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People v. Probus

Court of Appeal of California
Jul 30, 2008
No. E041799 (Cal. Ct. App. Jul. 30, 2008)

Opinion

E041799

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. JAMES R. PROBUS, Defendant and Appellant.

Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


I. INTRODUCTION

Defendants James Probus (defendant) and Sebastian Martinez (Martinez) were charged in an amended information with first degree murder. The information further alleged that defendant and Martinez personally and intentionally discharged a firearm, causing great bodily injury or death. It additionally contained special circumstance allegations relative to defendant and Martinez committing the murder while engaged in the commission or attempted commission of robbery and burglary. Defendant and Martinez were tried together before separate juries.

Defendant, the sole appellant, was found guilty of first degree murder. The jury additionally found true the special circumstance that the murder occurred while defendant was engaged in the commission or attempted commission of a robbery. The jury returned not true findings on the gun use allegation and on the burglary special circumstance.

On appeal, defendant argues that the court erred in: (1) precluding him from calling a witness to impeach the testimony of Mistie Schroeder (Mistie), a key prosecution witness; (2) failing to sever defendants trial from that of Martinez, thereby allowing the jury to hear "antagonistic defenses"; (3) improperly allowing "gang" evidence before the jury; and (4) unfairly allowing the impeachment of defense witnesses with prior crimes.

We find no error, and affirm the judgment of conviction.

II. FACTS AND PROCEDURAL HISTORY

On November 8, 2002, Ronald Sommer (Sommer) was shot and killed while in his mobilehome. The murder occurred at approximately 1:30 a.m. At the time of the shooting, Sommer was standing on the inside of his front door looking out through the peephole. Two bullets were fired through the front door from the outside. Based on the angle and trajectory of the bullets, the shooter was standing on the front porch at the time of the shooting. One bullet entered Sommers body in the groin region and the other in the armpit area. The cause of death was a perforating gunshot wound of the lower torso involving the femoral artery. Sommer bled to death. There were bloodstains leading from inside the front door to the office area where Sommer was found.

At the time of the incident, defendant was married to Staci Probus (Staci). He had been living with his girlfriend Mistie and her three children for approximately a month and a half before the murder. Mistie had known defendant for about 12 years.

The defendant sold drugs for a living. He and Martinez were best friends. Prior to the shooting, defendant and Martinez would go out every night. When defendant and Martinez went out together, they would take their guns.

Approximately one to two weeks before the murder, Esther Probus (Esther), defendants mother, was present at Misties residence. Esther, who had dated Sommers brother, called Sommer asking for approximately $1,000 so that she could get her car out of the shop. Defendant and Martinez were present at the time of the phone call. During the phone call, Sommer refused Esthers request for the money. After the phone conversation, Esther stated that she knew Sommer was lying and that he did have money, and that defendant needed to do something about it. Defendant, who had known Sommer since he was 11 years old, indicated that he would handle it. Mistie testified that defendant stated, "Well, we will just go and get it." Mistie also overheard Martinez and defendant conversing about the manner in which Sommer secured his home. Defendant indicated that he was going to smack Sommer around a little bit and take his money.

Jessica Reynolds, a neighbor of Sommer, testified that about two or three weeks before the murder she went to the bank with Sommer. Sommer cashed a check and told her he took about $2,500 in cash. Kristeen Rutkowski, another neighbor of Sommer, overheard Sommer tell Esther on the phone that he would not loan her money. He indicated to Kristeen that Esther had called and asked for a large sum of money and that he would never give it to her.

On the evening of the murder, defendant and Martinez left Misties house at approximately midnight to 1:00 a.m. When they left, they both had weapons. Defendant had in his possession a shotgun and Martinez had a small handgun. They also took a bag of tools with them. Prior to leaving, Mistie heard both defendant and Martinez say they were going out to do a "jales." Mistie knew that both defendant and Martinez knew Sommer had money. They did not tell her they were going to steal money from Sommer, she just knew it was going to happen.

Mistie testified that "jales" is a slang word on the streets for "robbery."

Mistie also testified that a week or two before November 7, she had heard that defendant and Martinez were going to steal money from Sommer. Additionally, defendant had said that they were going to Sommers house to take money.

Jessica Reynolds lived a couple of hundred yards from Sommers home. About 1:30 a.m. she heard two gunshots. She then saw a car pull away down Blackberry Lane. Thereafter, she called Sommers home and there was no answer. The next morning, after knocking on the door, she entered Sommers home through the back door. The telephone was off the hook and there was blood everywhere; Sommer was lying on the floor.

Individuals from the homicide unit of the Riverside County Sheriffs Department testified that two bulletholes were located in the front door. Shell casings were found at the scene. The front door appeared as if it had been kicked from the outside. The doorjamb was slightly bent inward and the deadbolt was jammed. Based on the bullet trajectory, Sommer was standing at the front door looking through the peephole slightly bent over. The shooter was at the back end of the front porch. Criminalist Richard Takenaga testified that the bullet he was asked to examine could not have been fired from a shotgun.

Mistie found out Sommer had been killed on November 8. She saw defendant about 7:15 that morning when he came in the door. He told her that he and Martinez had gone to Sommers house and that it had gone bad. Defendant told her Sommer realized somebody was trying to get into his house and started screaming. Defendant indicated that as they were going down the road, he could hear Sommer screaming for his life.

Approximately two weeks following the murder, Martinez, while driving a white Honda with defendant as a passenger, was involved in a police pursuit. Both defendant and Martinez fled on foot after stopping the vehicle. Both defendants were apprehended. In a search of the area traversed by defendant, officers found a black bag containing seven shotgun shells. A handgun would fit into the bag. In the backseat area of the car, there was a dent puller, some pliers, and screwdrivers. At this point in time, the murder of Sommer was a cold case.

On February 15, 2003, defendant wrote a letter, which he gave to Deputy Powell. The letter indicated that he would like to provide some information in exchange for some consideration in the case involving the pursuit, for which he was then in custody. Detective John Powers interviewed defendant on February 25. In the interview, defendant stated that he could solve the murder. He indicated that people knew about the case and that it could come back to haunt him. He stated that he was present when the homicide occurred, although he was not the shooter. He knew Sommer had just gotten a large settlement on his house. Defendant and Martinez were strung out and went to Sommers house to see if Sommer wanted to party. They were going there to get high. They parked their black or dark blue Toyota by a telephone pole on a lower part of Sommers property. After arriving at the front door, defendant was standing in front of the door and Martinez was to his left. Defendant knocked on the door and kicked it with his foot. At this time, there was someone inside screaming as he came towards the door. Defendant backed off the porch; Martinez shot two rounds through the door. He did tell Mistie about the homicide afterwards.

Staci dropped a duplicate copy of the letter off at the district attorneys office on February 20. The letter that Staci dropped off came from defendant.

Approximately two weeks later, defendant accompanied Detective Powers to the scene of the murder for a video reenactment.

The transcript of the audio is, in essence, identical to the initial statement provided by defendant to Detective Powers.

During the initial interview conducted by Detective Powers, defendant indicated that Martinez had kept the gun used in the shooting, until the day of the pursuit. During the pursuit, Martinez handed defendant the gun; defendant sprayed it with WD-40 and tossed it out the window. Defendant told Detective Powers where he had thrown the gun and that Staci had already picked the gun up. In a subsequent discussion with Staci, Detective Powers learned that she in fact had not picked up the gun. Detective Powers then went to the location described by defendant, and found the weapon.

To the extent necessary, further facts will be discussed within the context of the analysis.

III. DISCUSSION

A. The Court Did Not Err in Precluding Defendant From Presenting Evidence as to Misties Pending Charge of Possession of Methamphetamine

Mistie was called by the prosecution. At the time of her testimony, she had pending felony charges of possession of methamphetamine and child neglect. During her testimony, she stated that she was innocent of the charges. In response, defendant sought to call a witness for purposes of impeachment; the witness would testify that he was with Mistie at the time of her arrest and that at that time she was indeed in possession of methamphetamine. The trial court precluded defendant from introducing said evidence.

Defendant submits that "Mistie Schroeder was the centerpiece of the prosecutions case" relative to facts supporting the application of the felony-murder rule. That is, she was the only witness who could testify to the fact that defendant had the intent to rob Sommer at the time of the murder. He contends that Misties credibility was of utmost importance, and that the above referenced evidence should have been allowed to impeach her testimony wherein she stated that she was innocent of charges pending against her. Defendant argues that in not being allowed to introduce this independent evidence of her guilt, evidentiary error occurred and he was deprived of his rights to cross-examine and confront witnesses. We disagree.

"The right of confrontation . . . `means more than being allowed to confront the witness physically. [Citation.] Indeed, `"the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." [Citations.] . . . `[we] have recognized that the exposure of a witness[s] motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. . . . trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination . . . . `the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [106 S.Ct. 1431, 89 L.Ed.2d 674].)

"Although we have said that `[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude [citation], such latitude does not `prevent the trial court from imposing reasonable limits on defense counsels inquiry based on concerns about harassment, confusion of the issues, or relevance [citations]. Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendants constitutional rights to confrontation and cross-examination. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 545.)

Here, defendant wished to further confront the testimony of Mistie by showing that, contrary to her testimony, she was indeed not innocent of charges pending against her. The defense wished to call witness Ken Burns to testify that he was driving a van in which Mistie and her three children were present. After arriving at the house of Dave Taylor, the police searched the van and found drugs in Misties purse. In disallowing this proffered testimony, the court indicated, "Well, what Im concerned with is we get into a separate trial of which one of them is telling the truth. I dont know if thats very probative or anything. Its a side issue. Were not going to hear that particular case. [¶] I just—I think its more prejudicial than probative and I dont think its going to really get us anywhere in this particular matter, so Im not going to allow that." This was not error. As discussed below, in view of the entire record, the evidence was cumulative, time consuming, and added little relevant information to the issue of Misties credibility. The evidence was properly excluded under Evidence Code section 352, and defendants rights to confrontation and cross-examination were not implicated.

At trial, Mistie was portrayed as anything but credible. The credibility of her testimony, as well as her general persona, was significantly attacked and undercut. Testimony as to her guilt or innocence of the pending drug possession charge would have had little to no affect on a jurors view of her testimony and credibility.

Mistie was her own worst enemy when it came to evaluating her credibility. On the primary issue of defendants intent at the time he went to Sommers residence, her testimony was inconsistent and internally contradictory. She testified that she did not hear defendant and Martinez discuss anything before they left her house; she did hear them talk about something; when defendant called her while he was in jail, he told her that she needed to help because they (presumably the authorities) couldnt find out that it was a robbery; she heard defendant and Martinez state they were going out to do a "jales," which is slang for a robbery; she did not know exactly what they were going to do; she told Detective Powers that they were going to go out and steal money from Sommer; they did not tell her they were going to steal money from Sommer; a week or two before the murder she heard that they were going to steal money from Sommer; she did not hear them say they were going to Sommers house; defendant told his mother after the phone call that they would handle it; defendant told his mother, "Well, we will just go and get it"; defendant indicated he was going to smack Sommer around a little bit and take his money; she knew the plan was to go to Sommers house and take his money; she knew defendant and Martinez knew Sommer had money; when defendant stated they were going to go get it and smack Sommer around a little bit, she did not think they were going to rob him; on the night Sommer was killed, she did not know they were going to Sommers house; when defendant told her they had gone to Sommers house and that it had gone bad, it was not believable; and it is not true defendant told her they went to Sommers house to get drugs.

As can be seen from Misties own testimony, she was wildly inconsistent as it related to whether defendant maintained the intent to rob at the time he went to Sommers mobilehome. At times she testified defendant stated that he intended to rob Sommer, and at other times she testified defendant never told her that defendant and Martinez were going to rob Sommer. It is very doubtful that third person testimony as to her pending drug possession case could have added much as it relates to judging her credibility.

Moreover, Mistie testified that during that period of time she was addicted to methamphetamine; she was paranoid back when she was taking drugs; as time goes on, her memory is improving since she stopped using methamphetamine; and there are times her memory fails her because of using methamphetamine. Based on this testimony alone, it is dubious that further testimony that Mistie did in fact possess methamphetamine relative to the then pending proceeding would have added anything as it relates to impeaching her credibility. Based on her admitted drug use during the relevant period of time, the jurors in all likelihood disbelieved her proclamation of innocence on the drug possession charge.

The above aside, Mistie further testified that if she testified that her statements to Detective Powers were a lie, then she could be facing additional charges; she has not discussed using her testimony in this case as a bargaining chip for working out some kind of a resolution in the other case; the pending felony case could have an impact on whether she keeps her children; she is sort of stuck with the statement she gave Detective Powers back in February 2003; she was angry with defendant because he was not fulfilling his role as part of her family; and she initially told an investigator that she did not write any letters to defendant when he was in custody, when in fact she did. Her credibility was further attacked on the issue of selling defendants belongings and keeping the money for herself. And lastly, the district attorney recognized in closing argument that Mistie was not the most credible person in the world. Needless to say, the courts preclusion of third party testimony as to Misties drug possession would have had little to no impact on the believability of her testimony. As stated in People v. Fisk (1975) 50 Cal.App.3d 364, 370, "defendant charges the trial court with error in rejecting his offer to impeach [the witness] by showing that she had been dealing in narcotics . . . [and] was biased and was fabricating her testimony to avoid prosecution. The courts ruling was a proper exercise of discretion under Evidence Code section 352. Other evidence portrayed the lifestyle of [the witness] . . . [and] the pending felony charge against her . . . . Other witnesses had corroborated [the witnesss] testimony regarding defendants animosity toward her husband. The court could reasonably conclude that defendants offer of proof proposed a round about and time-consuming effort to impeach a witness whose untrustworthiness had already been portrayed to the jury." (Italics added.)

And while we agree with defendant that the testimony of Mistie was the main evidence supporting a felony-murder finding, her testimony on that issue was substantially corroborated by defendants own statements to Detective Powers and defendants conduct while in custody. At the beginning of the interview with Detective Powers, defendant indicated that Sommer had just gotten a settlement on his house. Later in the interview, defendant, on his own initiative, asked Detective Powers if Detective Powers knew the details relative to the sale of Sommers property. When asked what that had to do with the situation, defendant indicated Sommer was a drug dealer. Defendant indicated that Sommers property went through escrow and Sommer got cash. When asked whether Martinez was going to rip Sommer off, defendant responded, "Only because theres—theres—well, theres no telling whats on [Martinezs] mind. Theres no telling whats on anybodys mind." He later acknowledged there was a possibility that Martinez might have wanted to rob Sommer. Furthermore, while in custody, defendant transmitted a letter and "Declaration and Affidavit" to Mistie. The letter and declaration were delivered to Mistie by defendants sister and mother. In the purported declaration, which was set for Misties signature, she was to declare that "[a]t no time before or after the fatal accident did I hear from [defendant] or any other source that the act was a robbery or premeditated." In the letter he writes, "Tell Mistie she needs to write a quick statement saying she never said that shit [referring to Misties statements to Detective Powers that defendant and Martinez were going to Sommers house to commit a robbery]."

We concur fully with the trial court. The proffered testimony had little probative value in light of the already existing record and would have created nothing but a separate minitrial on a very tangential issue. We find no error.

B. Defendant Was Not Denied Due Process by the Use of Dual Juries

Defendant contends he was denied due process as a result of the court not severing his case from that of Martinez. On our facts, the argument seems misplaced. We first note that defendant does not point to any place in the record where a motion for severance was brought and then denied. And, while a trial court may have a sua sponte duty to order a severance once grounds for a severance develop, defendant does not point to any particular time during the trial that grounds for a severance existed. (See People v. Patino (1979) 95 Cal.App.3d 11, 33.) This, in conjunction with a legislatively expressed preference for joint trials, leads to the conclusion that the trial court did not abuse its discretion in failing to sever the trials of defendant and Martinez.

"`After trial, of course, the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law. [Citation.]" (People v. Pinholster (1992) 1 Cal.4th 865, 933.)

Defendant argues that a gross unfairness occurred because defendant and Martinez had "antagonistic defenses." This was exemplified by the district attorneys comments relative to the fact that the respective juries would not hear all of the evidence (Aranda/Bruton), and Martinezs attorney suggested by way of a question that Martinez told Detective Powers that he (Martinez) was not standing on the porch at the time of the shooting. (Thereby inferentially implicating defendant as the shooter.)

People v. Aranda (1965) 63 Cal.2d 518 (Aranda). Bruton v. United States (1968) 391 U.S. [88 S.Ct. 1620, 20 L.Ed.2d 476] (Bruton).

"`[A]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other. [Citation.] `Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. [Citations.] Stated another way, `"mutual antagonism" only exists where the acceptance of one partys defense will preclude the acquittal of the other. [Citations.]" (People v. Hardy (1992) 2 Cal.4th 86, 168.)

Initially, we dont believe the argument of "antagonistic defenses" is implicated in the present case. Defendant and Martinez had separate juries. Defendant does not cite, and we can find no case discussing, the concept of "antagonistic defenses" within the confines of a dual jury trial. Defendants jury was not called upon to accept or reject any of Martinezs defenses. Here, because of separate juries, the problem of "antagonistic defenses" did not arise. Furthermore, it is clear that defendant was present at the time of the murder. It additionally does not appear that Martinez disputed his own physical presence at the scene. The basic dispute as between defendant and Martinez was who shot Sommer. From review of defendants trial record, the trial court appears to have scrupulously applied Aranda/Bruton. Defendant points to only one instance wherein his jury could have drawn an inference that Martinez stated that defendant was the shooter. Other than that, the only other cross-implicating testimony heard by both juries was the unobjected to testimony of Mistie that, after the shooting, Martinez made a comment that defendant had double-crossed him and was going to throw the rat on him, and the finger pointing started between defendant and Martinez.

The testimony illicited by Martinezs defense counsel that Martinez was not on the porch, and Misties unobjected to testimony, went to the issue of who the shooter was, not defendants intent at the time of the murder. In that the jury rejected the personal gun use enhancement as to defendant, any issue as to "antagonistic defense" would be harmless, even if it were to apply.

As to the prosecutor alluding in opening statement to the fact that the respective juries were not going to hear certain testimony, again we fail to discern how this comment implicates "antagonistic defenses." Initially, the prosecutors statement was not objected to at the time it was made. Nonetheless, it would seem that it would be obvious to the respective jury panels that they were not privy to all of the evidence. A reasonable defendants juror certainly would have believed that, when defendants jury was seated in the hallway and Martinezs jury was listening to a witness in the courtroom, that the testimony Martinezs jury was hearing was something that defendants jury was not to hear. Additionally, to the extent the prosecutors comment during his opening statement may have been inappropriate, the jurors were properly instructed that comments of counsel were not evidence.

This, in reality, is nothing more than objections to questions being sustained, and the jury being instructed that they were not to speculate as to the reasons for the objection or guess as to what the answer might have been.

C. Evidence of Gang Affiliation

Defendant contends the court erred in admitting testimony relative to defendants association with members of the EVL gang. Prior to the beginning of trial, Martinez moved to preclude testimony of his purported gang affiliation. Defendant joined in the motion. As explained by counsel for Martinez, Mistie would testify that Martinez was associated with the EVL gang, when he actually was not. As to defendant, it was believed that Mistie would testify that she received a threatening letter from defendant to the effect that she should disavow her previous statements to Detective Powers, or she would be visited by some of his "homies." Counsel for defendant and Martinez argued that this evidence was more prejudicial than probative.

The prosecutor placed a different spin on the significance of the testimony. He explained that the evidence of gang affiliation was relevant because when Mistie received the letter from defendant referencing the "homies," she was not truly concerned about defendants connections to the EVL, but rather was fearful of Martinezs gang affiliations. The prosecutor argued that because of this fear, Mistie, in past statements and testimony, had downplayed the culpability of Martinez; he expected that at trial, because of her fear of gang retaliation by Martinez, Mistie would again minimize Martinezs role in the murder. The prosecution also submitted that defendant was going to attempt to impeach Misties testimony by submitting evidence that she was only testifying against defendant because she was angry at him, and that Martinezs gang affiliation would, in some fashion, dissipate the impeachment evidence submitted on behalf of defendant. In response, the court indicated it would allow Misties statements concerning gang affiliation for the sole purpose of demonstrating its affect on her testimony. The court further stated that it would be accompanied by a jury admonition that the evidence was coming before the jury solely as to the impact that it might have on Misties testimony.

Before addressing the relevance of Misties testimony of defendants gang affiliation as bearing on her credibility, we believe that the gang testimony had relevance to defendants consciousness of guilt. Defendant was arrested in late November 2002. On February 28, 2003, both defendant and Mistie gave statements to Detective Powers. Mistie implicated defendant by indicating that the murder occurred during an attempted robbery. In October 2003, defendants preliminary hearing occurred. Prior to the hearing, Esther delivered a letter, along with a "Declaration and Affidavit," to Mistie. The letter, which was addressed to defendants sister, indicated that no matter what, Mistie was not to testify or make it to court. The letter further indicated that when his sister met with Mistie, she should take one of the "homies." What concerned Mistie about "homies" is that it refers to one of his friends from a gang. The clear implication of the letters reference to "homies" is that defendant was attempting to intimidate Mistie from testifying. While "homies" may well be a word which is not used solely within the gang context, it is often heard within the gang environment. Some evidence as to defendants gang affiliation therefore added substance to the fact that defendant was truly attempting to intimidate Mistie. Indeed, the jury was instructed on CALJIC No. 2.06 relative to defendants attempt to suppress evidence by intimidation of a witness. (See People v. Hannon (1977) 19 Cal.3d 588, 597-598; People v. Bolin (1998) 18 Cal.4th 297, 326-327.) The limited gang evidence was therefore foundational relative to defendants attempted intimidation of Mistie for purposes of suppressing evidence.

The gang evidence additionally had relevance as to evaluating the credibility of Mistie. "Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witnesss fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citation.]" (People v. Burgener (2003) 29 Cal.4th 833, 869.) Misties belief relative to defendants gang affiliation makes defendants threat of retaliation more palpable and her testimony arguably more credible.

To the extent it may have been error to admit Misties gang testimony, it was clearly harmless. As with most of her testimony, Mistie testified to many contradictory things. At one point she testified she was concerned because of defendants gang connections. At another point she testified defendant was not a member of a gang nor did he associate with them. Additionally, the trial court on one occasion instructed the jury that whatever evidence had been received that defendant was a member of a gang was "not to be considered by [the jury] to prove that the defendants themselves are members of a criminal street gang, are persons of bad character, or that they have a disposition to commit crimes." The court continued by indicating that the evidence was received and was to be considered solely "in determining the mental state of the witness Mistie Schroeder." The jury was also instructed, "There is no evidence that either defendant in this case is a gang member or associated with a gang. The Court allowed the testimony of Mistie Schroeder about gangs merely to show the impact, if any, of her perceptions in that regard and how it might affect her actions and testimony."

Further, there was no dispute that defendant was involved in the murder. The only issues were whether he was the shooter and whether the murder occurred in the commission of an attempted robbery. Whether defendant was or was not affiliated with a gang had absolutely no impact on either issue. Given the totality of the record, we believe there was no abuse of discretion in allowing in the limited amount of testimony as to gang affiliation; to the extent its probative value may be characterized as minimal, it was nevertheless not outweighed by undue prejudice.

D. The Court Did Not Err in Its Various Rulings Regarding the Impeachment of Witnesses With Details of Their Prior Convictions

Defendant contends the court erred in excluding the details of prior crimes as it relates to Mistie, and allowing in the details of prior convictions as it relates to three defense witnesses. We disagree.

"Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the courts discretion under Evidence Code section 352. [Citation.] . . . [¶] The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial courts rulings on the admissibility of evidence. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 337.) Trial courts, while not restrained, should take into consideration factors enunciated in People v. Beagle (1972) 6 Cal.3d 441, 453.

As it relates to Mistie, defendant wished to impeach her not only with the pending drug possession/child endangerment charges, but also with prior acts of joyriding and child abduction, being present at the location of a methamphetamine lab, and petty theft. As noted by the prosecutor at trial and by the People on appeal, only the petty theft was conduct reflecting on moral turpitude. The alleged petty theft occurred in 1988, when Mistie was 12 years old. As the trial court noted, no charges were filed relative to the alleged criminal acts. Given the remoteness in time and Misties age at the time of the conduct, the court was well within its discretion in precluding their use for purposes of impeachment. (See People v. Burns (1987) 189 Cal.App.3d 734, 738.)

Relative to the criminal conduct of the defense witnesses, Esther, Kristy Barton, and Joyce Sherman, each of their crimes were crimes of moral turpitude. (See People v. Castro (1985) 38 Cal.3d 301, 317; In re Honoroff (1975) 15 Cal.3d 755, 758; People v. Navarez (1985) 169 Cal.App.3d 936, 949.) And while it can be argued that the 1993 petty theft conviction of Kristy Barton may be remote, it cannot be said that the court abused its discretion in allowing its use, especially in light of the 1999 charge of possession for sale. Again, we find no error.

Esther had been convicted of transportation for sale of 150 pounds of marijuana. Kristy Barton and Joyce Sherman had each been convicted of possession for sale.

IV. DISPOSITION

The judgment is affirmed.

We concur:

Ramirez, P.J.

Miller, J.


Summaries of

People v. Probus

Court of Appeal of California
Jul 30, 2008
No. E041799 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Probus

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES R. PROBUS, Defendant and…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. E041799 (Cal. Ct. App. Jul. 30, 2008)

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