Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF125493A. Kenneth C. Twisselman II, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Levy, J.
Appellant, James Albert Hill, challenges his convictions for rape (Pen. Code, § 261, subd. (a)(2)), rape in concert (§§ 261, subd. (a)(2) and 264.1), false imprisonment (§ 236), criminal threats (§ 422), and residential burglary (§ 460, subd. (a)). According to appellant, the trial court prejudicially erred when it excluded impeachment evidence of a prosecution witness’s prior juvenile offenses.
All further statutory references are to the Penal Code unless otherwise indicated.
As discussed below, appellant has not demonstrated that the trial court abused its discretion in excluding this evidence. Therefore, the judgment will be affirmed.
BACKGROUND
1. Prosecution evidence.
Michael Crowl was acquainted with appellant through appellant’s uncle, Henry. Henry lived in the apartment next door to the one Crowl was living in with his fiancée, V.C. (the victim).
At some point in October 2008, Crowl agreed to hold onto a rifle belonging to appellant. However, this rifle was seized by police officers who responded to a domestic disturbance call at Crowl and the victim’s apartment. When Crowl told appellant what had happened, appellant became upset and told Crowl that he either had to get the gun back or pay him $300. Crowl and the victim decided to pay appellant the money so he would stop harassing them.
On October 30, the victim gave their neighbor, Henry, $40 toward the payment of the debt to appellant. At around 11:00 p.m. that night, Crowl left the apartment to run an errand. Shortly thereafter, the victim heard a knock at the front door. Thinking it was Crowl, she opened the door. Appellant entered and demanded the $300. The victim saw that appellant was holding a small handgun.
Appellant told the victim to go into one of the bedrooms and take off her clothes. The victim complied because she was scared. Appellant then proceeded to have sexual intercourse with the victim.
Appellant was interrupted twice. Both times appellant got up and spoke with someone. Appellant then returned and continued to have intercourse with the victim. During intercourse appellant threatened the victim and her family. Appellant told the victim that he wanted his payment and he would get it this way or he would kill her family.
A final interruption occurred when Benny Ybarra came into the room and yelled that the cops were coming. When the police officers announced their presence, appellant ran.
Before the police arrived, Crowl returned home. He knocked on the front door because it was locked and he had forgotten his key. When no one answered, he entered the apartment through the kitchen window. Seconds later, Crowl heard a forceful knock at the front door. Crowl opened it and saw Ybarra and Henry. Crowl then turned away and walked down the hall to look for the victim. Ybarra approached Crowl from behind and swung a golf club at him. While Crowl and Ybarra scuffled, appellant called out from the bedroom that if anyone touched the door again or messed with him, he would put a bullet in their chest. Crowl fled the apartment and went to the river where he stayed for two days. Crowl admitted that after he left, he did not contact the police or look for the victim. Crowl also admitted that he had used methamphetamine earlier that evening.
2. Defense evidence.
Appellant testified that when he arrived at the apartment, Crowl was home. Appellant claimed that he confronted Crowl about the money and when Crowl said that he did not have it, appellant told him “well, you are going to have to give me something, give me some head or something.” According to appellant, Crowl and the victim looked at each other In response and then the victim walked to the bedroom and took off her clothes. At the same time, Crowl walked out of the apartment and closed the door behind him. Appellant believed Crowl had implied that the victim would trade sex to pay off their debt and that the victim consented.
Appellant maintained that he did not have a gun but admitted that he held a “tube” in his pocket so Crowl and the victim would think that he had brought a gun with him. Appellant admitted that he was trying to scare them but did not think that the victim was giving him sex because she was afraid. Rather, appellant believed the victim was following Crowl’s directions. Appellant denied either telling the victim that he had a gun or threatening to shoot anyone. While appellant admitted that he touched the back of the victim’s neck with the tube while he was having sex with her from behind, he claimed it was not to scare her or make her think that he had a gun.
Appellant testified that it was Crowl who interrupted his intercourse with the victim. According to appellant, Crowl came back to the apartment with Henry and saw appellant and the victim having sex. Crowl then left, and appellant resumed having sex with the victim. Appellant then heard Crowl outside yelling that his “wife” was cheating on him. Appellant got up again and went to the living room to close the front door. He returned to the bedroom and continued having sex with the victim. When appellant heard the police officers announce themselves, he ran into the other room and jumped out the window because he was scared. Appellant was concerned that Crowl had called the police and told them that he was raping the victim.
The jury convicted appellant on all counts charged, i.e., rape, rape in concert, false imprisonment, criminal threats, and residential burglary. The jury also sustained the special allegation that appellant committed the offenses during the commission of a residential burglary. (§ 667.61, subd. (d)(4).) However, the jury returned a “not true” finding on the special allegations that appellant personally used a deadly or dangerous weapon or firearm. (§§ 667.61, subd. (e)(4), 12022.5, subd. (a) and 12022.53, subd. (b).)
DISCUSSION
During a pretrial hearing, appellant’s counsel requested evidence of any prior convictions for the victim and Crowl for impeachment purposes. The prosecutor responded that the victim had no prior convictions for crimes involving moral turpitude and that Crowl had no prior convictions for crimes involving moral turpitude as an adult. However, Crowl did have prior juvenile adjudications.
Upon appellant’s counsel’s request, the trial court reviewed Crowl’s rap sheet. The court noted that appellant had juvenile adjudications for felony offenses involving moral turpitude not related to sex in 1997, 1998 and 1999. The trial court then exercised its discretion to exclude this evidence under Evidence Code section 352. The court noted
“there appear to be no convictions … involving moral turpitude since the 1999 offense and that the Court does consider under 352 remoteness. Typically case law suggests a ten-year span as an average, and the Court of course has discretion, but I’m also exercising discretion to consider that these were offenses as a juvenile.”
Appellant contends the trial court abused its discretion in excluding Crowl’s prior juvenile adjudications. According to appellant, the court incorrectly treated juvenile adjudications differently from adult convictions. Appellant further argues that, contrary to the court’s ruling, there is no 10-year rule of remoteness. Additionally, appellant asserts that exclusion of Crowl’s prior criminal conduct violated his due process rights under the Fourteenth Amendment and confrontation rights under the Sixth Amendment.
A witness in a criminal trial can be impeached with evidence of prior misconduct showing dishonesty or moral turpitude. (People v. Wheeler (1992) 4 Cal.4th 284, 290-295; People v. Lee (1994) 28 Cal.App.4th 1724, 1739.) Such evidence includes prior misconduct that was the subject of a juvenile adjudication. (People v. Lee, supra, 28 Cal.App.4th at p. 1740.) However, the admissibility of any past misconduct for impeachment is subject to the restrictions imposed by Evidence Code section 352. (Ibid.)
“Under 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.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) When exercising this discretion, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. (People v. Wheeler, supra, 4 Cal.4th at p. 296.) The factors relevant to the situation here, i.e., admissibility of prior offenses to impeach a prosecution witness, include whether the prior misconduct reflects adversely on the individual’s honesty or veracity and the misconduct’s nearness or remoteness in time. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) On appeal, the trial court’s exercise of this discretion must not be disturbed “‘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.’” (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
In ruling on whether a prior conviction should be excluded for remoteness, there are a number of factors the court can consider. These include the length of time that has elapsed since the conviction, the length of the sentence served on the prior conviction, the nature of the conviction, the age of the witness at the time the previous conviction was committed, and the witness’s subsequent conduct. (People v. Burns (1987) 189 Cal.App.3d 734, 737-738.)
Here, in excluding the prior juvenile adjudications, the trial court considered that the newest offense was 10 years old. The trial court mentioned that case law suggests a 10-year span as an average for ruling on the remoteness factor. Due to the offenses being committed when Crowl was a juvenile, the court did not show defense counsel Crowl’s rap sheet but, rather, simply mentioned the offenses were felonies involving moral turpitude. Appellant contends the court’s 10-year remark and treatment of the juvenile record as confidential indicate the court misunderstood the law and hence abused its discretion.
Appellant is correct that there is no 10-year rule of remoteness and that convictions remote in time are not automatically inadmissible. (People v. Mendoza, supra, 78 Cal.App.4th at p. 925.) However, the trial court did not rely on any hard and fast rules. Rather, the court stated that it had discretion on the remoteness of Crowl’s offenses. Thus, the court did not misunderstand the law. When the nearly identical issue was raised in People v. Pitts (1990) 223 Cal.App.3d 1547, the court opined “In our view establishing 10 years as the presumptive cut-off date for prior convictions is an exercise of discretion. It is preferable that the trial court have in mind a presumptive standard of remoteness rather than have no concept of remoteness and issue inconsistent rulings each time the issue comes up.” (Id. at p. 1554.)
As discussed above, juvenile adjudications are admissible for impeachment purposes. (People v. Lee, supra, 28 Cal.App.4th at p. 1740.) Appellant contends that the trial court’s apparent belief that the juvenile adjudications must remain strictly confidential demonstrates that it abused its discretion. Again, although the trial court did not reveal the details of Crowl’s juvenile record, it acknowledged that it had discretion to admit those adjudications. Further, when ruling on the admissibility of prior convictions under Evidence Code section 352, it is reasonable to consider the witness’s age at the time the previous crime was committed. (People v. Burns, supra, 189 Cal.App.3d at p. 738.)
Appellant additionally argues that exclusion of Crowl’s prior juvenile adjudications violated his Sixth Amendment right to confrontation and Fourteenth Amendment right to due process and a fair trial. However, the exclusion of evidence of marginal impeachment value under Evidence Code section 352 generally does not contravene a defendant’s constitutional rights to confrontation and cross-examination. (People v. Brown (2003) 31 Cal.4th 518, 545.) The routine application of state evidentiary law does not implicate a defendant’s constitutional rights. (Ibid.) “‘[U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’” (Id. at pp. 545-546.)
Contrary to appellant’s contention, the inability to impeach Crowl with these prior adjudications did not give Crowl an “undeserved aura of veracity.” Rather, Crowl was not a very credible witness. Crowl admitted to using methamphetamine and alcohol that evening. Further, Crowl admitted that he ran away and hid by the river for two days without attempting to contact the police or the victim because he was too confused. According to Crowl, he just sat at the river for two days. In light of this testimony, Crowl’s 10-year old juvenile offenses were insignificant with respect to his credibility.
In sum, the trial court knew it had discretion to admit Crowl’s prior juvenile adjudications and exercised its discretion to exclude that evidence. Appellant has not shown that this exercise of discretion was arbitrary, capricious or patently absurd and resulted in a manifest miscarriage of justice.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J. Gomes, J.