Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. SA064198-01, Cynthia Rayvis, Judge
Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Philip Joseph Rivera appeals from a judgment entered following his conviction by a jury of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor vandalism. (§ 594, subd. (a).) As to the attempted voluntary manslaughter conviction, the jury found true an allegation that appellant had personally used a deadly weapon. (§ 12022, subd. (b)(1).) As to the attempted voluntary manslaughter conviction and one of the assault convictions, the jury found true an allegation that appellant had inflicted great bodily injury. (§ 12022.7, subd. (a).) Appellant admitted allegations of two prior prison terms (§ 667.5, subd. (b)) and one prior serious felony within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) He was sentenced to prison for 10 years.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court erroneously excluded the prior felony convictions of two prosecution witnesses: David Gamboa and Elias Carillo. The convictions were offered to impeach their credibility. In addition, appellant contends that the trial court abused its discretion in denying his motion to strike his 1980 prior serious felony conviction for attempted robbery. We affirm.
Facts
David Gamboa looked out the window of his residence and saw appellant yelling, "I want to fucking kill someone." Appellant punched out the window of a truck that belonged to Gamboa's neighbor, Keith Boelter. Gamboa told Boelter about the window. Gamboa then went outside and confronted appellant. When Gamboa asked him why he had broken the window, appellant hit Gamboa in the face with a closed fist. At that point Gamboa noticed that his friend, Elias Carrillo, "was right there." Carrillo punched appellant in the side. Jeff Jenkins who lived nearby was also present.
Gamboa was the victim of the attempted voluntary manslaughter and one of the assaults with a deadly weapon. Boelter was the victim of the other assault. The vandalism conviction was based on the breaking of the window.
Appellant pulled out a knife and threatened to kill Gamboa.
Boelter gave a hockey stick to Gamboa, who used it to prevent appellant from lunging forward with the knife. Appellant again threatened to kill Gamboa and called Boelter "a fucking white boy." Appellant swung his knife "a couple of times" at Gamboa. Gamboa swung the hockey stick at appellant's hand that was holding the knife.
Gamboa's wife drove her car to the location and asked Gamboa to get inside. As Gamboa was "trying to get into the car," appellant stabbed a tire with the knife. The tire deflated. Using the hockey stick, Gamboa tried to knock the knife out of appellant's hand. Appellant rushed toward Gamboa, pushed him to the ground, got on top of him, and stabbed him with the knife. Gamboa let go of the hockey stick. Carrillo picked it up and hit appellant on the head and shoulders with it. According to Jenkins, Carrillo "hit him so hard, he actually broke the hockey stick on the back of his head." After the hockey stick broke, Boelter pulled appellant off of Gamboa. Appellant "turned around and lunged the knife at [Boelter]." Appellant screamed, "Fuck you. I'm going to kill you."
Gamboa suffered one stab wound to the back of his head, one stab wound to his leg, one stab wound to his arm, and two stab wounds to his upper body. One of the stab wounds punctured Gamboa's lung.
The defense theory was that appellant had acted in self-defense. Defense witnesses testified that they had seen appellant being attacked by three men, one of whom was hitting appellant with a hockey stick. Appellant did not testify.
The defense theory was partially successful. Appellant was charged with attempted murder, but he was convicted of attempted voluntary manslaughter. The conviction was based on a theory of imperfect self-defense. "[W]hen a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of 'imperfect self-defense' applies to reduce the killing from murder to voluntary manslaughter. [Citations.]" (People v. Cruz (2008) 44 Cal.4th 636, 664.)
Exclusion of Felony Convictions of Prosecution Witnesses
"Any prior felony conviction that 'necessarily involve[s] moral turpitude' is admissible to impeach a witness's testimony. [Citation.]" (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.) "Moral turpitude involves a ' "readiness to do evil" ' which will support an inference of a witness's readiness to lie. [Citation.]" (People v. Garrett (1987) 195 Cal.App.3d 795, 798.) "[A] conviction is inadmissible... if it does not necessarily involve moral turpitude. [Citation.] Whether a conviction involves such turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions. [Citations.]" (People v. Collins (1986) 42 Cal.3d 378, 389-390.)
Pursuant to Evidence Code section 352, a trial court has discretion to exclude a prior felony conviction that necessarily involves moral turpitude if its "probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time." (People v. Wheeler (1992) 4 Cal.4th 284, 295.) "The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Id., at p. 296.) A court's exercise of discretion under section 352 "will not be disturbed except on a showing [that it] exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Carrillo
Carrillo had a prior felony conviction that indisputably involves moral turpitude: second-degree burglary. (§§ 459, 460.) Appellant contends that the trial court abused its discretion in ruling that this conviction could not be used to impeach Carrillo's credibility.
The conviction occurred in 1997 when Carrillo was 22 years old. After the conviction, Carrillo had a clean record except for one conviction for driving under the influence. The court excluded the conviction because its probative value was substantially outweighed by its prejudicial impact. The court reasoned: "[I]t's substantially more prejudicial than probative under a balancing test and [Evidence Code section] 352; specifically, that the witness is in his early 30's. Therefore, this conviction occurred about one-third of his life ago, approximately 10 years ago. Since then he's gotten one misdemeanor conviction and a D.U.I."
The trial court did not abuse its discretion. "There is no consensus among courts as to how remote a conviction must be before it is too remote. [Citation.]" (People v. Burns (1987) 189 Cal.App.3d 734, 738.) A "ten-year-old felony conviction... is closer to the concept of a remote felony conviction than it is to that of a recent felony conviction." (People v. Newton (1980) 107 Cal.App.3d 568, 574, fn. omitted.) Carrillo had not led a legally blameless life after the burglary conviction. Moreover, in determining whether to exclude Carrillo's prior felony conviction, it was "reasonable" for the trial court "to consider [his] age at the time the previous crime was committed." (People v. Burns, supra, 189 Cal.App.3d at p. 738.) Thus, the trial court did not exercise "its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Gamboa
In June 2001 Gamboa pleaded guilty to a felony violation of section 12021, subdivision (d)(1): possession of a firearm in violation of an express condition of probation prohibiting such possession. Gamboa had been placed on probation in a misdemeanor case. The trial court refused to admit the prior conviction to impeach Gamboa saying: "The court finds that it is not a crime of moral turpitude in that there is no apparent readiness to do evil with that charge, without more, and also the court is taking into account the fact that it is 6 years old, Mr. Gamboa appears to be fairly young."
Appellant argues that the trial court erroneously excluded the prior conviction because a violation of section 12021, subdivision (d)(1), is a crime of moral turpitude. (AOB 45-46) In support of his argument, appellant cites People v. Garrett, supra, 195 Cal.App.3d 795, and People v. Littrel (1986) 185 Cal.App.3d 699. The Garrett court concluded that a violation of a federal statute prohibiting possession of an unregistered firearm was a crime of moral turpitude. The court reasoned: "The federal statute is... directed at 'weapons of crime, violence and destruction.' [Citation.] Notably excluded from the definition of 'firearms' subject to regulation are those weapons which commonly are possessed for an 'innocent' purpose: antique weapons, pistols and revolvers having rifled bores, weapons intended to be fired from the shoulder, and firearms incapable of discharging a shot. [Citation.] The weapons required to be registered... are insidious instruments normally used for criminal purposes. Their mere possession in violation of the statute is indicative of a 'readiness to do evil.' " (People v. Garrett, supra, 195 Cal.App.3d at 800.)
In People v. Littrel, supra,185 Cal.App.3d 699, the court concluded that possession of a concealable firearm by a felon (former § 12021, subd. (a)) is a crime involving moral turpitude. The court reasoned: "[T]he State of California has decreed that it recognizes no legitimate use of a concealable firearm by a convicted felon. The statute is based on the theory that a convicted felon has, by his prior conduct, demonstrated that if he comes into possession of a concealable firearm, he will use it to do evil." (Id., at p. 703.)
In 1989, Penal Code section 12021, subdivision (a), was amended to provide that a convicted felon is guilty of a felony if he possesses any firearm. (Stats. 1989, ch. 1044, § 3; see also People v. Mills (1992) 6 Cal.App.4th 1278, 1282.)
Garrett and Littrel are distinguishable. Section 12021, subdivision (d)(1), provides that it is a crime to possess "any firearm" in violation of an express condition of probation. The term "any firearm" includes "weapons which commonly are possessed for an 'innocent' purpose," such as antique firearms. (People v. Garrett, supra, 195 Cal.App.3d at 800.) Unlike the federal statute in Garrett, section 12021, subdivision (d)(1), does not encompass only "insidious instruments normally used for criminal purposes." (Ibid.)
Furthermore, unlike the state statute in Littrel, section 12021, subdivision (d)(1), applies to persons on misdemeanor probation who are not convicted felons. In the generality of cases, it cannot be said that a misdemeanant "has, by his prior conduct, demonstrated that if he comes into possession of a concealable firearm, he will use it to do evil." (People v. Littrel, supra,185 Cal.App.3d at p. 703.) "The law presumes the danger is greater when the person possessing the concealable firearm has previously been convicted of felony, and the presumption is not impermissible. [Citation.]" (People v. Bell (1989) 49 Cal.3d 502, 544.) Moreover, former section 12021, subdivision (a), applied only to concealable firearms, while section 12021, subdivision (d)(1), encompasses "any firearm" irrespective of whether it is concealable.
Nevertheless, appellant contends that Gamboa's possession of a firearm evinced "a readiness to do evil" because he "broke his promise pursuant to the law under his grant of probation not to possess a gun." We need not decide whether a violation of section 12021, subdivision (d)(1), is a crime of moral turpitude because it involves the breach of an express condition of probation. If it were a crime of moral turpitude, its exclusion here would not have constituted an abuse of discretion under Evidence Code section 352. In making its ruling, the trial court took into account Gamboa's youth and the age of the conviction. These are proper factors to be considered when a court exercises its discretion to admit or exclude a prior felony conviction. (See People v. Burns, supra, 189 Cal.App.3d at pp. 737-738.) Since the trial court considered these factors, we reject appellant's contention that it "did not undertake any Evidence Code section 352 analysis." Appellant presented no evidence that Gamboa had failed to lead a law-abiding life during the six years after his conviction. In addition, appellant presented no evidence of the details of the crime to show that it evinced a readiness to do evil. We do not know what type of firearm Gamboa possessed, whether it was loaded, or where he possessed it.
Finally, Gamboa's crime did not involve dishonesty. "Despite the fact that a conviction need only involve moral turpitude to be admissible, it is undeniable conviction of a crime involving dishonesty is more probative of veracity than" conviction of a crime not involving dishonesty. (People v. Burns, supra, 189 Cal.App.3d at p.738; see also People v. Castro (1985) 38 Cal.3d 301, 316 ["Naturally, the more tenuous the court finds the connection between the moral defect shown by the conviction and the only defect directly relevant - dishonesty - the more likely it is to disallow impeachment"].) In these circumstances, the trial court did not exercise "its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Even if the trial court had erroneously excluded Gamboa's prior felony conviction, any state-law error would have been harmless under the "reasonable probability" test of People v. Watson (1956) 46 Cal.2d 818, 836, and any federal constitutional error would have been harmless under the "beyond a reasonable doubt" test of Chapman v. California (1967) 386 U.S. 18, 23-24 [87 S.Ct. 824, 17 L.Ed.2d 705]. Gamboa's testimony was substantially corroborated by the testimony of three witnesses: Carrillo, Boelter, and Jenkins. The jury determined that these three witnesses were credible, and the admission of Gamboa's prior felony conviction would not have affected their credibility.
Motion to Strike Prior Serious Felony
Appellant contends that the trial court abused its discretion in denying his motion to strike the prior serious felony conviction. In exercising its discretion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit,... and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161; accord, People v. Garcia (1999) 20 Cal.4th 490, 503.) We will uphold the court's exercise of discretion unless it " 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams, supra, 17 Cal.4th at p. 162.) The appellant must " 'clearly show that the sentencing decision was irrational or arbitrary.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The trial court did not abuse its discretion. The present crime involved the use of a deadly weapon and infliction of great bodily injury. Although the serious felony conviction occurred in 1980, it is not remote because since then appellant has repeatedly committed criminal offenses. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) In 1983 he was convicted of burglary and sentenced to state prison. He was convicted of felonies in 1985 and 1991 and of misdemeanors in 1984, 1988, 1989, 1993, 1995, 1996, 2000, and 2004. Moreover, appellant violated parole on both the serious felony offense and the 1983 burglary. The probation report states that an expert on criminal street gangs identified appellant as "an 'admitted' Sotel gang member" since 1995. The expert opined that appellant's "actions in this matter benefited the gang because [he] was using fear and intimidation to get 'respect' by not backing down from a fight, then by stabbing the victim to insure all watching saw how 'Sotel' retaliates." In view of the violent nature of the present crime, as well as appellant's extensive criminal record, parole violations, and gang affiliation, the trial court reasonably concluded that he did not fall outside the "spirit" of the "Three Strikes" law. (See People v. Williams, supra, 17 Cal.4th at p. 161.)
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.