Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA321556, George G. Lomeli, Judge.
Thomas Owen, 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, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Tyrone Lamell Nelson appeals from the judgment entered following a jury trial that resulted in his conviction of possession of a firearm by a felon, carrying a loaded firearm and possession of ammunition. He contends: (1) the evidence was insufficient to support the convictions, and (2) he was denied due process as a result of the exclusion of certain evidence. We order the abstract of judgment modified and otherwise affirm the judgment.
The parties agree that the abstract of judgment should be corrected to accurately reflect that the trial court stayed the sentence on counts 2 and 3 pursuant to Penal Code section 654 (all future undesignated statutory references are to the Penal Code).
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054), the evidence established that during the late afternoon on April 7, 2007, 16-year-old Norma J. was inhaling air freshener at a friend’s house – something she did about three times a week to achieve a “high” that usually lasted about 10 or 20 minutes. Norma was no longer feeling the effects of the air freshener high when, in the early morning hours of April 8, 2007, she was taking the bus home from her friend’s house. Norma got off the bus about 3:40 a.m. and started walking through the projects to her home when she heard several gunshots. Norma sat down on the steps of a residence to contemplate whether to continue on to her home, where she was concerned they might not open the door for her. Five minutes later, she was still sitting on the steps when a man holding a gun came out of the residence. The man, who smelled like alcohol and seemed to Norma to be drunk, asked Norma what she was doing there. Norma replied that she was not doing anything and intended to leave. Norma warned the man to put the gun away because she had seen a patrol car in the area. After putting the gun in some bushes growing in a nearby planter, the man told Norma that he was going with her and instructed Norma to pretend that she was his girlfriend. Frightened, Norma ran away; the man ran after her. As she ran up to a police car, Norma noticed that the man was no longer chasing her. She told the police officers what had happened and, although it had been too dark for Norma to see the armed man’s face, she described him as in his mid-20’s, African-American, with short hair and wearing blue jeans and a long-sleeved blue and orange striped T-shirt. A few minutes later, the police brought Norma in the back of a patrol car to an area near the train tracks; there, Norma saw a man whom Norma identified as the man she had described to the officers. Norma’s identification was based on the shirt and pants the man was wearing, not on his face, because she had not seen his face. Norma testified that the man with the gun was wearing the same T-shirt and had the same hair as the man pictured in People’s exhibit 2, which was a prebooking photograph of defendant. Norma did not know whether defendant himself looked like the man with the gun because Norma thought that man was taller and thinner than defendant.
About 3:45 a.m. on April 8, 2007, Officers Thomas Trandal and John Boverie of the Los Angeles Police Department were in the 5400 block of Staunton responding to a dispatch about shots being fired at that location when Norma ran up to their patrol car and said she was being chased by a man with a gun. Norma, who did not appear to Trandal to be under the influence, described her pursuer as an African-American man in his 20’s wearing blue pants and a blue and orange stripped T-shirt; Norma told Trandal that she knew the man from the neighborhood, but did not know his name. After Trandal broadcast Norma’s description of the man over the police radio, Trandal directed Norma to take him to where she saw the man hide the gun. Trandal accompanied Norma to that location; there, hidden in a flowerbed, Trandal found a .357 Smith & Wesson revolver containing three expended and three live cartridges. After learning that a man matching the description provided by Norma had been detained, Trandal brought Norma to the detention location; Norma identified the man as the man who had been chasing her. In court, Trandal identified defendant as the man that Norma identified that night. Trandal also identified People’s exhibit 3, consisting of a pair of blue jeans and a striped shirt, as the clothing defendant was wearing when he was arrested.
When Officers Gregory Sovick and Ruben Banuelos of the Los Angeles Police Department responded to a radio dispatch about shots being fired in the area of the Del Rio Pueblo Housing Project about 3:45 a.m. on April 8, 2007, Sovick saw Trandal and Boverie talking to a young Hispanic woman who appeared upset. After learning that the woman had observed an African-American male wearing blue jeans and a blue and orange striped shirt with a gun, Sovick and Banuelos commenced patrolling the area looking for someone matching that description. About five minutes later, Sovick saw defendant, who was wearing blue jeans and a blue and orange striped polo shirt, talking to two or three women. When Sovick ordered defendant to stop, defendant ran away. Sovick and his partner apprehended defendant after a short foot chase. While Sovick detained defendant, a witness was brought to the location to make a field identification. Sovick then transported defendant to the jail for booking. Sovick identified People’s exhibit 2 as a prebooking photograph of defendant and People’s exhibit 3 as the clothes defendant was wearing when he was arrested. Sovick noted that the green stripes on the shirt had looked blue the night of the arrest.
Defendant was charged by information with possession of a firearm by a felon (count 1); carrying an unregistered, loaded firearm (count 2); and possession of ammunition (count 3); a prior prison term enhancement was also alleged. After the jury found defendant guilty on all three counts, defendant admitted the enhancement. Defendant was sentenced to a total of three years in prison comprised of the two-year midterm on count 1 plus a consecutive one year for the prior prison term enhancement. Sentence on counts 2 and 3 was stayed pursuant to section 654.
DISCUSSION
A. Substantial Evidence Supports the Judgment
Defendant contends the judgment was not supported by substantial evidence. He argues that Norma was not a credible witness because she was a 16-year-old out alone at 3:45 a.m. and testified that she had used drugs on the night in question; never saw the perpetrator’s face and based her identification of defendant solely on the clothes he was wearing; and that the perpetrator she saw was taller and thinner than defendant. We disagree.
The standard of review for sufficiency of the evidence is well known: we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence, which is reasonable, credible, and of solid value (i.e., substantial) from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1212.) We do not reweigh the evidence or determine credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Conflicts in the evidence justify reversal only if it is physically impossible that the evidence believed by the trier of fact is true, or the falsity of that evidence is apparent without resorting to inferences or deductions. (People v. Meals (1975) 48 Cal.App.3d 215, 221-222; see also People v. Green (1985) 166 Cal.App.3d 514, 517.)
Here, Trandal testified that he brought Norma to where defendant was being detained and read her the standard “field show-up admonition.” From a distance of about 60 feet, Norma was seated in the back of the patrol car when she identified defendant as “the guy that had the gun.” After Norma was brought closer – about 35 or 40 feet away from where defendant was being detained – she confirmed her identification. Trandal testified that Norma was extremely certain of her identification. This evidence was sufficient to support the judgment.
Norma’s age, history of drug use including on the afternoon before the incident, the fact that she was out late, the poor lighting conditions when she saw the man with the gun, and her failure to identify defendant at trial were relevant to Norma’s credibility on the issue of her field identification of defendant. But the jury resolved the issue of credibility against defendant and we will not redetermine the issue on appeal. Moreover, the conflicting evidence – Norma’s trial testimony that defendant seemed shorter and heavier than the perpetrator – does not compel a contrary result because it does not make it physically impossible that Norma correctly identified defendant at the field showup.
B. Exclusion of Evidence
Prior to trial, defendant advised the trial court that he intended to introduce evidence that Norma was the subject of an outstanding juvenile arrest warrant the relevance of which, he argued, was that “she’s currying favor by the D.A.’s office not having her arrested her on the -- someone who is just walking around with a warrant and I feel like I should be able to elicit that . . . .” The prosecutor countered that Norma was the subject of a juvenile misdemeanor arrest warrant for which the district attorney’s office intended to arrest her, but that evidence of the warrant would be more prejudicial than probative inasmuch as it was not for a crime of moral turpitude. The trial court excluded the evidence.
On appeal, defendant contends he was denied due process, a fair trial, and the right to present a defense by exclusion of evidence that Norma was the subject of an arrest warrant. He argues that a reasonable juror could infer from the excluded evidence that Norma was motivated to testify in a manner which would curry favor with the prosecution in the hopes that the arrest warrant would be dismissed. We disagree.
Only relevant evidence is admissible and, except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Relevant evidence includes “evidence relevant to the credibility of a witness.” (Evid. Code, § 210.) Whether particular evidence is relevant is to be determined by the trial court, acting within its discretion, and we review a claim of error for abuse of discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523.) Evidence Code section 352 gives trial courts broad discretion to exclude even relevant evidence if it is substantially more prejudicial than probative. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) A trial court’s Evidence Code section 352 ruling is reviewed for abuse of discretion. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
Under Evidence Code section 788, the fact a witness has been convicted of a felony is admissible to attack that witness’s credibility. Although the fact a witness has been convicted of a misdemeanor is inadmissible hearsay, evidence of a witness’s conduct involving moral turpitude that does not result in a felony conviction is admissible to impeach that witness. (People v. Wheeler (1992) 4 Cal.4th 284, 288, 291-292, 297-300 (Wheeler); People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90.)
In People v. Gomez (1957) 152 Cal.App.2d 139, 143, the court held that juvenile court proceedings could not be used to impeach a witness because such proceedings did not result in a “conviction.” (See also People v. Sanchez (1985) 170 Cal.App.3d 216, 218 [same]; People v. Jackson (1986) 177 Cal.App.3d 708, 711-713 [Cal. Const., art. I, § 28, subds. (d) and (f) did not change rule].) But in People v. Lee (1994) 28 Cal.App.4th 1724, 1740, the court held that under Wheeler, evidence of prior conduct evidencing moral turpitude is admissible even if such conduct was the subject of a juvenile court proceeding, subject to the restrictions of Evidence Code section 352. Here, however, defendant did not seek to impeach Norma with evidence of the conduct that led to issuance of an arrest warrant. Rather, he sought to do so with the fact of the existence of the arrest warrant to show Norma had a motive to lie.
In People v. Lopez (2005) 129 Cal.App.4th 1508, 1523-1524 (Lopez), defendant was convicted of felony resisting a police officer. One issue on appeal was whether defense counsel had been ineffective in not objecting to admission of evidence that several defense witnesses had been arrested. The prosecution’s theory of relevance for this evidence was that, as a result of their arrests, the witnesses were biased against the police department. The appellate court concluded that the evidence should not have been admitted and defense counsel was ineffective in not objecting. The court reasoned that, although evidence of an arrest may suggest a reason for the person arrested to be biased against the arresting agency “it is established that evidence of mere arrests is inadmissible because it is more prejudicial than probative. [Citations.] ‘. . . [A] witness’[s] credibility in the eyes of the jury would be seriously impaired by evidence of prior criminal arrests, because of the “bad character” inevitably suggested thereby. [Citation.]’ [Citation.] Against this serious prejudice, it is a weak ‘thread of inferences from past arrests by the police, to hostility against the police in general, to a willingness to distort testimony’ [Citation.]” (Id. at p. 1523.)
The reasoning of the court in Lopez is applicable here. The trial court properly excluded evidence that Norma was subject of an outstanding arrest warrant. There was no evidence that the prosecution had promised Norma leniency in exchange for her favorable testimony against defendant (see People v. Phillips (1985) 41 Cal.3d 29, 46 [prosecution has duty to disclose inducements made to prosecution witness]), and it is a “weak thread of inference” from the mere existence of an arrest warrant to a witness’s willingness to distort testimony.
DISPOSITION
The superior court is directed to amend the minutes of the sentencing hearing on July 25, 2007, and the abstract of judgment to reflect that the sentences imposed on counts 2 and 3 are stayed pursuant to section 654. As so modified, the judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.