Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF065623 John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
R. Clayton Seaman, Jr., 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, and Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Duane Anthony Finks was found guilty of two counts of failing to notify the appropriate law enforcement officials that he moved from Palm Springs to Desert Hot Springs as required as a sex offender subject to lifetime registration. Defendant now claims as follows:
Both parties in their briefs refer to defendant as “Anthony Duane Finks.” However, on the reporter’s transcript, clerk’s transcript, and the probation report, defendant is referred to as Duane Anthony Finks. We will follow the transcripts and probation report and refer to defendant as Duane Anthony Finks.
1. The trial court erred by allowing evidence of defendant’s prior failure to register conviction and uncharged conduct amounting to a failure to register for impeachment purposes.
2. The trial court erred by excluding a prior felony conviction suffered by a prosecution witness for impeachment purposes.
We affirm the judgment.
I
PROCEDURAL BACKGROUND
Prior to trial, defendant pleaded guilty to a charge of misdemeanor possession of paraphernalia. (Health & Saf. Code, § 11364.) The People dismissed an additional charge of violating Penal Code section 290.018, subdivision (b) prior to trial pursuant to Penal Code section 1385. The jury found defendant guilty of violating Penal Code section 290, subdivision (b), for failing to register as a sex offender with law enforcement officials upon coming into a new jurisdiction. Defendant was also found guilty of violating Penal Code section 290.013, subdivision (a), for failing to notify law enforcement officials who had jurisdiction over his prior address from which he moved. Defendant admitted he had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Defendant was sentenced to the upper term of three years on the Penal Code section 290, subdivision (b) failure to register conviction, the section 290.013, subdivision (a) conviction was stayed pursuant to section 654, and the trial court imposed four consecutive one-year sentences on the prior prison term enhancements. Defendant received a total term of seven years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
A. People’s Case-in-chief
Richard Schmieg owned and operated a sober living facility in Palm Springs located on West Racquet Club Road (Racquet Club facility). The facility consisted of separate apartments with a maximum capacity of 14 patients and had an on-site manager. Schmieg was at the facility at least 20 hours each week.
Schmieg met defendant in January 2009 while defendant was being treated at the Ranch Recovery Center in Desert Hot Springs (the Ranch). Defendant entered the Racquet Club facility on January 24, 2009. On April 3, 2009, defendant did not come home to the Racquet Club facility. Defendant called Schmieg two days later and told him he had relapsed. Based on the relapse, defendant was not allowed to return to the Racquet Club facility for 30 days. By April 8, 2009, Schmieg had returned all of defendant’s belongings to him. Schmieg immediately put another patient in defendant’s place.
Schmieg kept in contact with defendant when he moved out. Defendant, as far as Schmieg knew, was living at a sober living facility located on Estrella Avenue in Desert Hot Springs (the Estrella Avenue facility). In May 2009, Schmieg picked up defendant to take him back to the Racquet Club facility. Defendant stayed one night but failed a urine test. Schmieg took defendant back to the Estrella Avenue facility. Schmieg was sure defendant was not at the Racquet Club facility for at least 21 days. Defendant told Schmieg he had paid two month’s “rent” or “donation” at the Estrella Avenue facility.
Timothy Holland owned the Estrella Avenue facility. Each client who moved in signed a contract with Holland. Defendant signed a contract with Holland on April 8, 2009, the day he moved into the Estrella Avenue facility.
Sometime later, defendant had asked Holland to write and sign a letter that stated he had moved into the Estrella Avenue facility on May 6. Defendant told Holland he needed the letter so that he would not be out of compliance with the sober living house at which he had been living prior to the Estrella Avenue facility. Holland was willing to change the date for that purpose. Holland insisted the original contract was correct, and defendant had moved in on April 8, 2009.
Defendant had previously completed registration for the Racquet Club facility with the Palm Springs Police Department. On the form when he registered, he initialed 20 items that informed him of his requirements to register, including registering within five days of changing his address. There was only one form filed with the Palm Springs Police Department. If defendant had moved from the address on that form, he was required to notify the Palm Springs Police Department.
Carren Robinson was an investigator and police officer employed by the Riverside County District Attorney’s Office. She was assigned to the Sexual Assault and Felony Enforcement Task Force. Her assignment was to check on sex offender registrants to make sure they were in compliance with the registration process.
Investigator Robinson conducted a registration verification check on defendant on May 11, 2009. She went to the Racquet Club facility. Defendant was not at the address. Schmieg gave Investigator Robinson defendant’s telephone number. Investigator Robinson spoke with defendant on May 12, 2009, and the conversation was recorded.
Defendant told Investigator Robinson that he had moved out of the Racquet Club facility and into the Estrella Avenue facility on May 6, 2009. When Investigator Robinson told defendant that Schmieg had said he moved out on April 8, 2009, defendant denied it. Defendant told Investigator Robinson that he was at the police station registering the Estrella Avenue address at that moment.
Based on the conversation, Investigator Robinson went to the Estrella Avenue facility. Investigator Robinson was directed by defendant and another resident to defendant’s bedroom at the location. In the bedroom, a letter was found bearing defendant’s name and the Estrella Avenue facility, postmarked April 26, 2009.
The parties stipulated that defendant had been convicted of sexual battery which required registration. Further, prior registration forms were submitted to the jury that defendant completed in 2004, 2009 (for the Racquet Club facility), and on May 12, 2009 (for the Estrella Avenue facility).
B. Defense
Defendant testified on his own behalf. He had been required to register as a sex offender for approximately 14 years. Defendant admitted that he was well aware of his requirement to register. Defendant moved into the Racquet Club facility at the end of January. Defendant admitted he was a “drug addict” and relapsed in April when he used his paycheck to pay for drugs. He was kicked out of the facility.
Defendant claimed he packed all of his belongings but never moved out of the Racquet Club facility because his roommates let him stay in the apartment. It took defendant three weeks to find the Estrella Avenue facility. Holland had told defendant he could move in as early as April 17, 2009, but defendant had to wait until he had enough money. Defendant told his friends that his new address was the Estrella Avenue facility; this explained the letter sent to him at that address. Defendant got his paycheck on May 6 and immediately moved into the Estrella Avenue facility.
III
IMPEACHMENT OF DEFENDANT WITH PRIOR UNCHARGED AND CHARGED ACTS OF FAILING TO REGISTER
Defendant asks: “After the defendant admitted ‘slipping up’ when responding to prosecution questions about how long the defendant had properly complied with the registration requirement, did the trial judge err in allowing prosecution impeachment with the prior uncharged offense?” The simple response is “no.”
A. Additional Factual Background
The People filed a trial brief seeking to introduce Evidence Code section 1101, subdivision (b) evidence that defendant had a prior conviction of violating Penal Code section 290. Apparently, on October 25, 2007, defendant registered as a sex offender at the Jurupa Valley sheriff’s station as required upon his release from custody. He registered his parent’s address. Checks of the address revealed that defendant was either living at another address on occasion or he had moved. Defendant never registered a second address. On June 23, 2008, defendant pleaded guilty to violating Penal Code section 290, subdivision (a)(1)(b), and was placed on probation.
The People also sought to admit uncharged conduct of defendant’s failure to register. On November 6, 2008, defendant had registered with the Riverside police station that he was a transient living at the downtown Riverside bus terminal. However, defendant had moved into the Ranch prior to entering the Racquet Club facility for two months and never registered the address with law enforcement authorities in Desert Hot Springs.
The People were seeking to admit both the charged offense and uncharged conduct to show defendant’s knowledge of the registration requirement. The People also maintained that the prior uncharged and charged acts were not made inadmissible by Evidence Code section 352.
At the hearing on the motion, the People argued that the evidence was also relevant to prove defendant’s failure to register was “willful.” Defendant argued the evidence was not relevant. There were numerous forms that would be introduced to show defendant’s knowledge, based on initialing several forms that outlined the registration requirement. Also, defendant properly registered in January. The evidence was cumulative and it was “very prejudicial” that he had prior violations.
The trial court did not see that knowledge was an issue because defendant had registered several times. The People then argued that it was relevant to prove willfulness as it was defendant’s intent to return to the Palm Springs address so he did not have to register the Ranch address. The trial court did not believe that such a theory could be argued short of defendant testifying. The trial court felt that the evidence was not relevant “[r]ight now, ” but it could become relevant. Further, it would consume an undue amount of time, so it was not admissible under Evidence Code section 352 unless the evidence admitted at trial changed.
Defendant testified and admitted he had suffered four prior felony convictions for vehicle theft and burglary. He blamed the convictions on being a drug addict.
Defendant was asked if he had been concerned about staying at the Racquet Club facility without Schmieg’s permission and that law enforcement might have been looking for him. Defendant responded: “But the truth is I had been, I guess, compliant for so long, you know, the people—they had my phone number and so the truth is—and the truth is, ma’am, I had actually planned to physically come back, you know.” The prosecutor followed up the question and asked how long defendant had been compliant. Defendant responded: “Over the 15 years for the most part. I think I had a couple slips—maybe twice—maybe in 15 years.”
The People asked to approach sidebar. The People argued that defendant’s conviction for violating Penal Code section 290 was now admissible because defendant had “opened the door” by claiming he had been mostly in compliance for 15 years with only one or two slipups. Defense counsel merely stated: “He testified he slipped up twice.” The trial court ruled: “He opened the door. It’s for impeachment and other issues as well. It’s hard for these people not to open the door. I think it’s fair game though.” Defense counsel then stated: “I just wanted to make sure I got an advance—.” The trial court cut off defense counsel and stated: “Slipping up isn’t the same as, ‘I’ve been convicted and failed to register.’” Defense counsel stated: “I understand. It’s probably the same to him, but I understand.” The trial court then stated that it had kept the evidence out as Evidence Code section 1101, subdivision (b) evidence, “[b]ut now it’s for sure for impeachment.”
The People asked defendant if he had pled guilty on June 23, 2008, to a violation of section 290, subdivision (a)(1)(B), for failing to register as a sex offender. Defendant admitted the conviction. The People also asked if defendant lived at the Ranch facility for some time period. Defendant admitted he had lived at the recovery center for some time and never registered the address.
B. Analysis
Evidence Code section 210 defines relevant evidence: “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 780 provides: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to.... [¶]... [¶] (i) The existence or nonexistence of any fact testified to by him.” (See also People v. Harrison (2005) 35 Cal.4th 208, 229.) Evidence Code section 1101, subdivision (c), provides: “Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
As with all relevant evidence, the trial court has broad discretion to exclude impeachment evidence pursuant to Evidence Code section 352. (People v. Douglas (1990) 50 Cal.3d 468, 509, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code section 352. (People v. Harrison, supra, 35 Cal.4th at p. 230; People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Initially, we agree with the People that defendant has waived his claim on appeal. Although defendant objected to the admission of the evidence prior to trial, on the basis it was being admitted as Evidence Code section 1101, subdivision (b) evidence, because there was no dispute as to knowledge, he did not object to the trial court’s admission as impeachment of his credibility based on his false testimony at trial or under Evidence Code section 352 grounds. “[E]rror in admitting evidence may not be the basis for reversing a judgment or setting aside a verdict unless ‘an objection to or a motion to exclude or to strike the evidence... was timely made and so stated as to make clear the specific ground of the objection or motion ....’ [Citation.] ‘In accordance with this statute, we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. [Citations.]’ [Citation.] Although no ‘particular form of objection’ is required, the objection must ‘fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 354.) Hence, by failing to notify the trial court of his objection to the impeachment evidence, defendant has waived the claim on appeal.
Nonetheless, the trial court did not err. Here, the evidence that defendant had been previously convicted of failing to register and that he engaged in conduct that amounted to a failure to register was relevant to impeach defendant’s statements that he had mostly been in compliance with the registration requirements and that he only had a few “slip ups.” In People v. Kennedy (2005) 36 Cal.4th 595, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, the court held the prosecution properly impeached a defense witness with the fact that he and the defendant were previously arrested while in possession of pistols in an incident unrelated to the charged offenses. The California Supreme Court held that such evidence was relevant to impeach the defense witness’s credibility and his claim that he had never seen the defendant carry a gun, the evidence was not inadmissible as specific acts of misconduct because it was introduced for impeachment of credibility only, and it was not designed to elicit inadmissible propensity evidence. (People v. Kennedy, supra, at pp. 619-620.)
The evidence of defendant’s prior conviction for failing to register and his conduct amounting to failing to register for the time he lived at the Ranch facility was not admitted to prove an element of the offense or to show his propensity to commit the instant crimes. Rather, it was introduced to impeach defendant’s credibility in that he had testified he had complied with the registration requirements with only a few “slip ups.” As noted by the trial court, the term “slip up” was much different from admitting a failure to register and being convicted of it. The evidence was relevant and impeached defendant’s credibility.
Although the trial court did not make an on-the-record analysis whether the evidence should be excluded under Evidence Code section 352, it can be implied that it found it should not be excluded under this analysis. The trial court in its earlier determination only found the evidence was not relevant to knowledge, but that it may later become relevant once the evidence was presented. It also commented that it may consume an undue amount of time, but that could change if the evidence changed. It never found the evidence so prejudicial as to require its exclusion.
The probative value of the evidence was not substantially outweighed by its prejudicial nature. Defendant’s credibility was certainly in issue in this case. The fact that he lied on the stand by indicating he had been in compliance for 15 years, evidence that he had previously failed to register was uniquely probative. Further, it was not prejudicial as it was no more inflammatory than the charges here, and on at least one occasion defendant had been convicted of the offense.
Defendant claims the evidence was not relevant to impeach his credibility because he already admitted he had been convicted of four crimes, and it was not relevant to his knowledge of the registration requirement or his predisposition to commit the crime. However, as stated ante, this evidence was not admitted as prior felony conviction evidence to show an element of the crime or predisposition. It was admitted to impeach defendant’s statement that he had only “slipped up” prior to the instant case and had mostly been in compliance. It was evidence that his testimony was false. Defendant also complains that the People spent an undue amount of time clarifying the prior conviction and uncharged conduct. However, in order to establish that defendant had given false testimony, it was necessary to introduce the nature of defendant’s prior failures to register.
Even if the trial court erred, any error in introducing the challenged evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 13.)
Defendant contends his due process rights were violated and the error here must be evaluated under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. We disagree, as generally violations of state evidentiary rules do not rise to the level of federal constitutional error. (People v. Benavides (2005) 35 Cal.4th 69, 91.) Defendant has not shown that his federal constitutional rights were violated.
Here, the evidence against defendant was strong. Defendant does not attack Schmieg’s credibility. Schmieg clearly testified that defendant had moved out of the Racquet Club facility by April 8, 2009. Further, there was a written contract showing defendant moved into the Estrella Avenue facility on April 8, 2009. Defendant had a letter postmarked April 26, 2009, addressed to the Estrella Avenue facility, in his bedroom at the Estrella Avenue facility. Whereas, certainly evidence that defendant had lied on the stand was relevant to assessing his credibility as to whether he secretly stayed at the Racquet Club facility, and the prior failures to register impacted his credibility, other independent witnesses and documentary evidence proved that defendant had moved and failed to register. The overwhelming evidence of defendant’s guilt rendered any erroneous admission of impeachment evidence harmless.
Defendant contends the admission of the evidence was prejudicial because the instruction to the jury on how to view the evidence was improper.
Here, the jury was instructed with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 316, as follows: “If you find that a witness has been convicted of a felony, you may consider that fact in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.” Defendant claims (for the first time on appeal) that the trial court should have inserted the word only in the first sentence after the word “fact.” He relies on the Bench Notes to CALCRIM No. 316 that states: “If a felony conviction or other misconduct has been admitted only on the issue of credibility, give the bracketed word ‘only.’” Defendant claims without such qualifier, the jury used the prior evidence to prove the instant crimes showing prejudice. Although the term was properly included in the instruction, it was not prejudicial here. As stated by defendant throughout his opening brief, knowledge was really not an issue in this case. The jury would only use the evidence to assess defendant’s credibility.
Defendant also contends prejudice is shown by the jury’s questions to the trial court during deliberations. The jury sent the following questions to the trial court: “1. Is failure to register a 2nd address under the same ‘check in’ penal code that [defendant] is charged? 2. If not, is it a possibility to find the defendant guilt of violating the code that does relate to not registering a 2nd address.” The trial court gave a written response that: “Assuming you mean if [defendant] lived at two addresses at the same time. [¶] 1. No. [¶] 2. No.” There is no discussion of the jury note in the reporter’s transcript. We do not interpret the question as defendant. This does not show prejudice.
Based on the foregoing, we find that any conceivable error committed by the trial court by allowing the prosecutor to impeach defendant with his prior conviction for failing to register and his conduct amounting to uncharged failing to register was harmless.
IV
IMPEACHMENT OF PROSECUTION WITNESS WITH PRIOR FELONY CONVICTION
Defendant complains the trial court erred by excluding prosecution witness Holland’s prior felony conviction for spousal battery.
A. Additional Factual Background
The People filed a motion in limine to exclude the prior convictions of their witness Holland under Evidence Code section 352. Holland had a prior conviction for possession of a controlled substance (Health & Saf. Code, § 11350) and spousal battery (Pen. Code, § 273.5). The People argued that possession of a controlled substance was not a moral turpitude crime. Further, although spousal battery was a crime of moral turpitude, the conviction was 16 years old and Holland had no convictions since that time. The probative value of the conviction was substantially outweighed by the danger of undue prejudice of the “aged felony.”
At the hearing on the motion, defendant stated that he only sought to introduce the prior spousal battery conviction. Defendant made no further argument. The trial court first noted that the conviction was 16 years old and ruled: “So it’s aged and the crime itself has to do with violence, has little to do—except for [the] moral turpitude part, little to do with credibility. So it’s not very relevant. But the problem I have with the term ‘domestic violence’ is it tends to turn a lot of jurors’ thoughts into things that we can’t control and so it’s very prejudicial and would be confusing, et cetera, et cetera, so it’s not—will not be admissible in this case. To impeach Mr. Holland.”
B. Analysis
Felony convictions are admissible to impeach the credibility of a witness where the prior crimes necessarily involve moral turpitude, subject to the trial court’s discretion under Evidence Code section 352 to exclude such evidence. (People v. Castro (1985) 38 Cal.3d 301, 306-307, 312-314, 317; People v. Beagle (1972) 6 Cal.3d 441, 452-453, partially superseded by statute as stated in People v. Castro, supra, at pp. 306-313.) The parties agree that Holland’s prior conviction for spousal battery is a crime of moral turpitude. (Donley v. Davi (2009) 180 Cal.App.4th 447, 459, 461; People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402.) Hence, we need only determine if the trial court erred by excluding the prior felony conviction under Evidence Code section 352.
In making its Evidence Code section 352 analysis for admitting prior felony convictions, the trial court considers whether (1) the prior conviction reflects lack of honesty and integrity, (2) the remoteness in time to the current offense, (3) whether the prior conviction concerns the same or substantially similar conduct as the current offense, and (4) the effect the admission of the prior conviction would have on the defendant’s decision to testify. (People v. Castro, supra, 38 Cal.3d at p. 307.) Factors three and four are clearly not applicable when seeking to impeach a witness and not the defendant. Other relevant circumstances can also be considered by the trial court. (People v. Collins (1986)42 Cal.3d 378, 392.)
Trial courts have “broad discretion to admit or exclude prior convictions for impeachment purposes.... The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.” (People v. Collins, supra, 42 Cal.3d at p. 389.)
In considering the first two factors of Castro, we find the trial court did not abuse its broad discretion in excluding Holland’s prior felony conviction. Although the prior conviction clearly involved moral turpitude, the conviction was remote, occurring 16 years prior to trial. There was no indication that Holland committed any other offense after the prior conviction. The trial court also properly considered the nature of the conviction here. (People v. Collins, supra, 42 Cal.3d at p. 392.) It was especially concerned that any prior felony conviction involving domestic violence would “turn a lot of jurors’ thoughts into things that we can’t control and so it’s very prejudicial and would be confusing, et cetera, et cetera, so it’s not—will not be admissible in this case.” This was an appropriate consideration in excluding the prior conviction.
Even if the trial court had admitted Holland’s prior felony conviction, it does not appear reasonably probable that a result more favorable to defendant would have resulted. (People v. Mazza (1985) 175 Cal.App.3d 836, 844; People v. Watson, supra, 46 Cal.2d at p. 836.) Even if the jury had been informed that Holland had previously been convicted of a felony, it is unlikely that such conviction would have persuaded the jury that he was lying about defendant moving into his location on April 8, 2009. As set forth ante, Schmieg verified this date, the contract signed by defendant and Holland showed a move-in date of April 8, 2009, and defendant received mail at the Estrella Avenue address prior to his claimed move-in date.
Moreover, we disagree with defendant that his rights to present a defense and to confront adverse witnesses against him violated his Sixth Amendment rights. Initially, defendant never objected to the exclusion of this evidence on this ground in the lower court and it is therefore waived. Such failure to object on this ground waived any objection to this evidence on constitutional grounds because he raised no such objection at trial. (People v. Raley (1992) 2 Cal.4th 870, 892.) Further, such exclusion of a prior felony conviction does not amount to a violation of defendant’s right to cross-examine and confront Holland as he had an opportunity to effectively cross-examine Holland. (See People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3.) Defendant was able to question Holland’s credibility based on the letter he prepared for defendant postdating it to May 6, 2009. There was no Sixth Amendment violation.
We conclude there was no error committed by the trial court, and, even if there was, it was harmless.
V
DISPOSITION
We affirm the judgment in its entirety.
We concur: KING, J., MILLER, J.