Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-060734-1.
Reardon, J.
A jury convicted appellant George Henry Parker III of misdemeanor assault, felony criminal threats, and felony assault with a deadly weapon. (Pen. Code, §§ 240, 242, 422, 245, subd. (a)(1).) In a bifurcated proceeding, the jury also found appellant’s prior kidnapping conviction and subsequent prison term to be true. (Pen. Code, § 207). The court sentenced appellant to 11 years in prison and imposed a $400 restitution fine and $500 in attorney fees.
Appellant challenges his convictions, arguing that the trial court (1) improperly admitted his prior kidnapping conviction, and allowed the prosecution to misuse the prior conviction as character evidence; (2) improperly admitted his prior misdemeanor elder abuse conviction, and should not have allowed the prior misdemeanor to be proven by taking judicial notice of appellant’s record; (3) erred in imposing attorney fees without a hearing; and (4) failed to award custody credits for time spent in prison for violating parole. We affirm the judgment, except that we vacate the imposition of attorney fees.
I. FACTS
On the morning of December 1, 2005, Beverly Blade woke appellant, her live-in boyfriend, and asked him to tie up his dog because her sister and mother were coming to visit. Appellant refused and began shoving Beverly, telling her to get the dog herself. Beverly’s sister, Eva Pete, arrived and yelled to appellant when she saw the two struggling. Appellant went up to Eva’s car, shouted obscenities at her, and lunged at her with his fists. Eva left and went to the home of Beverly’s daughter, Denise Blade, and told her that appellant was harassing Beverly.
Denise telephoned her mother to find out what had happened, but appellant picked up the downstairs extension and began threatening to harm Beverly. Appellant then went upstairs, grabbed Beverly in a headlock, and made her watch in the bathroom mirror as he held a steak knife to her eye and throat, while threatening to cut out her eyes and cut her neck. When he let go and went downstairs to answer a phone call, Beverly jumped out of the second story window because she was afraid to go back down the stairs past appellant to get out of the house. The jury heard that Beverly knew that in the past appellant had kidnapped and held his boss at gunpoint. She testified that this knowledge made her more nervous, and informed her decision to get out of the house as quickly as possible.
Meanwhile, Denise arrived at the scene with Ebony Blake and Ebony’s friend. Denise and Ebony called the police to report the disturbance. Denise got out of her car and walked toward appellant carrying a baseball bat in her hands. He was standing in front of the house holding the knife. Denise started swinging the bat at appellant; he jabbed and waved the knife back and forth at Denise in a slashing motion, continuing to do so after he took the bat from Denise. As the police were arriving, appellant threw the knife in the house near the front door. The police found appellant outside his house holding a bat and arrested appellant at the scene. They recovered the knife near the front door.
Appellant testified that he never put a knife to Beverly’s throat or eye. He stated that he had the knife in his hand when Denise arrived because she had threatened to harm him, and he waved the knife at her to defend himself. The defense argued that Beverly jumped out the window because she was depressed.
II. Discussion
A. Admissibility of the Prior Kidnapping Conviction
Appellant argues that the trial court improperly admitted evidence of his prior kidnapping conviction without considering the similarity of the prior conviction to the current charges, and without balancing the probative and prejudicial effect of the evidence. Additionally, he claims that the prosecution used his prior conviction to prove his criminal propensity in violation of Evidence Code section 1101. We disagree.
All further statutory references are to the Evidence Code unless otherwise indicated.
Character evidence is inadmissible to prove a person’s conduct on a specified occasion. (§ 1101, subd. (a).) However, evidence of prior crimes or wrongs may be admitted when relevant to prove a fact at issue, such as intent or knowledge. (Id., at subd. (b).) Additionally, evidence of prior felony convictions may be used to impeach the defendant’s credibility, if the defendant testifies. (§§ 785, 788.) The court may, in its discretion, exclude evidence of prior crimes or prior felony convictions if the probative value is outweighed by the prejudicial effect. (§ 352; People v. Castro (1985)38 Cal.3d 301, 313 [felony convictions]; People v. Kelley (1967) 66 Cal.2d 232, 239 [prior crimes].) When a trial court’s decision to admit evidence is at issue, the appropriate standard of review is abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724; People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
Appellant was charged with threatening Beverly Blade in violation of Penal Code section 422. To prove a violation of section 422, the prosecution must show, in part, that the defendant’s threats actually and reasonably made the victim fearful. In People v. Garrett (1994) 30 Cal.App.4th 962, the Court of Appeal considered the admissibility of prior convictions offered to show actual and reasonable fear of threats under section 422. The court found that the victim’s knowledge of the defendant’s prior manslaughter conviction was “extremely relevant and probative” to establishing the section 422 elements. (People v. Garrett, supra, at p. 967.) The court then considered the prejudicial effect of the evidence. Upon conducting such balancing, the Garrett court held it was not an abuse of discretion to admit evidence of the defendant’s prior conviction because, “[s]eldom will evidence of a defendant’s prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense.” (Ibid.)
Penal Code section 422 makes it unlawful to “willfully threaten to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety . . . .”
Here, the trial court admitted evidence of appellant’s prior kidnapping conviction after a broad discussion of its relevance to Beverly’s state of mind, and after considering its prejudicial and probative value in relation to the Penal Code section 422 charge. The court concluded that “the [section] 352 issue really falls to the wayside when it’s probative and would seem to be extremely probative of the elements.” From this record we conclude that the trial court undertook a sufficient section 352 analysis and properly admitted evidence of appellant’s prior kidnapping conviction for impeachment purposes and to show Beverly’s actual and reasonable fear.
Similarly, we reject appellant’s contention that the prosecutor improperly used the prior kidnapping conviction to prove his criminal propensity. The court instructed the jury to use the kidnapping conviction only in determining Beverly’s state of mind and the defendant’s credibility. A review of the record shows that the prosecutor only used the kidnapping conviction for those two permitted purposes. During trial, the prosecutor questioned Beverly about her knowledge of appellant’s prior kidnapping, and argued in closing that appellant’s threats made Beverly fearful because she knew what he did to his boss. Further, he suggested that Beverly was reasonable in jumping out the window because she really thought appellant would harm her. The prosecutor also argued that the prior felony suggested appellant was an untruthful witness. The record shows that the prosecutor did not use the prior kidnapping conviction improperly.
Appellant also argues that the court must undertake a similarity analysis when a prior conviction is offered to show the intent of the defendant. However, in this case the court permitted the jury to consider the kidnapping conviction as evidence of Beverly’s actual and reasonable fear of appellant’s threat, not as evidence of his intent.
The court told the jury, “As to the felony conviction, the kidnaping with a firearm, you are allowed to use that. If you’ll recall, Ms. Blade testified she knew of that conduct and it can go then to how she—she took the threat or how it appeared.”
B. Admissibility of the Prior Elder Abuse Conviction
Appellant contends the trial court improperly admitted evidence of his 2005 misdemeanor elder abuse conviction, and permitted the prosecution to use it as character evidence. (Pen. Code, § 368, subd. (b)(1).) He argues that under People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler), misdemeanor convictions are hearsay and cannot be used to prove the underlying misconduct.
Before trial the prosecutor brought a motion in limine regarding the admissibility of the elder abuse conviction. The court read the elder abuse statute and determined it was a crime of moral turpitude. After considering sanitizing the conviction, the court ruled that it would be admissible at trial without being sanitized. The court determined that the prosecutor could ask appellant whether he had been convicted of the misdemeanor and if appellant denied the misdemeanor conviction, the court could take judicial notice of the conviction record as permitted under section 452.5.
Penal Code section 368, subdivision (b)(1) provides that: “Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or . . . willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable . . . .”
During trial, appellant admitted his misdemeanor conviction on direct examination, and the prosecutor asked no questions about it. However, the prosecutor discussed appellant’s prior convictions during closing as probative of his lack of honesty and trustworthiness, and briefly compared, without objection, the lack of motive in the current case, to the lack of motive to abuse the elderly. Upon defense counsel’s request, the court amended the jury instructions to require that the jury only consider the misdemeanor when evaluating credibility.
The prosecutor stated, “Now, a motive for a crime, why does someone commit animal cruelty, why does someone abuse elderly people? I don’t know. The fact there is or is not a motive is not dispositive in this case whatsoever.”
In 1992, the California Supreme Court determined in Wheeler, supra, 4 Cal.4th at page 295, that the conduct underlying a prior misdemeanor conviction could be used to impeach a witness if the conduct indicated moral turpitude. As appellant notes, at that time the court determined that prior records of conviction would not be admissible to prove this conduct, because the record would be hearsay to which no exception applied. (Id. at p. 300.)
In 1996, the Legislature adopted section 452.5, providing that “[a]n official record of conviction . . . is admissible . . . to prove the commission . . . of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.” (§ 452.5, subd. (b) [as added by Stats. 1996, ch. 642, § 3, pp. 3620-2621].) Shortly thereafter in People v. Duran (2002) 97 Cal.App.4th 1448, 1461, the reviewing court determined that section 452.5 was the very kind of hearsay exception contemplated by the Wheeler court. Under section 452.5, a court can take judicial notice of a certified record of conviction to prove both the fact of conviction and commission of the underlying offense. (§ 452.5; People v. Duran, supra, at pp. 1460-1461.) In People v. Lopez (2005) 129 Cal.App.4th 1508, 1522, footnote 8 (citing People v. Duran, supra, at p. 1460), the Court of Appeal stated that the hearsay exception set forth in section 452.5 applies to prior misdemeanor convictions. Subsequently, in 2006 the California Supreme Court affirmed the principle announced in Wheeler, 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, italics omitted [citing Wheeler, supra, 4 Cal.4th at pp. 297-300].)
These cases indicate that a trial court, in its discretion, may admit prior acts of moral turpitude, including those resulting in a misdemeanor conviction, but the simple fact that a witness has a misdemeanor conviction is not admissible. Courts have discretion to exclude evidence of prior acts of moral turpitude if they find the probative value is substantially outweighed by the prejudicial effect. (§ 352; Wheeler, supra, 4 Cal.4th at p. 295 .) If a court determines prior conduct is admissible and the witness denies that he or she engaged in such conduct, under Duran and Wheeler the court may take judicial notice of his or her record of conviction, pursuant to section 452.5, to prove the conduct underlying that misdemeanor conviction occurred. On appeal, this court reviews a trial court’s decision to admit prior acts of moral turpitude under an abuse of discretion standard. (People v. Smith (2007) 40 Cal.4th 483, 513.)
In this case, during the motion in limine the court incorrectly ruled that the prosecutor could impeach appellant with his 2005 misdemeanor conviction simply by asking him whether he had been convicted of the misdemeanor. It is the conduct underlying the misdemeanor not the fact of conviction that is admissible to impeach a witness’s credibility. The court did not investigate the incident that led to the misdemeanor conviction to determine whether that conduct suggested moral turpitude. The court correctly determined that it could take judicial notice of an official record of the misdemeanor conviction to establish the underlying conduct if it was necessary to do so. However, during trial appellant freely admitted, without objection and during direct examination, both his prior felony and misdemeanor convictions. Thus, the prosecutor did not ask appellant about the misdemeanor or use section 452.5 to prove appellant’s prior conduct.
Even if appellant only admitted the prior misdemeanor because of the court’s error, the result was harmless. The jury properly heard that appellant had a felony conviction for kidnapping with use of a firearm, and was permitted to consider that felony in conjunction with the charge that he threatened Beverly Blade and made her fearful. Denise Blade testified that appellant told her over the phone that he was going to slit her mother’s throat, corroborating Beverly’s assertion that he later threatened and assaulted her. Finally, several witnesses testified to appellant’s assault of Denise Blade, supporting that charge. Under People v. Watson (1956) 46 Cal.2d 818, 836,“a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” Here, the evidence against appellant was such that it is not “reasonably probable that a result more favorable to the appealing party would have been reached” had the jury not heard about the prior misdemeanor, or only heard about the underlying details of the conduct leading to the misdemeanor conviction. (Ibid.)
Appellant also argues that the prosecution improperly used the prior misdemeanor conviction as character evidence. The prosecution made a comment during rebuttal regarding motive and why someone abuses elderly people. This comment was ambiguous and brief, and the defendant made no objection. It is not reasonably probable that a result more favorable to appellant would have been reached had the court struck the comment and admonished the jury not to consider it. (People v. Watson, supra, 46 Cal.2d at p. 836.)
C. Imposition of Attorney Fees
Appellant requests that we vacate the order assessing a $500 fee for attorney services because the trial court failed to hold a hearing to determine his ability to pay those fees under Penal Code section 987.81, subdivision (a). After sentencing, the court determined that the value of services rendered by defense counsel was at least $500. Counsel for appellant did not specifically request a hearing to assess appellant’s ability to pay, but he refused to waive a hearing on the value and requested the court waive the fee entirely because of appellant’s indigence. The trial court imposed the $500 fee and ordered appellant to report to the Office of Revenue Collection, within 20 working days from the notice or after release from jail, to determine his ability to pay.
Without delving into the details of the statutory provisions governing determination of a defendant’s ability to pay all or part of the costs of counsel (Pen. Code, §§ 987.8- 987.81), we conclude that the order imposing $500 in attorney fees should be vacated because the record is clear that appellant did not have a present ability to pay the fees or a “reasonably discernible” future ability to reimburse such costs (Pen. Code, § 987.8, subds. (e), (g)(2)(B)). Appellant is currently serving an 11-year prison sentence and absent unusual circumstances, those defendants sentenced to prison should be found unable to pay counsel costs. (Id., at subd. (g)(2)(B).) Defense counsel told the court at sentencing that appellant was indigent, and the probation officer’s report reflects that appellant has no employable skills and no assets.
D. Calculation of Custody Credits
Appellant argues that the trial court failed to award custody credits for time he spent in jail for a parole violation based on the conduct underlying this case. He requests a remand to recalculate the number of days of custody credits he is due.
Appellant stated during sentencing that he was in jail from December 1, 2005 through December 22, 2006, but did not receive credits for December 15, 2005 through March 27, 2006. The People counter that appellant was not awarded custody credits for this time period because he was in prison, not local custody, and there is nothing in the record to suggest that this prison time was related to the case at hand. During sentencing, defense counsel asserted that the conduct underlying the current case was the very conduct that triggered the parole violation, but he offered no documentation supporting that assertion. The court determined from the available information that appellant should not receive credits for the prison period but told appellant’s counsel that if he found information indicating appellant should receive more credits, he could request a hearing and the court would revisit the issue.
Penal Code section 2900.5 governs the calculation of custody credits, and specifies in subdivision (b) that “credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” As a rule, when a defendant requests that presentence prison time be credited toward his or her current sentence, he or she must “prove that the conduct which led to the conviction was a ‘dispositive’ or ‘ “ but for ” ’ cause of the presentence custody.” (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485 [citing People v. Bruner (1995) 9 Cal.4th 1178, 1180].) It is the defendant’s burden to show “that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.” (People v. Johnson, supra, at p. 1485.)
Here, appellant failed to provide any information to the trial court regarding the parole violation to prove he should get credits for this prison time. Additionally, appellant did not follow through on the trial court’s offer to hold an additional hearing to review any new information suggesting he is entitled to more credits. The record today is still silent as to why he was sent to prison in December 2005 and whether his incarceration was due solely to the conduct underlying the convictions at issue here. Appellant failed to meet his burden under People v. Johnson, supra, 150 Cal.App.4th at page 1485, and accordingly we affirm the award of custody credits.
III. Disposition
The order assessing $500 in counsel fees is vacated. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.