Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA050043, Darlene E. Schempp, Judge. Affirmed.
Elizabeth A. Missakian, 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, John R. Gorey and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
A jury convicted appellant Marcelo Perales of four counts of identity theft (Pen. Code, § 530.5, subd. (a)), four counts of making a false financial statement (§ 532a, subd. (1)) and four counts of grand theft (§ 487, subd. (a)). The trial court sentenced him to two years and eight months in state prison.
All subsequent undesignated statutory references are to the Penal Code.
Appellant’s sole contention centers on the trial court’s decision to permit the prosecution to elicit, for purposes of impeachment, testimony from him about his misdemeanor conduct of inflicting corporal injury on a cohabitant (Phyllis Valencia) in violation of section 273.5. Appellant claims that, pursuant to Evidence Code section 352, the trial court should have excluded the evidence as being unduly prejudicial. He argues that the admission of the evidence resulted in a miscarriage of justice, requiring reversal. We are not persuaded. We conclude that appellant’s contention has not been sufficiently preserved for appeal by a timely and specific objection on the record; that even if the objection was preserved, the trial court did not abuse its discretion in admitting evidence of appellant’s misdemeanor conduct; and that if any error occurred, it was harmless. Therefore, we affirm the judgment.
The facts pertinent to appellant’s contention of admission of improper impeachment evidence will be set forth in the “Discussion” portion of our opinion.
1. Overview
Appellant and Erick Cornejo (the victim of the identify theft) both worked as staffing clerks at Kaiser Permanente. Staffing clerks had access to employee files which contain personal information such as driver’s license numbers, social security numbers, and present and prior addresses.
The prosecution’s theory was that appellant improperly accessed Cornejo’s personal information and used it to rent an apartment, buy furniture and open two American Express credit card accounts. The defense theory was that Cornejo had authorized appellant’s actions, a claim which Cornejo unequivocally denied at trial.
2. The Prosecution’s Case
A. Fraudulent Apartment Rental
On July 22, 2004, appellant, using Cornejo’s name and identifying information, filled out an application to rent an apartment at 17817 Magnolia Boulevard in Encino (the “Encino apartment”). The application was approved. Appellant lived in the apartment under Cornejo’s name until January 2005 when he moved out in response to an eviction notice based upon failure to pay rent. During his residency, appellant’s co-worker and girl friend Phyllis Valencia periodically stayed over at the apartment.
Cornejo never gave appellant permission to use his personal identifying information to rent the apartment and, in fact, had declined appellant’s request to cosign an apartment lease. Further, Cornejo never visited the apartment.
B. First Fraudulent Purchase of Furniture
On July 31, 2004, several days after moving into the Encino apartment, appellant, accompanied by Valencia, filled out a credit application to purchase $2,432 in furniture at La Elegante Furniture, listing the newly rented Encino apartment as his billing address. Enrique Melendez, the store owner, testified that appellant gave Cornejo’s name, social security number, and date of birth. Appellant furnished Melendez with a driver’s license containing appellant’s photograph but Cornejo’s name. Appellant signed his name as “Erick Cornejo” on both the credit application and purchase agreement. Wells Fargo Financial approved the credit application. Appellant made only a few payments on the account.
The defense called Valencia as a witness. She did not testify because, outside of the jury’s presence, she asserted the privilege against self-incrimination.
Cornejo denied authorizing appellant’s purchase of the furniture.
C. Second Fraudulent Purchase of Furniture
On October 25, 2004, appellant returned to La Elegante Furniture with Ana Dominguez, his former wife. Appellant again identified himself to Melendez as Erick Cornejo and introduced Dominguez as his sister. When Dominguez’s application for credit to purchase $2,958 in furniture was denied, appellant cosigned for her as “Erick Cornejo.” No payments on this loan were ever made, forcing Melendez to buy the loan back from the finance company.
Cornejo denied authorizing these actions.
D. Fraudulent Opening of American Express Credit Account
On August 4, 2004, an application to open an American Express Credit Account was made over the phone. The information given was for Erick Cornejo, including his name, social security number, employment history and salary, and date of birth. Appellant’s own name and social security number were used for a secondary card on the same account. Within a week, American Express issued two cards, both delivered to the Encino apartment. The primary card holder was “Erick Cornejo,” the secondary card holder was “Marcelo Perales.” In the next five months, the two cards were used to make purchases totaling approximately $2,000. Less than $200 was paid on the account. The account was closed in May 2005 after Cornejo, having learned of appellant’s fraudulent actions, contacted American Express.
3. The Defense Case
Appellant testified that he and Cornejo became close friends while working together at Kaiser Permanente. In June 2004, appellant, in the processing of divorcing Dominguez, experienced financial difficulties. He discussed these matters with Cornejo. Appellant claimed that he did not ask Cornejo for any help but that Cornejo, aware of appellant’s credit problems and apartment search, offered to help him rent an apartment and buy new furniture. According to appellant, Cornejo altered his own driver’s license. Cornejo allegedly placed appellant’s picture over his own and made several copies of the altered license for appellant to use. Along with the copies of the altered driver’s license, Cornejo also supplied appellant with his social security number and a copy of his most recent paycheck stub. At Cornejo’s behest, appellant rented the Encino apartment using Cornejo’s personal information.
In a similar vein, appellant testified that prior to going to the La Elegante Furniture store on July 31, Cornejo gave him permission to use his personal information on the credit application and to represent himself as “Erick Cornejo.” Appellant, however, denied returning to the store in October with Dominguez to purchase additional furniture.
As for the American Express credit cards, appellant claimed that Cornejo visited him several times at the Encino apartment and, during one of those visits, Cornejo telephoned American Express and opened the two accounts.
DISCUSSION
Appellant contends that admission of his prior misdemeanor conduct (abuse of a cohabitant in violation of section 273.5) for impeachment purposes resulted in a miscarriage of justice, requiring reversal of the judgment. We disagree. First, as will be clear from the detailed factual and procedural background set forth below, appellant failed to make a timely and specific objection on the record to the admission of the evidence. This results in a forfeiture of his present claim of error. Second, even were we to assume the claim has been preserved for appeal, we find that the trial court did not abuse its discretion in permitting the prosecutor to elicit evidence of appellant’s misdemeanor conduct. Third, any error which may have occurred was harmless given the overwhelming evidence presented against appellant, the implausibility of his defense, and the fact that neither party referred to the impeachment evidence in closing argument.
1. Factual and Procedural Background
Based upon a reported discussion about jury instructions that occurred toward the close of trial, it appears that appellant’s first objection to the admission of the misdemeanor impeachment evidence occurred in an unreported chambers conference conducted before he testified. (The specifics of the reported discussion will be set forth later.)
During the prosecutor’s cross-examination of appellant, the following occurred:
“Q [Prosecutor]: Did an incident occur [on Sept. 12, 2004] with you and Miss Valencia where you argued and you grabbed her arm and pulled her back into the apartment and left red marks on her arms?
“A That was an incident. That’s not exactly what happened, but there was an incident.
“Q Okay, but there were red marks left on her arms as a result of something that happened between the two of you?
“A Erick [Cornejo] was a witness on that, as well. On the remarks, if you look at the investigation report, Erick Cornejo called and did say that he did witness her fall at work, and she had a mark. That’s why the case was not picked up.
“Q What about March 18, 2005, was there an incident between you and Miss Valencia again?
“A We had a verbal altercation, yes, ma’am.
“Q Okay. Did that altercation include you demanding that she give you her Kaiser check?
“A No, ma’am.
“Q Did it include you grabbing her arm?
“A To an extent. She opened the car door when I was driving and I panicked and I reached over and grabbed her.
“. . . .
“Q Okay. And did you sustain a conviction for 273.5, abuse of a cohabitant?
“A Actually, I pleaded no contest because my concern was this case, and I didn’t want to worry about anything else.” (Italics added.)
Defense counsel posed no objection during the above cross-examination.
As noted earlier, during a subsequent conference about jury instructions, the parties discussed the above elicitation of the impeachment evidence. That exchange is the following:
“[Defense Counsel]: The other one [jury instruction] that I have an objection to was [CALJIC No.] 2.23.1, believability of a witness/commission of a misdemeanor. And I objected informally in chambers to the introduction of any evidence of misdemeanor conduct and conviction, namely, the inflicting of corporal injury on spouse or cohabitant, in violation of Penal Code Section 273.5 .
“And, again, the Court in chambers indicated the Court was going to allow that evidence and was going to give the instruction. And based upon reading the Use notes, I requested the Court give the instruction defining that offense, which is CALJIC No. 9.35. And it is my understanding the Court is going to give CALJIC No. 9.35.
“I did not object yesterday on the record during questioning of my client on cross-examination to questions about that particular incident, based upon the Court’s indicated ruling in chambers when I indicated that there was an objection. And the Court indicated that the Court would allow that testimony to come in.
“THE COURT: Well, I know we had an informal discussion and I indicated, if it is a crime of moral turpitude. However, we didn’t have the discussion formally on the record, and I wish we had because the footnote to the jury instruction about misdemeanors said not to allow it unless it is connected with this type of a case, and I don’t see a domestic dispute having anything to do with identity theft.
“And I would not have allowed it. And I’m sorry that it is in there, but it is. Anyhow, I don’t think it will have a great bearing on the decision in this case one way or the other, but –
“. . . .
“So, anyhow, I don’t see that it was necessary to be in there. It doesn’t tie into the case. But it is there, and I doubt that it has much effect on his [appellant’s] credibility, and that is the instruction [CALJIC No. 2.23.1] that it applies to.”
The trial court submitted CALJIC No. 2.23.1 (“Believability of a Witness – Commission of Misdemeanor”). The instruction explains: “Evidence has been introduced for the purpose of showing that a witness engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.” In addition, the jury was instructed, pursuant to CALJIC No. 9.35, about the elements of section 273.5.
In closing argument, the prosecutor focused on all of the evidence which established that appellant had, without consent, used Cornejo’s personal information to rent an apartment, buy furniture, and obtain credit cards. She argued that appellant’s claim that Cornejo had assented to his actions was implausible. In particular, she urged that appellant’s credibility had been sorely undermined because his claim that he had not used Cornejo’s identity to purchase furniture in October 2004 for Dominguez had been directly contradicted by testimonial and documentary evidence. During closing argument, the prosecutor never mentioned the misdemeanor conduct impeachment evidence.
Melendez, the store owner, had identified appellant and Dominguez as the two individuals involved in the transaction. In addition, Melendez authenticated the credit application the two had executed.
The defense closing argument primarily relied upon appellant’s testimony and urged the jury to acquit if it had a reasonable doubt as to his guilt. Like the prosecutor, defense counsel never mentioned the evidence of appellant’s misdemeanor conduct.
During deliberations, the jury submitted a request for a read-back of testimony. The request read: “Reread cross-exam of defendant as to the issue of assault on Phyllis Valencia at the Magnolia address and whether Cornejo was present at Magnolia.” After the trial court read the note to counsel, the following exchange occurred:
“[Defense Counsel]: My concern was that based upon our in-chambers discussion of the jury instructions where the Court indicated the Court was going to allow this type of testimony, I didn’t object to it while it was asked, and then I put it on the record, the reason why I didn’t object to the questioning. At which point, the Court indicated that upon further reflection, the Court felt this, the Court felt it was not relevant, and had I objected the Court would have precluded it. But then the Court added that the Court didn’t think it was going to make much difference one way or the other, and, obviously, the jury is paying attention to it. So I am at a loss.
“THE COURT: I would have allowed the question ‘Have you been convicted of a misdemeanor?’ Period, not to go behind the scenes. This opened up a can of worms, and I had no idea where it was going when the questioning started in the domestic violence, and he hit the girl [Valencia] who we almost considered an aider and abettor on this case [see fn. 3, ante], and now we have a question about it.
“[THE PROSECUTOR]: Well, Your Honor – and, you know, we are trying to read the minds of the jury. But it is obviously anything that has to do with his conduct, and Miss Valencia is peripheral in terms of them evaluating his credibility. He basically denied it, but he denied it with an explanation, and the explanation had to do with something Erick Cornejo had allegedly seen, and apparently somebody on the jury has a recollection of that and wants to remember what exactly it was so that they know whether or not that means Erick Cornejo was supposed to have been at Magnolia or not.
“Apparently, by the way the question reads, they have linked those two together. Our court reporter has actually found a place where the response of the defendant links those two incidents together, and apparently that’s what the jury is talking about. So, for what it is worth, I think they have answered the question.
“THE COURT: I don’t even understand. It doesn’t have much relevance with identity theft. That’s for sure. The only thing I can – and, again, we are just guessing. The only thing I can imagine is there was some discussion of an inconsistency between the defendant and the victim as to whether or not the victim had ever been on Magnolia. And if they were – if they believed this discussion in a particular way, they may think that this indicates Mr. Cornejo was at Magnolia at the time of this incident. It is not actually what the defendant says. But maybe that is the testimony they are remembering and they want it clarified, for what it’s worth. I don’t see that it is going to be harmful, particularly, to either side. And we may as well just let them know what it was that was said.
“It also could be – and as I modified that jury instruction, it says you have to give the misdemeanor that was behind it. Since the question was asked about a cohabitant at a certain address – and they would be wasting their time doing that which has nothing to do with personal identity. But it says you have to be a spouse, cohabitant, and that might be what the question is dealing with. Otherwise, I can’t understand why it is.”
The testimony, which the trial court characterized as “very brief,” was then read back to the jury.
2. Appellant’s Contention Has Not Been Preserved for Appellate Review
To preserve for appellate review a claim that a trial court abused its discretion in admitting evidence under Evidence Code section 352, the defense must make a timely and specific objection when the evidence is offered. (Evid. Code, § 353, subd. (a); People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014.)
Here, defense counsel’s remarks made during the discussion of jury instructions indicate that he first objected to the evidence in an unreported in-chambers conference prior to appellant taking the stand. Defense counsel characterized his objection as “informal” and never stated its basis. During the prosecutor’s cross-examination of appellant, defense counsel did not renew his objection. Because a party’s objection must be made on the record and its specific basis stated (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124), appellant’s claim of error has not been sufficiently preserved for appellate review. Without knowing the basis of defense counsel’s objection and the trial court’s ruling, we cannot determine with any amount of certainty whether the trial court’s decision to permit the impeachment was an abuse of discretion. “[T]he ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable. [Citations.]” (People v. Seijas (2005) 36 Cal.4th 291, 302.)
3. The Admission of the Evidence of Misdemeanor Conduct to Impeach Appellant Was Not An Abuse of Discretion
Appellant argues that the basis for his off-the-record objection to the impeachment evidence “clearly was prejudice flowing from admission of such evidence.” Even assuming that claim has been properly preserved, we find that the trial court did not abuse its discretion in permitting the prosecutor to elicit evidence of the misdemeanor conduct during cross-examination of appellant.
In People v. Wheeler, supra, 4 Cal.4th at page 292, the California Supreme Court held that Proposition 8, the “Truth-in-Evidence” amendment to the California Constitution (Cal. Const., art. I, § 28, subd. (d)), abrogated the existing rule that a felony conviction was the only form of criminal conduct that could be used to impeach a witness’s credibility. The court concluded that “in proper cases, nonfelony conduct involving moral turpitude should be admissible to impeach a criminal witness.” (Id. at p. 295.) In making its discretionary decision whether to permit that impeachment, the trial court must consider “problems of proof [and] unfair surprise” and “whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.)
We review the trial court’s decision to permit the impeachment under the deferential abuse of discretion standard. (People v. Kipp, supra, 26 Cal.4th at p. 1121.) The ruling “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Misdemeanor misconduct involving moral turpitude may be admitted to impeach because it “suggest[s] a willingness to lie.” (People v. Wheeler, supra, 4 Cal.4th at p. 295.) The infliction of corporal injury on a cohabitant in violation of 273.5 is a crime of moral turpitude because of the relationship between the defendant and the victim. (People v. Rodriguez (1992) 5 Cal.App.4th 1398.) The relationship of cohabitants is one “for which society rationally demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable.” (Id. at p. 1402.) For the perpetrator of a violation of section 273.5 “[t]o have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it willfully and with intent to injure [his cohabitant], necessarily connotes the general readiness to do evil that has been held to define moral turpitude.” (Ibid.) In sum, appellant’s violations of section 273.5 demonstrated moral turpitude and therefore were probative on the question of his honesty or veracity.
Further, the other factors that a trial court is to consider in deciding, pursuant to Evidence Code section 352, whether to permit impeachment by misdemeanor conduct, all support the conclusion that no abuse of discretion occurred. (See People v. Beagle (1972) 6 Cal.3d 441, 451-453, cited with approval in People v. Wheeler, supra, 4 Cal.4th at p. 296.) The impeachment evidence was not remote in time. The misconduct occurred in 2004 and 2005 and trial was conducted in 2006, making the evidence timely and therefore particularly relevant to evaluating appellant’s credibility at trial. Further, the charged crimes of identity fraud were not even remotely similar to the offense of inflicting corporal injury on a cohabitant. Hence, the jury would not have (improperly) considered the impeachment evidence as proof that appellant had a propensity to commit identity fraud. In addition, there was no element of surprise because appellant knew before he testified that his past misdemeanor misconduct would be admitted to impeach him. Upon being questioned, he quickly admitted the conduct had occurred. As a result, proof of the impeachment did not consume an unreasonable amount of trial time. In sum, the trial court’s ruling permitting the prosecutor to elicit evidence of the misdemeanor conduct was not an abuse of discretion. To the extent that it was error to elicit that appellant had been convicted of section 273.5, that error was clearly harmless for the detailed reasons set forth below.
“Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion. [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 373.)
4. Any Error in the Admission of the Impeachment Evidence was Harmless
To the extent any error occurred, it was harmless. Reversal is required only if it is reasonably probable that a result more favorable to appellant (acquittal of the charges) would have been reached in the absence of the purported error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
In this case, the evidence of appellant’s guilt was overwhelming. Cornejo denied authorizing appellant to use his personal information in any manner. Appellant’s claims that Cornejo first authorized him to use his name and personal information to rent the apartment and purchase furniture in July 2004 and later helped him to obtain the American Express card were simply improbable. Appellant offered no explanation for why Cornejo would have done so and, in fact, testified that Cornejo’s offer to help was unprompted by any request from him. In addition, appellant’s credibility was significantly impeached because his claim that he never even made the second purchase of furniture with Dominguez was directly contradicted by testimonial and documentary evidence (See fn. 5, ante.)
Furthermore, the evidence about appellant’s misdemeanor conduct played a very small role at trial. It was quickly established during the prosecutor’s cross-examination of appellant. CALJIC No. 2.23.1 instructed the jury that it may consider such evidence in assessing appellant’s credibility but that it did “not necessarily destroy or impair [his] believability.” Significantly, the prosecutor never referred to this evidence during either her opening or rebuttal closing argument. That is, she never urged that the misdemeanor conduct was a reason for the jury to reject appellant’s testimony that Cornejo had authorized his actions. In addition, defense counsel’s closing argument never mentioned the impeachment.
Contrary to what defendant now urges, the jury’s read back request does not establish that the impeachment evidence “was obviously an important one for jurors.” A careful reading of the jury’s request indicates that its focus was not the impeachment evidence (events of Sept. 2004 and March 2005) but, instead, Cornejo’s presence during the September 2004 incident. Appellant’s testimony had suggested that the September 2004 incident had not resulted in a criminal prosecution because Cornejo told the police that Valencia’s injuries were the result of a fall she sustained at work. As reflected by the readback request, the jury (or some of its members) understood the testimony to mean that Cornejo was present during the incident. Cornejo had denied ever being present at the Encino apartment but appellant had testified Cornejo had visited several times and, during one of those visits, had opened the American Express account. The jury apparently felt this snippet of testimony could help resolve that evidentiary conflict. To identify that testimony, the jury’s readback request merely tethered it to the September incident.
Or looking at it another way, had the jury felt the evidence of misdemeanor conduct was significant to evaluating appellant’s credibility, it would also have requested a readback of the testimony about the March 2005 incident, an incident which resulted in a criminal conviction. It did not do so. In conclusion, nothing in the record suggests that the jury focused on appellant’s testimony about his misdemeanor conduct for the purpose of evaluating his credibility.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
Further, the Comment to CALJIC No. 2.23.1 cites People v. Lepolo (1997) 55 Cal.App.4th 85 for the proposition “that (1) the past conduct amounting to a misdemeanor must involve moral turpitude to be admissible, and (2) proof of the conduct was not limited to the least adjudicated elements. Rather, the prosecution [is] permitted to present evidence of the conduct as well as to cross-examine defendant to seek his acknowledgement of having engaged in the conduct.”