Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C149623.
Swager, J.
Defendant was convicted following a jury trial of sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)), three counts of forcible rape (§ 261, subd. (a)(2)), kidnapping to commit rape (§ 209, subd. (b)(1)), robbery (§ 211), and sodomy by use of force (§ 286, subd. (c)(2)), along with associated enhancements for commission of sex offenses upon multiple victims (§ 667.61, subd. (e)(5)), commission of multiple sex offenses upon each victim (§ 667.6, subd. (c)), commission of multiple violent sex offenses against separate victims (§ 667.6, subd. (d)), and kidnapping that substantially increased risk of harm to the victim (§ 667.61, subd. (d)(2)). The trial court found that defendant suffered prior convictions (§§ 261.5, subd. (d), 484/666, 667, subd. (a)(1), 667, subd. (e)(1), 1170.12, subd. (c)(1)), and served a prior prison term (§ 667.5, subd. (b)). He received a determinate term of 42 years, and an indeterminate term of 90 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant claims that the trial court failed to exercise its discretion under Evidence Code section 352 (hereafter section 352) to exclude prior convictions as impeachment evidence. We conclude that the record shows the trial court properly weighed the probative value of the impeachment evidence against its prejudicial effect, and did not err by admitting two of defendant’s prior convictions to impeach his testimony. We therefore affirm the judgment.
For the sake of confidentiality, we will refer to the victims and some of the other witness by their first names only, as the parties did at trial.
The Offenses Committed Against Katie Doe (Counts 1 through 4)
Katie left Gaylord’s Coffee Shop (Gaylord’s) on Piedmont Avenue in Oakland on the evening of November 6, 2004, to walk to her car, a 1989 Honda Civic, parked a couple of blocks away on a side street. As she opened the driver’s side front door, a man she identified as defendant approached the car and knocked on the passenger side window to get her attention. Katie was not acquainted with defendant, although she thought she may have seen him before at Gaylord’s. She rolled down the passenger window and inquired, “Can I help you?” Defendant replied that he was a “security guard at Gaylord’s,” and asked Katie if she “had lost $500.” Katie said no, but defendant continued to ask if she was “sure,” and attempted to convince her to claim the money.
Finally, Katie assented to split the money with defendant, and gave him her cell phone number, as he requested. Defendant left briefly, ostensibly to “go tell the managers at Gaylord’s,” as Katie waited in her car. While defendant was gone Katie decided not to take the money. Defendant called Katie on her cell phone to tell her the “managers would be calling” her and he “was on his way back” to her car. When defendant returned to the car Katie advised him, “I changed my mind. I really can’t take the money.”
As Katie proceeded to leave, defendant asked her for a ride back to Gaylord’s, and she agreed. When they reached Gaylord’s defendant said he lived “just over by the tea gardens.” Katie then realized that defendant wanted a ride home, but “he lived close” so she decided, “I guess I can do this.” Defendant gave her directions to a nearby apartment building. When they arrived there, defendant made a call and “said no one was home.” He asked Katie, “Could you take me to a friend’s house, it’s really close.” Katie drove defendant to another apartment building about two minutes away. After defendant again made a phone call he asked her to take him to “this girl’s grandmother’s house” to meet his friends. Once more, she agreed. As they drove and talked, Katie thought defendant was not threatening and “seemed like a nice guy.”
They reached a house about two minutes away. Defendant went upstairs momentarily before he came back to the car and asked Katie to wait five minutes for his friends to arrive. As they sat in the car and smoked cigarettes, defendant suddenly grabbed Katie’s ponytail, yanked her head hard onto the seat, and held her down with his other arm across her neck and shoulders. When Katie struggled, defendant warned her, accompanied with a gesture to his pocket, “Don’t do that again, I’ll cut you.” He added: “Just go along with this. I just need to go somewhere. If you get me where I need to go then you’ll be fine.”
Katie began crying as defendant forced her to switch seats with him. He reclined the passenger seat to a flat position, then directed Katie to tighten her seat belt and pull her jacket over her face. Defendant repeatedly asked Katie if she had any weapons, and searched her purse. After talking to someone on the phone he also told her, “Take off your heels.”
Defendant stopped the car after driving about half an hour. Katie removed the jacket from over her face, but did not know where they were. Defendant told Katie to remove her pants so he could search her, and get on her hands and knees facing the rear of the car. When she did so, defendant began fondling her with his “finger inside [her] vagina.” Despite Katie’s continued crying and repeated requests for defendant to stop, he told her “to turn over” onto her back, put on a condom, and raped her.
After only a few minutes defendant stopped and got back in the driver’s seat. He told Katie to put her pants back on, then searched through her purse again. Defendant took Katie’s driver’s license from her purse and relayed the information from it to someone over phone. Defendant warned Katie, “Don’t tell anybody, I’ll find you. My friend will find you. I know where you live.” He also took Katie’s “Merritt College I-D Card,” which he put it in his pocket.
Defendant then started the car and began driving. As defendant drove he made more phone calls. Defendant repeated the threat to Katie that if she “told anybody” she or her family would be hurt. After driving down a hill defendant stopped and told Katie, “I’m getting out. Don’t look back.” After defendant walked away Katie “got into the driver’s seat and took off.”
Once Katie realized her location she drove directly to Alta Bates Hospital to “report what happened” and “get a rape kit.” On the way, she called her mother Barbara and boyfriend Solomon. Katie sounded “almost hysterical” to Barbara. She told Barbara “she had just been raped and was on her way to Alta Bates.” Solomon testified that Katie was “frantically screaming” and “sobbing;” she “kept repeating” that “he raped me.”
As she drove to the hospital Katie also received a call from defendant, who reiterated to her “not to tell anybody.” While Katie was in the Alta Bates Hospital waiting room defendant called her again, “just checking up” on her. He told her “if he ever called” she “had to answer the phone,” and again warned her, “Don’t tell anybody.”
Katie was transported to Highland Hospital for a sexual assault examination and tests. She also gave a statement to Officer William Bardsley of the Oakland Police Department. Officer Bardsley and Katie’s mother Barbara testified that at the hospital Katie was very upset, scared, shaking and crying. Katie gave Officer Bardsley an overview of the incident, followed by a more detailed statement, and clear description of the rape suspect. She “said she could definitely identify this individual.”
Expert opinion testimony was presented that the results of the sexual assault examination of Katie revealed tears in her vaginal tissue that were “consistent with sexual assault” committed with the victim on her back. The “single source” DNA profile of sperm cells taken from the vaginal swabs of Katie’s examination was “a match” with defendant’s profile in the CODIS system and oral samples taken from him after his arrest.
CODIS is the acronym for the Combined DNA Index System maintained by law enforcement.
Once defendant’s identity was obtained through the DNA results matched with the CODIS database, his cell phone records were searched. The phone records showed that on the night of November 6, 2004, to the early morning hours of the next day defendant made a total of 16 calls to Katie.
A lineup of six photographs was subsequently displayed to Katie. She identified defendant’s photo as the man who raped her; she was “75 percent” sure of her identification. She was “a hundred percent sure” of her identification of defendant at trial.
Defendant was arrested on November 29, 2004, when he came to the police department after he was told he needed to complete “some paperwork” on an “investigation of a prior rape case in October of 2004.” A search of his car uncovered “a slip of paper” with “S. Doe’s personal information and name written” on it. Investigators were aware that Katie reported defendant had taken her personal information from her purse, and were concerned there may be “another victim.”
Because of the serious nature of the case the police used a “ruse” to lure defendant to the police station.
Immediately following his arrest defendant gave a statement to the police in which he denied that he ever met Katie, or was familiar with the Piedmont Avenue area of Oakland. After defendant agreed to have DNA samples taken from him, he gave another statement in which he acknowledged he had “seen a couple women,” but insisted he had “not raped anybody.” Defendant admitted that he “lied” during the first interview, because his girlfriend was with him and he was “scared.”
Evidence was also offered of two threatening telephone calls made to Katie at her residence around 11:00 on the night of January 29, 2006, after the case had already been set for trial and Katie had been subpoenaed to testify. The voice was that of defendant, although Katie was not sure of that at the time. In the first call, the man asked Katie for her mother Barbara. Katie responded, “Look, I don’t know who you are but don’t call this late.” The man called again and said he “was a friend of somebody” with a “message for Katie.” He asked, “did Gaylord’s ring a bell,” and mentioned that a “lot of lies were told.” He said that “they had an agreement” and she “should just let it go.” The caller also told her “this doesn’t need to get back to the police.” Katie represented to the caller that she was her sister, and said she would pass on the message. She considered the telephone calls threatening and was frightened. She immediately contacted the prosecutor and an investigating officer.
The calls were apparently placed by a friend of defendant, with defendant on the line from Santa Rita Jail. Recordings of the calls were played for the jury and transcripts of the recordings were provided.
The Offenses Committed Against S. Doe (Counts 5 and 6)
After investigating officers discovered the piece of paper in defendant’s car with S.’s name, date of birth, address, and other personal information, she was contacted. S. disclosed to the officers that she “had been assaulted” recently, and agreed to come to the police station for an interview. During the ensuing interview she provided a detailed statement of the assault to the officers. She also identified defendant from a photo lineup as “the one that raped” her.
S. testified at trial that she did not recall the precise date of the assault, but thought it occurred in August or September of 2004. Defendant responded one afternoon to S.’s newspaper advertisement “as an escort.” Defendant stated that he “wanted to see” her for an hour, and she quoted him a price of $300 for her services as a prostitute. They arranged to meet at the Jack London Best Western Hotel in Oakland. Defendant gave S. a room number. He told her he would be in the shower and leave the door open for her.
S. was driven to the Best Western Hotel by her boyfriend Jermaine. She arrived at the specified room and found the door open. Before she could enter defendant pushed her hard from behind into the room toward the bed. Defendant locked the door to the room and told S. to lie on her stomach on the bed. He also directed her to call her driver and state that she was “okay.” Defendant warned S. that if she did not comply “something bad was going to happen” to her. S. was frightened and did as defendant told her.
Once S. was on the bed defendant had her lift her shirt and skirt to search her for weapons. He examined S.’s purse to obtain identification information, and asked for her name, home address and Social Security number. S. was crying, so defendant told her to lie down again and “calm down.” At defendant’s direction S. took off her clothes and stiletto shoes. With S. on her back defendant then raped her. She attempted to push him away, but defendant pinned her hands against her chest and told her to “enjoy it and to calm down.” He then ordered S. to “get on top,” and she complied “because [she] was scared.” She continued to cry; defendant repeated his instruction “to enjoy it.”
After five minutes, defendant pushed S. onto her back, told her to close her eyes, and sodomized her for “a couple of minutes.” S. cried and struggled because “it hurt really bad,” but defendant immobilized her by holding her wrists to the bed above her head.
After the assault was over defendant told S. to “take a shower and clean” herself thoroughly. Defendant joined her in the shower, but did not touch her or say anything until he directed her to leave the shower and dress. Defendant told her to walk to the movie theater and call her ride “to come get” her. He cautioned S. “not to tell anyone” because he knew where she lived and “anything could happen” to her. The entire assault lasted about 30 minutes.
S. and defendant left the motel room together. Defendant took S.’s identification with him. She walked to the theater on Broadway; defendant ran across the street in another direction toward a car. When S. reached the theater she called her boyfriend Jermaine to report that she “was raped, so hurry up and come get” her. Jermaine drove S. to her own hotel room in Hayward, where she talked to her friend Kim about the incident. She also told her sister what happened that day. S. did not seek medical attention despite pain in her anus, although she did go to a Planned Parenthood clinic two weeks later for fear that she had “HIV or some kind of disease.”
Due to defendant’s threat and S.’s fear of him, she did not call the police to report the assault. She did not have any contact with the police until an investigator called her in March of 2005, after her personal information was discovered in defendant’s car. S. then came to the police station to view a photo lineup. From the six photographs displayed to her by an officer S. identified defendant’s photo, number 3. She also gave a taped statement to the officer.
After the assault defendant called S. at her cell phone number to tell her that he would return her identification and send her some money. About two months before trial, someone who identified himself as defendant’s friend called S. to tell her “not to testify, and that he’ll take care of it.” The called scared her, but “didn’t change anything.”
The Uncharged Acts Evidence
The prosecution also moved to admit evidence from “four other women” who were victims of uncharged prior sexual assault offenses. (Evid. Code, §§ 1101, 1108) The court granted the motion as to two of the victims: Alyssa Doe and J. Doe.
The evidence of the “Alyssa Doe incident” was found admissible only as to the alleged crimes committed against S.
The Testimony of Alyssa Doe
Alyssa, like S., was in the prostitution business in Oakland. On October 8, 2004, defendant responded to her newspaper advertisement using the name “Dre.” They arranged to meet in a room at the La Quinta Hotel in Oakland. As Alyssa reached the parking lot of the hotel defendant called to tell her he “was in the shower” and “the door was going to be open.”
Alyssa found the door open and heard the shower running, so she walked into the room. Defendant “popped from the side of the bed” at Alyssa. She screamed, whereupon defendant whispered to her “to be quiet, don’t scream,” or “something’s going to happen to you.” Seconds later, another “taller” man came out of the bathroom with a gun and shoved her onto the bed. Defendant grabbed her purse and took everything out of it, including her “California ID” card. He also asked Alyssa for her Social Security number and other information about her identity, which he wrote down. He warned Alyssa that if she told anyone he knew where she lived. Alyssa was nervous and frightened.
Alyssa gave defendant a “fake” Social Security number.
After the taller man left the room, defendant asked Alyssa if she had any weapons; she replied no. He then told her “to strip,” which she did. She began to cry. Defendant told her to lie on her stomach with her “legs spread.” He raped her as he forced her head down onto the pillow. Defendant then told Alyssa to get dressed. After he made a telephone call they walked to another hotel room down the hall. Defendant threatened to do “something bad” to Alyssa if she made “any type of sudden moves,” so she accompanied him to the room just two doors away. Defendant unlocked the door and they went inside. Other than Alyssa’s clothes, defendant still had all of her belongings.
Inside the second hotel room, defendant ordered Alyssa to remove her clothes again and lie on the bed. After she did, defendant forcibly “started having sex” in her “anal area,” which hurt her “badly.” Alyssa attempted to “push him off,” to no avail. He then forcibly raped her again. Defendant turned Alyssa over onto her back. He told her to put her arms around him and “act like I like it.” Alyssa continued to cry.
After the “vaginal penetration” concluded, defendant “got up” and ordered Alyssa “to go in the bathroom” and “stand in the shower.” After five minutes, Alyssa was told to get out of the shower. Defendant made some phone calls, and allowed Alyssa to make one call to a friend. When Alyssa’s friend asked “what was wrong,” defendant “hung up the phone.” Alyssa then dressed, left the hotel room, and walked to her car, accompanied by defendant.
At Alyssa’s car, she occupied the passenger seat in accord with defendant’s instructions. Defendant got in the driver’s seat and drove the car onto the freeway. He ultimately took them to a gas station in Pleasant Hill, then to the Santa Rita Jail, where he left Alyssa alone in the car. While defendant was gone, Alyssa obtained help from a passing police officer. She passed out momentarily, but awoke and told the officers “what happened.” Within seconds, officers brought defendant down the stairs in handcuffs to her location, where she identified him as the man who assaulted her.
Alyssa gave an account of the assault to an officer. She made some false statements about her purpose in going to the hotel to avoid getting “in trouble for prostitution.” She also embellished the report somewhat – she said the gun went off – to “try to make the story look good” so the officers would believe her. She testified that her statement about the actual assault was truthful.
Alyssa subsequently went to Highland Hospital for an examination. Injuries were found on her left breast, neck, abdomen, anal and rectal areas that were consistent with her report of a nonconsensual sexual assault.
The Testimony of J. Doe
J. testified that she met defendant in October of 1997, when she was two months short of her 14th birthday. Defendant told J. that he was 17 or 18 years old, when in fact he was 22, as she later discovered. She told defendant her correct age of 13.
Defendant and J. had a friendly, flirtatious relationship until one night shortly after her 14th birthday, when they both slept at a friend’s house. J. was sleeping in her friend’s bed when she felt defendant “put his hands up” her pajama shirt. After they kissed on the bed, defendant pulled her down to the floor with him. They “started to kiss some more,” and “ended up having sex.” J. was “scared and shy,” but testified she was a willing participant “for the most part.”
Thereafter, J. and defendant “started dating.” They had “consensual” sex regularly over the next two months every time they were together. One day, J.’s mother came home unexpectedly and found J. with defendant. J.’s parents thereafter did “some research” on defendant, realized he was not their daughter’s age, and contacted the Alameda Police Department.
After defendant was incarcerated in Santa Rita Jail he remained in contact with J. through phone calls and letters. Defendant asked J. to attempt to persuade her parents to “drop the charges” against him. He also tried to convince her to accept the “blame for this whole case” by stating that she “was the one that forced on the sexual relationship.” J. believed she was still in love with defendant and “needed to cover for him,” so she did as he asked. In her statements to the police J. wanted to protect defendant and was not truthful about the nature of their relationship.
Defendant also sent J. sexually explicit pictures from jail, and in return asked her to send him “naked pictures” of herself. J. “didn’t feel comfortable doing that,” and never sent pictures to defendant. She later realized that defendant “wanted to use those pictures against” her to show she was the sexual aggressor in their relationship.
The prosecution also offered expert testimony on rape trauma syndrome, which, given the issues presented in this appeal, we need not recite.
Defendant’s Testimony
Defendant claimed in his testimony that the acts he committed with all of the women were consensual. He admitted that he suffered prior convictions for second degree robbery in March of 1996, unlawful sexual intercourse (with J.) in March of 1999, and petty theft with a prior in July of 2003.
Defendant testified that he met Katie on November 6, 2004, at the crosswalk between the Starbucks and Gaylord’s Coffee Shop. They exchanged names and walked together to her vehicle parked near Piedmont Avenue. Defendant told Katie that she “could make some money” by cashing fraudulent checks at local supermarkets. Katie agreed, so they exchanged telephone numbers and decided to “look for some marijuana” together. Katie expressed that she “wanted to smoke” with defendant. They drove to a few places known to defendant to “try to find some marijuana,” and were finally successful. Katie then “scooted over into the passenger seat” and defendant drove her car at her direction to a location in a scenic parking lot near Merritt College. There, they undressed and engaged in sex that defendant testified was “consensual all the way.” Defendant thought Katie “enjoyed herself.” At one point Katie told defendant, “Hold on. I could get pregnant.” He found a condom in his pocket, so they started “having sex at that time” for a few minutes until the condom broke. Katie became distraught and angry; she told defendant “she had to be home.” Defendant said he was supposed to meet his girlfriend back on Piedmont Avenue and his cell phone was “ringing and ringing,” so they stopped and drove back to 35th Avenue, where defendant got out of the car. He promised to call Katie later, which he did several times just to “see if everything is okay.” Defendant denied that he threatened or struck Katie, and claimed he did not take her driver’s license or other identification information. Defendant explained that he called Katie later from jail only in an effort to get her to “[j]ust tell the truth.”
Defendant admitted that he called S. to arrange an “appointment” at the Jack London Inn to engage in sex for her hourly rate of $250. Her met her in the lobby of the hotel about 3:00 p.m., and together they went from there to the room. Defendant was acquainted with S., and he told her that he “wasn’t going to pay her.” S. did not leave. She “laid on the bed” with defendant and removed her clothes. S. gave him a condom and they engaged in various consensual sex acts for well over an hour. After she took a shower with defendant S. complained that she needed $450 from him, or her pimp would be upset. Defendant said he had no money to give her, and suggested that she tell her pimp “the date went bad.” They then left the room and went their separate ways.
Defendant offered similar testimony about his encounter with Alyssa. Shortly after his release from incarceration he responded to her ad. She agreed to come to his room at the La Quinta Hotel, although they did not “negotiate any type of deal over the phone.” When Alyssa arrived, defendant was alone in the room. He did not have a gun and did not threaten her, search her, take her purse, or ask for information about her. She voluntarily entered the room, after which they sat on the bed and talked. They “clicked,” and complimented each other, then mutually undressed. Defendant asked S. if he could “have some pictures of her” to give to friends still “in custody.” She agreed, whereupon he took some photographs of her body in various positions. Alyssa gave him a condom from her purse, after which they engaged in consensual sexual activity in two different hotel rooms, and took a shower together. They left the hotel, and Alyssa agreed to drive him to Santa Rita Jail to pick up some of his belongings. She remained in the car while he went inside, where he was arrested. Defendant denied that he forced Alyssa “to do anything against her will.” He was never prosecuted for any criminal offenses against Alyssa.
Finally, as to his relationship with J., defendant admitted that he knew she was under 18, but “did not know she was 14 at the time.” Defendant told her he was 19 years old. Defendant testified that they “engaged in sexual activity exactly three times,” and he “never forced her to have sex” with him. Defendant agreed that he “did take advantage of J.,” but claimed she had sex “many times” before and was “very promiscuous.”
DISCUSSION
The sole contention on appeal made by defendant is that the trial court erred by admitting two prior felony convictions as impeachment evidence. Specifically, he complains that the record fails to show the court “undertook and exercised its discretion in admitting these two prior convictions for impeachment” as required by Evidence Code section 352. Without an indication in the record that the probative value of the impeachment evidence was balanced against its prejudicial effect, defendant claims the court committed error that “severely damaged his credibility in the eyes of the jury and made it impossible for him to effectively present a defense” of consent. In a case inaptly characterized by defendant as a closely balanced credibility contest between him and “his alleged victims,” he argues that the error was prejudicial and requires reversal.
Prior to trial, the prosecution moved to admit as impeachment evidence, in the event defendant elected to testify, three prior felony convictions: robbery (§ 211) on March 11, 1996; unlawful sexual intercourse with a minor (§ 261.5, subd. (d)) on March 31, 1999; and petty theft with a prior (§ 484, 666) on August 1, 2003. The prosecution also sought to introduce impeachment evidence of an uncharged prior arrest for a willful threat to commit a crime resulting in death or great bodily injury (§ 422). Defendant filed opposition in which he requested exclusion of all the impeachment evidence proffered by the prosecution.
At an in limine hearing, the trial court initially indicated that all three prior convictions would be admissible if defendant testified. Defense counsel then asked the court to “exercise its discretion to exclude” the prior conviction for unlawful sexual intercourse on the ground that it does not “go to veracity or willingness to fabricate,” and was an offense “sexual in nature,” with the “possibility of inflaming the jury” that “outweighs the probative value.” The trial court agreed with the defense that the unlawful sexual intercourse conviction presented a “352” issue, particularly given the other two “classic moral turpitude impeachment felonies,” and took the matter under submission. The court subsequently ruled that with the impeachment of defendant’s veracity by the two prior felony convictions for robbery and petty theft with a prior, the prior conviction for unlawful sexual intercourse with a minor was “inadmissible for impeachment purposes.” The court also excluded evidence of defendant’s prior arrest for a violation of Penal Code section 422 on the ground that “it will unduly confuse the jury.”
“ ‘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.’ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 512.) Article I, section 28, subdivision (f) of the California Constitution further “provides in pertinent part that ‘[a]ny prior felony conviction . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding. . . .’ ” (People v. Wheeler (1992) 4 Cal.4th 284, 292; see also People v. Cressy (1996) 47 Cal.App.4th 981, 990.) “[N]otwithstanding this constitutional provision, a trial court retains discretion under Evidence Code section 352 to preclude the use of a prior conviction for the purpose of impeachment if the probative value of the conviction is outweighed by its prejudicial effect.” (People v. Black (2007) 41 Cal.4th 799, 810.) Thus, “ ‘always subject to the trial court’s discretion,’ [section 28(f) of article I of the California Constitution] ‘authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.’ ” (People v. Hinton (2006) 37 Cal.4th 839, 888.)
Sections 788 and 352 of the Evidence Code “ ‘provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. [Citation.]’ [Citation.] In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 . . .: (1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Defendant’s primary complaint is that the trial court improperly admitted the impeachment evidence “without any analysis or weighing of the factors pertaining to admission or exclusion,” as section 352 demands. “The record of a ruling based on Evidence Code section 352 ‘ “must affirmatively show that the trial judge did in fact weigh prejudice against probative value . . . .” [Citations.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 960; see also People v. Carter (2005) 36 Cal.4th 1114, 1170; People v. Green (1980) 27 Cal.3d 1, 25, overruled on another ground in People v. Guiton (1993) 4 Cal.4th 1116, 1128–1129.) “Such a showing is necessary ‘to furnish the appellate courts with the record necessary for meaningful review of any ensuing claim of abuse of discretion’ and to ‘ “promote judicial deliberation before judicial action” ’ and thereby ensure ‘that the ruling on the motion “be the product of a mature and careful reflection on the part of the judge” . . . .’ [Citation.] Violating the rule—i.e., admitting the challenged evidence ‘without making an explicit determination that this risk of undue prejudice did not substantially outweigh the probative value of the evidence’—is error. [Citation.]” (People v. Triplett (1993) 16 Cal.App.4th 624, 627.)
“[A]lthough the record must affirmatively show that the trial court weighed prejudice against probative value in admitting evidence of prior bad acts [citations], the trial judge ‘need not expressly weigh prejudice against probative value—or even expressly state that he has done so [citation].’ [Citations.] Thus, as the cases reflect, we are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.” (People v. Padilla (1995) 11 Cal.4th 891, 924.) “[T]he necessary showing can be inferred from the record despite the absence of an express statement by the trial court.” (People v. Prince (2007) 40 Cal.4th 1179, 1237.) But without an express statement by the trial court that it has weighed prejudice against probative value, the record must at least “affirmatively demonstrate that the court did so.” (People v. Corella (2004) 122 Cal.App.4th 461, 471.)
We find in the present record ample indication that the trial court engaged in the requisite section 352 analysis. First, defendant made a specific section 352 objection to the impeachment evidence, both in his written opposition and at the hearing. The court expressly reflected upon the objection by noting that while two of the prior felony convictions – for robbery and petty theft with a prior – were “classic moral turpitude” crimes which were appropriate for use as impeachment evidence, “352 seems to come into play” for the third conviction for the “seven-year-old” sex offense. After taking the matter under submission, the court then declared that impeachment with the prior felony convictions for robbery and petty theft with a prior would prevent “undue veracity if the Defendant testifies.” The court continued, “So 352, as a result, will, I think, eliminate the 261.5 for impeachment purposes. [¶] That’s ruled inadmissible for impeachment purposes.” Finally, the court also excluded evidence of defendant’s prior arrest for threatening to commit a crime which will result in death or great bodily injury to another person (Pen. Code, § 422), as unduly confusing to the jury, given that the same evidence would be admitted for another purpose under Evidence Code section 1108.
The making of the threats described in section 422 is a crime of moral turpitude, with which a defendant may be impeached. (People v. Thornton (1992) 3 Cal.App.4th 419, 424.)
As we read the record before us the trial court not only expressly recognized and understood its obligation under section 352, but devoted careful consideration and discretion to defendant’s claim that the “possibility of inflaming the jury” outweighed the “probative value” of the evidence. (See People v. Prince, supra, 40 Cal.4th 1179, 1237; People v. Zapien, supra, 4 Cal.4th 929, 960; People v. Triplett, supra, 16 Cal.App.4th 624, 628–629.) The court also articulated the pertinent factors in its analysis of the admissibility of the impeachment evidence: the similarity of one of the prior convictions to the charged crimes; the remoteness in time of the 1999 conviction; the extent to which the prior acts were probative on the issue of defendant’s veracity; and the potential for confusion of the jury. Thus, the record is more than adequate for us to undertake a meaningful appellate review of the trial court’s decision. (People v. Clair (1992) 2 Cal.4th 629, 660–661.) The trial court’s assessment of the proffered evidence affirmatively shows a balancing of prejudice against probative value. (People v. Crittenden (1994) 9 Cal.4th 83, 135–136.)
We further conclude that the court did not abuse its discretion by admitting the two prior convictions to impeach defendant. “ ‘[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad.’ ” (People v. Smith, supra, 40 Cal.4th 483, 512.) The two convictions admitted for impeachment bore on veracity, and neither was similar to the charged offenses. (People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) The 1996 robbery was somewhat dated, but defendant hardly led a blameless life thereafter, so that conviction was not too remote for admission. (People v. Mendoza, supra, 78 Cal.App.4th 918, 926; People v. Campbell (1994) 23 Cal.App.4th 1488, 1496–1497.) Also, the admission of the two prior convictions, along with the exclusion of the prior sex offense and arrest for a violation of Penal Code section 422, did not dissuade defendant from testifying. (People v. Carpenter, supra, at p. 1056.) We think the jury received defendant’s testimony with neither undue prejudice nor a false view of his veracity. The admission of the evidence of prior convictions to impeach defendant was not error.
Accordingly, the judgment is affirmed.
We concur: Stein, Acting P. J., Margulies, J.