Opinion
C084274
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. SHAUN MICHAEL ESPINOZA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15F1017, 16F6855)
In Shasta County Superior Court case No. 16F6855 (case No. 855), a jury found defendant Shaun Michael Espinoza guilty of second degree robbery. Defendant admitted he served a prior prison term and violated his probation in Shasta County Superior Court case No. 15F1017 (case No. 017). The trial court sentenced defendant to an aggregate term of six years eight months in state prison.
On appeal, defendant does not challenge the revocation of his probation in case No. 017. Instead, he contends his conviction in case No. 855 should be reversed because the trial court erred in allowing him to be impeached by his seven prior felony convictions. Defendant also contends the abstract of judgment and minute order must be corrected to remove fines not imposed orally by the court.
We reject defendant's claims and affirm the judgment.
I. BACKGROUND
Prior to trial, the People filed an in limine motion to impeach defendant with seven of his prior convictions, should defendant testify. Specifically, the People sought to rely on defendant's convictions for being a felon in possession of a firearm, selling a controlled substance, possession of a controlled substance while armed with a firearm readily available for use, possession of marijuana for sale, manufacturing or possessing a dangerous weapon, felony theft of utility services, and possession of a stolen motor vehicle (case No. 017). The convictions dated from 2009, 2012, and 2015. Defendant opposed the People's motion and asked the court to sanitize the prior convictions if the court were going to permit their admission.
At the hearing on the People's motion, the court found "[t]hese are impeaching felonies, and I think the nature of them, the dates are such they are not remote, not unduly prejudicial, and basically just what the law intended with regards to what jurors should know if a witness testifies." Defendant argued the People's impeachment should be limited to three of the prior felonies: "transportation and sale, possession for sale, and possession of a stolen vehicle." The court was not persuaded and granted the People's motion. The court did not address defendant's request to sanitize the prior convictions and defendant did not pursue the issue.
At trial, defendant argued that he believed the bicycle he was accused of stealing was actually his bicycle and it was a "dispute over ownership," not a robbery. The jury was not persuaded and found defendant guilty of second degree robbery. Defendant later admitted to violating his probation in case No. 017 and to serving a prior prison term. The court revoked defendant's probation in case No. 017 and sentenced him to an aggregate term of six years eight months in state prison.
II. DISCUSSION
A. Impeachment - Prior Felony Convictions
1. Numerosity
Defendant argues his federal due process right to a fair trial was violated when the trial court allowed the People to impeach him with his seven prior felony convictions. We disagree.
Defendant does not argue that any of the seven prior felonies used to impeach him were inadmissible for that purpose. Instead, he asserts the court abused its discretion in admitting all seven prior felony convictions and in refusing to sanitize the convictions.
It is well settled that "[t]here is no automatic limitation on the number of priors admissible for impeachment. Moreover, a series of crimes relevant to credibility is more probative than is a single such offense. Thus, whether or not more than one prior felony should be admitted is simply one of the factors which must be weighed against the danger of prejudice." (People v. Dillingham (1986) 186 Cal.App.3d 688, 695; see People v. Mendoza (2000) 78 Cal.App.4th 918, 927 [10 prior convictions admitted for impeachment purposes]; People v. Green (1995) 34 Cal.App.4th 165, 173, 183 [six prior convictions admitted for impeachment purposes]; People v. Muldrow (1988) 202 Cal.App.3d 636, 647 [six prior convictions, three identical, admitted for impeachment purposes where there is a supported exercise of discretion].)
In deciding whether to limit the number of prior convictions for purposes of impeachment, trial courts are also bound to consider that " '[n]o witness including a defendant who elects to testify in his [or her] own behalf is entitled to a false aura of veracity.' [Citation.]" (People v. Gray (2007) 158 Cal.App.4th 635, 641.) "A series of crimes evidencing moral turpitude is more probative of a defendant's willingness to give perjured testimony than a single such offense." (People v. Lewis (1987) 191 Cal.App.3d 1288, 1297.)
Here, the trial court did not err by allowing the People to impeach defendant with the fact he was convicted of seven felonies in three prior cases. The felonies were not remote in time and they demonstrate defendant's ongoing history of untruthfulness, which was particularly relevant given that his defense was that he believed the bicycle he was accused of stealing was his bicycle. Impeachment of defendant with only three of the prior felonies would have allowed for an undeserved aura of veracity. (People v. Muldrow, supra, 202 Cal.App.3d at pp. 646-647.)
2. Sanitizing Prior Convictions
Defendant further contends the trial court erred in refusing to sanitize the nature of his prior convictions. We find this claim forfeited, though it also lacks merit.
In the trial court, in written opposition to the People's motion, defendant asked the court to sanitize the prior convictions, should they be admitted. When the trial court granted the People's motion, allowing them to impeach defendant with the seven prior felony convictions, the court did not rule on defendant's request to sanitize those convictions. Defendant did not request a ruling. Then later, when the unsanitized prior felony convictions were used to impeach defendant, defendant did not object. Defendant has, therefore, potentially forfeited this claim on appeal. (See People v. Rodgers (1976) 54 Cal.App.3d 508, 516-517 [party who objects but fails to secure a ruling, waives the objection].)
Assuming without deciding that the claim was preserved, there is no requirement that a court must sanitize a prior felony conviction, even if the prior offense is similar to the charged crime. (See, e.g., People v. Dillingham, supra, 186 Cal.App.3d at p. 695; People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) As the California Supreme Court has explained, sanitizing the prior conduct does not necessarily alleviate the potential for prejudice. (People v. Barrick (1982) 33 Cal.3d 115, 127, abrogated by statute on another point as stated in People v. Collins (1986) 42 Cal.3d 378, 393.) A trial court's attempt to sanitize a prior conviction of moral turpitude, by reference to it only as a "serious felony," represents an attempt "to tread between the pitfalls of identifying the prior conviction as an offense similar or identical to the charged offense [citation], and not identifying the felony at all. [Citation.]" (Barrick, at p. 127.) By precluding any reference to the precise offense, the court prevents "direct prejudice" to a defendant, but "removes one risk of harm only to create a number of others equally grave." (People v. Rollo (1977) 20 Cal.3d 109, 119, superseded by statute on another point as recognized in People v. Castro (1985) 38 Cal.3d 301, 307-308.) Such a sanitizing device may infringe on the jury's role as "arbiter of the probative effect" of the convictions upon the defendant's credibility and invite the jury's speculation that the offense involves "some form of unspeakable conduct" or a conviction of a nature that is "especially damaging to the defendant's credibility." (Rollo, at pp. 118, 119; see also People v. Massey (1987) 192 Cal.App.3d 819, 825.) The court did not abuse its discretion by declining to do so. B. Restitution Fine
Defendant further contends that because the trial court did not orally reimpose the restitution and probation revocation fines imposed at the original sentencing in case No. 017, the court "presumptively reduced" those fines to zero. We should, he argues, thus direct the abstract of judgment amended to remove those fines. Defendant's contention lacks merit.
When defendant was initially placed on probation in case No. 017, the trial court imposed on defendant a $300 restitution fine and imposed but stayed a $300 probation revocation fine. Following revocation of defendant's probation, when the court sentenced defendant to prison, the court said nothing about these fines. Restitution fines imposed when probation is granted, however, remain in force after probation is revoked. (See People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
Accordingly, the trial court's silence on these previously imposed fees does not, as defendant contends, result in a presumption that the court intended to reduce the fines to zero. In fact, defendant cites no relevant authority to support that position. Defendant relies on People v. Tillman (2000) 22 Cal.4th 300, which addresses a trial court's failure to impose a restitution fine in the first instance, and People v. Guillen (2013) 218 Cal.App.4th 975, which addresses Penal Code section 1203.4 and expunging a conviction. The court's error was its failure to lift the stay on the previously stayed probation revocation fine and its failure to impose the matching, mandatory parole revocation fine. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1255 [failure to impose the parole revocation fine results in an unauthorized sentence].) We shall, therefore, modify the judgment accordingly and direct the trial court to correct the minute order. (Id. at pp. 1255-1256 [reviewing court to modify the judgment to reflect the parole revocation fine in an amount equal to the restitution fine].) The abstract of judgment does not require any correction.
III. DISPOSITION
The judgment is modified to include a $300 parole revocation fine in case No. 017 and to lift the stay on the previously stayed probation revocation fine in case No. 017. The court is directed to correct the minute order accordingly. The judgment is affirmed as modified.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
BUTZ, J.