleman walked with Harris to the vehicle and Harris started the engine. Coleman raised the hood and revved the engine but could not hear anything unusual. Harris said that the Aerostar had to be driven to hear the noise because it only occurred when the vehicle was traveling 30 miles per hour. He asked Coleman to drive it. Coleman got behind the wheel, and the three men drove away. After a short distance, Coleman still did not hear any noise. Harris told him that “‘You need to pull over so that I can rev the engine so maybe it will make the noise.’”
When Coleman brought the Aerostar to the side of the road, Harris reached over and put the vehicle in park, appellant grabbed Coleman around the neck, put a gun to his face and, with Harris’s help, “muscled” Coleman into the middle row seat, where appellant held the gun to his side. Harris told Coleman they were kidnapping him for ransom and that he was going to have to call someone. Coleman was told to sit still, and he complied.
The Aerostar has three rows of seats.
Harris got into the driver’s seat and began driving. He told Coleman that in order for Coleman to survive they wanted $250,000 from his family. His abductors asked Coleman for family telephone numbers. He gave the number of his brother Paul, with whom he had a close relationship. Harris dialed the number on his cell phone, which he then held to Coleman’s ear. Paul answered, and Coleman told him of his kidnapping and asked him to do what he could to procure his release. Harris then told Paul he wanted $250,000 within an hour and would call him back. Paul contacted the police, advised them of the kidnapping and cooperated in the police investigation.
In the meantime, appellant bound Coleman’s wrists together with duct tape, placed tape over his eyes, and told him to lie down. After driving for seven or eight minutes, the Aerostar stopped and Harris led Coleman into a room, where he was kept for six or seven hours. During that time, appellant and Harris were constantly in and out of the room and making numerous telephone calls to Paul regarding the amount of the ransom and the location of the exchange. As the hours passed, the amount of the ransom was lowered. It was eventually agreed that the exchange would take place in a Lowe’s parking lot. At some point, Coleman heard Harris say he had run out of minutes on his cell phone and “had to go buy more minutes.” Appellant then took a gold chain Coleman was wearing around his neck and $90 from Coleman’s pocket.
At approximately 2:00 p.m., Coleman was placed back in the Aerostar, and driven to a parking area where appellant removed the tape from Coleman’s eyes. Later, they drove to the Lowe’s parking lot where Paul and another brother, John, had driven Paul’s minivan and brought ransom money and Paul’s Rolex. Paul parked his minivan, and he and John walked to Lowe’s front entrance. Harris and appellant parked near Paul’s minivan.
Coleman convinced his abductors that he and one of them should go to pick up the ransom. Coleman exited the van, followed by appellant. At Paul’s minivan, Coleman opened the door, looked inside and searched for the money and a gun he hoped his brother might have put in the car. He then located a box containing Paul’s Rolex watch and $75,000. Paul had gotten the $75,000 from his wife’s house. It was money Coleman had previously given him to hold while Coleman was on probation. Suddenly, numerous police officers descended on appellant and Coleman, taking them into custody. Harris left in the Aerostar and was later caught after a high speed chase in which Harris hit two vehicles.
Coleman was initially handcuffed and placed in a police vehicle, but was released.
From the Lowe’s entrance, Paul observed Coleman exit the Aerostar and come around it followed by another male. Paul did not see the second male point a gun at his brother. When Coleman opened the minivan, Paul saw police surround them, and the person in the Aerostar drove off.
Captain John Beerling, one of the officers who devised the rescue plan, observed a white Aerostar with three African-American male passengers enter the Lowe’s parking lot and pull up next to Paul’s minivan. One person exited the Aerostar followed shortly by another, who was never more than 10 feet behind. The first person approached the minivan, opened the driver’s door and leaned in. The second person stood by and looked around in all directions. Captain Beerling called for a “take down,” and the two men were taken into custody.
Detective Sherry Rumsey investigated the crime scene and the Aerostar. At the scene, she recovered a piece of tape. When she examined the Aerostar, she found a similar piece of tape, mail addressed to Harris, Harris’s fingerprint, several cellular phones and some duct tape. She never found a gold chain or any gun.
DISCUSSION
I. Exclusion of impeachment evidence
On direct examination, Coleman admitted having suffered a 2002 felony conviction for possession of marijuana and cocaine for sale. On cross-examination, Harris’s attorney sought to question him regarding two theft-related convictions in 1981 and 1982, asking: “Sir, you’re no stranger to perpetrating fraud, are you, or theft crimes?” The prosecutor objected, and a conference was conducted at sidebar during which Harris’s counsel argued that the two theft convictions reflected fraud. During this discussion, appellant’s counsel interjected only one comment, stating, “[Coleman] was charged with 487.3 and the second case of 484.” At the conclusion of the sidebar conference, the trial court sustained the prosecutor’s objection on Evidence Code section 352 grounds, finding the prior convictions to be too remote.
Appellant contends that the trial court abused its discretion by precluding impeachment of Coleman with his two prior theft convictions, thereby depriving him of his rights to due process and to present a defense. He argues that “[t]he essence of [his] defense surrounded the credibility and character of the alleged victim. . . . [His] contention was that there was no kidnapping or robbery, rather an elaborate scheme set up by Wayne Coleman, appellant and [Harris] to take money and any other valuables, by way of a phoney [sic] kidnap ransom, from Paul Coleman.”
Respondent contends that appellant forfeited this claim by failing to raise it in the trial court and in failing to join in codefendant’s motion to use the prior convictions for impeachment. Respondent also contends that even if appellant did not forfeit the claim in its entirety, he nonetheless forfeited his constitutional claim which was not raised in the trial court. We conclude that appellant’s claim was not forfeited but that it is meritless.
While the People use the term “waiver” in reference to appellant’s failure to preserve this claim by failing to raise it in the trial court, the correct term is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)
A. Forfeiture
Appellant did not forfeit his claim that the trial court erred by not allowing Coleman to be impeached with his two theft convictions. Appellant’s counsel participated in the brief Evidence Code section 402 hearing and contributed a comment indicating his concurrence with the position of codefendant’s counsel. The hearing at the sidebar was not a motion in which appellant’s counsel could be expected to join. Additionally, given the trial court’s ruling, it would have been futile for counsel for Coleman to have said anything further. (See People v. Welch (1993) 5 Cal.4th 228, 237–238.)
In the sidebar discussion, there was no mention of the constitutional argument appellant now raises. But these constitutional claims are nothing more than additional legal consequences of the exclusion of the evidence appellant claims was central to his defense. They can therefore properly be raised on appeal without a specific objection in the trial court. (See People v. Partida (2005) 37 Cal.4th 428, 436–437; see also People v. Rogers (2006) 39 Cal.4th 826, 850, fn. 7 [“the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as erroneous for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal”].)
Even if the issue appellant now raises was forfeited, we would exercise our discretion to consider it. (See People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6 [“[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party”].) We therefore consider the merits of this issue.
A witness in a criminal trial may be impeached with a prior felony conviction if the least adjudicated elements of that felony necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317; People v. Bautista (1990) 217 Cal.App.3d 1, 5 [crime of moral turpitude is crime that reveals a person’s dishonesty, general readiness to do evil, bad character, or moral depravity].) Moral turpitude involves a “‘readiness to do evil’” which will support an inference of a witness’s readiness to lie. (People v. Castro, supra, at p. 314.) “Whether a conviction involves such turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions.” (People v. Collins (1986) 42 Cal.3d 378, 390.) Coleman’s theft convictions involved moral turpitude for impeachment purposes. (See People v. Castro, supra, at pp. 315–316, fn. 10; People v. Waldecker (1987) 195 Cal.App.3d 1152, 1156.)
While conviction of a crime of moral turpitude may be used to impeach a witness, the trial court may still exercise discretion under Evidence Code section 352 to exclude such evidence when its probative value is outweighed by the risk of undue prejudice. (People v. Castro, supra, 38 Cal.3d at pp. 307, 313; People v. Feaster (2002) 102 Cal.App.4th 1084, 1091–1092.)
We evaluate the trial court’s Evidence Code section 352 determination under the abuse of discretion standard. (People v. Greenberger (1997)58 Cal.App.4th 298, 352.) The trial court’s discretion is as “‘broad as necessary.’” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (Ibid.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.’” (Id. at p. 1533.) “‘[W]hen the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.’” (Ibid.)
Among the factors the court may consider in deciding whether to exclude impeachment by a prior conviction is “(1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza).)
Considering the Mendoza factors and deferring to the trial court’s finding, we cannot say that it erred in precluding use of Coleman’s two prior theft convictions for impeachment. While theft bears upon Coleman’s honesty or veracity, the record fails to provide details of those offenses to shed light on the extent to which they would impact the assessment of those traits. Further, those convictions occurred nearly a quarter of a century earlier, when Coleman, who was 44 at the time of trial, was only 19 or 20 years old. He had lived a comparatively crime-free life since, having suffered a felony drug conviction in 2002, which was presented to the jury for consideration. The remoteness in time of the theft offenses diminished the relevance of the 1981 and 1982 convictions. The third and fourth Mendoza factors are not applicable where the witness to be impeached is not the defendant.
C. Harmless error
Even if the trial court erred in precluding appellant from impeaching Coleman with his remote prior offenses, that error was harmless in that it is not reasonably likely that had that impeachment been allowed the result would have been more favorable to appellant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317; People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant was not impeded from impeaching Coleman’s credibility, and much of his cross-examination was geared to doing just that. The cross-examination focused on establishing that Coleman was lying and was a participant in a scheme to defraud his brother. Appellant impeached Coleman with his recent conviction of possessing controlled substances for sale. This tended to show that despite Coleman’s successful legitimate automobile repair business, he would resort to illegal activity for money. It is unlikely that two 25-year-old theft convictions, for which there was no evidence of Coleman’s specific conduct, would impact the jury’s assessment of Coleman’s veracity.
D. Constitutional claims
We also reject appellant’s contention that the exclusion of Coleman’s prior convictions prevented him from presenting a defense and violated due process. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level. . . .’” (People v. Boyette (2002) 29 Cal.4th 381, 427–428; see also People v. Espinoza, supra, 95 Cal.App.4th at p. 1317.) The touchstone of due process is fundamental fairness. (County of Sutter v. Davis (1991) 234 Cal.App.3d 319, 327; People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1250.)
While the trial court precluded Coleman’s impeachment with two old convictions, it did not otherwise restrict impeachment. Defense counsel was permitted to impeach him with his recent felony drug conviction. They also raised questions as to whether the $75,000 that Paul was holding for Coleman was additional drug monies or monies Coleman legitimately earned on which he evaded paying taxes. Defense counsel also impeached him on his version of the kidnapping. Coleman was questioned about why he did not seek to escape from his captors or use his cell phone to contact authorities. Coleman’s claim that appellant had a gun was questioned, with evidence introduced that Paul never saw a gun when he viewed appellant and Coleman in the Lowe’s parking lot and that no gun was ever found.
II. Sentencing issues
A. Appellant’s sentence
Appellant was convicted of kidnapping for ransom and robbery. The trial court sentenced him to life with the possibility of parole for kidnapping and to a consecutive midterm of three years for robbery. It stayed execution of the three prior prison terms to which appellant admitted. The trial court stated that the factors in aggravation outweighed those in mitigation, justifying an upper term sentence, but because of recent Supreme Court authority, it was precluded from imposing it.
It would appear the trial court was referring to Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856].
At the sentencing hearing, appellant’s counsel requested that appellant be sentenced concurrently in light of his nonviolent past and lack of any past serious or violent convictions. The trial court said that, “I’m not sure that I can, counsel. I had thought about that, but I think the law requires me to make them consecutive because it is, in both cases, we’re talking about a violent felony, both the kidnapping and the robbery.” It therefore sentenced appellant consecutively.
B. Application of section 654
Appellant contends that execution of his robbery sentence should have been stayed pursuant to section 654. He argues that it was part of a single objective of obtaining money and valuables from Coleman because the cash taken from Coleman’s pocket “was needed to purchase additional cell phone time to complete the negotiations for the ransom.” This contention is without merit.
Section 654 provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a), italics added.) It was “intended to ensure that defendant is punished ‘commensurate with his culpability’[.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) If, on the other hand, the “[defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) Section 654 turns on the objective in violating both provisions, not the Legislature’s purpose in enacting them. (People v. Britt (2004) 32 Cal.4th 944, 952.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review such a finding under the substantial evidence test (see People v. Osband (1996) 13 Cal.4th 730–731); we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803). We must determine whether the violations were a means toward the objective of commission of the other. (See People v. Beamon, supra, 8 Cal.3d at p. 639.)
Appellant hopes that by defining his objective broadly, as obtaining money and valuables from Coleman, he can encompass both of the offenses of which appellant was convicted. But virtually any two offenses can be viewed to be within a stated objective, if the objective is stated broadly enough. (See, e.g., People v. Perez, supra, 23 Cal.3d at p. 552.) Only by closely examining the facts can we assess the proper section 654 objective. We conclude that applying this standard, the evidence supports the trial court’s implicit finding that appellant’s convictions of robbery and kidnapping for ransom were not part of an indivisible transaction and a single objective.
When Coleman was abducted, appellant sought a huge payday, demanding a ransom of $250,000. It would appear that he and Harris had reason to believe that Coleman was a man of worth and specifically targeted him for that reason. The offense was not contemplated to be a simple robbery, as evidenced by the fact that the perpetrators did not take Coleman’s money and valuables immediately upon abducting him. Significant time elapsed before appellant took Coleman’s gold chain and the small amount of cash he was carrying.
Appellant argues that the robbery facilitated the kidnapping because it provided money for Harris to purchase cell phone minutes to continue negotiating the ransom. But there was no evidence that the money taken was used to purchase minutes for Harris’s telephone or that any additional minutes were purchased. Even if the $90 cash taken from Coleman was viewed a necessary part of the kidnapping for ransom, his gold chain was not.
C. Consecutive sentencing
Appellant contends that the trial court’s refusal to sentence him concurrently for his two convictions was an abuse of discretion because the trial court was operating under an erroneous belief that it lacked authority to sentence him concurrently. We agree.
Section 669 states the general rule that when a person is convicted of two or more crimes, the sentences “shall run concurrently or consecutively.” The trial court has discretion to decide whether to impose concurrent or consecutive sentences. (People v. Morales (1967) 252 Cal.App.2d 537, 547.) The language of section 669 does not exclude multiple convictions of serious or violent felonies from its operation, and respondent has not cited any statute mandating consecutive sentences in those circumstances, as the trial court here suggested.
The trial court was operating under the mistaken belief that it was required to impose consecutive sentences. It stated that it had considered imposing concurrent terms but apparently abandoned the idea because “the law require[d] [him] to make them consecutive,” as they were both violent felonies. It therefore failed to exercise any discretion, which is an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847–848; People v. Orabuena (2004) 116 Cal.App.4th 84, 99.)
The trial court may have been thinking of section 667, subdivision (c)(7) which mandates consecutive sentence for multiple serious or violent felony convictions, when the defendant has at least one prior felony-strike conviction, which was not the case here.
It is unclear from the record what course the trial court would have followed had it known that it possessed discretion to impose concurrent terms. On the one hand, it stayed execution of sentence on appellant’s three prior prison enhancements, suggesting its desire to ameliorate his sentence. On the other hand, it stated that it found the aggravating factors outweighed the mitigating factors, but did not impose the upper term because recent United States Supreme Court decisions precluded it from doing so, suggesting that it would have imposed the upper term if not so precluded. On this record, it is appropriate to remand the matter to the trial court for resentencing. (See People v. Deloza (1998)18 Cal.4th 585, 600.)
DISPOSITION
The matter is remanded to the trial court for resentencing consistent with this opinion, and the judgment is otherwise affirmed.
We concur: BOREN, P.J., ASHMANN-GERST, J.