Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA076233, Charles E. Horan, Judge. Affirmed with directions.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristopher Jorstad and Beverly K. Falik, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Christopher F. Musselman (defendant) of three counts of first degree robbery (Pen. Code, § 211 ; counts 2, 3, 4), first degree burglary (§ 459; count 5), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 8). The jury found that defendant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)) with respect to counts 2 through 5. The trial court found that defendant had suffered a prior serious or violent felony within the meaning of section 1170.12, subdivisions (a) through (d), section 667, subdivisions (b) through (i), and section 667, subdivision (a)(1), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to a total prison term of 40 years. On count 2 the trial court imposed the upper term of six years, doubled to 12 years, and 10 years for the enhancement under section 12022.53, subdivision (b). In each of counts 3 and 4, the trial court imposed a consecutive term of one year four months, doubled to two years eight months, as well as a consecutive three years four months (one-third the 10-year term) for the firearm-use enhancements under section 12022.53, subdivision (b). In addition, the trial court imposed a consecutive term of five years under section 667, subdivision (a)(1) and a consecutive year for the prison prior under section 667.5, subdivision (b). The trial court stayed the sentences on the remaining counts pursuant to section 654.
Defendant appeals on the grounds that: (1) his trial counsel was ineffective in failing to object to Detective Larry Love’s (Detective Love) testimony that he created the photographic lineup used to identify defendant after first speaking to defendant’s purported accomplice, in violation of defendant’s right to confrontation; (2) the trial court committed prejudicial error when it allowed the prosecution, over defense objection, to impeach defendant’s alibi witness with his prior misdemeanor convictions; (3) defendant’s robbery convictions must be reversed because the trial court erred prejudicially in failing to sua sponte instruct the jury that it must find a union of act and specific intent under CALJIC No. 3.31; and (4) the abstract of judgment should be corrected to accurately reflect the sentence orally pronounced by the court.
FACTS
Prosecution Evidence
At approximately 7:30 a.m. on July 22, 2006, Henry Torres, Jr. (Henry) was in his West Covina home with his wife Isela Alice Torres (Alice), and their 17-year-old son Aaron Torres (Aaron). Adam Torres, their 14-year-old son, was staying with an uncle. Henry was planning to take his sons and his nephews to the beach that morning. He awoke and went to the den and turned on the television. He saw that his television was not working properly and assumed he was having problems with his cable service. He attempted to telephone the cable company, which also provided his telephone service. He found that his telephone line was dead, and this confirmed to him that the problem was with the cable service.
While calling the cable service provider, Henry saw movement outside. He then saw a person crouching outside near his cable hookup. Henry went outside to see if a van from the cable company was parked outside. Although he did not see one, he believed it might be parked out of view. He turned to see that the same person, later identified as defendant, was still at the cable box. Henry walked about 10 feet in defendant’s direction and said, “Hey, how’s it going? What’s going on? Is there anything I can help you with?” Defendant paused and began walking rapidly toward Henry while pointing something at him. When defendant got closer, Henry realized that defendant was holding a black revolver. Henry put his hands up and told defendant to take his keys and wallet and just get out.
Henry was trying to back up while defendant was trying to circle him. Defendant kept saying, “I’m going to kill you. I’m going to kill you.” Defendant managed to put the gun to Henry’s head, and he told Henry to go back into the house. He ordered Henry into the living room and told him to sit down while pointing the gun directly at Henry. He ordered Henry to get on his knees and then to lie down on his stomach. At that point, a second man, later identified as Erik Lujan (Lujan) entered the living room carrying a tarnished revolver. Lujan told Henry, “You’re being robbed. But cooperate with us, I guarantee the safety of both you and your family.”
Lujan questioned Henry about his jewelry, car keys, and cash, and Henry told the two men to take whatever they wanted. Defendant held a gun on Henry while Lujan spoke with him, and he tied Henry up and then hog-tied him with duct tape that Lujan removed from a bag he had brought with him. Defendant took a sweater from some nearby laundry and used it as a bandanna to cover the bottom half of his face. Defendant and Lujan put on latex gloves, but Lujan did not cover his face.
Henry had told Lujan that Alice and Aaron were sleeping in the house. Lujan went to Aaron’s room and told him, “This is a robbery. . . . Stay calm. We just want your things. If you don’t do anything stupid, we’re not going to hurt you.” Aaron noticed that Lujan wore latex gloves and that his face was not covered. Lujan took Aaron to the living room where Aaron saw Henry tied up and face down with defendant standing over him with a gun. Lujan again said that it was a robbery, and if nothing happened they would not hurt Aaron or Henry. Lujan then took Aaron to his brother’s room and tied his hands and feet behind his back with rope. Henry told Lujan that he was worried about how his wife would react when she was awakened and suggested that he be permitted to wake her up. After conferring, defendant and Lujan agreed.
Lujan and defendant picked Henry up from the floor and carried him to the bedroom doorway. Henry called to Alice and told her she had to wake up because they were being robbed. He said, “These guys have guns. Just listen to what they say and we’ll get through this.” When Alice woke up, defendant and Lujan dropped Torres and went towards Alice.
Alice remembered seeing defendant at the bedroom door with his face covered below his nose and holding a gun. At first she could not grasp what was occurring and did not listen to defendant who was yelling, “Don’t look at me, don’t look at me.” He was very agitated. He told her to throw the covers over her head, and Alice complied. Defendant and Lujan tied Alice with duct tape and covered her with a comforter while she cried. She began to panic and felt her heart racing.
The telephone rang, and Alice thought it was her younger son, who was supposed to be picked up that morning. When Henry asked how long the robbers would be there because he believed his son was calling, he was told it could take three or four hours. He was told that, if other family members arrived, they would be tied up as well. Lujan dragged Henry to the foot of the bed. Lujan returned to Aaron’s location, tied something around Aaron’s head, and moved him to the foot of the bed in his parents’ room.
Henry’s head was still uncovered, and he saw defendant and Lujan searching the bedroom. Lujan eventually covered Henry’s eyes with long underwear. Henry was able to see that defendant was wearing socks, but no shoes. Aaron was also able to see this.
While Lujan was at the night stand, Alice moved the covers down slightly and purposefully observed Lujan, noting his eyebrows, nose, cheeks, lips, and chin. Both men asked Henry for the location of his jewelry, wallet and money. Lujan asked the location of Henry’s car keys and rifle. The men asked Alice for her keys, and she told them the keys were in her purse. She heard the men emptying the contents of her purse.
Alice heard the men go down the hall and into the kitchen. She heard doors opening and closing and the sound of plastic bags rustling. She heard what sounded like bags being dragged outside. Henry heard a car start. The engine ran for less than a minute and was turned off.
Defendant and Lujan were both in the master bedroom when Henry’s cell phone began ringing. When Henry said his son was calling, one of the robbers exclaimed, “They’re calling the cops.” The robbers’ activities began to escalate. Henry heard the car start again. The men returned to the bedroom and one said, “We know where you live. We know where you work, and we know where he goes to school.” The two men instructed the victims not to call the police. Henry heard his car being backed down the driveway and, after waiting a few minutes, he untied the rope that bound him. He loosened the duct tape from his foot. He got a knife and cut Aaron free, and Aaron freed his mother. Henry asked a neighbor to call the police, and they arrived less than five minutes later.
A crime scene investigator, Jan Poirier (Poirier), from the West Covina Police Department investigated the interior and exterior of the Torres home. She found latex gloves in the bedroom and a pair of black shoes near the cable box. The shoes were not Henry’s and he had never seen them before. Near the cable box, the investigator found a pair of pliers that did not belong to Torres. Poirier recovered a fingerprint from the interior of a duct tape roll found in the house. She matched the print to Erik Lujan.
The Torres family compiled a list of missing items. They noted additional things missing after the list was completed.
Detective Love of the West Covina Police Department created a photographic lineup (six-pack) including a photograph of Lujan obtained from the Department of Motor Vehicles (DMV). Torres identified Lujan’s photograph and wrote, “This is the person I saw second. He had a silver gun, did most of the talking.” Alice identified Lujan’s photo and wrote, “He came up on the side of my bed and I got a look at him. He was not aware that I was looking at him. And then I closed my eyes.” Aaron also identified Lujan as the man who woke him up. He said Lujan was wearing a white T-shirt and talked the most to Aaron.
Detective Love obtained a search warrant for an address in La Puente that was said to be Lujan’s. Police arrested Lujan after finding him in an attic crawl space, hiding under insulation. At trial, Detective Love testified regarding photographs he took of items found at Lujan’s La Puente address and in a van parked there. These included an X-Box 360 game system, video games, 45 latex gloves, and two rolls of duct tape. The serial number on the X-Box unit matched the serial number found in the packaging that remained in a closet in the Torres home. Other stolen items recovered from the La Puente address were two major league baseballs, one autographed, and some CD’s. These items had been identified as missing by the Torres family.
Following the arrest of Lujan, Detective Love created another six-pack that included defendant’s photograph. Henry identified defendant’s photograph as that of the person he saw at the cable box outside his home. Henry testified that he had no doubt defendant was the person inside his home. Alice identified defendant’s photograph as the person who pointed a gun in her face and who had something covering the lower half of his face. Alice also identified a second photograph in the six-pack. She stated at trial that she identified the second person in the belief that this would mean she would not be called to testify. She stated that she nevertheless at all times recognized defendant’s photograph as the second intruder. Alice identified defendant at the preliminary hearing as the intruder. She stated that his eyes were very distinctive.
Police obtained a search warrant for an address on Stimson Avenue in La Puente that was associated with defendant. Police also conducted surveillance of the residence. Detective Antonio Cortina saw defendant leaving the location in the passenger seat of a Honda Prelude. Defendant later returned to the address and got into the rear seat of the same car, which drove off again. Detective Cortina notified other officers who stopped the vehicle. Defendant told the officer that contacted him that his name was Enberto. He was arrested.
Detective Doug Murray participated in a search of the Stimson Avenue house. Nearby he found a 2006 Toyota Solara that was registered to Kathleen Musselman and a silver Honda registered to Joseph Musselman. In the garage, Detective Murray found a scuba wet suit, a DMV registration card in defendant’s name, and mail addressed to an Alfredo Garcia, who was detained along with defendant. Rubber gloves were found in the garage. Henry identified the wet suit as one he had received as a gift from his wife. It had been stored in their hallway closet. Detective Murray found a .38-caliber stainless steel Smith and Wesson revolver in a bedroom at the Stimson Avenue residence. The serial numbers had been removed and the gun was loaded with five live cartridges. Henry identified the gun as the one Lujan used. Alice did not recognize the gun. Detective Love obtained buccal swabs for DNA analysis from defendant and Lujan. A criminalist with the Los Angeles County Sheriff’s Crime Laboratory determined that Lujan was a possible contributor to DNA from the gloves found in the Torres home, and defendant was excluded as a possible contributor. No genetic profile was obtained from the shoes found at the Torres residence.
Defense Evidence
Officer Daniel Armas testified that, immediately after the robbery, Henry said that the shoeless suspect was 5 feet 10 inches tall, in his early 30’s, and had black hair and brown eyes. He said he wore a dark T-shirt and had a crew cut. Henry mentioned no tattoos and could not remember if the subject had a mustache. Henry said that the other suspect was 5 feet 8 inches tall, weighed 165 pounds, and was in his late 20’s. He had tattoos, a shaved head, and wore a white T-shirt. Detective Love testified that Lujan was 5 feet 11 inches tall, weighed 210 pounds, had tattoos on both arms, and was in his late 20’s. Defendant was in his mid 30’s at the time of his arrest, and he had brown hair and green eyes.
Leonard Valdivia (Valdivia) testified that he met defendant at approximately 6:15 a.m. on the day of the incident. He and defendant worked together at a construction site in Ontario until after 2:00 p.m. Valdivia admitted pleading no contest to petty theft in 2004 and to being convicted of the unlawful taking of a motor vehicle in 2005. Both offenses were misdemeanors.
DISCUSSION
I. Alleged Ineffective Assistance of Counsel Due to Failure to Object
A. Defendant’s Argument
Defendant contends that Detective Love’s testimony regarding the events preceding his placing defendant’s photograph in the second six-pack was both inadmissible as hearsay and violative of his Sixth Amendment right to confrontation. Although the detective did not actually relay any specific statement made by Lujan, the implication of the detective’s testimony was that Lujan identified defendant as the second intruder. This implication was the functional equivalent of an incriminating statement by Lujan and should have been excluded from evidence. Because defense counsel failed to object, the issue was forfeited on appeal. According to defendant, trial counsel’s omission constituted ineffective assistance and should result in reversal of his convictions.
B. Proceedings Below
During direct examination of Detective Love, the following exchange took place:
“[Prosecutor:] Was Erik Lujan arrested back on August 7th of last year?
“[Detective Love:] Yes, he was.
“[Prosecutor:] Did you have a conversation with him?
“[Detective Love:] I did.
“[Prosecutor:] After having that conversation, did you do anything else regarding creating any other six-packs?
“[Detective Love:] Yes. I obtained enough information and created a six-pack including the defendant Musselman’s photograph.”
Detective Love went on to explain he obtained defendant’s photograph from the DMV database and showed the six-pack to each member of the Torres family.
C. Relevant Authority
“To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. [Citations.]” (People v. Kelly (1992) 1 Cal.4th 495, 519-520; see also People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) The first prong of this test is satisfied on direct appeal only if the record affirmatively discloses that counsel had ‘“no rational tactical purpose for his act or omission.”’ (People v. Zapien (1993) 4 Cal.4th 929, 980.) As for the second prong, “‘It is established that reversal for ineffective assistance of counsel is generally unwarranted unless the defendant shows counsel’s alleged failings prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 693-694; [Citations].)’ [Citation.]” (People v. Wright (1990) 52 Cal.3d 367, 404.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.)
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) In reviewing a trial court’s ruling on the admissibility of hearsay evidence, we apply a deferential abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court explained that the confrontation clause of the Sixth Amendment of the United States Constitution provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’” (Id. at p. 42.) Crawford stated that the confrontation clause has traditionally barred “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.) The high court, however, left for another day the spelling out of the term “testimonial,” stating only that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.) Crawford noted that “[t]he [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Id. at pp. 59-60, fn. 9.)
D. No Hearsay or Confrontation Clause Violation; No Ineffective Assistance of Counsel
We find that the testimony of Detective Love, quoted ante, runs afoul of neither the hearsay rule nor the Confrontation Clause. We disagree with defendant’s claim that the jury must necessarily have surmised from Detective Love’s testimony that Lujan named defendant as his co-participant in the crimes. Detective Love’s words indicated that, after speaking with Lujan, he proceeded to obtain enough information. He then set up a six-pack containing defendant’s photograph. Cause and effect was not clearly indicated by the prosecutor’s questions and Detective Love’s answers.
The testimony disapproved of in the cases cited by defendant to make his argument is vastly different from Detective Love’s testimony, and those cases do not support defendant’s contention. In People v. McNamara (1892) 94 Cal. 509 (McNamara), the only California case defendant relies upon, the court held that it was error for the victim to be permitted to testify that he gave a description of the robbers to the police and to allow the police officer to testify that he arrested the defendant on information he received from the defendant’s brother-in-law and on the description given by the victim. (Id. at p. 514.) McNamara relied on People v. Johnson (1891) 91 Cal. 265 (Johnson), which held that the trial court erred in admitting the testimony of a police officer regarding the description of the defendant given him by the victim (who testified at trial) before defendant’s arrest because the testimony was hearsay. (Id. at pp. 265-266.) In both of these cases, the police officer stated explicitly that the descriptions given by the victims were the basis for the defendant’s arrest. In these cases, therefore, and unlike in the instant case, the prosecution was clearly relying on the truth of the matter asserted to bolster the identity of the defendant as the perpetrator.
In Favre v. Henderson (5th Cir. 1972) 464 F.2d 359, 361 (Favre), the officer who arrested Favre testified that he received information from a confidential informant and was seeking the arrests of Favre and a second subject for the charged armed robbery. (Id. at pp. 360-361.) The prosecutor elicited that there were two separate informants and they had given the officer information in the past that had been reliable and had resulted in convictions. (Id. at p. 361.) The Fifth Circuit stated that the logical inference from the testimony was that the informants believed Favre was guilty and had provided information that led the officer to believe Favre was guilty and to arrest him. The officer’s testimony regarding the reliability of the informants bolstered the inference. In short, the statements were offered to establish the truth of the matters asserted therein --identification, guilt, or both, and the truth of the assertions depended on the credibility of the informers. (Id. at p. 362.) Here, Officer Love did not convey that anyone asserted defendant was guilty of the crime to the degree that probable cause was provided for defendant’s arrest. Officer Love also did not vouch for the reliability of anyone who may have provided him with information.
Defendant also cites Molina v. State (Fla. Ct.App. 1981) 406 So.2d 57 (Molina), a Florida case in which police officers testified that they interviewed two codefendants who did not testify, and after the interview they arrested Molina. They then put Molina’s picture in a photographic lineup. (Id. at p. 57.) The court held that the admission of this testimony was erroneous because the inevitable inference was that a nontestifying witness had furnished the police with evidence of Molina’s guilt, which was hearsay and a violation of the Confrontation Clause. (Id. at p. 58.) Once again, in Molina there was a clear reference to a nontestifying person who implicated the defendant in the crime to the degree that probable cause for arrest resulted, and the jury was clearly provided with an inference of guilt based on the nontestifying person’s implied statement.
Defendant cites State v. Bankston (N.J. 1973) 307 A.2d 65 (Bankston), a New Jersey case in which the prosecutor stated in opening that the detectives “were actively engaged in an investigation of this man” and that their investigation led them to the tavern where they saw defendant. (Id. at p. 66.) One of the detectives then testified that he had spoken with an informant and, based on the information he received, he went to the tavern. The detective said he was looking for a certain individual whose clothing had been described to the officers and who had narcotics in his possession. (Id. at p. 67.) The prosecutor elicited several more times that the defendant was the person who fit the description of the person the officers were seeking. (Ibid.) During closing argument, the prosecutor repeatedly referred to the informant’s identification of the defendant. (Ibid.)
The Bankston court noted that it is well settled that the hearsay rule is not violated when a police officer states that he acted upon information received and that this testimony is admissible to show the officer was not acting in an arbitrary manner. When an officer becomes more specific and repeats what some other person told him regarding a crime by the defendant, the testimony violates the hearsay rule and the Confrontation Clause. (Bankston, supra, 307 A.2d at p. 68.)
The words uttered by Detective Love clearly were intended to signify, and did signify, that he acted upon “information received.” (See Bankston, supra, 307 A.2d at p. 69.) The prosecutor made no attempt to bolster his case by referring to the sources of the information Detective Love used when constructing his photographic lineup. Detective Love’s testimony was not offered to prove the truth of an implied statement by Lujan that defendant was his co-perpetrator.
Moreover, in Favre, Molina, and Bankston, where Confrontation Clause violations were found, the courts noted especially that there was very little evidence apart from the offending testimony, and the cases were not strong against the defendants. (Favre, supra, 464 F.2d at p. 364; Molina, supra, 406 So.2d at p. 58; Bankston, supra, 307 A.2d at p. 70.) Here, Detective Love’s testimony was not the decisive factor that resulted in a guilty verdict, and there was ample evidence of defendant’s guilt in the form of the victims’ testimony and the stolen items found at the Stimson Avenue address, to which defendant was connected by substantial evidence.
Finally, even if an implied statement by Lujan were inferred from Detective Love’s testimony, the remark to which defendant objects would not constitute hearsay, since a nonhearsay purpose for his comment is readily identifiable. “‘[O]ne important category of nonhearsay evidence . . . [is] evidence of a declarant’s statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer’s reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.’ [Citation.]” (People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) In the instant case, the statement was not offered for the truth of defendant’s guilt, but rather was offered by Detective Love to explain the steps he took in constructing another photographic lineup. Therefore, even if Detective Love’s words are interpreted to imply that Lujan gave information regarding defendant, the testimony was nonhearsay, and there was no violation of defendant’s confrontation rights. (Crawford, supra, 541 U.S. at pp. 59-60, fn. 9.)
We believe the trial court properly would have allowed the testimony had trial counsel objected. In any event, defendant suffered no prejudice as a result of Detective Love’s remark, and defendant’s argument that his counsel was ineffective is without merit.
II. Impeachment of Alibi Witness with Misdemeanor Convictions
A. Defendant’s Argument
Defendant contends the trial court erred in allowing Valdivia to be impeached with his two prior misdemeanor convictions under People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler) and Evidence Code section 788. Defendant asserts that, contrary to the trial court’s conclusion, the rule against impeachment with misdemeanor convictions has not been disturbed and is currently in effect. According to defendant, the error was prejudicial because Valdivia’s testimony and credibility were central to the main issue in the case -- the identity of the second intruder.
Evidence Code section 788 allows the credibility of a witness to be attacked by showing, either by examination or by the record of judgment, that the witness has been convicted of a felony.
B. Proceedings Below
Prior to Valdivia’s testimony, the trial court asked the prosecutor to explain his proposed impeachment of Valdivia. The prosecutor stated that Valdivia had two misdemeanor convictions -- one for petty theft in 2004 and one for taking a vehicle in 2005. The court stated that the crimes involved moral turpitude, but defense counsel interjected that the convictions alone could not be admitted, and the prosecutor was required to show the underlying conduct. The trial court replied, “I don’t know if that’s true anymore. Haven’t they changed that pretty much?” The prosecutor stated that People v. Duran (2002) 97 Cal.App.4th 1448 (Duran) stated that “you can go somewhat into the crime itself.” The trial court noted that Evidence Code section 452.5, cited by the prosecutor, had to do with the admissibility of records to prove convictions. The trial court stated it would read Duran and rule on the following day.
The trial court ultimately allowed the impeachment, stating it had read Duran and that, “[a]s far as the court could see, there is no meaningful distinction to be drawn now between felony convictions and misdemeanor convictions. The bar to the use of misdemeanor convictions had been lifted by the statute you cite, which applies the hearsay exception, in essence. So the test is the same as felonies, are they crimes of moral turpitude and are they barred by some other extrinsic policies such as [Evidence Code section] 352? Yours appear to qualify as crimes of moral turpitude. They don’t seem to be remote or banable in any other manner the court can think of. So you may question him about those.”
During his cross-examination of Valdivia, the prosecutor asked, “Mr. Valdivia, isn’t it correct that you have two theft related convictions? You have a conviction in 2004 for petty theft?” Valdivia replied, “Yes, I pled no contest to it.” The prosecutor then asked, “Do you also have a conviction in 2005 for the unlawful taking of a motor vehicle that was not yours?” Valdivia replied, “Yes, I do.”
On redirect examination, defense counsel asked Valdivia, “The two convictions that the prosecutor referred to, the petty theft and unlawful taking, those were both misdemeanors, correct?” Valdivia replied, “Correct.”
C. Relevant Authority
A trial court may, in its discretion, admit evidence of past criminal conduct amounting to a misdemeanor where it has some logical bearing upon the honesty and veracity of the witness, and where its probative value outweighs any potential for prejudice, confusion, or undue consumption of time. (Wheeler, supra, 4 Cal.4th at pp. 295-297, superseded in part by statute as stated in Duran, supra, 97 Cal.App.4th at p. 1460; Evid. Code, §§ 352, 780, subd. (e); see Cal. Const., art. I, § 28, subd. (d).) The fact of such a conviction remains inadmissible under traditional hearsay rules. (Wheeler, supra, at p. 294; but see Duran, supra, at p. 1459 [certified conviction record admissible under Evid. Code, § 452.5].)
Such impeachment evidence is admissible unless the trial court concludes in its discretion that the probative value of the evidence is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (Evid. Code, § 352; People v. Castro (1985) 38 Cal.3d 301, 306.) Factors relevant to making an Evidence Code section 352 determination with respect to a witness who is not a defendant are whether the conduct demonstrated dishonesty or moral turpitude, the conduct’s nearness or remoteness in time, and any other pertinent considerations. (People v. Beagle (1972) 6 Cal.3d 441, 453-454; People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)
The trial court has broad discretion to admit or exclude impeachment evidence. (See People v. Gurule (2002) 28 Cal.4th 557, 619.) Its discretion will not be disturbed, unless there is a “showing 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. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Evidence Code section 452.5 provides: “(a) The official acts and records specified in subdivisions (c) and (d) of Section 452 include any computer-generated official court records, as specified by the Judicial Council which relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry. [¶] (b) An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.”
D. Any Error Harmless
People v. Lopez (2005) 129 Cal.App.4th 1508 summarized Wheeler’s holding as follows: “[A] person can be impeached in a criminal case by evidence of prior misdemeanor conduct that involves moral turpitude. . . . However, evidence of a misdemeanor conviction remains ‘inadmissible hearsay when offered to impeach a witness’s credibility.’ [Citation.]” (Id. at p. 1522.) “Accordingly, . . . ‘evidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witness’s credibility’” at least in the absence of a statutory hearsay exception comparable to the hearsay exception created for prior felony convictions in section 788. (Duran, supra, 97 Cal.App.4th at pp. 1459-1460;see also People v. Lopez, supra, at p. 1522 and fn. 7.)
Duran held that in 1996 the Legislature had provided “the type of hearsay exception contemplated in Wheeler” when it enacted Evidence Code section 452.5. (Duran, supra, 97 Cal.App.4th at p. 1460.) In the instant case, the prosecutor did not offer a certified record of Valdivia’s misdemeanor convictions. Although Wheeler’s prohibition of certain documentary evidence of a misdemeanor conviction was eliminated by Evidence Code section 452.5, its language prohibiting other evidence of such a conviction appears to remain intact. Therefore, it is ostensibly proper to ask a witness if he has committed a past misdemeanor offense, but improper to ask if the witness has been convicted of a past misdemeanor offense. If the witness denies committing the misdemeanor offense, a certified record of his conviction may be introduced as impeachment evidence. The California Supreme Court seems to have recently reaffirmed this view by stating that “[m]isdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion.” (People v. Chatman (2006) 38 Cal.4th 344, 373.)
Assuming that Evidence Code section 452.5 and Duran do not supersede Wheeler on this point and do not permit the admission of a prior misdemeanor conviction for impeachment purposes, we find any error in admitting the evidence was harmless in this case. It is well settled that “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it appears that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
At the outset, Valdivia’s testimony that defendant worked with him on the morning of the crimes was contradicted by the strong identification evidence given by Henry and Alice and the fact that so many items of the Torres’ property were found at the address on Stimson Avenue. Moreover, Valdivia’s testimony was at times inconsistent or subject to being regarded with suspicion. Valdivia could produce no paperwork regarding his employment of defendant because his “vehicle got impounded and the paperwork got -- because I didn’t have a license.” During direct examination he stated that he met defendant at Alfredo Garcia’s house on Stimson Avenue on the morning of the incident, and that he, Valdivia, lived a block from Mr. Garcia. On cross-examination he said he did not live a block away from Garcia, but that Garcia lives around the block from Valdivia’s sister.
Furthermore, the conduct underlying the misdemeanor convictions constituted moral turpitude, and evidence of this conduct was admissible on the question of Valdivia’s credibility, even if the convictions themselves were not. Valdivia thus was subject to being questioned about the details of his petty theft and taking of a vehicle. He could have denied the conduct, but he was then subject to having the records of his convictions produced.
In addition, the trial court did not abuse its discretion in its decision to allow evidence of the convictions under Evidence Code section 352. The trial court properly concluded that the probative value of the misdemeanor conduct outweighed the risk of prejudice. The convictions were not remote and there was clearly no undue consumption of time or any risk that the jury would be confused or misled. Given Valdivia’s dubious testimony, the prejudice was not undue. Also, because “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,” the risk of prejudice was attenuated. (See Wheeler, supra, 4 Cal.4th at p. 296.)
Evidence Code section 352 provides that the trial court can exclude even probative 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.”
Under the circumstances of this case, we cannot say it would have exceeded the bounds of reason to find that the probative value of the misdemeanor conduct with respect to Valdivia’s credibility “substantially outweighed” the risk of prejudice in admitting the evidence. Accordingly, we conclude that defendant suffered no miscarriage of justice, since it is not “reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Failure to Instruct Regarding Union of Act and Specific Intent
A. Defendant’s Argument
Defendant argues that the trial court failed in its sua sponte duty to instruct the jury that, in addition to finding that defendant possessed the requisite intent necessary to sustain each conviction, it had to find that there existed a concurrence of act and intent. These principles are embodied in CALJIC Nos. 3.30 and 3.31, and the trial court erred in not reading these instructions.
In particular, defendant further contends that the trial court’s failure to read CALJIC No. 3.31 relieved the jury of the requirement to find an essential element of criminal liability in the robberies of Henry, Alice and Aaron, resulting in error of constitutional dimensions. According to defendant, it was possible for the jury to find that defendant’s intent to steal arose at a moment different in time from when the victims were actually divested of their property. Since it cannot be said beyond a reasonable doubt that the jury necessarily would have found defendant guilty of all three robberies had it been properly instructed with CALJIC No. 3.31, the robbery convictions must be reversed.
B. Relevant Authority
The trial court has a sua sponte duty to instruct the jury on the general principles of law governing the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) We review de novo the claim a court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
C. Harmless Error
It is true the trial court failed to instruct the jury with CALJIC No. 3.31, which it must do sua sponte when, as is the case here, the crime requires a specific intent. (People v. Alvarez (1996) 14 Cal.4th 155, 219-220; People v. Ford (1964) 60 Cal.2d 772,792-793.) CALJIC No. 3.31 provides that “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed.” The absence of an essential element in one instruction may be cured by other instructions, however. (People v. Burgener (1986) 41 Cal.3d 505, 539, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.)
Under Chapman v. California (1967) 386 U.S. 18, 24, the reviewing court must determine whether, absent the error, it is beyond a reasonable doubt that the verdict would have been the same. One consideration is whether the factual question addressed by the omitted element “was necessarily resolved adversely to defendant under other, properly given instructions.” (People v. Garrison (1989) 47 Cal.3d 746, 789–790.) When the jury has before it the means of determining whether the element exists, the omission does not preclude the jury from finding “‘“every fact necessary” to establish every element of the offense beyond a reasonable doubt.’ [Citation.]” (People v. Cummings, supra, 4 Cal.4th at p. 1313.)
Here the jury was given other instructions that specifically addressed the required intent. (See People v. Alvarez, supra, 14 Cal.4th at p. 220.) The trial court instructed the jury with CALJIC No. 9.40, which provided that, in order to find defendant guilty of robbery in counts 2, 3 and 4, it had to find that a person had possession of property of value, that the property was taken from that person or from his or her immediate presence, that the property was taken against the will of that person, that the taking was accomplished either by force or fear, and finally, that the property was taken with the specific intent to permanently deprive the person of that property. Thus, the specific intent necessary for robbery was the intent to permanently deprive rather than intent to steal, as defendant asserts. This specific intent was hardly subject to dispute due to a time element. When the property was taken, it was not done in order to borrow the property or for any other nonpermanent purpose. The property was taken from the residents and from the home, placed in the car, and driven away. Any instruction on the union of intent and act was superfluous in these counts. (See People v. Alvarez, supra, at p. 220.)
With respect to the burglary count, the trial court read CALJIC No. 14.50, which told the jury that it had to find that at the time of entry, defendant had the specific intent to steal and take away someone else’s property and to deprive the owner permanently of that property. If the jury believed the testimony given by members of the Torres family, particularly Henry, no other intent was possible. (See People v. Ford, supra, 60 Cal.2d at p. 793.) Defendant forced Henry to enter the house at gunpoint after interfering with the telephone lines. Lujan entered shortly thereafter and told Henry that he was being robbed, while defendant held a gun over Torres.
The instructions for the specific crimes informed the jury in a concrete manner of the need for defendant to act with the appropriate mental state for each crime, and they cured any error in failing to instruct the jury with CALJIC No. 3.31. We conclude that the trial court’s failure to instruct the jury with CALJIC No. 3.31 was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
IV. Error in Abstract of Judgment
Defendant points out that the section of the abstract of judgment that lists defendant’s enhancements indicates that defendant must serve a 10-year enhancement under section 12022.53, subdivision (b) in count 1. In fact, this enhancement was part of count 2. Respondent agrees, as do we, since count 1 was dismissed at sentencing, the abstract of judgment must be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors in abstracts of judgment at anytime]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [same].)
DISPOSITION
The judgment is affirmed. The superior court is directed to correct the abstract of judgment to reflect that the enhancement under section 12022.53, subdivision (b) was actually imposed in conjunction with count 2.
We concur: BOREN, P. J., DOI TODD, J.