Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Ct. Nos. F05905039-4 & F04905050-1. Gary S. Austin, Judge.
Victor S. Haltom, 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, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Dawson, J.
OPINION
A jury convicted appellant, Sophann Mak, of robbery (Pen. Code, § 211) and found true allegations that Mak personally used a firearm in committing this offense (Pen. Code, § 12022.53, subd. (b)). In a separate proceeding, Mak admitted a serious felony enhancement (Pen. Code, § 667, subd. (a)) and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).
On August 28, 2006, the court sentenced Mak to an aggregate term of 21 years, the midterm of 3 years on his robbery conviction, doubled to 6 years because of Mak’s strike conviction, a 5-year serious felony enhancement, and a 10-year arming enhancement. On appeal, Mak contends: (1) the court abused its discretion in excluding certain impeachment evidence; and (2) the prosecutor committed Brady error. We will affirm.
Brady v. Maryland (1963) 373 U.S. 83.
FACTS
The Prosecution Case
17-year-old Leng F. (Leng), testified that on June 28, 2005, he and his younger brother, Chong F. (Chong), were washing a car belonging to their older brother, K.F. (K.), when Mak approached him riding a chrome and black BMX bicycle. Mak, whom Leng had previously seen in the neighborhood, asked Leng if he wanted to buy a stereoor a set of rims. Leng replied that he did not because the car did not belong to him. A minute later Mak got off his bicycle, pulled out a black and chrome semiautomatic handgun, and pointed it at Leng.
Leng was wearing a medallion and chain worth $2,500. As Leng turned around and began running away, Mak pulled the chain off his neck. Leng managed to keep control of the medallion, ran into his apartment, and told K. what happened. Mak got back on his bicycle and rode off. K. chased Mak down the street while Leng called the police.
The next day Leng was shown 30 photographs and identified Mak as the person who robbed him.
Leng identified a picture of a bicycle that was recovered from Mak’s house as the bicycle used in the robbery. He described the robber as weighing 220 to 235 pounds and wearing a black T-shirt, gray Dickies pants, and black and white Converse tennis shoes. He also identified Mak in-court as the robber.
Chong testified that he began walking toward the house after Mak approached Leng. He heard Leng yell for help and moved toward Mak until he saw Mak had a gun and was pointing it at Leng’s neck. Chong described Mak as wearing a black T-shirt, gray Dickies pants, and black and white Converse tennis shoes. The following day, Chong identified Mak as the robber from two sets of photographs. Chong unequivocally identified Mak in-court as the robber.
K. testified he learned of the robbery when his brothers came in the apartment and Leng told him his necklace had been stolen. K. went outside and saw someone riding a bicycle out of the apartment complex. K. did not get a good look at the person on the bicycle but did recognize him as being Cambodian and estimated his weight at 130 to 150 pounds. K. was also able to see that the person on the bicycle had a semiautomatic gun. K. admitted stealing a vehicle when he was a juvenile.
Fresno Police Officer Troy Miller testified he interviewed Leng and Chong right after the robbery. Leng described the robber as a Cambodian male, 18 to 20 years of age, 5’6” to 5’ 9” in height, and weighing 220 to 235 pounds. Chong provided a similar physical description of the robber except that he estimated the robber’s weight as 200 to 230 pounds and his height at 5’7” to 5’ 9”. Leng and Chong both stated the robber wore gray Dickies pants, a black T-shirt, and black and white Converse tennis shoes. Leng and Chong both described the robber’s bicycle as a black and chrome BMX. Leng described the gun brandished by the robber as possibly a black and chrome .45-caliber semiautomatic.
Officer Larry Bowlan testified that on the day after the robbery, Leng and Chong both identified Mak as the robber from three sets of photo lineups containing 30 pictures. Officer Bowlan prepared a report after Leng and Chong identified Mak as the robber. In it, he indicated Mak was 19 years old, 5’8” tall and weighed 200 pounds.
Fresno Police Officer Damon Kurtz testified that on July 27, 2005, he was dispatched to a location near the scene of the robbery on a report of shots being fired. After his arrival, Kurtz heard three gunshots and he and other officers went to the area where they heard the shots coming from. Mak and two other subjects were standing outside a restaurant. As the officers approached the subjects, Mak took off running. Officer Kurtz chased Mak as he ran and entered a house by climbing through a window. Mak ran out the back of the house and was eventually taken into custody. In a hamper in the bathroom, Officer Kurtz found a Colt .32 semiautomatic handgun.
Officer Brian Heck testified that on June 29, 2005, he went to Mak’s house. In a carport area next to the house, Officer Heck saw numerous bicycles including three that matched the description of the one used by the robber.
Mak’s sister testified that Mak owned black T-shirts and a pair of black and white Converse tennis shoes.
The Defense Case
Mak did not testify. However, during the defense case defense counsel had Mak take his T-shirt off to show the jury several tattoos he had on his arms, neck, and chest. During closing arguments defense counsel argued, in part, that Leng’s and Chou’s identification of Mak was unreliable because they did not testify that Mak had tattoos.
DISCUSSION
Prior to K. testifying, defense counsel told the court that the previous Saturday, the prosecutor disclosed that as a juvenile, K. was adjudicated for vehicle theft in 1997 and again in 1998 (both misdemeanors). Defense counsel also told the court that, as an adult, K. was arrested for spousal battery, and during the break K. admitted engaging in the conduct leading to that arrest. Defense counsel asked the court to allow him to impeach K. with the conduct underlying these three incidents. The prosecutor responded that no charges were filed in the spousal abuse case, and allowing K. to testify regarding his arrest in that matter would implicate K.’s Fifth Amendment rights. The court ruled defense counsel could impeach K. with the conduct underlying one of his vehicle theft adjudications and could ask K. a few questions regarding that adjudication.
Mak contends the court erred when it denied his request to impeach K. with the conduct underlying his arrest for spousal abuse and the second juvenile adjudication for vehicle theft. He further contends the error was prejudicial because K. corroborated “key” aspects of Leng’s testimony. Mak also contends the prosecution’s late disclosure of these incidents violated the rule of Maryland v. Brady, supra, 373 U.S. 83. We will find that the court did not commit Brady error and that any error in excluding the above-noted impeachment evidence was harmless.
“In People v. Wheeler (1992) 4 Cal.4th 284, the Supreme Court considered whether a witness in a criminal proceeding might be impeached with misdemeanor conduct. The court held that evidence of past misdemeanor conduct bearing on a witness’s veracity was admissible in a criminal proceeding subject to the trial court's discretion. (People v. Wheeler, supra, at p. 295.) The court concluded that ‘[m]isconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. . . . [¶] Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.” (Id. at pp. 295-296, fn. omitted.) Immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. (Id. at p. 297, fn. 7.) Admission of such prior misconduct evidence remains subject to the trial court’s discretion under Evidence Code section 352, which ‘empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ (Wheeler, at p. 296.) ‘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.’ (Ibid.)” (People v. Rivera (2003) 107 Cal.App.4th 1374, 1380.) These rules apply equally to conduct underlying juvenile adjudications. (Id. at pp. 1378-1382.)
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.”
Spousal abuse and vehicle theft are both crimes of moral turpitude. (Rahaburn v. Superior Court (2006) 140 Cal.App.4th 1566, 1569-1570; People v. Lang (1989) 49 Cal.3d 991, 1011.) Thus, evidence of the conduct underlying K.’s two juvenile adjudications for vehicle theft and his arrest for spousal abuse were admissible to impeach him subject to the court’s discretion to exclude evidence under Evidence Code section 352.
“A trial court’s ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 705.) However, any error in a trial court ruling admitting or excluding evidence requires reversal only if, after review of the entire record, it is reasonably probable that a result more favorable to a defendant would have occurred in the absence of the error. (People v. Zataray (1985) 173 Cal.App.3d 390, 401.)
Here, the prosecution presented strong evidence of Mak’s guilt. Leng was familiar with Mak because he had previously seen him in the neighborhood. The day after the robbery, Leng and Chong identified Mak as the robber from a photo lineup. They also identified him in court as the robber. Both Leng and Chong testified the robber rode a black and chrome BMX bicycle and wore gray Dickies pants, a black T-shirt and black and white Converse tennis shoes. Mak owned T-shirts and tennis shoes similar to those worn by the robber, and three bicycles matching the description of the bicycle used by the robber were found in the carport of the house where he lived. Mak’s physical appearance was similar to the physical description of the robber provided by Leng and Chong.
K.’s testimony was cumulative and Mak concedes the only import of K.’s testimony was his corroboration of Leng’s testimony that: 1) Leng was robbed of a necklace; 2) the robber rode away on a bicycle; and 3) the robber carried a handgun. However, K. did not identify Mak as the robber and his other testimony only provided details of facts that were undisputed. Mak also erroneously contends that K.’s description of the robber matched him. K. described the robber as weighing 130 to 150 pounds when he in fact weighed approximately 200 pounds. Additionally, the court allowed Mak to impeach K. with the conduct underlying one vehicle theft adjudication and remarked it would not allow other impeachment evidence under Evidence Code section 352 due to the consumption of time. Accordingly, we conclude that error, if any, in excluding evidence of the conduct underlying K.’s spousal abuse arrest and his second vehicle theft adjudication was harmless.
Nor is there any merit to Mak’s claim of Brady error. “In Brady, the United States Supreme Court held ‘that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) The high court has extended the prosecutor’s duty to encompass the disclosure of material evidence, even if the defense made no request concerning the evidence. [Citation.] The duty encompasses impeachment evidence as well as exculpatory evidence. [Citation.] Such evidence is material ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ‘A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ [Citation.] ‘“[T]he reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond may have had on the preparation or presentation of the defendant's case.”’ [Citations.] Defendant has the burden of showing materiality. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 917-918, italics added.) Since we have already concluded that the exclusion of the additional impeachment evidence was harmless because it was not material, we further conclude that no Brady error occurred.
DISPOSITION
The judgment is affirmed.