Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF126364 Joseph A. Kalashian, Judge.
Sharon Giannetta Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Jose Alfonso Leyva stands convicted, following a jury trial, of first degree murder in which he personally and intentionally discharged a firearm, causing death. (Pen. Code, §§ 187, 12022.53, subd. (d).) Although he admitted having previously been convicted of a serious felony that was also a strike (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(e)), the trial court dismissed the prior strike conviction (§ 1385) and sentenced Leyva to prison for 50 years to life plus five years. Leyva filed a timely notice of appeal, and now raises claims of evidentiary and instructional error. The People also filed a timely notice of appeal, and now challenge dismissal of the strike conviction. For the reasons that follow, we will affirm the conviction, but vacate the sentence and remand the matter for further proceedings.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
I
Prosecution Evidence
As of January 15, 2004, Ramon Sanchez lived in Ivanhoe. He was friends with Julian Reyes, who once mentioned that he had had problems with Leyva, who was known as “Bebo,” and that Leyva had taken some money from him. Reyes was often at Sanchez’s house, as he was friends with Sonia Ramos, who lived there.
Leyva also came to Sanchez’s house three or four times. Once, he commented to Sanchez that he was from Salinas. At some point, he mentioned to Sonia Ramos that he had robbed Reyes or Reyes’s father. He said he had hit the man who lived with Reyes on the head with a gun. He brought Sonia Ramos some cash and methamphetamine and put it on the table in front of her after he went to Reyes’s father’s house. When she saw Reyes’s father the next day, he had a bandanna or something wrapped around his head. He said he was cutting a branch from a tree and it hit his head. Leyva once told Sonia Ramos that he charged rent, by which he meant attempting to get money or drugs in exchange for “[a] beat down or something if they don’t.” Leyva “charged rent” to Reyes because Reyes and his father sold drugs. Reyes told Sonia Ramos that Leyva would kill him if he talked.
At the time Sonia Ramos talked to detectives, she was using methamphetamine on a daily basis. She may have told them that she agreed with Leyva to scare Reyes because she wanted Reyes to treat her better. She could have said anything when she was on drugs. According to Tulare County Sheriff’s Detective Hunt, who interviewed Sonia Ramos on February 17, 2004, she said that Leyva had told her that if Reyes talked about having been robbed, Leyva would kill him. She also said that Leyva had threatened to kill her if she ever betrayed him, but then he said he would never do anything like that. Sonia Ramos also told Hunt that there was a time when she believed Reyes was treating her badly, and that Leyva approached her and said he was going to teach him a lesson. She eventually agreed, believing Leyva was going to grab Reyes by the shirt or something, verbally threaten him, and tell him to behave.
On January 15, Sanchez arrived home from work about 4:00 or 4:30 p.m. Javier Velasquez, Candis Nelson, Reyes, and Samuel Hernandez were there. Sanchez started to drink, then left around 6:00 p.m. and went to George Barajas’s house nearby. When he returned home a little before 10:00 p.m., Nelson, Velasquez, Hernandez, Reyes, Hope Diaz and her babies, and Andres Rodriguez were there. Rodriguez was very drunk. Sanchez himself had been drinking with Barajas for about two hours and had had a liter of cane alcohol.
About 10:00 p.m., someone knocked at the door. Reyes and Sanchez were both inside the house at the time. Someone whose voice Sanchez did not recognize asked for Reyes. Hernandez called Reyes, who went out and closed the front door behind himself.
Sanchez heard a loud voice about a minute after Reyes went outside. Sanchez opened the door and stood there. Although the porch light was off, the lights inside the house were on and the front door was partially open. There was also a street light down the road.
Sanchez saw Reyes and Leyva. There were four or five other people outside as well, but Sanchez could not see them too clearly because it was dark and he was drunk. When Sanchez opened the door, Reyes was standing about two feet to his right. Leyva was about two to three feet to Sanchez’s left. The others were 10 to 12 feet away, and one man was standing at the bottom of the porch steps. Sanchez did not recognize him. Leyva took out a gun, pointed it at Reyes’s head, and fired. Reyes fell. Leyva then aimed the gun at Sanchez’s face, said, “‘You don’t know anything,’” and left.
Sanchez went back inside, telephoned Rafael Diaz, his landlord, and informed him that there was a dead person there. Sanchez told Diaz that the motive may have been some money that supposedly had been stolen from Reyes’s father.
Diaz was an assistant chief of criminal investigations with the district attorney’s office. Sanchez telephoned him at about 10:10 p.m. and said someone had been murdered at the house. When asked whether he had contacted the sheriff’s office, Sanchez said no, because Diaz was the officer he knew and he was reporting it to Diaz. Diaz then called the sheriff’s office and reported to the scene himself. Sanchez told him that four Mexican men had arrived at the front door to the house, looking for Reyes, because a man from Salinas had been robbed. Sanchez said he recognized the voice of one of them. He related that he started to ask what they wanted, then a shot was fired and Reyes was struck in the head and was lying dead on the front steps outside the house. Although Sanchez smelled of beer and looked frightened, he did not slur his words or look drunk or appear as though he could not recall correctly.
Samuel Hernandez, who was visiting at Sanchez’s house, was outside, smoking a cigarette with Andres Rodriguez, when Leyva walked up, accompanied by David Ramos. Ramos asked if Reyes was there. When Rodriguez said yes, Leyva started walking up the stairs to go inside, but Hernandez stopped him, having seen Leyva pull out a gun from inside his jacket and then shove it back in. Concerned because Diaz’s two little girls were in the living room, Hernandez knocked on the door and called to Reyes and Sanchez that someone was looking for Reyes. Reyes and Sanchez walked out, at which point Hernandez left the area of the porch and walked perhaps 20 feet away. Ramos stayed in the yard. There was an argument between Leyva and Reyes for a minute or two, and Leyva said, “‘Nobody knows anything, right?’” He then told Reyes, “‘Say good-bye.’” Reyes said, “‘Good-bye,’” and Hernandez heard a gunshot. Leyva then walked away. Hernandez had no doubt it was Leyva, whom he had previously seen for brief periods on a couple of occasions. Hernandez had no trouble seeing Leyva when Leyva first walked up, but once Hernandez walked off, it was pretty dark and Hernandez could not see what was happening on the porch.
Tulare County Sheriff’s Detective Rubalcaba searched Sanchez’s house with his consent. Diaz informed him that there was a weapon in one of the closets. Rubalcaba located a.45-caliber Auto-Ordnance pistol in a holster inside a boot. Although the gun was empty, there was also a box of.45-caliber ammunition inside the boot. The gun did not smell as if it had recently been fired. Sanchez had pointed out that there was a weapon present. Although he had last shot it into the air on January 1 to celebrate the new year, he had handled it the day of the incident. When he came home from work, the gun was in the trunk of his car. After he came back from Barajas’s house, he moved it into the house. The gun was in the holster the whole time. He did not clean it after he shot it.
Reyes died from a contact or near-contact gunshot wound to the head. He was killed by a.40-caliber bullet. One expended.40-caliber shell casing was found next to the body. Another was recovered from the scene. Both most likely were fired by a Glock.40-caliber pistol. Two expended.45-caliber shell casings were also recovered from the scene. No fingerprints were found on any of the shell casings. Gunshot residue tests were run on Sanchez, Hernandez, and several others who were at the house. Sanchez’s results were positive for gunshot residue on both hands. This meant he could have discharged a firearm, handled a firearm even in a holster, or had his hands in the vicinity when a firearm was discharged.
When Sanchez talked to detectives, he did not identify Leyva so that he would not have any problems. Instead, he told them that he was unable to describe the shooter, nobody else witnessed the shooting, he had no idea of the motive, and he could not remember much because he had been drinking. At some point, Rubalcaba showed Sanchez a photographic lineup that included Leyva’s picture. Sanchez chose that photograph and said it looked a lot like the person. He also gave the name “Bebo” or “Babel” during one of the interviews.
At trial, Sanchez testified that he could not be sure of what he actually witnessed that night because it was dark outside and he was drunk; however, he had no doubt about what he witnessed in terms of the killing itself and seeing Leyva shoot Reyes.
Rubalcaba arrived at the scene around 11:30 p.m. The porch light was off, but the front door was open. Light from inside illuminated the front porch. He was in contact with Sanchez around midnight, just briefly to obtain consent to search. Rubalcaba did not observe anything unusual about him; Sanchez appeared coherent, and Rubalcaba did not see any signs of intoxication.
Hernandez likewise did not identify Leyva when interviewed by detectives. He was in shock and did not want to be involved, so he told them that he was inside when the shooting happened and did not know anything. He was high on methamphetamine when he talked to the officers. It was not until Investigator Arnold said he would keep Hernandez’s name anonymous that Hernandez named “Bebo.” He did not initially identify a face to go with the name, although he selected Leyva’s picture from a photographic lineup perhaps three months later and gave a truthful statement, after Detective Hunt said he would not have to testify.
Hernandez testified that at the time of the incident, he had been on methamphetamine for a few days. He had used it the night before the shooting, but had slept most of the day of the incident. He did not use any drugs or alcohol between 5:00 p.m. and the time of the shooting. He believed that the drugs he took the day before were still affecting him on the night of the murder as they were still in his system, but they did not affect what he saw. Rubalcaba, who interviewed Hernandez at the scene, testified that he did not observe anything unusual about him and saw no signs of narcotic intoxication.
Further investigation led detectives to the name “Jose Estrada” and two possible addresses. After running the license plate on a vehicle parked at one of the addresses and finding it was registered to Jessica Leyva, Detective Hunt contacted the Salinas Police Department and received information that Jose Leyva went by “Bebo.” The Salinas police also provided a date of birth, and this information enabled Hunt to create a photographic lineup containing Leyva’s picture. Armed with that information, Hunt conducted interviews with possible witnesses. One such witness was David Ramos, Sonia Ramos’s brother.
In addition, Jessica Leyva’s house in Ivanhoe was searched. In a washroom in the rear of the residence was a wallet that contained a false driver’s license with the name Jose Luis Estrada and a resident alien card with the same name. Leyva’s picture was on both. The wallet also contained an employment check stub to Jose Estrada from Chris Hall, of the company Chris Mobile Home Transport. The check date was December 15, 2003.
Leyva’s residence was searched on January 23, 2004. No guns or ammunition were found. Check stubs from 2003 made out to Jose Estrada were found in the house. Although there were items inside the house, it looked like it could have been abandoned. Leyva’s landlord related that he last saw Leyva around Christmastime in December 2003. Sylvia Castro, the landlord’s daughter who lived next to Leyva, last saw him three days before the shooting.
Hunt interviewed David Ramos on February 17, 2004. Ramos informed Hunt that he knew “Bebo,” and he selected Leyva’s picture from a photographic lineup. With regard to the events of January 15, 2004, Ramos told Hunt that Leyva said he wanted to straighten something out with Reyes about robbing Reyes’s father. Ramos ultimately admitted being in the yard of Sanchez’s house with Leyva, Hernandez, and Rodriguez. He said that Leyva approached and was looking for Reyes, and asked Hernandez to go inside the house and look for him. After Hernandez left, Leyva asked if Ramos would make sure that Hernandez was not going to try to hide Reyes out. As Ramos approached the house, Reyes came outside. Reyes and Leyva had an argument, then Leyva pulled a gun, said “‘You’re going to die’” or “‘You’re about to die,” and shot Reyes in the head. Reyes, who was turning when he was shot, fell. Shocked, Ramos looked at Leyva. Leyva said “nobody saw nothing,” then walked away, still holding the gun.
Ramos, who was approximately 14 years old at the time of the incident, testified at trial that he did not remember being interviewed by Hunt, even after viewing the videotape. He testified that he had never witnessed a murder that he could recall, that he could not recall anything with regard to January 2004 or this incident, and that he had never seen Leyva before seeing him in the courtroom.
In 2007, Hunt received notification that Leyva was in custody in the Clark County Jail in Las Vegas, Nevada. Hunt contacted him there and arranged for him to be transported to Tulare County. When Hunt informed Leyva that he was under arrest for a murder that happened in Ivanhoe, Leyva responded that he was not there, and that if they did not have a gun and fingerprints, then he was not there, and it did not matter to him what was said by the other people who were there.
II
Defense Evidence
Leyva presented evidence to show he was living in Colorado, and working there and in other states, from approximately October 2003 to the time of his arrest; he was not in Ivanhoe except for around Christmas 2003; and he left Ivanhoe about a week before the shooting.
Some alibi witnesses were actually called by the prosecution.
Leyva, who was born in Mexico, testified that he was raised in Salinas, California, where he was brought by his mother when he was a baby. He began using the name Jose Estrada in 2003 to get employment, because he had been deported. Upon his reentry into the United States, he returned to Salinas, then lived in Ivanhoe from late 2003 through early 2004. He was already working in Colorado in 2003; he worked in several different states, moving trees, digging pipelines, and opening roads. He returned to Tulare County in November 2003 and went to work for Chris Mobile Home Services. Then, around January 8, 2004, he left again. As of January 15, 2004, Leyva was living in Silk, Colorado, with Jacqueline Herrera and her husband. At this point, he used the name Freddy Guerrero to get employment, because he had accidentally left his wallet, containing the Jose Estrada identification, at his sister’s house. When Leyva worked in Colorado after leaving Ivanhoe in 2004, he was paid in cash. He worked for subcontractors in several different places in Colorado.
Leyva denied killing Reyes or robbing him or his father. He did not even know him. He did not know Sanchez and did not know Hernandez’s name, although he had seen him around. He believed he and Hernandez had gotten into a fight a long time before, when Hernandez had hit Leyva’s truck while drunk. Leyva denied knowing Sonia or David Ramos.
When Leyva spoke to his brother and sister from jail after his arrest, he knew the conversations were being recorded. Leyva wanted his brother to go back to Colorado, and his sister to contact people who knew him, in order to get some sort of documents saying he was living there and to prove he was not in Ivanhoe at the time of the shooting. He was not trying to conjure up a false alibi.
Prior to his arrest, Leyva did not know he was wanted on a murder charge. His mother told him the authorities wanted to question him, but he never contacted the sheriff’s department because he did not want any trouble and was scared of getting deported. He believed he called the police department one time, but nobody answered and so he hung up. When Leyva was arrested, he said nothing about the authorities not having fingerprints or a gun, but simply asked that his cousin be contacted.
DISCUSSION
I
Leyva’s Appeal
A. Admission of Leyva’s Threat to Kill a Fellow Employee
1. Background
The People called Angela Davis as a witness. During cross-examination, defense counsel elicited that during the year or so she and Leyva lived together, she never saw him with any guns and never saw him be violent with anybody, and that he was never violent with her. Defense counsel also elicited, from other prosecution witnesses, that Leyva was a good prisoner, and that he was a good friend and counselor and gave good advice.
The prosecutor subsequently sought to call David Cox as a witness. The prosecutor argued that the defense had elicited character evidence that the prosecution should be allowed to rebut. Accordingly, he proposed to have Cox testify that he fired Leyva because Leyva threatened to kill a fellow employee. The trial court stated it would not normally allow the testimony in the People’s case-in-chief, but that the defense had questioned some witnesses concerning Leyva’s good character for not being violent. This ensued:
“MR. RUBINGER [defense counsel]: Can I at least voice an objection for the record, your Honor?
“THE COURT: You had in chambers.
“MR. RUBINGER: I need to on the record.
“THE COURT: You do. Go ahead.
“THE COURT: It wasn’t a model employee, excuse me.… I’m allowing this in because you had asked a witness or witnesses if they ever experienced any violence from the defendant or have they ever known of him having those kinds of tendencies.
“THE COURT: I believe it does, because we’re only talking about – I think Mr. Cox fired the defendant in – when? In 2003?
“THE COURT: That’s close enough.”
David Cox subsequently testified that he was the district manager of a tree moving company in Houston, Texas, and that Leyva had worked for him from May 2003 until being terminated at the end of September 2003. Cox terminated Leyva because he threatened a fellow employee over the number of people who were to ride in a pickup to lunch. Leyva said that if it happened again, he was going to kill the other employee. On cross-examination, defense counsel elicited that Cox did not witness the threat, which was made to Jeremy Teague, but that Cox talked to Teague and one or two others who were present. Cox related that there were approximately 15 men working on the particular job, which was in Fort Pierce, Florida. They would all go to lunch using three pickup trucks. One day, Teague and one or two other people took one truck to lunch, leaving a lot of people to ride in the remaining two trucks. Leyva ended up in a truck with 10 men, and it upset him. He was terminated the same day the threat was made.
Leyva subsequently gave his version of the incident during his testimony and denied threatening to kill Teague. He admitted pushing the man, but only after Teague called him a wetback and kicked him in the back of the head while Leyva was underneath the truck, which had broken down. During cross-examination, this exchange took place:
“A. I don’t remember.
“A. No, sir.
That’s what you do on regular basis; isn’t that correct?“A. No, I don’t, sir.
“A. No.
sic“A. No, it’s not true.
“A. No, sir, it’s not.” (Italics added.)
During his summation, the prosecutor argued that various witnesses were afraid of Leyva. In part, he stated: “In Ivanhoe, on the 15th of January of 2004, he killed Julian Reyes. His own admissions, he fought someone in Ivanhoe show [sic]. By his open admissions, when he went to Mexico, they beat him up. And we have testimony that whenever he goes to work, he threatens to kill people over a ride. And the threat was taken – from what we got from the testimony, it was taken seriously. [¶] He was fired as a result of it.… People that deal with him, they knew what kind of guy he is. They can sense. Rightly so. Rightly so. When he threatens to kill someone, he acts on it and he did it.” (Italics added.)
2. Analysis
Leyva contends the alleged threat was inadmissible character evidence because it took the form of a specific act. He is correct.
Character evidence is inadmissible to prove a person’s conduct on a particular occasion. (Evid. Code, § 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393.) “‘The inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact. If no theory of relevancy can be established without this pitfall, the evidence of the uncharged offense is simply inadmissible.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 373.) “[Evidence Code s]ection 1102 creates an exception to this rule in criminal cases allowing ‘evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation’ when it is either ‘(a) [o]ffered by the defendant to prove his conduct in conformity with such character or trait of character,’ or ‘(b) [o]ffered by the prosecution to rebut evidence adduced by the defendant.…’ ([Evid. Code,] § 1102.)” (People v. Felix (1999) 70 Cal.App.4th 426, 430, italics added.) By its clear terms, this exception is limited to evidence “‘in the form of an opinion or … reputation,’” and does not sanction the admission of specific instances of conduct. (People v. Wagner (1975) 13 Cal.3d 612, 618-619; People v. Felix, supra, 70 Cal.App.4th at pp. 431-432.) Accordingly, the trial court erred by admitting Cox’s testimony that Leyva threatened to kill a fellow employee, and this error permitted the prosecutor to use the evidence, in argument to the jury, in a way he should not have.
We do not suggest the prosecutor committed misconduct. “[B]ecause the trial court admitted the evidence in question, the prosecutor’s reliance on it in his closing argument could not have been misconduct.” (People v. Gurule (2002) 28 Cal.4th 557, 627.)
The People concede the trial court erred, but claim the matter is not properly before us because defense counsel failed to object on the specific ground Leyva now asserts. (Evid. Code, § 353, subd. (a); People v. Marks (2003) 31 Cal.4th 197, 228.) Moreover, the People say, because counsel could have had a rational tactical purpose for this omission, we cannot conclude, on the record before us, that he was ineffective. (See, e.g., People v. Kipp (1998) 18 Cal.4th 349, 367; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Defense counsel clearly challenged admission of Cox’s testimony. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1052-1053; People v. Clark (1992) 3 Cal.4th 41, 124.) Although the record does not show he did so on the ground that admission of a specific act would violate Evidence Code section 1102, it appears admission of the evidence was discussed, and objections made, in chambers. We cannot tell whether all objections made there were repeated on the record, or whether defense counsel was given a full opportunity to do so. In any event, unlike the People, we cannot conceive of any rational tactical reason defense counsel might have had for failing to raise a further objection to evidence he so clearly wanted excluded. Accordingly, we need not decide precisely how the issue is before us. Error occurred, and the only real question is one of prejudice.
If we address the issue as one of ineffective assistance of counsel, Leyva has the burden of showing “there is a reasonable probability that [he] would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.) If we address the issue as one of evidentiary error, reversal is required “only if a reasonable probability exists that the jury would have reached a different result had [the] evidence been excluded. [Citations.]” (People v. Whitson (1998) 17 Cal.4th 229, 251; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Samuels (2005) 36 Cal.4th 96, 113 [applying Watson standard to erroneous admission of character evidence].) Leyva argues for application of the more stringent test of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), claiming the error affected the fairness of his trial. Generally, however, “‘violations of state evidentiary rules do not rise to the level of federal constitutional error’” (People v. Samuels, supra, 36 Cal.4th at p. 114), and we see no reason to depart from this principle here.
Although the record does not suggest Leyva objected on federal constitutional grounds at trial, he is not precluded from arguing on appeal that the erroneous admission of the threat had the legal consequence of violating due process. (People v. Partida (2005) 37 Cal.4th 428, 431; see also People v. Zamudio (2008) 43 Cal.4th 327, 353.)
We find no prejudice. The case against Leyva was not circumstantial, but instead was based on multiple eyewitness identifications of him as the shooter. (Contrast McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385.) Contrary to Leyva’s claims, these identifications were very strong, even taking into account that the witnesses did not name Leyva to authorities at first. At trial, the defense made much of the fact gunshot residue was found on Sanchez’s hands, but Sanchez’s gun was a.45-caliber weapon, while Reyes was killed with a.40-caliber firearm. No such weapon was ever found and, according to the detective who spoke to Leyva following his arrest in Las Vegas, Leyva knew authorities did not have the murder weapon. Moreover, no good reason appears for why Sanchez, Hernandez, and David Ramos would have falsely identified Leyva; Leyva’s testimony that he did not know or had only seen them and Sonia Ramos strained credulity; and Leyva’s alibi witnesses were substantially impeached. Under the circumstances, there is no reasonable probability of a different result had the trial court excluded the threat evidence (see People v. Felix, supra, 70 Cal.App.4th at p. 432), and Leyva’s claim of a due process violation is unavailing (see Correll v. Stewart (9th Cir. 1998) 137 F.3d 1404, 1416-1417).
B. Admission of Leyva’s Prior Conviction and Related Jury Instructions
1. Background
The prosecutor moved, in limine, to be permitted to impeach Leyva with his 1991 felony conviction for assault with a firearm (§ 245, subd. (a)(2)), 2000 misdemeanor conviction for unlawful taking or driving of a vehicle (Veh. Code, § 10851), and 2000 misdemeanor conviction for falsely identifying himself to a peace officer (§ 148.9), should Leyva testify. The court initially ruled that Leyva could be impeached with the assault conviction since, although it was old, Leyva had suffered a number of misdemeanor convictions for crimes of moral turpitude in the interim. Because it was a crime of violence, however, and Leyva was on trial for a crime of violence, Leyva was to be asked only whether he had been convicted of a felony crime of moral turpitude. Exercising its discretion under Evidence Code section 352, the court further allowed the People to use one of the misdemeanors. The court denied Leyva’s request to exclude the assault conviction because of its remoteness in time and relatively minor nature vis-à-vis the murder charge, reiterating that it was not Leyva’s only conviction for moral turpitude and finding it more probative than prejudicial.
Later, the court changed its mind and, finding that “it comes down to a fairness issue,” ruled that Leyva could not be impeached with the misdemeanor, although he still could be impeached with the felony conviction. As a result, the prosecutor requested that the felony impeachment “mention a crime of violence.” Defense counsel noted that the court had given the defense a choice – either assault with a firearm or crime of moral turpitude – and that he was choosing “the latter of the two evils,” and was going to request a jury instruction defining moral turpitude as stated in Black’s Law Dictionary. Counsel acknowledged that cases defined the term as “[r]eady to do evil,” but claimed Black’s Law Dictionary said it went to the honesty and veracity of a witness. This followed:
“MR. NIAYESH: Your Honor, I ask the Court allow me to impeach him with a crime of violence involving moral turpitude.
This was not the final word on the subject. Several days later, the trial court announced: “We met in chambers regarding the issue if the defendant testifies and he’s impeached with his 1993 [sic] felony 245 conviction, we said it would be addressed as a crime of moral turpitude; however, there has been evidence produced by the defense by direct examination or cross-examination that the defendant doesn’t have any history of violence. [¶] In fairness to the People, they had requested it be characterized – impeachment prior be characterized as a crime of violence. I said we weren’t going to do that, but what I would allow is that he be confronted with the fact he suffered a crime of moral turpitude and it was a felony assault conviction in 1993 [sic].” As a result, when Leyva testified, defense counsel elicited that in 1991, he suffered a “prior felony conviction for assault, a crime involving moral turpitude[.]”
The instructional conference was unreported. The trial court instructed the jury, inter alia, that among the factors that could be considered in evaluating a witness’s testimony was whether the witness had been convicted of a felony. Pursuant to CALCRIM No. 316, it further instructed: “If you find that a witness has been convicted of a felony, you may consider the fact – 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 weather [sic] that fact makes the witness less believable.” After giving CALCRIM No. 318 (prior statements as evidence), the court stated: “Moral turpitude is defined as a general readiness to do evil, and you may consider a conviction of a crime of moral turpitude in evaluating a witness’[s] credibility.” This immediately preceded the instruction, “Theft involves dishonesty and theft by receiving stolen property is a crime of moral turpitude.”
The theft instruction related to defense witness Jacqueline Herrera’s prior conviction.
2. Analysis
Leyva contends the trial court erred by requiring that the prior conviction be designated as both a crime of moral turpitude and a felony assault, and by admitting the conviction to impeach his character as well as his credibility. He argues that the prior felony conviction was a specific act and, as such, was inadmissible as rebuttal character evidence. Leyva points out that CALCRIM No. 316 reads, in pertinent part, “If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness’s testimony,” and that the Bench Notes advise that if a felony conviction has been admitted only on the issue of credibility, the bracketed word “only” is to be given. He says the trial court further erred by instructing the jury that moral turpitude means “a general readiness to do evil,” and that the errors – alone and in conjunction with the erroneous admission of Cox’s testimony concerning the threat – violated his right to a fair trial.
The issues are properly before us. The record supports a conclusion that any further objection by defense counsel concerning how the prior conviction was designated would have been futile. As to the wording of CALCRIM No. 316, “‘[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570, italics added.) Of course, Leyva’s point is precisely that the version of the instruction given was not correct in law. Moreover, the rule allowing appellate review, even in the absence of an objection, of any instruction affecting the substantial rights of the accused (§ 1259; People v. Cabral (2004) 121 Cal.App.4th 748, 750) applies to both instructions.
We see no problem, per se, with designating the prior conviction as a felony assault. Pursuant to People v. Castro (1985) 38 Cal.3d 301, 306, 315, a witness may be impeached with any felony conviction that necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty. Assault with a deadly weapon involves moral turpitude (People v. Armendariz (1985) 174 Cal.App.3d 674, 681-682; People v. Jackson (1985) 174 Cal.App.3d 260, 266; People v. Cavazos (1985) 172 Cal.App.3d 589, 594-595), and assaultive crimes are relevant to the issue of credibility (People v. Armendariz, supra, 174 Cal.App.3d at pp. 680-681; see People v. Castro, supra, 38 Cal.3d at p. 315). Accordingly, the trial court had discretion to permit evidence of Leyva’s actual conviction (Evid. Code, § 788; People v. Gray (2007) 158 Cal.App.4th 635, 641-642; see People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647), and, as Leyva was not entitled to a “false aura of veracity” (People v. Beagle (1972) 6 Cal.3d 441, 452-453, overruled on other grounds in People v. Castro, supra, 38 Cal.3d 301), it did not abuse its discretion by sanitizing the conviction so as to remove reference to use of a firearm in order to make the offense less similar to that for which Leyva was on trial, thereby reducing the potential prejudice of that conviction (People v. Gray, supra, 158 Cal.App.4th at pp. 641-642; People v. Foreman (1985) 174 Cal.App.3d 175, 181-182; see People v. Sandoval (1992) 4 Cal.4th 155, 177-178 [trial court in murder prosecution properly ruled defendant’s prior conviction for assault with intent to commit murder admissible for impeachment purposes], affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1).
However, Leyva’s prior conviction constituted evidence of a specific act and, as such, was not admissible as character evidence. (People v. Felix, supra, 70 Cal.App.4th at pp. 431-432; cf. People v. Koontz (2002) 27 Cal.4th 1041, 1082-1084; see part IA. of Discussion, ante.) As the People concede, the trial court erred by omitting the bracketed term “only” from CALCRIM No. 316, and thus permitting jurors to consider Leyva’s prior conviction for purposes other than a determination of his credibility.
Moreover, we fail to understand why, once it decided the jury would be informed that Leyva’s prior conviction was for felony assault, the trial court also required that the jury be told the crime involved moral turpitude. Had it not been such a crime, jurors could not have been informed of its existence. (See People v. Castro, supra, 38 Cal.3d at p. 314.) Designating the offense as such led to instructing jurors on the definition of “moral turpitude,” an instruction we conclude should not have been given. “[W]hether [a] conviction proposed as impeachment involves moral turpitude is for the trial court to decide, not the jury. [Citation.]” (People v. Gray, supra, 158 Cal.App.4th at p. 640; see People v. Castro, supra, 38 Cal.3d at p. 316.) Since “it is not within the jury’s province” to determine whether a witness has been convicted of a felony involving moral turpitude (People v. Gray, supra, 158 Cal.App.4th at p. 640), we see no reason for “moral turpitude” to be defined for jurors, especially when the definition, although correct in law (see People v. Castro, supra, 38 Cal.3d at p. 314), is so potentially prejudicial.
Nonetheless, we find no prejudice here. Essentially for the reasons stated in part IA. of the Discussion, ante, we conclude it is not reasonably probable that a result more favorable to Leyva would have been reached had the errors not occurred. (People v. Watson, supra, 46 Cal.2d at p. 836; see People v. Gurule, supra,28 Cal.4th at p. 609 [applying Watson standard to erroneous ruling allowing prior convictions to be used for impeachment]; People v. Bunyard (1988) 45 Cal.3d 1189, 1226 [same re: failure to instruct on limited admissibility of evidence]; People v. Duran (1983) 140 Cal.App.3d 485, 492-494 [same re: failure to give limiting instructions concerning unlawfully obtained statements of defendant, thereby in effect permitting affirmative use by prosecution].)
We acknowledge that “instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions” (People v. Flood (1998) 18 Cal.4th 470, 479-480), and so is reviewable under the more stringent test of Chapman, supra, 386 U.S. 18 (Flood, supra, at p. 504). In our view, neither the erroneous modification of CALCRIM No. 316 nor the giving of a definition of moral turpitude rises to such a level. Leyva says that his right to a fair trial was violated by the errors. We do not think so. The prior conviction was fairly remote in time, and jurors were not told it involved a firearm. Defense counsel was able to minimize it in argument. Even though the definition of moral turpitude should not have been given to the jury, the instruction correctly stated the law. (See People v. Smith (1989) 214 Cal.App.3d 904, 913.) The prosecutor did not exploit the definition in argument. Moreover, placing the definition in conjunction with an instruction aimed at a witness’s prior conviction further blunted any prejudicial impact, and the witness’s testimony was called into considerable question aside from her prior conviction and the definition. Again, the eyewitness identifications were strong, Leyva’s alibi witnesses were substantially impeached, and Leyva’s own testimony often strained credulity. That the jury deliberated some six hours, by Leyva’s count, does not suggest jurors did not readily credit the prosecution’s evidence; instead, we think it more likely jurors carefully considered all the evidence, including that of the alibi witnesses and the evidence admitted to impeach them – something we would expect them to do before concluding the eyewitnesses were credible.
The errors were not prejudicial and did not violate Leyva’s right to a fair trial, either alone or in conjunction with admission of Cox’s testimony concerning the threat.
II
The People’s Appeal
The People contend the trial court abused its discretion by dismissing Leyva’s prior strike conviction during sentencing. Leyva concedes that error occurred, but argues that a remand for further proceedings is required.
A. Background
The information alleged that Leyva had suffered a 1991 conviction for assault with a firearm (§ 245, subd. (a)(2)) that was both a serious felony pursuant to section 667, subdivision (a)(1), and a serious or violent felony under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)). At the beginning of trial, the prior conviction allegations were bifurcated at Leyva’s request. After the jury returned its verdict, this took place:
“THE COURT: Correct. With the proviso that should there be some reason why we don’t go forward with sentencing and there’s a new trial or whatever, then the Court would not strike that.
The court then proceeded to obtain Leyva’s admission of the strike allegation. There was no separate admission of the section 667, subdivision (a) allegation; however, the prosecutor noted that allegation was also contained in the information, and asserted it could not be stricken or stayed. The court directed him to bring it to the court’s attention at sentencing. The prosecutor also objected to the court’s dismissing the strike.
At sentencing, defense counsel reminded the court that it was going to dismiss the strike. The prosecutor objected, citing People v. Williams (1998) 17 Cal.4th 148, and arguing that Leyva should not be deemed outside the scheme and spirit of the three strikes law. This ensued:
“THE COURT: Let me interrupt you for a moment, excuse me. But without the strike how old will the defendant be when he’s first eligible for parole?
“THE COURT: 91. Enough said.
People v. Williams“THE COURT: Oh, I think 91. If this gentleman lives to be 91 and he’s first eligible for parole, I think that’s grounds enough to strike the strike.”
The prosecutor subsequently asked that the reasons for dismissing the strike be entered into the minute order. The court responded, “I think my sentiments were expressed. Those are the reasons.” The minute order states that the “enhancement” pursuant to section 1170.12 was “stricken by the court in interest of justice.”
B. Analysis
Trial courts have limited discretion under section 1385 to dismiss prior convictions in three strikes cases. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In exercising this discretion, “no weight whatsoever may be given to factors extrinsic to the [three strikes] scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant. [Citation.]” (People v. Williams, supra, 17 Cal.4th at p. 161.) “[P]reponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. [Citation.]” (Ibid.) Accordingly, in determining whether to strike or vacate a prior strike conviction, or in reviewing such a ruling, “the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.) “Because the circumstances must be ‘extraordinary … by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
“The Supreme Court has … made clear that a decision to strike a prior is to be an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant’s own history and personal circumstances.” (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) The record does not show that the trial court took any of these factors into consideration in deciding whether Leyva’s prior conviction should be stricken. Instead, the court relied only on its assessment of Leyva’s age at the time he becomes eligible for parole. In so doing, the trial court clearly erred. Although the length of sentence is not completely irrelevant (see People v. Garcia (1999) 20 Cal.4th 490, 503), and we acknowledge that at some point a sentence will exceed a defendant’s natural life, “we cannot affirm a decision which takes little or no account of ‘the particulars of [Leyva’s] background, character and prospects’” (People v. Thornton (1999) 73 Cal.App.4th 42, 49), as the California Supreme Court requires.
The trial court further erred by failing to set forth its reasons “in an order entered upon the minutes,” as expressly required by section 1385, subdivision (a). “A century of judicial decision, looking to the Legislature’s intent in enacting Penal Code section 1385, has construed its provisions to be ‘mandatory,’ so that an order of dismissal is ineffective in the absence of a written statement of reasons entered upon the minutes.” (People v. Bonnetta (2009) 46 Cal.4th 143, 145; People v. Williams, supra, 17 Cal.4th at p. 162.) A notation on the sentencing minutes that the prior conviction was stricken by the court in the interests of justice, as here, is patently insufficient, and the fact that the reporter’s transcript may show the trial court’s motivation or contain the court’s reason does not cure the error. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) “‘“[I]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385.” [Citations.]’” (Romero, at p. 532.)
It follows that the court’s dismissal of the strike prior was ineffective. Because the record is not sufficiently developed to permit us to say the trial court could not properly dismiss the prior strike conviction under any circumstances, we must remand the matter for further proceedings “to allow[] the trial court to correct what, upon reconsideration and reflection, it [might] perceive[] to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason” (People v. Bonnetta, supra, 46 Cal.4th at p. 153), after consideration of the pertinent factors as set out in People v. Williams, supra, 17 Cal.4th at pages 160-161. Because the trial court’s agreement to dismiss the prior so clearly influenced Leyva’s decision to admit the strike allegation, if the trial court decides not to again dismiss the prior strike conviction, Leyva must be given the opportunity to withdraw his admission of that allegation. (People v. Bonnetta, supra, 46 Cal.4th at p. 153; People v. Williams, supra, 17 Cal.4th at p. 164 & fn. 7.)
We do not agree with Leyva, however, that any such withdrawal would negate the five-year enhancement under section 667, subdivision (a). We recognize that it was not based on a separate admission by Leyva. Nevertheless, the record indicates Leyva was aware it was a separate enhancement, as the prosecutor discussed it at the time. The record contains nothing in the way of an inducement to Leyva to admit the enhancement, and he raised no objection to imposition of the mandatory five-year term at sentencing. (See People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.) “Had the imposition of sentence on the enhancement allegation[] ‘come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court.’ [Citations.]” (Wrice, at p. 771.) Under the circumstances, we see no reason to permit Leyva to withdraw the portion of his admission that the record indicates was voluntary and intelligent under the totality of the circumstances. (See People v. Witcher (1995) 41 Cal.App.4th 223, 226-227.)
DISPOSITION
The judgment of conviction is affirmed. Sentence is vacated, the order purporting to dismiss Leyva’s prior strike conviction is reversed, and the matter is remanded to the trial court for proceedings, including resentencing, consistent with the views expressed in this opinion.
WE CONCUR: Vartabedian, J., Levy, J.