Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD195421, Robert F. O'Neill, Judge.
McINTYRE, J.
David Lee Henly appeals a judgment arising out of his conviction of evading an officer with reckless driving and driving with a suspended license. He contends that the trial court erred in admitting unduly prejudicial bad act evidence against him, limiting his impeachment of one of the police officers who testified against him, imposing an upper term sentence and imposing an enhancement twice based on a single prior prison term he served. We conclude that his arguments do not support a reversal of the judgment, although the judgment erroneously reflects that the court imposed two prison prior enhancements based on a single period of incarceration. Because the record is clear that the court intended to impose the enhancements for two separate incarcerations, we modify the judgment to so provide and affirm the judgment as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of December 3, 2005, Corrine Brown called 911 to report that Henly, her ex-boyfriend, had "beat her up" during an argument while they were driving in his convertible Saab. San Diego Police Officers David Marshall and Mike Alberts responded to the call and found Brown standing next to a silver Saab with a black convertible top. Brown told the officers that Henly had slapped her during an argument and that he stopped the car and walked off with its keys after she threatened to call for help. Brown gave the officers a description of Henly and the clothes he was wearing; she also indicated that both she and Henly had been drinking that night and that although the car belonged to Henly, it was registered to a third party. The officers discovered that the car was registered to John Goodman (who was later determined to be Henly's cousin) and that Henly's driver's license had previously been suspended after he was convicted of driving under the influence.
The officers waited in a nearby parking lot and, about an hour and a half later, they saw the Saab drive by and began to follow it; the driver was wearing clothing consistent with the description Brown had given them. The Saab immediately accelerated and ran a red light at an intersection. The officers turned on their patrol car's lights and sirens and, accompanied by a second patrol car, gave chase; however, shortly after the Saab made an illegal U-turn (during which two of the officers got "a good view of the driver"), the officers called off the pursuit based on slippery road conditions and public safety concerns. Two of the officers positively identified Henly as the driver of the car after checking his driver's license picture. Henly was subsequently picked up and charged with evading an officer by reckless driving and driving with a suspended driver's license; an amended information against him also alleged that he had suffered a prior strike conviction in 2004 and served two prior prison terms.
At trial, the prosecution introduced evidence of the foregoing. Although Goodman was called as a witness, he invoked his privilege against self-incrimination outside the presence of the jury and thereafter refused to testify. Henly's defense focused on discrediting Brown's statements to the 911 operator and the police, the officers' failure to investigate Goodman as a possible suspect, and the officers' testimony about the incident, including their identifications of him as the driver of the Saab.
The jury convicted Henly of both offenses and, in a bifurcated proceeding, Henly admitted the strike and prison prior enhancement allegations. The court sentenced Henly to the upper term of 3 years, doubled based on the prior strike conviction, on the evading count and 180 days in jail, with credit for time served, on the suspended license count, plus two consecutive 1-year enhancements for the prison priors. The court also imposed certain fines and fees. Henly appeals.
DISCUSSION
1. Admission of Prior Bad Act Evidence
Prior to trial, the prosecution moved in limine to introduce evidence of two prior situations (one in 1990 and one in 2003) in which Henly attempted to evade police to avoid being charged with crimes, arguing that such evidence was admissible to establish he drove the car with the intent and motive of evading the officers. Henly opposed the motion, arguing that because his defense was that he was not involved in the crime at all, neither intent nor motive were seriously at issue, and that the prior situations were not sufficiently similar to the current offense to allow admission of the evidence to establish identity (i.e., that he was the perpetrator). The court ruled that, subject to a limiting instruction, the evidence was admissible.
At trial, after the court instructed the jury that the evidence was to be considered to prove intent and motive, the prosecution introduced evidence that after being stopped in May of 2003 in connection with a fight involving a weapon, Henly attempted to escape from police by going into Goodman's duplex unit and then running to the back yard and jumping over a fence to the neighbor's yard when the police came to the house. The court again gave the limiting instruction, after which the prosecutor questioned a federal agent about an incident in March 1990 in which Henly temporarily avoided being arrested in a buy-bust operation by speeding away from the scene in a car registered to his girlfriend.
Henly contends that the trial court erred in admitting this evidence. We review the trial court's rulings for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Pursuant to Evidence Code section 1101, subdivision (a), evidence of a person's character or trait of his character is generally inadmissible when offered by an opposing party to prove the person's conduct on a specified occasion. However, notwithstanding this general rule, evidence that a person has committed a prior crime, civil wrong or other act is admissible to prove a fact other than a disposition to commit such an act, such as motive, intent, plan or identity. (Evid. Code, § 1101, subd. (b).)
To be admissible, evidence that satisfies the criteria set forth in Evidence Code section 1101, subdivision (b), must also qualify for admission under Evidence Code section 352. (Evid. Code, § 1108, subd. (a); Brown v. Smith (1997) 55 Cal.App.4th 767, 791.) Evidence is admissible under Evidence Code section 352 unless the trial court determines that its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, confusing the issues or misleading the jury.
The probative value of prior act evidence is determined from various considerations, including the frequency of the uncharged acts and their similarity and temporal proximity to the charged acts. (People v. Soto (1998) 64 Cal.App.4th 966, 989-990.) To be relevant, the other acts must bear a certain degree of similarity to the conduct giving rise to the current charges; the precise degree of similarity that is required depends on the purpose for which the other act evidence is admitted. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) To establish intent, for example, the uncharged misconduct must merely be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance. [Citation.]'" (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) A greater degree of similarity is required to establish that the defendant acted in accordance with a common design or plan and the greatest degree of similarity is required to prove identity. (Id. at pp. 402-403; see also People v. Nible (1988) 200 Cal.App.3d 838, 848 [to be admissible to show identity, prior act must be sufficiently distinctive and similar to the charged crime that a proper inference may be drawn the same person committed both].)
Here, because Henly pleaded not guilty to the charges, all the elements of the charged offenses, including intent, were at issue even though his actual defense was limited to identity. (People v. Daniels (1991) 52 Cal.3d 815, 857-858.) The prosecution offered the prior act evidence, and the court allowed it, for the limited purpose of establishing that Henly drove the Saab with the intent and motive of evading the police. Although the two prior incidents were each factually distinguishable from the present evasion charge (the greatest similarity being the fact that both the 1990 incident and the current offense involved Henly's use of a car to make a high speed get away from the police), the common thread from each of the three situations was that Henly had a strong desire and intent to avoid arrest and was willing to undertake significant additional risk to himself and others in order to retain his liberty. This similarity is sufficient to permit the admission of the prior act evidence under Evidence Code section 1101, subdivision (b), on the issues of intent and motive. (See People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2 [explaining that in a prosecution for shoplifting where it was undisputed that the defendant left the store without paying for the items, the defendant's uncharged similar acts of theft would be admissible to demonstrate that he or she intended to steal the items].)
Henly nonetheless argues that the court should have excluded the prior act evidence under Evidence Code section 352 because the evidence was unduly prejudicial. The prejudice that Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence, but instead that which results from evidence that has very little effect on the issues but yet tends "to evoke an emotional bias against the defendant as an individual[.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Pursuant to this standard, the admission of the evidence of the 1990 incident, although damaging to Henly's defense specifically because of its similarity and relevance to the current offense, was not "prejudicial" for purposes of Evidence Code section 352. That Henly was driving a car registered in the name of his girlfriend, although perhaps curious, and was involved in an illegal transaction are simply not of such a nature as to evoke an emotional bias or animus on the part of the jury against him.
Henly also argues, however, that the 2003 evidence was not particularly relevant given the factual differences between that incident and the charged offense and that it was "prejudicial" in the Evidence Code section 352 sense because the officers' testimony suggested to the jury that he had threatened, or perhaps even injured, a third party with a weapon in that incident, something that would tend to evoke an emotional bias against him as a bad guy. Assuming, without deciding, that the 2003 evidence was unduly prejudicial and that the trial court manifestly abused its discretion in admitting it, its admission was nonetheless harmless in light of the strength of the evidence that Henly was the driver of the Saab (particularly the testimony of Officer Marshall and Brown's statements to the 911 officer and Officer Marshall that the car was Henly's and that the keys were in Henly's possession).
2. Limiting his Evidence to Impeach Officer Castro
The prosecution also moved to exclude evidence that Officer Martin Castro, who drove the second patrol car involved in pursuit of the Saab on the night of the incident and was one of the two officers who identified Henly as the driver, was terminated from his job for lying under oath about an unrelated incident in which he claimed that he did not know how his patrol car became damaged. Although the prosecutor indicated her willingness to have the jury hear that Officer Castro was terminated for lying, the court ultimately determined it would admit evidence that Castro had been terminated, but not the additional fact that the termination was for lying because that matter had not been finally adjudicated (Officer Castro's appeal of his termination was then pending) and involved a collateral issue that would require an undue consumption of time. Defense counsel agreed with the trial court's ruling, indicating that all he wanted was to establish that Officer Castro had been involuntarily terminated from his position with the police department.
Henly now contends that the court violated his constitutional right of confrontation by disallowing evidence that Officer Castro had been fired for lying. A criminal defendant establishes a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness and thereby "to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness." (People v. Frye (1998) 18 Cal.4th 894, 946.) However, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues or of marginal relevance and unless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of the witnesses' credibility," the court's exercise of its discretion to limit such cross-examination does not constitute a Confrontation Clause violation. (Ibid.; see similarly People v. Smith (2007) 40 Cal.4th 483, 513.) Further, an error in limiting cross-examination will not support a reversal of the criminal conviction unless a reasonable jury might have had "a significantly different impression of [the witness's] credibility" if the defense had been permitted to pursue his proposed line of questioning. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684, applying the standard set forth in Chapman v. California (1967) 386 U.S. 18.)
As defense counsel did not object to the trial court's ruling (and in fact expressly acquiesced in it), Henly cannot now be heard to contend that the trial court abused its discretion in limiting Henly's cross-examination of Officer Castro about the basis for the termination. Even if the circumstances were otherwise, however, we would in any event conclude that any error by the court was harmless. Officer Castro's testimony was limited and followed the extensive testimony by Officer Marshall regarding the chase and Henly's identity as the driver. The jury also heard the tape of Brown's 911 call placing Henly in the car earlier in the evening, as well as her statements to Officer Marshall that Henly owned the car and had the keys to it in his possession when he walked away from the scene. Further, unlike the situation involving his termination, there was no indication that Officer Castro had any reason to lie about the incident in question. Under the circumstances, the introduction of evidence that Officer Castro was terminated for lying about the cause of a dent in his patrol car would not have given a reasonable jury "a significantly different impression" of Officer Castro's credibility. Accordingly, any error on the part of the trial court does not support a reversal of the judgment.
3. Imposition of an Upper Term Sentence
An individual charged with a crime has a constitutional right to have a jury determine proof of the crime beyond a reasonable doubt. (United States v. Booker (2005) 543 U.S. 220, 230.) This constitutional right encompasses a jury's determination of all the elements of the crime, as well as any other factor (except for the fact of a prior conviction) that may be used to increase the punishment for the crime beyond the statutory maximum. (Blakely v. Washington (2004) 542 U.S. 296, 301-302 (Blakely).) Thus, questions as to whether the charged offense was a hate crime or involved great bodily injury must be submitted to a jury and proven beyond a reasonable doubt or admitted by the defendant before those facts may provide the basis for imposing punishment above the statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Jones v. United States (1999) 526 U.S. 227, 251-252.) Prior to a recent amendment of Penal Code section 1170, subdivision (b), the statutory maximum in California was the middle term. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 871]; People v. Black (2007) 41Cal.4th 799, 816 (Black).)
The one factor that is authorized to provide the basis for increased punishment based on judicial fact-finding using a preponderance of the evidence standard is "the fact of a prior conviction[.]" (Blakely, supra, 542 U.S. at p. 301.) For this purpose, "the fact of a prior conviction" refers to the defendant's recidivism, a factor unrelated to the commission of the charged offense but which was itself established through procedures satisfying the constitutional guarantees of fair notice, the use of a reasonable doubt standard and jury trial and on which courts have historically been permitted to rely to increase an offender's sentence. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 243-244, 249 (Almendarez-Torres).)
Although there is some question as to the precise scope of "the fact of [a] prior conviction," California courts have held that the Almendarez-Torres exception "is not limited simply to the bare fact of a defendant's prior conviction," but also includes matters involving the more broadly framed issue of recidivism, such as whether the prior convictions qualified as "serious felonies" or whether they were numerous. (People v. McGee (2006) 38 Cal.4th 682, 704, 709, italics omitted [judicial determination that an out-of-state robbery conviction qualified as a serious felony under California law]; People v. Banks (2007) 149 Cal.App.4th 969, 973 [judicial determination that the defendant had numerous priors and not done well on probation and parole]; People v. Thomas (2001) 91 Cal.App.4th, 212, 221.) As relevant here, the California Supreme Court has explained:
"The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' . . . require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Citation.]" (Black, supra, 41 Cal.4th at pp. 819-820, fn. omitted.)
Here, Henly admitted that he had suffered two prison priors and one strike prior, as alleged in support of the enhancement allegations of the complaint. Although convictions and adjudications that provide the basis for the imposition of enhancements cannot also be relied on as a basis for imposing an aggravated sentence (Pen. Code, § 1170, subd. (b)), the probation report identified a number of other prior convictions and juvenile adjudications in Henly's criminal record, extending back almost 24 years.
In imposing sentence, the trial court lamented "[t]he tragedy . . . is that I can't give Mr. Henly more time than eight years. He hasn't learned. . . . He continually violates probation. He violates parole. He goes back and . . . does the same activity he did before." It found no mitigating circumstances and that Henly's prior convictions, his status as a parolee at the time of the charged offense and his prior performance on probation and parole justified the imposition of an aggravated sentence. (See Cal. Rules of Court, rule 4.421 (b)(2).) In accordance with the foregoing precedent, such factors normally provide a basis on which an upper term sentence may be imposed. (Black, supra, 41 Cal.4th at pp. 819-820.)
Henly makes two arguments as to why the court's reliance on his prior convictions in deciding to impose the upper term in this case violates his constitutional right to a jury trial. First, he contends that the court could not rely exclusively on the probation report as a basis for its decision. Second, he asserts that even if the court could properly rely on the probation report to determine the number and seriousness of his prior offenses, the court could not rely on his juvenile offense history because a juvenile offender does not have the right to a jury trial. We address these arguments in turn below.
A. Reliance on the Probation Report as Establishing Henly's Criminal History
Citing the United States Supreme Court's decision in Shepard v. United States (2005) 544 U.S. 13 (Shepard), Henly contends that the trial court could not constitutionally rely on the probation report to establish his prior convictions and juvenile adjudications other than his convictions in 1988, 1990 and 2004, which he admitted. His contention is misplaced, however.
Shepard involved the application of the Armed Career Criminal Act (18 U.S.C. § 924(e) (the Act)), which imposed a mandatory 15-year minimum sentence on any person who was found guilty of the federal offense of being a felon in possession of a firearm after having been previously convicted of a "violent felony" on three separate occasions. (Shepard, supra, 544 U.S. at p. 16.) After the defendant pleaded guilty to the gun possession charge, the government in Shepard introduced evidence that he had previously been convicted of burglary in Massachusetts; it argued that, although only a burglary involving an unlawful entry into a building or structure (a "generic burglary") qualified as a violent felony under the Act (see Taylor v. United States (1990) 495 U.S. 575, 599, 602) and the Massachusetts law defined burglary to include an unlawful entry into a car or boat, the sentencing court could look to the underlying police reports and complaint applications to establish that the prior burglary was a generic burglary that qualified as a "violent felony" and thus justified an enhanced sentence under the Act. (Shepard, supra, 544 U.S. at p. 17.)
The Shepard court rejected the prosecution's argument. It concluded that, as a matter of federal statutory interpretation, a sentencing court could not consider matters other than the statutory elements (and in limited circumstances, charging documents and jury instructions) for the purpose of increasing the defendant's sentence beyond the statutory maximum proscribed for possession of a firearm by a felon under the Act. (Shepard, supra, 544 U.S. at pp. 16, 23, 24-25.) After recognizing that this interpretation was required by its own precedent, the court also noted that a contrary interpretation might make the Act constitutionally infirm. It explained:
"In a nongeneric State [that recognizes burglary of a boat or a car], the fact necessary to show a generic crime is not established by the record of conviction as it would be in a generic State [that limits burglary to a building] when a judicial finding of a disputed prior conviction is made on the authority of [Almendarez-Torres]. The state statute requires no finding of generic burglary, and without a charging document that narrows the charge to generic limits, the only certainty of a generic finding lies in jury instructions, or bench-trial findings and rulings, or (in a pleaded case) in the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea. In this particular pleaded case, the record is silent on the generic element, there being no plea agreement or recorded colloquy in which Shepard admitted the generic fact.
"Instead, the sentencing judge considering the [Act] enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez- Torres clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality . . . therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea . . . ." (Shepard, supra, 544 U.S. at pp. 25-26.)
Based on the language of the second quoted paragraph from Shepard, Henly asserts that a sentencing court cannot rely on the information provided in a probation report to make factual findings that provide the basis for increasing a defendant's sentence beyond the statutory maximum because that evidence was not part of the record of the prior conviction. However, Shepard altered neither the federal constitutional law allowing a court to consider prior criminal history as a sentencing factor (see United States v. Mattix (8th Cir. 2005) 404 F.3d 1037, 1038) nor California state law, which allows the prosecution to establish the fact of a prior conviction by introducing any evidence that meets applicable rules of admissibility, regardless of whether that evidence is contained in the "record of conviction" for the prior offense. (People v. McGee, supra, 38 Cal.4th at p. 691; People v. Martinez (2000) 22 Cal.4th 106, 116; see also Pen. Code, § 1170, subd. (b).)
Further, none of the aggravating factors considered by the court here involve the type of fact finding beyond the record of prior conviction that the Shepard court found to require presentation to a jury. Henly's prior convictions, as well as the prior revocations of his parole and probation, were matters of record that were listed in the probation report. The court did not engage in any "fact finding" in the traditional sense, but instead merely took notice of the fact of the prior juvenile adjudications, adult convictions and probation and parole revocations, without any objection on Henly's part. Based on the nature of the matters to be established, the sentencing court's consideration of the prior convictions, adjudications and revocations did not run afoul of Shepard.
B. Reliance on Henly's History of Juvenile Adjudications
Henly also argues that, even if Shepard did not preclude the court from using the probation report as a basis for determining the number and seriousness of his prior offenses, the court could not rely on his juvenile offense history because a juvenile offender does not have the right to a jury trial, a protection acknowledged by Apprendi as a predicate to a "prior conviction" for purposes of sentence enhancement. This issue is one on which federal and state intermediate appellate courts have split (see People v. Grayson (2007) 155 Cal.App.4th 1059, and cases cited therein) and is currently pending before the California Supreme Court. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) Pending a contrary decision by the high court on this issue, however, we will adhere to the existing published opinions of the California intermediate appellate courts unanimously holding that a trial court is entitled to consider a defendant's history of juvenile adjudications, as well as his adult convictions (which in this case were numerous and increasing in seriousness in their own right), in imposing the upper term sentence.
4. Imposition of an Enhancement Twice Based on a Single Prior Prison Term
Finally, Henly argues that the trial court improperly imposed two one-year enhancements for a single prison prior. He correctly points out that a court cannot impose more than one enhancement for the same underlying prison prior, even where the defendant is paroled but later re-incarcerated for violating parole (Pen. Code, § 667.5, subd. (g); People v. Espinoza (1979) 99 Cal.App.3d 59, 71), and argues that the court improperly imposed two one-year prison prior enhancements as a result of his imprisonment for the 2003 state offense. However, although the trial court did erroneously refer to the case number for the 2003 state offense in connection with both enhancements, a review of the record establishes that the first reference was in error and that the court in fact intended to impose the first enhancement as to the term Henly served for the 1989 federal offense.
At the sentencing hearing, the court described Henly's criminal history and specifically identified his incarceration for the 1989 federal offense as "the first prison prior" and his incarceration for the 2003 state offense as "the second prison prior." At no time did the court indicate that it intended to strike the prison prior allegations arising out of the 1989 federal offense; to the contrary, in imposing sentence, the court indicated its frustration that it could not impose a greater sentence than 8 years. Although the court stated that it was imposing "[o]ne year for the prison prior in SCD-174628 [the prison term served as to the 2003 state offense]" and an "[a]dditional year for the second prison prior [relating to that same case]," the record is clear that it intended to impose a prison prior enhancement as to the 1989 federal offense as well as relating to the 2003 state offense.
Under these circumstances, we need not remand the matter for resentencing but instead may correct the error by modifying the judgment to specify that the first prison prior enhancement related to the 1989 federal offense. (Pen. Code, § 1260; see People v. Humphrey (1997) 58 Cal.App.4th 809, 813; People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295.)
DISPOSITION
The judgment is modified to specify that the first prison prior enhancement related to the 1989 federal offense rather than the 2003 state offense and the trial court is directed to prepare an amended abstract of judgment reflecting this modification. As so modified, the judgment is affirmed.
WE CONCUR: NARES, Acting P.J., AARON, J.