Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FBV3726. John M. Tomberlin, Judge.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
When victim Allen Allison resisted an attempted home invasion robbery, he was shot twice; he survived for eight months, paralyzed from the waist down and on dialysis, until he died as a result of complications of his injuries. Defendant Vavao Polo Faumui was neither the mastermind behind the attempted robbery nor the actual shooter. Nevertheless, he self-admittedly conspired to commit the robbery. Moreover, he fought with the victim, and there was evidence (albeit disputed) that, when defendant realized that he was losing the fight, he yelled to one of his cohorts, “[S]hoot him.”
A jury found defendant guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with robbery-murder and burglary-murder special circumstances (Pen. Code, § 190.2, subds. (a)(17)(A), (a)(17)(G)). It further found him guilty of attempted first degree robbery in concert (Pen. Code, §§ 211, 212.5, 213(a)(1)(A), 664) and first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). It found an armed principal enhancement (Pen. Code, § 12022, subd. (a)(1)) true with respect to all three counts. The trial court found true four “strike” priors (Pen. Code, § 667, subds. (b)-(i)), four prior serious felony enhancements (Pen. Code, § 667, subd. (a)), and eight 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total of life without the possibility of parole, plus 25 years.
Defendant’s sole appellate contention is that the trial court erred by refusing to “sanitize” his prior convictions — i.e., it allowed the prosecution to introduce, for the purpose of impeaching defendant when he testified, evidence that defendant not only had prior felony convictions in general, but convictions for robbery and assault in particular. We will hold that this was not error. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
On September 8, 2003, around 11:45 p.m., Allen Allison and Nancy George were at their home in Big Bear when the doorbell rang. George peeked out of a dining room window to see who it was. She saw someone “squatting or hiding.” She started to tell Allison not to open the door, but it was too late.
George could see Allison “trying to hold the door shut with his body, . . . and somebody trying to push it in from the other side.” She went out to the garage to call 911, but the phone there did not work. She heard more sounds of “wrestling around and struggling in the house.” Then she heard a male voice yelling, “[Y]ou’re mine, motherfucker. I am going to kill you,” followed by two gunshots. She heard sounds of running going past the garage; someone tripped and hit the garage door. She heard three car doors shut; then she heard the car leave.
George went back in the house and found that Allison had been shot. He was taken to Loma Linda Hospital. There were two entry wounds in his back and one exit wound in his front left stomach. One of the bullets struck his spinal cord, leaving him paralyzed from the waist down. One kidney, his small intestine, his colon, and his pancreas were also injured. In May 2004, he died as a result of complications from the bullet wounds.
When the police arrived, they found a black baseball cap and a black Mag-Lite flashlight on the floor next to Allison. One fired bullet was found in the door to the house. It could have been either a .357 or a .38. A second fired bullet was found in a chest of drawers.
DNA testing of a hair found in the baseball cap showed that the hair was defendant’s. Some DNA found on the flashlight matched victim Allison and some matched one Justin Juris. The police never developed any other information linking Juris to the crime.
In January 2004, the police interviewed defendant. When first contacted, he was in possession of a .357 revolver, loaded with .38 bullets, which he tried to ditch in the bed of a nearby pickup truck. There was no evidence that this weapon was ever compared to any of the bullets fired at the scene.
Defendant admitted that he attempted to rob Allison, along with three coconspirators: Robin Sherwood, James Franklin, and “Jose” (i.e., Ceja). Sherwood had worked for the victim; he said that the victim had “a big ole safe and a bunch of money.” The plan was to “open the door[,] go in there and just to make him open the safe.”
The victim owned a paving company. He had a safe in his home, but he kept only guns, documents, and small amounts of money in it, not money from his business.
Sherwood and defendant drove in Sherwood’s white car; Franklin and Ceja drove in a second car. They parked next to the garage. Sherwood stayed in one car as a lookout; the other three went up to the house. Franklin had a .357 handgun. Ceja had a 9-millimeter semiautomatic. Defendant claimed that he was armed only with a flashlight that he had found in Sherwood’s car.
Defendant knocked on the door. When the victim opened it, all three of them went in. (Defendant did not recall the victim trying to close the door.) The victim started yelling. Defendant and the victim grabbed each other. They wrestled “[f]or a minute, not even that.”
Defendant heard a shot; the victim let go of him, and defendant “bee lined” for the door. Once outside, he heard a second shot. He believed that Franklin was the shooter, because he “was the only one up there waiving [sic] that gun around.” He denied asking the shooter to fire. Sherwood was gone. Defendant, Franklin, and Ceja got in the other car and left. Defendant left behind his black baseball cap, which had come off when the victim grabbed him.
Donald Jaramillo was a friend of defendant, Robin Sherwood, James Franklin, and Jose Ceja. He testified that, one night in early September 2003, around 8:30 or 9:00 p.m., Sherwood borrowed Jaramillo’s grandmother’s white car, supposedly to go visit his in-laws. When Sherwood drove away, he was accompanied by a second car, containing defendant, Franklin, and Ceja. Around 2:00 a.m., Sherwood brought the car back. He seemed nervous, jumpy, or edgy. He said he and the others “went and did something in Big Bear” and “[s]omebody got shot.”
At first, Jaramillo thought Sherwood was joking. As he thought about it, however, he got angry. The next morning, he went to Sherwood’s apartment to confront him. When he arrived, defendant, Franklin, and Ceja were already there. Sherwood then told Jaramillo the following; as he did so, defendant kept nodding his head.
Sherwood said “they went to Big Bear to go rob this guy.” Sherwood stayed in the car, as a lookout, while the other three went up to the door. Franklin knocked. “[W]hen the guy opened it, [defendant] hit him with the Mag-Lite and tried wrestling him to the ground, and . . . he was overpowering [defendant], so [defendant] told [Franklin] to shoot him, and so [Franklin] shot him.”
Defendant continued to nod while Franklin added that he shot the victim in the head, but “the guy jumped up,” so he shot him twice more in the back. Franklin indicated that he was using a .357 pistol, but with .38 bullets.
The police had first interviewed Jaramillo in January 2004. He appeared to be in pain; he explained that he had been burned. In that interview, he said that he had been “getting high” with Sherwood and defendant when defendant said something about being involved in a shooting in Big Bear. According to Jaramillo, “Sherwood gave [defendant] a dirty look, and then [defendant] shut up.” When the police asked if Franklin was involved, he said not as far as he knew. He did not mention Ceja.
At trial, Jaramillo admitted that, during this first interview, he “w[as]n’t really honest.” He explained that, at the time, he was in pain, heavily medicated, and not “thinking real clearly,” due to burns he had suffered a couple of weeks earlier in an attempt to commit arson with a Molotov cocktail. He had ultimately been convicted of that arson attempt.
In September 2004, the police interviewed Jaramillo again. That time, he gave them a statement that was consistent with his trial testimony.
Defendant testified on his own behalf, but he limited his testimony to a denial that the conversation to which Jaramillo had testified had taken place.
II
THE REFUSAL TO SANITIZE DEFENDANT’S PRIOR CONVICTIONS
Defendant contends that the trial court erred by refusing to sanitize his prior convictions when they were introduced to impeach him.
A. Additional Factual and Procedural Background.
The prosecutor sought to impeach defendant with the following prior felony convictions:
1979: Assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and robbery (Pen. Code, § 211).
1982: Robbery.
1987: Receiving stolen property (Pen. Code, § 496, subd. (a)).
1995: Receiving stolen property.
In addition, the prosecutor sought to introduce two prior convictions for possession of a firearm by an ex-felon. (Pen. Code, § 12021, subd. (a).) In the end, however, these were not, in fact, introduced, and they are not at issue in this appeal.
Defendant filed a motion in limine objecting to evidence of the assault and robbery convictions; alternatively, he asked that, if they were admitted to impeach him, they be sanitized.
The trial court admitted the priors for the purpose of impeachment, and it declined to sanitize them. It explained: “I think that the jury has a right to gauge his credibility based on his prior actions, prior convictions. . . . I think I have the right to consider sanitizing his priors. . . . I still have 352 to determine. I have to make a determination of balancing, but I think that it is an important concern . . . that if I don’t tell them what the prior is, . . . they may speculate that it’s murder . . . . [¶] . . . [¶] I think the jury should be allowed to gauge Mr. Faumui’s character for honesty and truthfulness, his veracity. I think it’s appropriate for them to know what he did . . . .” The trial court also observed that, while the robberies arguably could be sanitized as “an offense involv[ing] theft,” the assault could not.
Accordingly, defendant testified and was impeached with the priors.
B. Analysis.
Under the California Constitution, “[a]ny prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding.” (Cal. Const. art. I, § 28, subd. (f).) This general rule of admissibility, however, is subject to the trial court’s discretion under Evidence Code section 352. (Cal. Const. art. I, § 28, subd. (d); People v. Valentine (1986) 42 Cal.3d 170, 178-179.) We therefore apply an abuse-of-discretion standard of review. (People v. Rowland (1992) 4 Cal.4th 238, 259, fn. 1.)
“[W]henever a jury is informed of a defendant’s convictions, even for the limited purpose of impeaching his credibility, a danger exists that some jurors also will view that evidence as showing a defendant’s propensity to commit crimes despite having been instructed not to do so. [Citation.] The Evidence Code, however, entitles the People to present evidence of the credibility of any witness, including a criminal defendant [citation] and ‘[n]o witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.’ [Citation.]” (People v. Gray (2007) 158 Cal.App.4th 635, 641, quoting People v. Beagle (1972) 6 Cal.3d 441, 453.)
Accordingly, there is no fixed rule that similar or even identical prior convictions must be excluded. (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.) For example, in People v. Gutierrez (2002) 28 Cal.4th 1083, the defendant was charged with, among other things, attempted murder of a police officer. (Id. at p. 1106.) For purposes of impeachment, the trial court admitted evidence of a prior conviction for assault with a deadly weapon on a peace officer. (Id. at pp. 1138-1139.) The California Supreme Court held that any error in doing so was invited. Alternatively, however, it also held: “[A]s a substantive matter, the ruling admitting the prior conviction for impeachment purposes was not error, even though the prior offense was similar in some respects to the charged attempted murder . . . . [Citations.]” (Id. at p. 1139; see also People v. Hinton (2006) 37 Cal.4th 839, 888 [defendant charged with multiple murder could be impeached with prior convictions for murder, attempted murder, and assault with a firearm].)
Defendant argues that Gutierrez and similar cases are distinguishable, because they dealt with whether the priors were admissible at all, not with whether they should be sanitized. We recognize that Gutierrez did not address sanitization directly. Nevertheless, it necessarily means the trial court does have discretion to admit a similar prior — i.e., that the probative value of such a prior can outweigh its prejudicial effect.
Even leaving Gutierrez aside, decisions by our sister courts specifically support the trial court’s refusal to sanitize the priors. In People v. Johnson (1991) 233 Cal.App.3d 425, the defendant was charged with murder and kidnapping. (Id. at p. 433.) The trial court admitted a prior murder conviction, in addition to prior convictions for escape and aggravated assault, for purposes of impeachment; it refused to sanitize the murder. (Id. at pp. 458-459.) The appellate court held: “The trial court did not abuse its discretion. There is no automatic limitation on the number or nature of prior convictions of crimes involving moral turpitude that may be used to impeach a witness. [Citations.] . . . Although we must, of course, scrutinize with care the impeachment use of prior convictions of crimes identical to a charged offense because of the heightened prejudice, no rule dictates their exclusion. . . . Because the credibility of several prosecution witnesses had been impeached with prior convictions, the trial court could properly conclude that admission of defendant’s prior murder was necessary to inform the jury fully as to defendant’s credibility.” (Id. at p. 459.)
Similarly, in People v. Shea (1995) 39 Cal.App.4th 1257, the defendant was charged with multiple forcible sex offenses. (Id. at p. 1263.) On appeal, he argued that his defense counsel had rendered ineffective assistance by failing to ask the trial court to sanitize a prior conviction for rape. (Id. at p. 1266.) Noting that there was no requirement that a similar prior be excluded, the appellate court held: “Appellant has failed to show that a motion to sanitize his rape prior, had such a motion been made, would have been granted.” (Ibid.)
Defendant’s argument hinges on the assumption that the precise nature of a prior conviction is “minimally relevant.” But not so. A robbery requires not only a taking of property, but also force and fear; hence, labeling a prior a robbery, rather than “a crime involving theft,” shows a general readiness to do evil, over and above the specific readiness to be dishonest. Moreover, as the trial court observed, defendant’s prior assault could not have been sanitized as “a crime involving theft”; it would have had to be watered down even more, to “a crime involving moral turpitude.” Presenting it forthrightly as an assault gave the jury significantly more assistance in evaluating defendant’s credibility.
Defendant relies on cases in which the trial court chose to sanitize the priors, and this decision was upheld on appeal. (E.g., People v. Foreman (1985) 174 Cal.App.3d 175, 178-182.) Such cases, however, do not stand for the proposition that refusing to sanitize the priors would be an abuse of discretion.
Defendant also cites People v. Gray, supra, 158 Cal.App.4th 635 as noting that sanitizing the defendant’s priors reduced the potential for prejudice. (Id. at p. 642.) He neglects to mention, however, that the Gray court also specifically stated that the trial court would not have erred if it had admitted the defendant’s priors without sanitizing them. (Ibid.)
The only case that genuinely supports defendant’s position is People v. Heckathorne (1988) 202 Cal.App.3d 458. There, the defendant was charged with murder. (Id. at p. 460.) When he testified, he was impeached with evidence of a prior felony conviction for assault with a deadly weapon. (Id. at pp. 461-462.) Moreover, over his objection, the prosecutor was allowed to bring out the details of that offense. (Id. at p. 462.) The appellate court reversed (id. at pp. 462-463), noting, “The scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense. [Citation.]” (Id. at p. 462.) In a footnote, however, it added: “[T]he prior should be ‘sanitized’ at the defendant’s request upon retrial because of its similarity to the present offense. [Citations.]” (Id. at p. 464, fn. 2.)
To the extent that Heckathorne can be read as requiring a similar prior to be sanitized as a matter of law, we decline to follow it. This does not appear to be an issue that the defendant in Heckathorne had actually raised. Moreover, the court did not provide any reasoning in support of its statement. It did cite People v. Massey (1987) 192 Cal.App.3d 819 and People v. Foreman, supra, 174 Cal.App.3d 175. (People v. Heckathorne, supra, 202 Cal.App.3d at p. 464, fn. 2.) Those cases, however, had allowed but not required sanitization. (Massey, at p. 825; Foreman, at pp. 180-182.) Finally, any such holding would conflict with Gutierrez, Hinton, Johnson, Shea and Tamborrino.
Defendant also argues that, because he deliberately limited the scope of his testimony, the admission of the unsanitized priors was “unnecessary overkill.” It is true that he testified only that the conversation to which Jaramillo had testified never took place; he did not deny (nor did he admit) that he participated in the crimes. However — as defendant argues himself, in connection with whether the claimed error was prejudicial — Jaramillo’s testimony was crucial. It was the only evidence that defendant asked Franklin to shoot the victim. Thus, it was important evidence that defendant acted with reckless indifference to human life, which, under the circumstances of this case, was a necessary element of the robbery-murder and burglary-murder special circumstances. (Pen. Code, § 190.2, subd. (d).) Defendant’s denial of Jaramillo’s testimony was therefore equally crucial. Faced with this credibility contest, the trial court could properly reason that the jury should have all of the information relevant to defendant’s credibility, including the nature of his priors.
We therefore conclude that the trial court did not abuse its discretion by admitting the priors to impeach defendant.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.