Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. VA080371 John A. Torribio, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Mary Sanchez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Peter Reed of voluntary manslaughter and found true a gun enhancement allegation. Before trial, defendant moved to dismiss the charges based on alleged outrageous police conduct in connection with the destruction or misplacement of evidence. The trial court denied the motion, but did grant an evidentiary sanction in defendant’s favor. Defendant now appeals. His primary argument is the court erred in denying the dismissal motion. He also argues that there is insufficient evidence to support his conviction for voluntary manslaughter; that the court erred in admitting evidence of uncharged acts; that he was denied a fair trial because the court refused to let him go to the bathroom; and the trial court erred in imposing upper term sentences. We disagree with these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The shooting of Enrique Alvarez.
Around 3:00 p.m. on December 31, 2003, Jeff Nikolectich was leaving the Olivewood apartment complex where he lived. As he drove out of the complex, he saw defendant unsuccessfully try to catch the complex’s security gate before it closed. Nikolectich also noticed that Enrique Alvarez’s garage door was open and that Alvarez’s car was inside.
Nikolectich’s testimony was introduced via stipulation.
About the same time, Alvarez, Myrna Cisneros, and their two young children, Erwin and Marini, were walking to the garage in the Olivewood apartment complex, where they lived. Alvarez, a security guard, was on his way to work. He wore pants and a shirt, and he carried a badge that said “Detective Badge, State of California Anti-Crime Lab Unit 832.” He had a jacket, but he was not wearing it. He was not wearing a holster or gun belt. According to Cisneros, Alvarez owned two guns, but he was not carrying either of them that day.
Defendant, who was wearing a jacket, was outside the security gate. Defendant asked Alvarez to open the gate, but Alvarez refused. Defendant said he was looking for someone, but he also said he lived at the complex. Defendant jumped over the gate and approached Alvarez and his family. Defendant pointed at Alvarez and said he knew where Alvarez lived and would look for him later. Alvarez walked to defendant and asked why he was saying these things. Alvarez got into a boxing stance, and defendant put his hand inside his jacket.
Cisneros saw defendant put his hand inside his jacket. She then heard a first shot, and Alvarez grabbed his side. She saw Alvarez and defendant holding a single gun, struggling over it. Alvarez pushed defendant out of the garage. Cisneros thereafter heard arguing and a second shot. Alvarez yelled, telling Cisneros to call 911, and Cisneros then heard more shots.
Erwin saw his father “jump back” and defendant pull out a gun. Alvarez tried to put his arm around defendant’s waist, and he tried to hit the gun away from him. A shot was fired, and Alvarez grabbed his stomach. Erwin’s mother pulled him away. He then heard four gunshots.
Alvarez suffered three gunshot wounds. He was shot in the face, neck, lower front chest, and right shoulder, although his shoulder wound was superficial. The gun was in contact with Alvarez’s skin when he was shot in the face. The gun was most likely between six inches and two feet from Alvarez when he was shot in the neck. Alvarez died from multiple gunshot wounds. A bullet was recovered from Alvarez’s body.
Helder Demelo was exiting his garage when he saw two men wrestling. Demelo went to his apartment, at which time defendant ran in his direction. Defendant held something wrapped in what appeared to be flannel or a shirt; it was a gun. The gun appeared to be a nine-millimeter stainless steel automatic. Demelo got the impression that the gun had jammed, because defendant made a sliding motion on the gun. Defendant said, “ ‘I’m going to call my mamma.’ ” Defendant turned and ran back. Demelo heard four shots, a pause, and one more shot. From photographs and at trial, Demelo identified defendant as the man he saw. At one point during the incident Demelo heard defendant say, “ ‘get off of me.’ ”
From inside her Olivewood apartment, Tamara Brooks heard a “pop” sound. Looking out of her window, she saw Cisneros and her children. Cisneros asked Brooks to call 911. Brooks also saw defendant and Alvarez “tussling.” Alvarez wore a shirt and pants, and defendant wore pants and a jacket. Alvarez had pulled defendant’s jacket partially off him. Alvarez was saying “ ‘what are you doing,’ . . . ‘leave me alone,’ ” and it appeared to Brooks like Alvarez was trying to push defendant off or away.
Asha Wilborn was also inside her apartment when a noise caused her to look out her window. She saw two men “standing up, kind of holding each other and struggling in what I perceive[d] to be an aggressive manner.” One man, who was Hispanic, was wearing a white shirt, and there was a “hole of blood” on it. She heard someone say something to the effect of, “ ‘I told you to leave me the fuck alone’ ” or “ ‘Didn’t I say leave me the fuck alone,’ ” after which she heard a series of gunshots. That night she identified defendant.
She might have told a police officer that it was the Black man who said this.
Ron Barton was also inside his apartment, which had a window facing the complex’s parking lot. He heard two people arguing and a gunshot. One person said either “ ‘leave me alone’ ” or “ ‘get away,’ ” and the other person said, “ ‘I’m tired of you fucking with me.’ ” Barton then heard three or four more gunshots.
During these events, Woon Hak Paek was in a hallway in the apartment complex. He heard a gunshot. A few minutes later he saw a person holding a gun running. The person went out of Paek’s view, and Paek heard a clang and clash. When the person came back into view, Paek saw him go to the second floor. Later that day, Paek identified defendant as the person he saw.
Following a blood trail leading to an apartment in the Olivewood complex, officers found defendant later that night. He had a gunshot wound on his left arm. He did not have any gunshot residue on his hands.
A Lorcin nine-millimeter caliber semiautomatic gun was found hidden in a Christmas tree by a dumpster. Expended Speer brand nine-millimeter ammunition was also found. The gun was registered to a person in Monroe, Georgia, and it had been reported stolen. Officers also found a fleece jacket with interior pockets. No fingerprints were recovered from the gun, cartridge cases, live round, and magazine recovered from the scene. Casings recovered at the scene and a bullet from Alvarez’s body were fired from the Lorcin. Alvarez had two guns registered in his name: a Beretta .40 caliber and a Smith and Wesson .40 caliber.
About six months after Alvarez died, Cisneros asked the investigating officer, Kevin Lowe, to help her open a toolbox containing Alvarez’s guns. Lowe had the box opened. Inside were two guns and bullets, some loose and some in a small box. Lowe bought the guns and the bullets for $600. He bought one box of nine millimeter ammunition and three boxes of .40 caliber ammunition. Lowe felt sorry for Cisneros and was trying to help her out. Cisneros’s sale of the guns and ammunition to Lowe was not documented in the murder book, but Lowe did document the sale in his notes. Between one page dated January 5, 2004 and another page dated January 14, 2004 in Lowe’s notes is a page dated July 9, 2004 noting that Lowe bought two guns, although Lowe mistakenly identified one gun as a nine-millimeter. Lowe did not consider the guns and ammunition to be evidence. Lowe testified that he was never taught not to enter into financial transactions with witnesses.
B. Defendant’s testimony.
Defendant testified on his behalf at trial. In December 2003, defendant lived at the Olivewood apartment complex. He did not, however, have a key to the apartment or an electronic clicker to open the security gate. During the morning of December 31, 2003, he was with his family in Norwalk. He returned around 3:00 p.m., but he went to a Circle K near Olivewood. He bought a bottle of wine.
Returning to the apartment complex, he tried to catch the security gate as a car came out, but he missed it. He put down the wine bottle so that he could jump over the security gate to get into the complex. Alvarez asked him what he was doing, and defendant asked Alvarez to open the gate. Alvarez told him to go the main gate. Defendant instead waited for Alvarez to disappear from view before he jumped over the gate and retrieved his wine bottle.
He began to walk to his apartment, but he saw Alvarez starring at him. Defendant stared back. They shouted at each other. They shoved each other. Alvarez took off his jacket and rolled up his sleeves. He came towards defendant with a badge in his hand, yelling “police” repeatedly. Alvarez got close to defendant’s face. Defendant saw that Alvarez had a gun tucked into the front of his pants, so defendant turned to walk away, but Alvarez grabbed him. Defendant turned and swung the wine bottle at Alvarez. Alvarez pointed his gun at defendant and told him to stop; defendant threw the wine bottle at Alvarez. Defendant grabbed Alvarez’s hand holding the gun, and they tussled.
Defendant was shot. Defendant had three injuries: a “through and through” injury to his left arm, a laceration on his left finger (approximately a quarter inch cut), and an abrasion to his left elbow.
Particles consistent with gunshot residue were found on Alvarez’s hands.
On June 21, 2002 and on November 9, 2002, defendant committed theft-related offenses.
II. Procedural background.
Defendant was charged with first degree murder. Trial was by jury. On June 12, 2007, the jury found defendant not guilty of first degree murder and of second degree murder. But the jury found him guilty of voluntary manslaughter (Pen. Code, § 192). The jury also found true a gun enhancement allegation under section 12022.5, subdivision (b). On July 2, 2007, the trial court sentenced defendant to the high term of 11 years for voluntary manslaughter and to the high term of 10 years on the gun enhancement.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
I. Defendant’s due process rights were not violated by police officer’s conduct.
Defendant contends that his due process rights were violated when the investigating police officer engaged in outrageous conduct, but the trial court refused to dismiss the charges. We disagree that dismissal was warranted.
A. Additional facts.
The preliminary hearing took place on June 15, 2004. Deputy Sheriff Kevin Lowe, the investigating officer, was present during and testified at the hearing. During cross-examination, he was asked questions about his investigation into who owned the gun used to kill Alvarez. Lowe said it was registered to a man living in Georgia. At the conclusion of testimony, defense counsel asked the court to consider a self-defense argument.
Thereafter, on January 5, 2007, defense counsel reported to the trial court that defendant had discovered a discrepancy between the murder book and Lowe’s notes. Page 415 of the notes listed serial numbers of two guns, which according to an Automated Firearms System printout in the murder book belonged to the victim. The guns and ammunition, which included nine-millimeter ammunition, were discovered in the victim’s home and turned over to Lowe, but they were not given to the prosecution or the defense. Apparently, the nine-millimeter ammunition had been destroyed. The defense therefore requested a hearing to take testimony so that it could prepare the appropriate sanctions motion.
The trial court held an evidentiary hearing. Detective Dan McElderry, along with Lowe, investigated Alvarez’s death. McElderry testified that the murder book does not mention that Lowe purchased guns and ammunition from Cisneros that belonged to the victim. The two guns Lowe bought were .40 caliber guns, but Lowe mistakenly wrote in his notes that one of the guns was a nine-millimeter gun. Lowe told McElderry he did not know what he did with the nine-millimeter ammunition he bought from Cisneros; he didn’t know if he took it to the desert with his nephew and shot it there.
Lowe also testified at the evidentiary hearing. While investigating a homicide, he keeps handwritten notes. In between pages dated January 5, 2004 and January 14, 2004 is an entry he dated July 9, 2004 concerning his purchase of guns and ammunition from Cisneros. According to Lowe, on that date, Cisneros told him she had a toolbox that she thought had guns in it. Unable to find the key, Lowe opened the toolbox with bolt cutters. Two guns and four boxes of ammunition were inside (one box of nine-millimeter caliber and three boxes of .40 caliber ammunition). The nine-millimeter ammunition were Remingtons, lead nose rounds. Lowe was certain they were Remingtons because they were in a green and yellow box. The ammunition used to kill Alvarez was Speer brand. After buying the guns and ammunition from Cisneros, Lowe locked up the guns at the homicide bureau, but he eventually took them home. He never reregistered the guns in his name. Lowe no longer has the nine-millimeter ammunition, and he is not sure what happened to it. A possibility is he used them.
Cisneros sold the guns to Lowe for $600. She needed money. She talked about going to Mexico because she could not afford to stay in the United States. Lowe did not condition giving Cisneros the money on her testifying a certain way or doing anything in the case. He bought the items because she was jobless, had two kids and needed money; he felt sorry for her.
Lowe did not prepare a report about this incident because he did not think the box of nine-millimeter ammunition was evidence. But Lowe did include a reference to the guns in his notes.
After the evidentiary hearing, defendant filed two motions: (1) a motion to dismiss the charges or, alternatively, to exclude evidence and (2) a motion to dismiss for outrageous police conduct. At the hearing on the motions, defense counsel asked, as an alternative to dismissal, that the prosecution not be allowed to introduce evidence regarding the brand of the nine-millimeter ammunition. Only the caliber of the ammunition—nine millimeter—would be admitted, thereby allowing the defense to create an inference that because the victim was shot with a nine-millimeter gun and nine-millimeter ammunition was found in his home, the gun belonged to the victim, not to defendant.
The trial court did not find that Lowe acted in bad faith, and therefore denied the motions to the extent they requested dismissal. The court granted the motions to the extent they requested a sanction or exclusion of evidence. Specifically, the court excluded evidence of the brand or make of the nine-millimeter ammunition found at the victim’s home.
B. Defendant was not entitled to a dismissal of the charges.
Defendant now contends that the trial court erred by denying his dismissal motion. He argues it should have been granted because Lowe’s conduct was in bad faith and outrageous, and it deprived him of his due process rights. The trial court correctly denied the motion to dismiss.
“ ‘ “Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ (California v. Trombetta (1984) 467 U.S. 479, 488; accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ (Arizona v. Youngblood (1988) 488 U.S. 51, 57.) In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ [Citations.]” ’ ” (People v. Farnam (2002) 28 Cal.4th 107, 166.) Because the question whether evidence was destroyed in bad faith is essentially a factual one, we review a trial court’s finding of good or bad faith for substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 831.)
Substantial evidence supports the trial court’s conclusion here that Lowe did not act in bad faith. Lowe and Cisneros testified that she approached him about the guns. Cisneros told Lowe she needed money, and Lowe stated that he felt sorry for her and wanted to help her out. Both denied that the money was conditioned on an expectation she would testify in a certain way. Also, that Lowe gave Cisneros a receipt for the guns and ammunition and referenced the serial numbers of the guns he bought in his notes tends to undercut the suggestion he intended to conceal it. Lowe also explained that he might have used the nine-millimeter ammunition, but he could not specifically remember what he did with it. While this evidence might certainly support a conclusion that Lowe exercised bad judgment, it nonetheless constitutes sufficient evidence to support the trial court’s conclusion that Lowe did not act in bad faith. We cannot equate bad judgment with bad faith.
And, aside from the issue of bad faith, we also believe that defendant places too much emphasis on the exculpatory nature of the destroyed or lost evidence. Assume for the sake of argument that the nine-millimeter ammunition found in the victim’s home was indeed the same brand as the casings and bullet recovered from the crime scene and the victim’s body: The evidence would not have exonerated defendant. Certainly, the evidence would (1) undercut the prosecution’s theory that the gun belonged to defendant and (2) support defendant’s position that the gun belonged to the victim. If the gun belonged to the victim, this in turn undercuts the prosecution’s theory of first degree murder; defendant was less likely to have premeditated if the gun was not his. Nonetheless, the ammunition would have only allowed the defense to create an inference. Defendant could have still used the gun to kill Alvarez, either under a first degree or voluntary manslaughter theory.
Defendant, however, makes the additional argument that Lowe’s conduct was “so outrageous as to interfere with [the] accused’s right of due process of law.” (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429.) In Boulas, the district attorney’s office and police officers interfered with the defendant’s constitutional right to counsel, primarily by telling him a plea bargain could be reached if he replaced his current counsel with one approved by the district attorney. (Id. at p. 426.) Boulas found that the defendant was “seriously prejudiced” by the government’s intrusion into his constitutional rights, in that he lost his attorney of choice. Dismissal of the charges was the remedy. (Id. at p. 435.) The court said, “Dismissal is, on occasion, used by courts to discourage flagrant and shocking misconduct by overzealous governmental officials in subsequent cases.” (Id. at p. 429.)
The facts before us do not present an occasion warranting dismissal. “[C]ourts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. ‘[N]ot every suppression of evidence requires dismissal of charges. . . . The remedies to be applied need be only those required to assure the defendant a fair trial.’ ” (People v. Zamora (1980) 28 Cal.3d 88, 99.) Defendant was not seriously prejudiced by Lowe’s failure to preserve the nine-millimeter ammunition found at the victim’s home even under the more stringent standard of Chapman v. California (1967) 386 U.S. 18. (See People v. Yeoman (2003) 31 Cal.4th 93, 126 [loss of evidence implicating a defendant’s due process right is reviewed under Chapman].)
Zamora was not an “outrageous police conduct” case per se. It concerned the destruction of records that deprived the defendant of the opportunity to find witnesses who might testify about the officers’ past use of excessive or unnecessary force. It was in this context that the court said trial courts have a large measure of discretion to fashion appropriate sanctions for the destruction of evidence. (People v. Zamora, supra, 28 Cal.3d at p. 88.)
Rather, the remedy the trial court imposed here ensured defendant a fair trial. The court precluded Lowe from testifying that the ammunition he bought was a different brand than the ammunition found at the crime scene. The defense thus was able to present to the jury evidence that (1) the victim was killed with a nine-millimeter gun and (2) nine-millimeter caliber ammunition was found at the victim’s home. The jury was therefore left with the inference that if the victim had nine-millimeter ammunition, he also owned a nine-millimeter gun. As we have said, the jury could have thus concluded that the gun belonged to the victim and not to defendant. Such an inference would undermine the prosecution’s first degree murder theory. And, indeed, the jury found defendant not guilty of that crime. Thus, the evidence sanction the court imposed was a good outcome for defendant’s case. Any prejudice defendant might have suffered as a result of Lowe’s conduct was therefore countered by the sanction.
We also note that the defense was allowed to, and did, examine Lowe about his conduct in connection with his purchase of the ammunition from Cisneros and his subsequent handling or mishandling of it.
II. Sufficiency of the evidence to support the conviction for voluntary manslaughter.
Defendant next contends that there is insufficient evidence to support his conviction for voluntary manslaughter. We disagree.
Under the substantial evidence standard of review, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘ “[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” ’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” ’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “ ‘ “Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” ’ ” (People v. Mayberry (1975) 15 Cal.3d 143, 150; accord, People v. Young (2005) 34 Cal.4th 1149, 1181.) If the verdict is supported by substantial evidence, we give due deference to the trier of fact and do not substitute our evaluation of a witness’s credibility for that of the fact finder. If the verdict is supported by reasonable, credible, and solid evidence, we must affirm the conviction. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Voluntary manslaughter has both a subjective element—that the killing actually was done in the heat of passion—and an objective element—that the heat of passion resulted from provocation “ ‘such that an average, sober person would be so inflamed that he or she would lose reason and judgment.’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 584, 585-586.) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ ” (People v. Barton (1995) 12 Cal.4th 186, 201.) If a person kills or attempts to kill in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter or attempted voluntary manslaughter, not murder or attempted murder. (People v. McCoy (2001) 25 Cal.4th 1111, 1116.)
Defendant frames his argument on appeal around evidence supporting his defense of self-defense; he argues that, based on the evidence, “no reasonable jury could reach any conclusion except that [he] acted in self-defense.” This is not the correct way to frame the issue. The issue is whether there is sufficient evidence to support the jury’s conclusion that defendant was guilty of voluntary manslaughter. There is. Specifically, Cisneros and Erwin testified that defendant approached them in anger after Alvarez, the victim, refused to open the security gate for defendant. Defendant threatened Alvarez, saying he knew where Alvarez lived. Erwin saw defendant pull out a gun. Cisneros saw defendant put his hand inside his jacket. Helder Demelo saw defendant, armed with a gun, turn and run back in Alvarez’s direction. Demelo then heard gunshots. Alvarez died, having suffered multiple gunshot wounds.
Defendant discounts Cisneros’s and Erwin’s testimony as “biased” because they are members of the victim’s family. Defendant instead credits his own testimony. Bias and credibility are, however, issues for the trier of fact. Defendant also points out that each witness confirmed that Alvarez and defendant fought, as well as to some evidence that defendant told Alvarez to leave him alone. There can be little doubt that Alvarez and defendant fought, but this simply does not guarantee defendant an acquittal based on self-defense. The jury rejected that defense, and instead found defendant guilty of voluntary manslaughter. Where, as here, there is sufficient evidence to support the voluntary manslaughter verdict, we will not disturb it.
III. Admission of defendant’s burglary charges.
Defendant next contends that the trial court erred in permitting the prosecution to reference his uncharged acts because, under Evidence Code section 352, the evidence was more prejudicial than probative. We disagree.
In a taped interview, defendant admitted to an FBI agent that he robbed five separate banks. The bank robberies were uncharged and defendant had not been convicted of them. Nonetheless, the prosecution sought to admit evidence of them. The trial court found that the conduct was admissible, but defendant argued that they should be excluded under Evidence Code section 352. The court said it would not allow the prosecution to reference all five robberies. Instead, the court limited the prosecution to referencing two—one in June 2002 and a second in November 2002—as thefts. The court also sanitized the robberies by precluding the prosecution from referencing the FBI. Thereafter, at trial, defendant admitted on direct examination that on June 21, “2003” and on November 9, 2002, he committed theft-related offenses.
It appears that the correct date of the robbery is June 2002.
“In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witness’s character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness. (Evid. Code, § 780.) 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 court’s discretion under Evidence Code section 352.” (People v. Harris (2005) 37 Cal.4th 310, 337.)
To determine the admissibility of a prior conviction, four factors should be considered: “(1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant’s decision to testify.” (People v. Castro (1985) 38 Cal.3d 301, 307.) Trial courts have broad discretion in ruling on the admissibility of prior convictions for impeachment purposes. (People v. Collins (1986) 42 Cal.3d 378, 389; see also People v. Clair (1992) 2 Cal.4th 629, 655 [trial court’s ruling on the admissibility of a prior conviction is reviewed for an abuse of discretion].)
The trial court here did not abuse its discretion. The court carefully considered the evidence of defendant’s uncharged acts, the five robberies. The court agreed they were relevant, but, exercising its discretion, sanitized them. To that end, the court permitted the prosecution to refer to the robberies as “thefts” and to use only two, not all five, of them. The court also did not let the prosecution get in the fact that defendant confessed to the FBI; instead, the prosecution was admonished to refer only to “law enforcement.”
The robberies—or “thefts”—were also relevant and more probative than prejudicial, applying the four Castro factors. First, it is undisputed that robbery is a crime of moral turpitude (People v. Jackson (1985) 174 Cal.App.3d 260, 266); therefore, the thefts reflect a lack of honesty and integrity and are relevant to defendant’s credibility. Second, the thefts were not remote in time to Alvarez’s death. The thefts occurred in 2002, and Alvarez was killed in December 2003. Third, the thefts are not substantially similar to murder. Where the crimes are similar, this heightens the potential for prejudice, because the jury may believe that if the defendant committed an act on one occasion he probably did so on this occasion. (People v. Beagle (1972) 6 Cal.3d 441, 453.) Fourth, it does not appear that admission of the prior convictions had a huge impact on the defendant’s decision to testify. Rather, all defendant says on appeal is he was “forced to admit from the stand” the thefts. He does not state what impact the trial court’s ruling admitting the evidence had on his decision to testify.
Superseded by statute as stated in People v. Castro, supra, 38 Cal.3d at pages 306-313.
Instead, defendant argues that he was prejudiced by the evidence because the case was close, as allegedly evidenced by the fact the jury asked several questions during deliberations. We do not think that the questions the jury asked—to review the murder book, the date of a witness interview, and for read back—show that the case was so close that admission of the thefts prejudicially tipped the balance. To the contrary, the reference to the thefts was brief, and as detailed above, sanitized. Also, defendant testified that he acted in self-defense, after Alvarez threatened him and approached him with a gun. That defendant had committed crimes of moral turpitude therefore went to his credibility. Moreover, the jury was instructed regarding how to consider the fact of a prior conviction. We therefore cannot conclude that the trial court abused its discretion in admitting evidence of the thefts.
The jury was instructed, “You have heard evidence that the defendant committed other criminal conduct. If this is a fact, it may be considered by you only for the purpose of determining the credibility of the witness. [¶] The fact of this other criminal conduct does not necessarily destroy or impair the defendant’s believability. [¶] It is one of the circumstances that you may consider in weighing the testimony of that witness.”
IV. The trial court’s refusal to let defendant take a bathroom break did not deprive him of a fair trial.
At the beginning of the court session on June 6, 2007, defendant asked to address the court personally. The trial court agreed to hold a hearing at which only defendant and his counsel were present. Defendant expressed disappointment with his trial counsel, who, defendant felt, did not make a good enough record concerning the issue of defendant’s uncharged crimes. He also said he was “very . . . upset over the fact that the case wasn’t dismissed regarding the destruction of the ammunition.” At one point during the hearing, defendant’s trial counsel asked to “say something so maybe I can calm him down a little before he testifies.” Defendant’s counsel proceeded to explain to him how the court had limited what the prosecution could use against him with respect to the theft case. When this short hearing ended, defendant asked if he could use the bathroom before they started. The court said, “No.” Detective McElderry took the stand. Soon after his testimony began, defendant began to sob. The court took a recess and noted, out of the jury’s presence, that defendant “broke down and is sobbing in an almost hysterical state.”
On appeal, defendant links his breakdown to the court’s refusal to let him use the bathroom. He then argues that the refusal to let him use the bathroom denied him his constitutional right to a fair trial because he was not allowed to take care of a basic human need. The record does not, however, show that the court’s refusal to let defendant go to the bathroom caused his breakdown as opposed to, for example, defendant’s unhappiness over the hearing that preceded McElderry taking the stand. Indeed, the transcript of the hearing that preceded defendant’s breakdown suggests that defendant was upset before the court denied his request to go to the bathroom. We therefore cannot find that defendant’s right to a fair trial was violated.
The only law that defendant cites to support this argument is the California Code of Judicial Ethics, canon 3(B)(4), which provides: “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity . . . .” On this record, the judge did not violate this canon.
IV. Defendant’s upper term sentences.
Defendant was sentenced to the upper terms for voluntary manslaughter and on the gun enhancement. He recognizes that we are bound by People v. Black (2007) 41 Cal.4th 799, 813, which held that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. Defendant’s argument on appeal therefore is (1) the trial court based the upper term sentence on the voluntary manslaughter conviction on an erroneous conclusion that defendant had prior convictions for violent crimes and (2) defendant is not a recidivist. He concludes that because he did not have prior convictions for violent crimes, the court must have relied solely on his recidivism to enhance both sentences. This was, he claims, an improper dual use of facts. As we explain, we disagree.
Defendant makes an additional argument that the trial court considered the uncharged bank robberies in imposing the upper term sentences. The record does not support that argument. The court did not reference the uncharged robberies when it explained its reasoning for imposing the upper terms. It only referenced those robberies during a discussion with defense counsel about whether prior convictions have to be proved beyond a reasonable doubt.
Before sentencing defendant to the high terms, the trial court said it did not consider that the crime involved great violence and the fact he was armed. The court did, however, take note that defendant had convictions in 1997 for disturbing the peace, in 1997 for two counts of misdemeanor terrorist threats, in 1999 for felony possession of concentrated cannabis, driving under the influence in 1999, a 2002 misdemeanor driving under the influence, and the present crime was committed while defendant was on probation. The court then said, “So all of those factors are in fact in existence. They outweigh any mitigating factors. There are no mitigating factors that the court can find. [¶] The court would be inclined to take the previous crimes of violence to select the high term on the voluntary manslaughter . . . [a]nd the balance of the factors select the high term on the use allegation . . . .”
These are borne out by the probation report, which we have reviewed.
Defendant thus first points out that although the trial court referred to his “previous crimes of violence” in fact defendant never suffered a conviction for a violent conviction. Defendant is correct that his prior convictions were not for violent crimes, as defined by section 667.5, subdivision (c). Nonetheless, defendant reads too much into the court’s reference to his “previous crimes of violence.” It is not clear that the court was using the word “violence” in reference to section 667.5, as opposed to generically. What is clear is the trial court was relying on defendant’s prior convictions to justify the upper term sentence for voluntary manslaughter. As defendant concedes, the Apprendi/Blakely/Cunningham formulation of the right to a jury trial simply does not apply to the fact of a prior conviction: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum” must be tried to a jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) The trial court therefore could properly rely on the fact of defendant’s prior convictions to impose the upper term sentence for voluntary manslaughter.
Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; and Cunningham v. California (2007) 549 U.S. 270.
Second, the trial court could properly rely on the fact that defendant was on probation when he committed the current crime to impose the upper term sentence for the gun enhancement. Defendant concedes that Courts of Appeal have found that a defendant’s status on probation and performance falls under the prior conviction exception or “recidivism” exception. (See, e.g., People v. Yim (2007) 152 Cal.App.4th 366, 371; People v. Velasquez (2007) 152 Cal.App.4th 1503.) He nonetheless argues that the United States and California Supreme Courts have not definitely ruled on the issue. The California Supreme Court did, however, interpret the “prior conviction” exception broadly in Black. The court found that whether a defendant’s prior convictions are numerous or of increasing seriousness falls under the exception and is easily determined by the record. (People v. Black, supra, 41 Cal.4th at pp. 819-820.) That defendant committed the current offense while on probation—a fact easily determined by the reference to the record—thus supports imposition of the upper term for the gun enhancement.
Defendant was placed on three years’ probation in 2002. Alvarez was killed in 2003.
Because we conclude that the trial court properly relied on defendant’s prior convictions to impose the upper term sentence for voluntary manslaughter and that he was on probation when he committed this crime to impose the upper term sentence for the gun enhancement, there is no error in defendant’s sentence.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.
Defendant cites People v. Smith (2003) 31 Cal.4th 1207, for the proposition, among others, that the standard of review of a claim of outrageous police conduct is de novo. We need not decide that question, because we decide the issue on the basis of no prejudice. And, in any event, Smith examined the defense of outrageous law enforcement in the narrow context of an entrapment claim, and the court merely declined to reach any conclusions concerning the viability of the defense in that context. (Id. at pp. 1223-1227.) Smith is therefore not applicable to the context before us.
Defendant suggests that the instruction should have been given immediately when defendant testified, but the court instead did not give it until the end of trial, with all of the instructions. We presume that the jury followed the jury instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Whether the instruction was given at the end of the trial or at some other point does not negate the presumption.