Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA048526 John S. Fisher, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Zenaido Hernandez of attempted first degree murder, dissuading a witness, and dissuading a witness by force or threat and found true great bodily injury and firearm-use enhancement allegations. On appeal, Hernandez contends the trial court erred in excluding evidence directed to impeaching the credibility of the victim. We affirm the judgment as modified.
Hernandez also contends, the People acknowledge, and we agree the trial court erred by imposing both section 12022.53, subdivision (d) and section 12022.7, subdivision (a) enhancements. Section 12022.53, subdivision (f) states, “An enhancement for great bodily injury as defined in section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to [section 12022.53] subdivision (d).” Although Hernandez urges the remedy is for the section 12022.7 enhancement to be stricken, we agree with the People the enhancement should be stayed. In People v. Gonzalez (2008) 43 Cal.4th 1118, 1126-1128, the California Supreme Court recently interpreted “impose” and “imposed,” as used throughout section 12022.53, subdivision (f), to mean the section 12022.53 enhancement with the longest term of imprisonment shall be imposed and executed; and any remaining prohibited enhancements shall be imposed and stayed. Hernandez further contends, the People acknowledge, and we agree he was improperly convicted of dissuading a witness by force or threat as well as the necessarily included offense of dissuading a witness. (See People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Hernandez’s conviction as to the lesser included offense of dissuading a witness shall be reversed.
FACTUAL AND PROCEDURAL HISTORY
1. The Information
Hernandez was charged in a four-count information with attempted willful, deliberate and premeditated murder of Jose Martinez (Pen. Code, §§ 187, 664), felony vandalism (§ 594, subd. (a)), dissuading a witness (§ 136.1, subd. (b)(2)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). As to the attempted murder count, the information specially alleged Hernandez had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and had personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).
Statutory references are to the Penal Code unless otherwise indicated.
2. The Trial and Sentence
According to the evidence presented at trial, Hernandez and Martinez knew each other for several years, but they were not friends. The men and their families lived in adjacent apartment buildings. Hernandez repeatedly accused Martinez of having a sexual relationship with his wife; each time Martinez denied the affair.
On March 8, 2005, Hernandez threw beer bottles at Martinez’s car breaking windows and causing additional damage, which cost Martinez over $1,000 to repair. Later that month, Hernandez threatened to kill Martinez if he testified against him in the pending vandalism case. The next day, Martinez discovered his car tires had been slashed.
On the afternoon of May 21, 2005, Martinez was outside his apartment building drinking beer with Alfredo Mazariegos and other friends when Hernandez approached and fired several shots at Martinez with a semi-automatic handgun. Martinez was hit in the abdomen and hand. Another bullet grazed him under the armpit. The wound to his abdomen required surgery to repair intestinal damage. Police recovered three shell casings and bullet fragments at the scene.
In October 2006, police officers arrested Hernandez in Nevada on a fugitive warrant and took him back to California. During the booking process, Hernandez turned to the arresting officer and asked, “How much time do you think I’ll get?”
Hernandez did not testify or present other evidence in his defense, arguing to the jury the People had failed to prove their case beyond a reasonable doubt.
The jury convicted Hernandez as charged and found the great bodily injury and firearm-use allegations true. Hernandez was sentenced to two consecutive terms of life with the possibility of parole for the attempted willful, deliberate and premeditated murder charge and the section 12022.53, subdivision (d) enhancement, plus a three-year term for the section 12022.7, subdivision (a) enhancement. The court imposed concurrent terms of two years for felony vandalism, two years for dissuading a witness, and three years for dissuading a witness by force or threat.
3. Evidence of Victim’s Prior Misconduct
Prior to trial, the People sought to exclude impeachment evidence concerning victim Martinez’s “prior convictions:” a 1995 misdemeanor conviction for falsely identifying himself to a police officer (§ 148.9), a 1997 misdemeanor conviction “for exhibiting a deadly weapon which is not a firearm,” and a 1997 conviction for inflicting corporal injury on a spouse (§ 273.5). In response, defense counsel stated, “With respect to the exhibiting a deadly weapon, I’m not sure, but I don’t think that is a crime of morale turpitude in any event. [¶] With respect to the 148.9 and the 273.5, the 148.9 would go to credibility of the victim with respect to the two counts regarding dissuading a witness. [¶] And the defense would ask that be permitted to enter. [¶] And the 273-5, I would submit on that one.”
Following a hearing outside the jury’s presence, the court excluded the evidence under Evidence Code section 352. The court agreed with the People the probative value of Martinez’s prior convictions was substantially outweighed by the resulting prejudice of admitting them into evidence. Hernandez contends this was error, effectively depriving him of his right to confrontation and to present a defense under the Sixth and Fourteenth Amendments to the United States Constitution.
DISCUSSION
Evidence of past misconduct involving moral turpitude is admissible to impeach a witness’s testimony even if the misconduct did not result in a misdemeanor or felony conviction. (See People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 (Wheeler) [Cal. Const., art. I, § 28, subd. (d), “makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor”]; see also People v. Castro (1985) 38 Cal.3d 301, 314 [misconduct involving moral turpitude may suggest a “readiness to lie”].) However, such evidence is subject to exclusion under Evidence Code section 352. (Wheeler, at p. 297, fn. 7.) As the Supreme Court explained, “In general, a misdemeanor -- or any other conduct not amounting to a felony -- is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.)
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if 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, of confusing the issues, or of misleading the jury.”
Hernandez complains the trial court’s decision not to admit the proffered impeachment evidence “was a product of false legal assumptions and incomplete facts.” Hernandez is correct the record fails to identify the Penal Code violation for the weapons offense and to indicate whether the section 273.5 “wobbler” offense resulted in a felony or misdemeanor conviction. He is also correct no evidence was introduced of “any details regarding the crimes or possible prison term[s]” imposed for these offenses. However, the burden of producing these foundational facts fell not to the People, as Hernandez suggests, but to the defense as the proponent of the impeachment evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 27.) Therefore, contrary to Hernandez’s contention, “in the absence of such foundational evidence, we will not assume error.” (Ibid.; See People v. Feaster (2002) 102 Cal.App.4th 1084, 1094 [Trial court did not abuse discretion in excluding proffered impeachment evidence of prosecution witness’s prior conviction, where defense failed to prove the wobbler offense was a felony or misdemeanor conviction].)
Section 273.5 allows the trial court to exercise its discretion and impose a sentence as either a felony or misdemeanor offense. (§ 17; People v. Jackson (2000) 77 Cal.App.4th 574, 576.)
In any event, the trial court engaged in precisely the analysis directed by the Supreme Court in Wheeler, supra, 4 Cal.4th 284 based on the limited facts presented. The court concluded that as acts of moral turpitude, these 10-year-old convictions were of minimal value in impeaching Martinez, due to their nature and remoteness; and the court declined to admit them under Evidence Code section 352. Nothing in the record suggests the court abused its discretion in reaching that conclusion. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [“[U]nder Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice’”].)
It is true, as Hernandez claims, the trial court initially stated Martinez’s convictions would not be permitted in part, because “they are misdemeanors and not felonies.” However, the court almost immediately clarified its ruling by stating while these convictions, as misdemeanors, were admissible; they were to be excluded nonetheless because their probative value was outweighed by their potential unfair prejudice.
The trial court properly concluded the impeachment evidence had no probative value as to the attempted murder charge. Hernandez has not shown how Martinez’s prior acts of moral turpitude would be at all relevant to his defense to that charge. If his purpose were to establish for the jury Martinez’s general reputation as a liar, then that fact would not have mitigated Hernandez’s attempt to murder him. Indeed, it may have driven home the premeditation and deliberation aspects of the offense on the theory that Hernandez decided to shoot Martinez not only because he had engaged in the affair, but also repeatedly lied about it to Hernandez. If Hernandez’s purpose were to impeach Martinez’s identification of him as the shooter, then the jury would also have had to discount the corroborating testimony of testimony of Alfredo Mazariegos, the physical evidence, Hernandez’s flight and implied admission to police.
As to the remaining counts, Hernandez is correct the victim’s testimony was the only evidence offered by the People. However, Martinez’s 1995 and 1997 acts of moral turpitude could properly be viewed as too remote to have any probative value as to any of the charged offenses. The purpose of admitting impeachment evidence is to call into question the truthfulness of the witness’s testimony, not, as Hernandez suggests, merely to create the impression that the jury the witness is a bad person.
In light of our conclusion the trial court properly exercised its discretion under Evidence Code section 352 to exclude the impeachment evidence, Hernandez’s contention is misplaced that the exclusion of the evidence violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. “Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674].) In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.” (People v. Quartermain (1997) 16 Cal.4th 600, 623; see also Holmes v. South Carolina (2006) 547 U.S. 319, 326 [126 S.Ct. 1727, 164 L.Ed.2d 503] [“[w]hile the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury”].)
DISPOSITION
The judgment is modified as follows: The conviction for dissuading a witness (§ 136.1, subd. (b)(2)) (count 2) is reversed; the two-year term imposed on count 2 is stricken, and the three-year term imposed for the section 12022.7, subdivision (a) great bodily injury enhancement is stayed. As modified the judgment is affirmed. The abstract of judgment is ordered corrected to reflect these changes. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, Acting P. J., JACKSON, J.