Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR253787
Sepulveda, J.
Defendant was convicted by jury trial of felony driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) and felony driving with a blood alcohol content of 0.08 percent or higher (§ 23152, subd. (b)). He was also convicted, following a court trial, of misdemeanor driving with a suspended license following a conviction for driving under the influence (§ 14601.2, subd. (a)). Defendant was sentenced to three years in state prison. He argues that the trial court (1) abused its discretion by admitting evidence of a prior conviction for driving under the influence for purposes of impeaching defendant, (2) erred by permitting the prior conviction to be “sanitized,” (3) did not properly instruct the jury regarding the prior conviction, and (4) abused its discretion by admitting evidence that defendant urinated in the booking area of the police station after he was arrested. Defendant further argues that he received ineffective assistance of counsel because his attorney failed to properly object below regarding the issues he identifies on appeal. We disagree and affirm.
All statutory references are to the Vehicle Code unless otherwise specified.
In defendant’s bifurcated court trial, the court sustained a prison prior (Pen. Code, § 667.5, subd. (b)), and found four prior convictions for driving under the influence proven (§§ 23550, 23550.5).
I.
Factual Background
On the evening of December 29, 2007, defendant’s sister called 911 after defendant left their Dixon home, because she suspected that defendant was driving while he was intoxicated. A short time later, a Dixon police officer who was dispatched to search for defendant saw him alone in the driver’s seat of a truck that was parked in a gas station parking lot. Officer Michael Geisser arrested defendant after Geisser saw defendant’s truck move backward, and after defendant performed unsatisfactorily on five field sobriety tests. Subsequent breath tests revealed that defendant’s blood alcohol content was between 0.12 and 0.13 percent. Defendant testified on his own behalf, claiming that a friend drove him to the store, and that pain medication that he had been taking following two recent major surgeries impaired his ability to perform on the field sobriety tests.
II.
Discussion
A. No Error Regarding Impeachment With Prior Conviction of Driving Under the Influence.
1. Admissibility of prior conviction
The trial court permitted the prosecution to impeach defendant with a 1996 felony conviction for corporal injury to a cohabitant or spouse (Pen. Code, § 273.5) and a 2007 felony conviction for driving with a blood alcohol level of more than 0.08 percent (§ 23152, subd. (b)). The trial court ordered that the driving under the influence conviction be “sanitized” so that the nature of the conviction was not revealed to the jury. On direct examination, defendant admitted that he was convicted in 1997 of a felony involving domestic violence and in 2007 for an unspecified felony for an offense that occurred in 2005. On appeal, defendant contends that the trial court erred in permitting his impeachment with the driving under the influence prior conviction.
Defendant objected below to the introduction of the prior convictions. On appeal he does not challenge the introduction of the domestic violence prior.
Prior felony convictions involving moral turpitude are admissible to attack the credibility of a witness, subject to the exercise of discretion by the trial court under Evidence Code section 352 to exclude evidence where the probative value is substantially outweighed by the risk of undue prejudice. (People v. Castro (1985) 38 Cal.3d 301, 316.) The trial court enjoys broad discretion in deciding whether to admit evidence of prior convictions. Such discretion is only abused where the court exceeds the bounds of reason or acts capriciously in light of all relevant circumstances. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1533.) In performing the required balancing test under Evidence Code section 352, the trial court should consider: (1) whether the crime rests on dishonest conduct; (2) the nearness or remoteness of the prior conviction; (3) whether the prior conviction was for the same or substantially similar conduct for which the accused is on trial; and (4) what the effect would be if the defendant did not testify out of fear of being impeached by the prior convictions. (People v. Green (1995) 34 Cal.App.4th 165, 182.) In most instances, the appellate court will uphold the trial court’s exercise of discretion whether the conviction is admitted or excluded. (People v. Hinton (2006) 37 Cal.4th 839, 887.) We find no abuse of discretion here.
Defendant does not contest that driving with a blood alcohol level of more than 0.08 percent (§ 23152, subd. (b)) is a crime of moral turpitude. (People v. Forster (1994) 29 Cal.App.4th 1746, 1756.)
The court need not rigidly follow the criteria set forth in People v. Beagle (1972) 6 Cal.3d 441, 453. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Although the prior conviction for driving under the influence did not directly involve dishonesty, it was still admissible as a crime of moral turpitude. (People v. Hinton, supra, 37 Cal.4th at p. 888 [Proposition 8 authorizes use of any felony conviction involving moral turpitude, even if immoral trait is not for dishonesty].) Given defendant's past history, including three additional prior convictions for driving under the influence, he “is presumptively aware of the life-threatening nature of the activity and the grave risks involved. [Citation.] Continuing such activity despite the knowledge of such risks is indicative of a ‘conscious indifference or “I don’t care attitude” ’... from which one can certainly infer a ‘ “depravity in the private and social duties which a man owes....” ’ ” (People v. Forster, supra, 29 Cal.App.4th at p. 1757.) The prior conviction was quite recent, having occurred in 2007. Although the prior conviction was for one of the same offenses that the defendant was currently charged with, that fact alone did not prohibit its use for impeachment (Hinton, supra, at p. 888; People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647 [no abuse to admit six prior convictions, three of which identical to charged crime]), and the prior was sanitized to eliminate any reference to the specific nature of the offense. Finally, as defendant did testify, he did not decline to do so “ ‘out of fear of being prejudiced because of impeachment by prior convictions’ ” (People v. Beagle, supra, 6 Cal.3d at p. 453); this factor also favored admission. (People v. Foreman (1985) 174 Cal.App.3d 175, 182.)
Of defendant’s other three prior convictions for driving under the influence, apparently one was a felony and the other two misdemeanor convictions. Previously, misdemeanor convictions themselves were not admissible for impeachment purposes under Evidence Code section 788 (People v. Forster, supra, 29 Cal.App.4th at p. 1757); however, evidence of the underlying conduct was. (People v. Chatman (2006) 38 Cal.4th 344.) The enactment of Evidence Code section 452.5, subdivision (b) (the Criminal Convictions Record Act) now permits the admission of a properly certified misdemeanor conviction under Evidence Code section 1280, to prove the conduct underlying. (People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)
We reject defendant’s contention that it was error to sanitize the prior conviction, as it invited the jury to speculate as to its nature. Even if this issue was preserved for appeal despite defendant’s failure to object on these grounds below, it lacks merit, as it would have been at least, if not more, prejudicial to admit the nature of the offense. (People v. Massey (1987) 192 Cal.App.3d 819, 825 [proper to sanitize prior sexual assault convictions where defendant on trial for sex crimes].) Further, because we address this issue on its merits, we reject defendant’s claim that he received ineffective assistance of counsel if his attorney failed to preserve the issue for appeal.
Considering all relevant factors, the trial court properly exercised its discretion in admitting defendant’s prior driving under the influence conviction for impeachment purposes.
The fact that defendant was also impeached with another prior felony conviction does not alter our analysis, as the existence of two such priors is more probative on defendant’s credibility than if he had only once been convicted of a felony involving moral turpitude, and excluding the driving with a blood alcohol content of 0.08 percent or more prior conviction would have created a false aura of veracity. (People v. Mendoza, supra, 78 Cal.App.4th at p. 927.) The prosecution did not seek to use any other portion of defendant’s criminal history, detailed above, for impeachment purposes.
2. No error in instructing jury regarding prior offenses
Defendant also contends that the trial court failed to properly instruct the jury on the purpose for which it could consider evidence of defendant’s prior convictions. According to the reporter’s transcript, the judge instructed the jury pursuant to CALCRIM No. 316 as follows: “If you find that a witness has been convicted of a felony, you may have that fact only 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 whether that fact makes the witness less believable.” (Italics added.) However, the written version of the italicized portion of the instruction correctly provided: “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.” (Italics added, brackets in original.)
No objection was raised below to any jury instruction given to the jury, and any objection was therefore waived. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) Because we address the issue on the merits and reject defendant’s claim of error, we likewise reject defendant’s ineffective assistance of counsel claim based on counsel’s failure to object. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108.)
Defendant claims that the trial court committed reversible error by replacing the word “consider” with “have,” because the misread instruction was confusing, and misled the jury about the weight to give a felony conviction in considering a witness’s credibility. Any error here was harmless in light of the fact that the jury was given a copy of the correct written instructions. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113 [written version of jury instructions governs any conflict with oral instructions]; see also People v. Crittenden (1994) 9 Cal.4th 83, 138 [same].) Moreover, we agree with respondent that substituting the word “have” for the word “consider” did not necessarily conflict with the written jury instruction, because the instruction still conveyed the fact that jurors could use the fact of a felony conviction “only” to “evaluat[e] the credibility of the witness’s testimony.” (Italics added.) (E.g., People v. Anderson (2007) 152 Cal.App.4th 919, 940-941 [CALCRIM No. 316 properly informed jury that prior crimes evidence may be considered “only in evaluating the witness’s credibility”]; People v. Thomas (2007) 150 Cal.App.4th 461, 466 [wording of CALCRIM No. 316 “arguably superior” to corresponding CALJIC instruction].)
Citing People v. Felix (1993) 14 Cal.App.4th 997, 1003, defendant claims for the first time on appeal that the jury should specifically have been told that the prior conviction could not be used to show that defendant was a person of bad character or had a disposition to commit crimes. Unlike in this case, the jury in Felix heard evidence about a prior conviction that was relevant to show identity, and the jury was therefore instructed with the standard jury instruction directed at the consideration of other crimes evidence admitted pursuant to Evidence Code section 1101. (Felix at p. 1003.)
In light of our conclusion that jurors were given a proper limiting instruction regarding defendant’s prior convictions, we also reject defendant’s arguments that the giving of CALCRIM Nos. 226 [jurors may consider several factors in determining credibility of witnesses] and 303 [jurors may consider evidence admitted for limited purpose only for that purpose] compounded any instructional error.
No Abuse of Discretion To Admit Testimony About Defendant’s Urination.
The prosecutor moved in limine for permission to present evidence that defendant urinated on the floor of the booking area during the 15-minute observation period before his first breath test, arguing that the incident was probative of defendant’s intoxication level. The trial court allowed admission of the evidence over defendant’s relevance and Evidence Code section 352 objections.
Office Geisser testified at trial that there is a 15-minute observation period before conducting a breath test, so that police may observe whether a subject does anything that might affect the result of the test. During the 15 minutes when defendant was under observation, defendant told Officer Geisser that he needed to use the restroom, but Geisser told defendant would he have to wait until after the test was administered. Officer Geisser testified that “[t]he defendant then stood up while he was chained to a bench. He pulled his pants down and proceeded to urinate on the floor of the booking area.” Urine got all over the floor.
Defendant argues on appeal that admitting this testimony was an abuse of discretion, because there was “no evidence that intoxication has any bearing on whether a person would urinate in public” and “no evidence that urinating in public reflects on one’s ability to follow instructions.” We agree with the trial court that urinating in the holding area was, in fact, probative of whether defendant was intoxicated, as it tended to show that his ability to follow instructions, as well as his inhibitions, were reduced. Despite defendant’s protestation to the contrary, the jury could “determine the effect and value of the evidence” of defendant’s urination (Evid. Code, § 312, subd. (b)), a subject that was not sufficiently beyond a lay person’s common experience so as to require expert testimony. (Cf. Evid. Code, § 801, subd. (a) [requirements for expert testimony].)
Defendant also argues that he received ineffective assistance of counsel, because his attorney failed to object to the elicitation of “inflammatory” details surrounding the incident, including the fact that defendant was chained to a bench during the observation period and urinated “all over the floor.” Any objection to Officer Geisser’s unanticipated testimony would have highlighted the details to the jury, and any objection would have been futile in any event because the details were relevant to show that defendant was intoxicated. Under these circumstances, defendant has failed to demonstrate that defense counsel’s failure to object was not a sound tactical decision. (Cf. Strickland v. Washington (1984) 466 U.S. 668, 687 [defendant must show that counsel’s performance was deficient in order to demonstrate ineffective assistance].)
Even assuming arguendo that it was an abuse of discretion to admit testimony regarding defendant’s urination, any such error was clearly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Officer Geisser was asked only a few questions about the incident, defendant was not asked any questions about it, and neither side referred to the incident during closing arguments. Defendant offered a possible explanation for the urination when he testified that his recent surgery meant his bladder could not “hold the urine too long.” The main disputed issue at trial was whether there was sufficient evidence that defendant drove on the night in question, and defendant’s subsequent urination had no bearing on that issue. It is not reasonably probable that there would have been a more favorable outcome absent the admission of the evidence of defendant’s urination. (Ibid.)
Having reviewed the record and rejected defendant’s arguments as set forth above, we also reject defendant’s argument that the trial court’s erroneous evidentiary rulings and misleading jury instructions resulted in cumulative prejudice requiring reversal of the judgment. (People v. Kipp (1998) 18 Cal.4th 349, 383 [issues raised on appeal did not singly or cumulatively establish prejudice requiring reversal of convictions].)
III.
Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.