Opinion
E071106
03-19-2020
THE PEOPLE, Plaintiff and Respondent, v. MAXAMILLION BERNARD EAGLE, Defendant and Appellant.
Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers, Adrianne S. Denault, Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1600867) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed as modified, with directions. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers, Adrianne S. Denault, Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Maxamillion Bernard Eagle and other homeless people were staying at an abandoned house. When one homeless woman began yelling and behaving bizarrely, he was afraid she would attract unwanted attention from the police. He dragged her inside and tied her up. He put a noose around her neck and attached it to her feet. As a result, she slowly choked to death.
In a jury trial, defendant was found guilty of first degree murder (§ 187, subd. (a)), with a kidnapping special circumstance (§ 190.2, subd. (a)(17)(B)); simple kidnapping (§ 207, subd. (a)); and false imprisonment (§ 236). He was sentenced to life in prison without the possibility of parole.
This and all further statutory citations, unless otherwise indicated, are to the Penal Code.
Defendant contends:
1. The trial court erred by admitting three of defendant's prior convictions to impeach him.
2. The prosecutor committed misconduct in the course of questioning defendant about his prior convictions.
3. Defendant was improperly convicted of both kidnapping and false imprisonment.
4. The trial court erred by imposing a parole revocation restitution fine.
We reject defendant's first two contentions. However, the People concede the latter two. We will modify the judgment accordingly.
I
FACTUAL BACKGROUND
Defendant was one of a handful of homeless people who used an abandoned house in Banning as a place to stay and to use drugs.
On or about July 5, 2016, Melissa Gale, another homeless drug user, became belligerent. She started arguing with some of the occupants of the property and threatening them. She hit one woman and attempted to stab her with a broken methamphetamine pipe.
Defendant and three of his co-occupants tried to get Gale to leave, not only verbally but also by kicking her, dragging her, and turning a hose on her. She walked a short distance away, then began "screaming and singing . . . songs about wanting to kill [them]."
Defendant said, "[W]e have to get this bitch inside," "[b]ecause otherwise the cops are going to show up." He dragged her, "screaming and kicking," inside the house. Next, he tied up her hands and feet. He put what he himself called a "noose" — a loop of rope with a slip knot — around her neck, then ran the rope around an exposed two-by-four in the wall, and finally attached the other end to her feet. "There was no give in the rope. It was tight. As tight as it could be." She ended up lying on her side, arms and legs behind her, in "a backwards fetal position."
One of the others put duct tape over Gale's mouth and around her head. It was not over her nose; at that time, she was still breathing. After defendant left the room, however, she started breathing more and more slowly. Five or ten minutes later, she was dead.
With the help of the others, defendant put the body in a trash bin and secured the bin with chains and padlocks. Three or four days later, one of the others rolled the trash bin into a nearby field.
One Gary Tryon acted as "caretaker" for the derelict house. He stayed in a shed behind it. He admitted that he was jealous of defendant and that he did not like him because defendant was "a predator." On July 9, 2016, Tryon located the missing trash bin in the field. Recognizing "the smell of death," he contacted the police.
By July 12, 2016, when an autopsy was performed, Gale's body was so decomposed that a cause of death could not be determined.
Defendant's co-occupants were allowed to plead guilty to lesser charges in exchange for their truthful testimony at trial.
Defendant took the stand. He testified that Gale was hitting him, so he wrapped a rope around her wrists, dragged her outside the gate, and turned a hose on her. She walked away; he never saw her again. Later, Tryon told him "that [Gale] was dead and that he had her body. And . . . he would make it look like [defendant] did it." Defendant concluded that Tryon, motivated by jealousy, killed Gale, then used threats to get the co-occupants to frame defendant. Defendant sent letters to each of his co-occupants laying out this account as "a story I told" and hinting that they should give the same account.
II
THE ADMISSION OF DEFENDANT'S PRIOR CONVICTIONS
Defendant contends that the trial court erred by admitting three of his prior convictions to impeach him.
A. Additional Factual and Procedural Background.
Defendant filed a motion in limine to exclude evidence of his prior convictions. At the hearing on the motion, the prosecutor sought to impeach defendant, if he testified, with three prior convictions:
1. In 2001, for unlawful corporal punishment or injury of a child (Pen. Code, § 273d, subd. (a)), a felony, and possession of marijuana for sale (Health & Saf. Code, § 11359), a misdemeanor.
2. In 2012, for grand theft (§ 487, subd. (a)), a misdemeanor.
3. In 2013, for making a criminal threat (§ 422), a felony.
Defense counsel commented, "I can understand the 2013 because it is recent in time, . . . but everything else is quite old."
The trial court denied the motion. Accordingly, when defendant took the stand, he admitted these three priors.
The People also sought to introduce a 1998 arrest — not conviction — for domestic violence. (§ 273.5.) The trial court did exclude this evidence. This is not relevant to the present contention, but it will become relevant to defendant's prosecutorial misconduct contention. (See part III, post.) --------
The jury was instructed: "The fact that a witness has been convicted of a felony[,] if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witness's believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.
"Evidence showing that a witness engaged in a [sic] past criminal conduct amounting to a misdemeanor may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in the past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witness's believability. It is one of the circumstances that you may consider in weighing the testimony of that witness." (CALCRIM Nos. 2.23 & 2.23.1.)
B. Discussion.
"[A] witness may be impeached with any prior felony conviction involving moral turpitude, subject to the trial court's discretion under Evidence Code section 352 to exclude it if it finds its prejudicial effect substantially outweighs its probative value. [Citation.] The court's ruling is reviewed for abuse of discretion. [Citation.] Because this discretion is broad, 'a reviewing court ordinarily will uphold the trial court's exercise of discretion.' [Citation.]" (People v. Anderson (2018) 5 Cal.5th 372, 407; see also Evid. Code, § 788.)
In addition, "[a] witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted.)
"'When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 722.)
Thus, defendant argues that the priors do not reflect on his honesty or veracity. Theft, however, is generally considered to "directly reflect[] upon the defendant's honesty and truthfulness." (People v. Foreman (1985) 174 Cal.App.3d 175, 182; accord, People v. Cudjo (1993) 6 Cal.4th 585, 626 ["Grand theft necessarily involves . . . dishonesty"].)
Defendant's other priors are all crimes of moral turpitude. (People v. Brooks (1992) 3 Cal.App.4th 669, 672 [unlawful corporal punishment of or injury to a child]; People v. Thornton (1992) 3 Cal.App.4th 419, 424 [criminal threat]; People v. Standard (1986) 181 Cal.App.3d 431, 435 [possession of marijuana for sale].) As such, they "support an inference of readiness to lie." (People v. Castro (1985) 38 Cal.3d 301, 314.) We recognize that they reflect less directly on honesty than his grand theft conviction. Even so, they had significant probative value, because they showed that defendant's grand theft conviction was not a one-off. Rather, he had a long history of moral turpitude, stretching from 2001 through 2013. "'"[A] defendant who elects to testify is not entitled to a false aura of veracity. [Citations.]"' [Citation.]" (People v. Turner (1990) 50 Cal.3d 668, 699.)
Defendant also argues that the priors were remote. Defense counsel conceded, however, that the 2013 prior was not unduly remote; we agree. (People v. Morris (1991) 53 Cal.3d 152, 195 ["The admitted convictions were seven and nine years old at the time of trial and thus not so remote in time as to preclude their relevance for impeachment"], disapproved on unrelated grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) And it would be splitting hairs to hold that, while the 2013 prior was not unduly remote, the 2012 prior was.
Also, as just discussed, the 2001 prior had significant probative value, despite its remoteness in strictly mathematical terms, because it showed that defendant's moral turpitude was of long standing. "'Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior.' [Citation.] The fact that the [defendant] had so many convictions did not compel the court to exclude any of them. '[A] series of crimes may be more probative of credibility than a single crime.' [Citation.]" (People v. Anderson, supra, 5 Cal.5th at p. 408.)
Defendant does not discuss whether the priors are for the same or similar conduct as the charged offense. As he thereby implicitly concedes, they are not.
The last factor is the effect of the admission of the prior on the defendant's decision to testify. Here, it had none. Defendant complains that this is hindsight; however, defense counsel did not even suggest that defendant might not testify.
In sum, all four factors militated in favor of the admission of the priors. Thus, we can hardly say that admitting them was an abuse of discretion.
In a last-ditch argument, defendant claims that the priors were nevertheless unduly prejudicial, because the jury was likely to conclude that he had a criminal propensity, and to conclude from that that he committed the charged crimes. That is true, however, any time priors are offered for impeachment. Our Supreme Court has directed us, in that situation, to weigh probative value against undue prejudice by means of Edwards' four-factor framework. Under this framework, the trial court properly admitted the priors.
III
PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor exceeded the scope of permissible impeachment by questioning him about his 1998 arrest for spousal battery and about the facts underlying his 2013 criminal threat conviction.
A. Additional Factual and Procedural Background.
In cross-examination, the prosecutor asked defendant about a 2013 conviction for "beating your wife." Defendant admitted that he had pleaded guilty and been sentenced to one year.
The prosecutor then asked about the facts underlying his 2013 conviction for making a criminal threat:
"Q. And were you not also arrested for domestic violence for abusing Kim?
"A. I — it was criminal threats.
"Q. It wasn't for domestic violence?
"A. No.
"Q. Did you attack her?
"A. No.
"Q. Did you try to attack her?
"A. No.
"Q. Do you recall being arrested for that incident?
"A. Yes.
"Q. Do you recall attempting to grab her face and her neck?
"A. No.
"Q. Do you recall her grabbing a knife to defend herself?
"A. No.
"Q. Do you recall her barricading herself inside a garage door and you striking the door?
"A. Yes.
"Q. You did that?
"A. Yes.
"Q. Do you recall her saying that she thought that you were going to kill her?
"A. No.
"Q. Did you tell her, I was going to kill you. You fucked up. You called the cops. You're dead. People are going to get you?
"A. No.
"Q. You never threatened her?
"A. No. I — I — I did, but not in that manner.
"Q. How did you threaten her? What manner did you threaten her in?
"A. I said, you're going to be sorry.
"Q. How was she going to be sorry?
"A. Because I was going to leave and not be with her anymore.
"Q. That was the threat?
"A. Well, alls I said was you're going to be sorry.
"Q. Why? Why was there a dispute?
"A. I think it was over some — something personal, like you know, I think she sold my tools on Craigslist, and I was upset about it.
"Q. Why did she have to run and barricade herself in a garage?
"A. That's what she felt she had to do at that time.
"Q. What were you doing to her?
"A. Screaming and yelling.
"Q. Why were you banging on the door as she was barricaded in the garage?
"A. It was the heat of the moment.
"Q. In the heat of the moment, do you recall breaking her finger, bruising her eye and causing her nose to bleed?
"A. No.
"Q. That never happened?
"A. No.
"Q. Well, isn't it true that Kimberly obtained an Emergency Protective Order and you were prohibited from going to visit her?
"A. That automatically happened with the criminal threats. She didn't go to obtain it. It just happened in the criminal threats.
"Q. So there's a restraining order against you?
"A. Yes. And she also went and got it taken off as well.
"Q. Do you recall being served with that order?
"A. Yes.
"Q. And in that order did it not allege that you had physically attacked her?
"A. I don't recall."
At the time, defense counsel did not object. The next morning, however, he said: "[Y]esterday . . . I was trying not to object on this issue, but since I'm concerned it's going to start happening again today, I understand the rule to be that if impeachment occurs with a conviction, we're not allowed to get into the facts of the conviction." The trial court responded that under People v. Wheeler (1992) 4 Cal.4th 284, the conduct underlying either a felony or a misdemeanor is admissible to impeach.
B. Preliminary Clarification.
Preliminarily, both the People and defendant misunderstand exactly which offenses the prosecutor was asking about.
Defendant seems to think that the domestic violence conviction related to his 1998 arrest. (See fn. 2, ante.) But not so. The prosecutor specifically asked about a 2013 domestic violence conviction.
The People, on the other hand, seem to think that "Kim" and defendant's wife were the same person, so that the domestic violence conviction and the conviction for making a criminal threat were one and the same. Again, not so.
Kim was not defendant's wife. Earlier, he had identified Kim as a friend he sometimes stayed with. According to the probation report, he had a conviction in 2013 for making a criminal threat — presumably the offense involving Kim. But he also had a conviction in January 2014 (though likely committed in 2013) for domestic violence — presumably the offense involving his wife. These were the two offenses that the prosecutor questioned him about.
C. Forfeiture.
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.) More generally, even in the absence of a prior court order, "[a] prosecutor commits misconduct by '"'"intentionally elicit[ing] inadmissible testimony." [Citations.]' [Citation.]"' [Citation.]" (People v. Molano (2019) 7 Cal.5th 620, 674.)
"'[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853-854.)
"A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made 'a timely and specific objection at trial' and requested an admonition. [Citations.]" (People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 853.)
Here, defense counsel forfeited defendant's present contention by failing to object in a timely manner. While he did object the following day, this was too little, too late. Too little, because he indicated that he was not objecting to the questioning on the previous day, but only to similar questioning going forward. Moreover, his only objection was that the conduct underlying the convictions was inadmissible; he did not argue that the questioning violated the in limine ruling. Too late, because the prosecutor had already fully explored the area. A timely objection and request for an admonition — if meritorious — could have cut off the questioning entirely.
Defendant suggests — though without any discussion — that an objection would have been futile. We assume he is relying on the fact that, when defense counsel did object, the next day, the trial court overruled the objection.
"'A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile.' [Citation.]" (People v. Peoples (2016) 62 Cal.4th 718, 797.) The Supreme Court, however, has refused to apply the futility exception under analogous circumstances. In People v. Bonilla (2007) 41 Cal.4th 313, the defendant argued that objections that his counsel failed to make in the guilt phase would have been futile, because the trial court overruled similar objections in the penalty phase. (Id. at p. 336.) The court responded: "We have never expanded the futility exception to encompass a situation where, as here, the defendant made a belated objection after forgoing multiple earlier opportunities to object, and we decline to do so here." (Ibid.) While the time lapse in Bonilla was greater, the principle is the same.
We therefore conclude that defense counsel forfeited defendant's present contention. Defendant does not contend that the failure to object constituted ineffective assistance of counsel, and therefore we do not address this question.
D. Merits.
Even aside from forfeiture, we would still reject this contention.
Defendant argues that the prosecutor asked him about his 1998 arrest for domestic violence, in violation of the trial court's in limine ruling excluding evidence of that arrest. As we discussed in part III.B, ante, however, the prosecutor actually asked about a domestic violence conviction in 2013. Defendant does not argue that that violated the in limine ruling in any way.
Defendant also argues that, unlike the fact of the convictions (see part II, ante), the conduct underlying the convictions was inadmissible to impeach. After he filed his opening brief, however, the Supreme Court held that: "Evidence of circumstances underlying a conviction is admissible to impeach credibility if the proponent demonstrates that the evidence has 'any tendency in reason' to disprove credibility. [Citations.]" (People v. Dalton (2019) 7 Cal.5th 166, 214.) Because defendant's conduct potentially showed moral turpitude, and hence dishonesty, it was not misconduct to ask about it.
Dalton did go on to say: "Trial courts retain discretion to exclude such evidence under Evidence Code section 352 . . . ." (People v. Dalton, supra, 7 Cal.5th at p. 214.) Defendant argues that the evidence here was inadmissible under that section. Defense counsel, however, forfeited this argument. When he belatedly objected to evidence of the conduct underlying the conviction, even though the trial court cited Wheeler, he did not object under Evidence Code section 352. Wheeler held that the conduct underlying a misdemeanor conviction may be admissible to impeach. (People v. Wheeler, supra, 4 Cal.4th at p. 292.) Like Dalton, however, it was careful to point out that such evidence is still subject to exclusion under Evidence Code section 352. (Wheeler, supra, at pp. 296-297.) Thus, defense counsel had the opportunity to object under Evidence Code section 352, but he did not do so.
Perhaps this was because the evidence, as it actually came in, was not particularly prejudicial. Defendant denied most of the prosecutor's characterizations of his conduct; she was never able to prove them through any other witness. All he admitted was that Kim "barricaded" herself in the garage; he screamed and yelled; he banged on the garage door; he said she was going to be sorry; he was arrested; and a restraining order was issued automatically, but Kim "got it taken off." Indeed, because defendant denied causing or threatening any physical harm, this testimony actually tended to lessen the detrimental impact that the bare fact of the conviction might otherwise have had.
Finally, defendant argues that we should not apply Dalton retroactively. However, "'"[a]s a rule, judicial decisions apply 'retroactively.' [Citation.] Indeed, a legal system based on precedent has a built-in presumption of retroactivity."' [Citation.]" (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507.) "In general, '[a] new rule for the conduct of criminal prosecutions is applied retroactively to all cases pending on appeal or not yet final, even if the new rule presents a "clear break" with the past.' [Citation.]" (Ibid.)
Exceptions to retroactivity may be made where there has been detrimental reliance on the old rule. (People v. Guerra (1984) 37 Cal.3d 385, 401.) One example is People v. Johnson (2018) 6 Cal.5th 541, which defendant cites. It refused to apply a new rule that a certain instruction had to be given only on request, because the defendant had relied on the old rule and thus had not requested the instruction. (Id. at pp. 587-588.) Defendant also cites People v. Simon (2001) 25 Cal.4th 1082, which held that a new rule, requiring that an objection to venue must be raised before the commencement of trial, should be applied only prospectively. (Id. at p. 1108.) However, defendant cannot point to any similar reliance interest here.
In sum, then, defendant has not shown that the prosecutor's questions about his 2013 convictions constituted misconduct.
IV
DUAL CONVICTION FOR BOTH KIDNAPPING AND FALSE IMPRISONMENT
Defendant contends that he was improperly convicted of both kidnapping and false imprisonment, because the latter is a lesser included offense of the former.
The People concede the point. We agree. "[F]alse imprisonment is a lesser-included offense of all types of kidnapping [citation] . . . ." (People v. Martinez (1984) 150 Cal.App.3d 579, 599, fn. omitted, disapproved on unrelated grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) "The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct. [Citation.] 'When the jury expressly finds defendant guilty of both the greater and lesser offense . . . the conviction of [the greater] offense is controlling, and the conviction of the lesser offense must be reversed.' [Citation.]" (People v. Milward (2011) 52 Cal.4th 580, 589.) Hence, we will strike the false imprisonment conviction.
V
PAROLE REVOCATION RESTITUTION FINE
Defendant contends that the trial court erred by imposing a parole revocation restitution fine.
Once again, the People concede the error, and once again, we agree. A parole revocation restitution fine must be imposed when — and only when — the "sentence includes a period of parole . . . ." (§ 1202.45, subd. (a).) As defendant was sentenced to life without the possibility of parole, he is not subject to this fine. Accordingly, we will strike it.
VI
DISPOSITION
The conviction for false imprisonment (count 3) is stricken. Because the trial court stayed the sentence on count 3, the total sentence is unaffected. The parole revocation restitution fine is also stricken. The judgment as thus modified is affirmed. The trial court is directed to prepare both an amended sentencing minute order and an amended abstract of judgment, reflecting these modifications, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.