Opinion
C040845.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GIBSON, Defendant and Appellant.
Following an unprovoked attack on a pedestrian outside the public library, defendant Michael Gibson was convicted of battery with serious bodily injury.
On appeal, defendant contends the trial court abused its discretion in allowing his trial testimony to be impeached with evidence of prior convictions for burglary and robbery in 1983 and 1985, respectively.
There was no abuse of discretion. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
While waiting to cross the street adjacent to the library, Debra Arrington saw two men engaged in a discussion on the sidewalk across the street. Speaking to the other, "considerably smaller," man (later identified as victim Randall Crane), defendant appeared to be threatening Crane, and Crane looked scared. As Arrington crossed the street and came within 10 feet of the two, Crane side-stepped defendant and "tried to walk away" quickly; he looked very scared, as though he were trying to escape defendant. But defendant hurried after Crane and "out of nowhere" struck Crane with what Arrington described as "a very, very, very strong hit." The force of the blow swept Crane off his feet, and he landed directly on his head. After standing over Crane for a few seconds, defendant ran across the street and into the park.
Crane did not get up. He appeared to be having a seizure. Ultimately, Crane was hospitalized and had to undergo surgery to remove part of his brain.
Arrington identified defendant in a photographic lineup as the assailant.
At trial, defendant testified, and admitted striking Crane but explained he did so because he thought Crane was "coming at" him and "was going to do something" to him. Defendant testified that after he and Crane bumped into one another on the sidewalk, he saw that Crane had a pen in his hand, was acting "real agitated" and watching defendant closely. According to defendant, Crane got too near him in the flow of pedestrian traffic and because defendant "didnt know what [Crane] was going to do" and he "assumed" "[Crane] was going to do something" to him, defendant swung at Crane and hit him.
During cross-examination, defendant admitted that he had been convicted of burglary in 1983 and 1999 and convicted of robbery in 1985.
DISCUSSION
Defendants only contention on appeal is that the trial court abused its discretion in permitting him to be impeached with his 1983 burglary conviction and his 1985 robbery conviction.
Subject to the limitations of Evidence Code section 352, article I, section 28, subdivision (f) of the California Constitution authorizes the use for impeachment purposes any prior felony conviction "in any criminal proceeding, whether adult or juvenile." (Cal. Const., art. I, § 28, subd. (f); see also People v. Green (1995) 34 Cal.App.4th 165, 182.)
Under Evidence Code section 352, the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission would necessitate undue consumption of time, create substantial danger of undue prejudice, confuse the issues, or mislead the jury. The trial court has broad discretion in determining whether to admit evidence of prior convictions for impeachment purposes and, on appeal, the trial courts ruling will not be disturbed unless its determination exceeds the bounds of reason. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Tran (1996) 47 Cal.App.4th 759, 771 [trial courts exercise of discretion under Evidence Code section 352 will not be reversed unless it "`exceeds the bounds of reason, all of the circumstances being considered"].)
Generally, "`[n]o witness including a defendant who elects to testify in his own behalf [is] entitled to a false aura of veracity." (People v. Carpenter (1999) 21 Cal.4th 1016, 1056, quoting People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle).)
In determining whether to admit the prior convictions, "the trial court must consider four factors identified by our Supreme Court in People v. Beagle [,supra, 6 Cal.3d 441] (hereafter, Beagle): (1) whether the prior conviction reflects adversely on an individuals 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. [Citation.] These factors need not be rigidly followed." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925; see People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)
Defendant does not dispute that all but one of the four Beagle factors clearly favor admitting evidence of his 1983 and 1985 prior convictions.
As to the first factor, California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendants credibility. (See, e.g., People v. Mendoza, supra, 78 Cal.App.4th at p. 925 [robbery, burglary, and vehicle theft]; People v. Muldrow, supra, 202 Cal.App.3d at p. 645 [burglary and attempted burglary]; People v. Rodriguez (1986) 177 Cal.App.3d 174, 178 [robbery].) Because defendants 1983 conviction for burglary and 1985 conviction for robbery were clearly probative on the issue of his credibility, this factor favors admission of the priors. This is particularly true where, as here, the defense at trial placed defendants credibility directly at issue. (Cf. People v. Mendoza, supra, 78 Cal.App.4th at p. 925.)
The third and fourth Beagle factors also weigh in favor of admitting evidence of defendants 1983 and 1985 priors. Defendants theft-related crimes are not similar to the current battery charge, so as to prejudice him by their admission, (see People v. Mendoza, supra, 78 Cal.App.4th at p. 926) and the evidence did not adversely affect defendants right to testify because he did testify at trial. (Ibid.)
Defendants sole argument is — in considering the second Beagle factor — the trial court should have excluded evidence of his 1983 and 1985 prior convictions as too remote to be probative. (See People v. Turner (1994) 8 Cal.4th 137, 200 [remoteness evaluated by comparing time between prior conviction and trial].)
But convictions remote in time are not automatically inadmissible for impeachment purposes. "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." (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926; see People v. Green, supra, 34 Cal.App.4th at p. 183.) For example, in People v. Green, supra, 34 Cal.App.4th 165, the court admitted a 20-year-old prior conviction from 1973, reasoning that because it was followed by five additional convictions in 1978, 1985, 1987, 1988, and 1989, "`the systematic occurrence of [appellants] priors over a 20-year period create[d] a pattern that [was] relevant to [his] credibility." (Id. at p. 183, citing People v. Muldrow, supra, 202 Cal.App.3d at p. 648.)
The trial court did not abuse its discretion in concluding defendant had not lived a "legally blameless life" between his 1985 robbery conviction and his trial in this case for battery. In fact, the record indicates he had four convictions in that period. In 1989, defendant was convicted of burglary in Illinois; in 1993, he was convicted again in Illinois; in 1998, he was convicted of a theft-related misdemeanor; and in 1999, he was convicted of second degree burglary. The fact that most (if not all) of defendants convictions between those he challenges as too remote and his present crime are themselves theft related (and thus probative on the issue of defendants honesty and credibility) mitigates in favor of admitting the remote priors. (See People v. Mendoza, supra, 78 Cal.App.4th at p. 926.) Under these circumstances, the courts refusal to exclude evidence of defendants 1983 and 1985 convictions as too remote was well within its discretion.
Accordingly, all of the Beagle factors favored admitting evidence of defendants 1983 and 1985 convictions for impeachment. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J. and NICHOLSON , J. --------------- Notes: During pretrial proceedings concerning the admissibility of defendants prior convictions, the trial court was presented with a certified FBI record indicating that defendant had an additional burglary conviction in 1993. Defense counsel did not deny that defendant was so convicted but stated, "there is no court documentation" on the 1993 conviction and speculated that the FBI record might refer to a probation violation or a misdemeanor conviction.