Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR193082.
Marchiano, P.J.
Defendant Gabriel Eugene Schnabel severely beat a woman with his fists, a sawed-off shotgun, and a vodka bottle. The jury convicted him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), false imprisonment by violence (§ 246), and illegal possession of a short-barreled shotgun (§ 12020, subd. (a)). The jury also found that he committed the assault and the false imprisonment while personally using a shotgun (§ 12022.5), and that he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The trial court sentenced him to 13 years in prison.
Subsequent statutory citations are to the Penal Code unless otherwise indicated.
Defendant contends the court erred by excluding evidence of the victim’s six misdemeanor convictions for prostitution, which defendant claims were probative on the issue of her credibility. We conclude the trial court properly exercised its discretion under Evidence Code section 352 to exclude the convictions, and that defendant was otherwise allowed to adequately attack the victim’s credibility-albeit unsuccessfully. Accordingly, we affirm.
I. FACTS
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
The trial was a contest of credibility. The victim testified defendant beat her. Defendant testified that the victim was beaten by a man named Dee and that he was an innocent bystander. Defendant suggested the victim was a prostitute and Dee was her drug dealer, upset at a failure of payment.
The People’s Case
The victim, Dianne Bosley, testified as follows.
On August 29, 2007, she was living alone in a mobile home park in Vallejo. She was 48 years old.
Sometime in the afternoon, defendant stopped by Bosley’s mobile home and asked to come in so he could cool off and have a beer. She let him inside because she had seen him around the Travel Inn Motel, where she had previously lived, visiting and talking to her girlfriend and her husband, who also lived there. The girlfriend and her husband had also walked through the trailer park with defendant about a week previously. Bosley did not hesitate to let defendant inside because “I had seen him so much, and he was a friend of theirs, I didn’t think there would be any harm in it.”
Defendant came inside and sat down on the couch. He was carrying a blue “knapsack-type bag with a strap.” Bosley stood at the other end of the couch, folding clothes and talking with defendant. He mentioned a girlfriend who was a model and who had left him for her boss, “but he didn’t seem real angry. I was just assuming he was upset about it.” This conversation “kind of came out of nowhere, ” but defendant did not appear to be under the influence of drugs or alcohol.
After defendant had been inside for five or 10 minutes, a man named Dee, who was in his mid-twenties and African-American, stopped by. Dee was the son of a friend of Bosley’s, and would sometimes stop by to see how she was doing or whether she needed a ride somewhere. Bosley did not need a ride, apparently because defendant was visiting, so Dee left. Bosley had never had any sort of confrontations with Dee, and “didn’t know him real well.”
Bosley asked defendant for money to buy a pack of cigarettes. Defendant loaned her $2. Bosley left the mobile home, walked to a gas station to buy cigarettes, and returned.
It is unclear if Bosley asked defendant for cigarette money before or after the visit from Dee. She did not leave to get the cigarettes until after Dee left.
Defendant was now drinking from a bottle of Smirnoff vodka, which did not belong to Bosley. Bosley offered defendant a cigarette. He replied, “Bitch, I don’t want fucking anything from you” and pulled out a sawed-off shotgun. He then said, “If you make one sound, I’ll kill you, ” and pointed the weapon at Bosley. Defendant “looked very angry.”
Defendant struck Bosley two or three times with the shotgun, hitting her in the shoulder and back. He then punched her repeatedly in the face with his fists. Bosley was on her stomach on the floor. Defendant hit her again on her back with the shotgun. He hit her on the back of the head with the vodka bottle. Defendant then tried to choke Bosley with a length of rubber hose. Defendant kept telling Bosley to “Shut up.”
Bosley begged defendant not to kill her and screamed as loud as she could for help. At one point, she tried to pull open her sliding glass door to shout for help, but defendant pulled her away from the door, punching her in the head.
Bosley estimated the string of assaults lasted 30 to 45 minutes. “It seemed like forever.” “He beat me a long, long time.” Defendant fled from the mobile home when he saw blue and red police lights through the sheer curtains. He ran out the back door.
Bosley positively identified defendant in court, and also identified a photo of defendant taken that day. She also identified a sawed-off shotgun police found in her trailer as “look[ing] like” the one defendant pointed at her.
Bosley was taken to the hospital, where she received staples in the back of her head. She suffered pain in her whole body, particularly her back-which was all black and blue. Her face was covered in blood.
Bosley’s testimony was corroborated by two of her neighbors. Joan Vaughan saw defendant coming out of Bosley’s trailer on the afternoon of August 29, 2007. He ran down the front stairs and went between the trailer and a shed. He picked up a brownish object about 12 or 14 inches long, which “could have been a stick.” Defendant went back inside Bosley’s trailer. About half an hour later, Vaughan heard banging on Bosley’s sliding glass door and saw it “bowing in and out.” She heard what sounded like a body hitting the glass. She heard a male voice from inside the trailer saying, “Shut up you fucking bitch or I’ll kill you.” She heard a woman crying or screaming. She saw police arrive and chase someone towards a creek. She entered Bosley’s trailer. Bosley, who testified that defendant had ripped her shirt, was not wearing a top. She was bleeding from a hole in her head and her eyes were puffy. Her face was “completely bloody.” The trailer was a “mess” and there was blood everywhere.
On the afternoon of August 29, 2007, William Grant heard banging coming from Bosley’s trailer and saw the sliding door “bounce like something hit it.” His wife called the police. He saw Bosley stumble out the front door covered in blood. He saw a white male come out from behind the trailer. He could only see the man’s back. The man started running when the police arrived, and the officers chased him into a creek and apprehended him.
Vallejo Police Officer Michael Koutnik responded to a disturbance call at Bosley’s address on August 29, 2007. He got out of his patrol car and walked up to the trailer. Bosley walked out through the sliding glass door onto the porch. She wasn’t wearing a shirt and had blood on her face and upper body.
Koutnik heard someone yell, “He’s running out the back door.” He saw a white male running from the back of the trailer. Koutnik identified the man in court as defendant. He saw no one else running from the trailer, and no one was with Bosley when she came out on the porch.
Koutnik chased defendant towards the drainage ditch. Defendant did not ask Koutnik for help or try to say anything to him. Defendant ignored two orders to stop. Defendant reached the other side of the ditch, which was filled to mid-thigh or waist height with water. Koutnik told defendant to stop running or he would fire his taser at him.
Vallejo Police Officer Joshua Coleman testified that he responded to the trailer park on August 29, 2007, after a report of a physical struggle inside one of the trailers. As he drove his patrol car into the park, he saw a white male running. He followed the man in his vehicle, but lost sight of him. The man did not try to flag Coleman down, but ran away from him. The man apparently ran from the area of Bosley’s house; Coleman saw no one else leaving that area.
Officer Koutnik radioed Coleman that he had found someone in a drainage ditch. Coleman went to the ditch and saw Officer Koutnik pointing a taser at a man standing in the ditch, whom Coleman identified in court as defendant. Defendant matched the description of the man Coleman had seen running. Defendant had wet blood on his cheek, nose, and face, but did not have any cuts on his head that would account for the blood running down his face. Indeed, he had no injuries at all. Coleman arrested defendant.
Koutnik went to the trailer to speak to Bosley. She was “obviously upset and crying.” She told him the person who had run from her trailer had hit her several times with the sawed-off shotgun Koutnik found in the trailer. The shotgun was loaded and appeared to be in working order. Bosley also told Koutnik the person had also hit her with the vodka bottle. The bottle had blood on it.
Coleman spoke with Bosley at the hospital. She had a laceration on her head, various cuts and abrasions, bruises on her arms, and her eyes were swollen shut. She was able to remember what had happened to her. She told Officer Coleman that a man named Gabriel had beaten her. She did not tell him that a man named Dee had beaten her.
Defendant finds significance in the fact that Bosley told Officer Coleman about Dee, but told him she didn’t know Dee’s name. But Bosley testified on cross-examination that she didn’t know for certain either Dee’s first or last name, because “these kids” “don’t use their names anymore.”
Defense Case
After the People rested their case-in-chief, the parties stipulated that the only fingerprint found on any item of evidence was a single print on the slide of the shotgun, but that print did not match defendant’s. The People admitted there was “no evidence and in fact no test was done that was able to link the defendant forensically to any of the items that were seized in evidence.”
Defendant testified as follows.
We stress that we here relate defendant’s version of events, which was rejected by the jury.
About three or four days before August 29, 2007, he was walking down Lincoln Road toward Motel 7, where he was staying, when he met Bosley. She asked him if he wanted a date. He interpreted this to mean she was a prostitute. He kept walking. On the afternoon of August 29, he was again walking on Lincoln Road when Bosley saw him. She apparently again asked him if he wanted a date. Defendant again inferred she was a prostitute.
Defendant was carrying a bag containing a bottle of vodka. The vodka was a gift for someone he went to visit who wasn’t home. “So it wasn’t like I was walking down the street with a bottle of vodka. You know, it wasn’t like that.” Bosley asked him what was in the bag. He told her, and asked if she wanted a drink. She said yes and invited him to her trailer.
Bosley testified, “[I] don’t really drink.”
At the trailer, Bosley made two drinks and she and defendant talked about him renting her extra bedroom. (Defendant was looking for a place to stay.) Defendant gave Bosley $70, apparently for the room. Then a man Bosley introduced as Dee came to the doorway. She left with Dee and came back alone, with cigarettes and crack cocaine. Defendant denied giving Bosley only $2.
Bosley smoked all the cocaine and wanted more. She left to call Dee from a pay phone, leaving defendant alone in the trailer. Defendant believed she had no more money on her, having spent the $70 on the first batch of cocaine. Bosley came back, and told defendant she owed Dee $70 for the second batch. Then Dee came in through the back door. Dee had a short-barreled shotgun-the one identified by Bosley in court-and was pointing it at defendant.
Dee was angry and demanded his money from Bosley. Dee was not happy to see defendant there, “[b]ecause he’s a drug dealer, and I guess drug dealers don’t really want people they don’t know seeing what is going on or hearing what their business is about, I’m assuming.”
Defendant saw Dee “jab” at Bosley with the shotgun, “hit her in the head, ” but he “didn’t see him, like, hit her.” Defendant was in the back of the cramped trailer and couldn’t get past Dee to get out, and Dee swung the shotgun back and forth between Bosley and defendant. Defendant “didn’t see [Dee] like really hit her too many times with it, but I was just waiting for my chance to get by.”
Defendant then testified that Dee was holding Bosley’s head with one hand and “was jabbing the gun with the other, ” and was “hitting her with his fists.” Defendant saw his chance to flee and ran toward Dee, who was by the sliding glass door. Defendant “locked up with him, and then pushed off of him, ” and ran out the back door. Dee yelled to him, “Get the F out of here.”
Defendant ran down the street, but didn’t see or hear any police. Dee ran out behind defendant, in another direction, cutting between trailers. Defendant tried to jump across the drainage ditch, and heard a police officer shout at him to “freeze” or stop. He saw a taser and did not want to be tasered while standing in water, so he got out of the ditch and was arrested.
The police interviewed defendant twice, at length. He told them about Dee. He asked the officers if they had looked for Dee, and they didn’t respond. He wanted to cooperate with the police and offered to take a polygraph test. An officer asked him if his fingerprints would be on the shotgun. Defendant told him, “I never touched that shotgun.... I never seen it before that day....”
On cross-examination, defendant said he carried the vodka bottle in a brown paper bag; he denied having a blue duffel bag. He claimed that Dee was in the trailer for 15 to 20 minutes, and only hit Bosley twice with the shotgun and twice with his fists. Defendant was shown Bosley’s picture taken after the beating, and claimed “I never seen her like that.... She had blood on her face, but she wasn’t puffed up like that.” He explained the blood on his face as coming from Dee, who had blood on him when they “locked up for a second” as defendant escaped. He said Dee had dropped the shotgun when he ran out of the trailer. He claimed to have heard Dee tell Bosley, “You better not tell them that it was me.” He also claimed that he spoke to Officer Coleman when he was being taken to the police station in Coleman’s patrol car, and told Coleman Dee was the man who had assaulted Bosley.
Rebuttal
The People called Officer Coleman as a rebuttal witness. According to Coleman, defendant did not talk to him in the patrol car: “He was actually unusually quiet.” During an interview at the police station, defendant did tell Coleman that a man named Dee attacked Bosley. Defendant said he was there during the attack, was scared, and ran into the back of the trailer. Coleman noticed that defendant had no open wounds, and reasoned that for defendant to get blood on him he would have had to have been in contact with either Dee or Bosley. So Coleman asked defendant if he had had contact with either one. Defendant said he did not. Coleman then asked defendant how he got blood on him. Defendant did not respond.
The Prior Convictions for Prostitution
On the morning of the first day of trial, the People filed a motion in limine to exclude reference to Bosley’s misdemeanor convictions for prostitution. The People anticipated that defendant would introduce evidence of six such convictions, dating from 1991 to 2001-roughly eight to 18 years before trial.
The People conceded that “most, if not all” of the criminal conduct underlying the convictions involved moral turpitude, and thus could be used for impeachment. But the People asked the trial court to exercise its discretion under Evidence Code section 352 (section 352) to exclude the two oldest convictions (from 1991 and 1995), and their underlying conduct, on the ground that they were too remote and therefore more prejudicial than probative. The People appeared to agree that the four more recent convictions, dating from 1999 to 2001, could be admitted.
At oral argument on the motion, the trial court focused on the question of excluding all six convictions. First, the court noted that the prosecutor “concedes that the charges and/or conduct would involve moral turpitude, ” and proceeded to an analysis under section 352. The court ruled as follows:
“[U]nder a [section] 352 analysis, I don’t think these misdemeanor crimes are particularly probative. They do involve conduct involving moral turpitude. I think the probative value of this conduct is outweighed by the prejudicial effect that, if I allowed this evidence in, it would have on the character of the alleged victim in this case. They are relatively remote. They’re not too remote. I realize that crimes more distant that eight years oftentimes are found to be not particularly remote.... I think they are a bit remote. But, in particular, applying [section] 352, I think it probably wouldn’t take an undue consumption of time to put on the evidence, but I think it would confuse the jury most significantly, and I don’t find it to be particularly relevant. So I’m going to deny the request from the defense to make inquiries regarding these alleged acts involving moral turpitude.”
II. DISCUSSION
Defendant contends the trial court erred by preventing him from introducing evidence of the six prior prostitution convictions and their underlying conduct. He argues the evidence of the convictions and conduct was vital on the key issue of Bosley’s credibility, and exclusion of the evidence was an error that violated his constitutional rights to due process, confrontation, and compulsory process. We disagree because exclusion of the evidence was well within the trial court’s discretion under section 352. Further, any error would be harmless.
A witness may be impeached by evidence of conduct involving moral turpitude, whether or not the conduct led to a conviction for a felony or a misdemeanor. (People v. Wheeler (1992) 4 Cal.4th 284, 295−297, & fn. 7 (Wheeler).) Since the enactment of Evidence Code section 452.5, the conviction itself may also be admitted. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)
Defendant correctly notes that prostitution is a crime of moral turpitude. (People v. Chandler (1997) 56 Cal.App.4th 703, 709 (Chandler); see People v. Jaimez (1986) 184 Cal.App.3d 146, 150 (Jaimez).) Jaimez observes that the California Supreme Court has cited with approval an annotation, (1975) 23 A.L.R.Fed. 480, which points out that prostitution is generally recognized as a crime of moral turpitude. (Jaimez, supra, at p. 150; see People v. Castro (1985) 38 Cal.3d 301, 316, fn. 11 [citing annotation].)
Despite the district attorney’s concession below, the Attorney General now argues that prostitution is not a crime of moral turpitude: “We [sic] do not accept that premise....” But we consider Chandler, Jaimez, and the approved annotation to be controlling law.
The admission of impeachment evidence is governed by section 352, which provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Wheeler, supra, 4 Cal.4th at p. 296.) “When exercising its discretion under... section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.]” (Ibid.) Because misdemeanor conduct may be “a less forceful indicator of immoral character or dishonesty” than felony conduct, and for other reasons including problems of proof, “courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value [fn. omitted].” (Id. at pp. 296−297.)
We review a trial court’s section 352 ruling for abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
At least some of the convictions, while relatively old, were not too remote for impeachment purposes. (See, e.g., People v. Campbell (1994) 23 Cal.App.4th 1488, 1497, fn. 14 [10-year-old prior].) But the trial court focused not on remoteness, but on the possibility of jury confusion. The court, in its discretion, determined that admission of six prior convictions for prostitution would confuse the jury and distract them from the real issues of the case. The issue was whether defendant beat Bosley, as she testified, or Dee did, as defendant testified, allegedly in retaliation for failure to pay a drug debt. While prior convictions for conduct involving moral turpitude would have had some probative value on the issue of Bosley’s credibility, such value was outweighed by the undue prejudice caused by the potential of jury confusion. It was within the trial court’s discretion to conclude that the convictions would draw the jury’s attention from the facts surrounding the assault and its own assessment of the credibility of Bosley and defendant as they testified.
And, as the Attorney General observes, evidence of prostitution carries its own intrinsic prejudicial impact. In People v. Phillips (2000) 22 Cal.4th 226 (Phillips), the Supreme Court upheld a trial court’s exclusion under section 352 of defendant’s proposed evidence that his girlfriend-a witness to the charged murder-was a prostitute. The court observed that such evidence has been historically found to potentially embarrass or unfairly discredit the witness. (Phillips, supra, at p. 234.)
Any error would be harmless. Defendant was able to paint the picture he desired of Bosley for the jury.
Defendant testified that he believed Bosley was a prostitute, and had asked him twice for a “date.” The district attorney conceded at closing argument that “[i]t’s possible” Bosley “maybe... was offering services, some sort of prostitution services” when she first encountered defendant. Furthermore, defendant was able to establish from Vaughan’s testimony that she didn’t like Bosley because she didn’t like her lifestyle: “just people... coming and going late at night and all the time.” Vaughan found this annoying. Defendant was also able to establish from Grant’s testimony that he had complained to trailer park management about a lot of people coming and going from Bosley’s trailer day and night. The evidence of people coming and going is consistent with the lifestyle of a prostitute.
But the crux of the defense was not prostitution, but Bosley’s alleged drug use. Defendant testified that Dee was her angry unpaid drug dealer, and that Dee warned Bosley, “You better not tell them that it was me.” We find it significant that defendant never mentioned prostitution in his closing argument to the jury, but argued Bosley used drugs and Dee was her supplier.
Defendant assailed Bosley’s credibility several times during closing argument, attacking aspects of her testimony.
Defendant also availed himself of more traditional tools of impeachment. On cross-examination of Bosley, defendant was permitted to ask her whether, in the past 10 years, she had “been placed on probation and/or parole on misdemeanors or felonies.” Bosley replied that she had. Defendant was also permitted to ask Bosley if she was using any illegal drugs on or about the date of the crime. She replied that she was not, and that she was clean and sober. She did admit to going back to using drugs for a short time after the beating. She testified she was in therapy and had been clean and sober for nine months before trial.
The District Attorney conceded below, outside the presence of the jury, that he had a “very long rap sheet” for Bosley that ended in 2004. He further conceded that Bosley had suffered a felony conviction in 2005 for violation of Health and Safety Code section 11350, subdivision (a), and had been placed on three years’ formal probation. Thus, she was on felony probation at the time of the offense.
In sum, defendant was more than able to present his picture of Bosley as a woman of questionable morals who used drugs and was lying about the beating to protect her supplier. The jury observed Bosley and defendant testify and declined to purchase defendant’s proffered portrait of the victim. The jury believed Bosley. The jury was entitled to disbelieve defendant’s version of events, which conflicted with much of the People’s case. For instance, defendant testified to a less severe and shorter assault than did the severely wounded Bosley; defendant testified Dee hit Bosley with only his fists and the shotgun, which does not explain the blood found on the vodka bottle; defendant claimed Dee ran out of the trailer behind him, but the two responding police officers saw no second man at the scene; and Officer Coleman testified defendant, at the time of his arrest, could not explain the blood on his face.
The People’s case against defendant is more than substantial. Any error in excluding the prostitution convictions is harmless.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Dondero, J., Banke, J.