Opinion
B162632.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS ANTHONY SCOVILL, Defendant and Appellant.
Lora Fox Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Kyle S. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
Douglas Anthony Scovill appeals from the judgment entered following a jury trial that resulted in his conviction of second degree robbery (Pen. Code, § 211; count 1) while using a deadly weapon (§ 12022, subd. (b)(1)) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). He was sentenced to prison for the three-year middle term on his robbery conviction, plus one year for the use enhancement.
Appellant contends the trial court erred in allowing him to be impeached with a 1981 burglary conviction, because the People failed to prove that this conviction comported with the statutory elements of burglary under California law.
Based on our review of the record and applicable law, we affirm the judgment.
FACTUAL SUMMARY
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The following summary is based on this appellate standard of review.
On June 18, 2002, between 3:00 and 3:15 p.m., appellant removed a can of beer from the cooler of the Norwood Market at the corner of Normandie Avenue and Hollywood Boulevard; paused at the cash register; and then walked to the exit. Alamgir Kabir, the owner, stopped him and demanded payment. Disbelieving appellants claim that he had bought it elsewhere, Kabir confiscated the beer.
Appellant then returned to the cooler and removed three cans of beer, which Kabir confiscated as appellant walked towards the exit. Kabir also confiscated the beer appellant removed from the cooler on a third trip.
When appellant removed more beer on a fourth trip, Kabir demanded he pay for it. Instead, appellant took a broom and broke its handle against Kabirs leg. He then used the broken handle to knock items from the shelves. Retrieving a hammer from behind the register for defense, Kabir told appellant not to break things. After breaking long glass candle cylinders, appellant hit Kabir in the head with the glass. His forehead was cut and required medical attention. Appellant then threw glue and other items at Kabir and sprayed him with an aerosol air freshener.
Los Angeles Police Officer Raul Soto was on vehicle patrol with his partner when he observed a group of people waving their hands. Alerted that the store was being robbed, he approached and observed appellant exiting the store while holding three cans of beer and spraying Kabir with the air freshener.
Appellant relied on the theory of self-defense. He testified that he placed the can of beer, which he had bought earlier at another market, in his pocket before entering the store. As he was looking at some items, a customer who was talking with Kabir pointed to appellant. Kabir grabbed a hammer and attacked appellant, who was unable to escape. The second time, Kabir came at him with a broom, the handle of which broke when appellant grabbed it. Appellant sprayed Kabir with the aerosol can to stop the attack. Although admitting that he took beer from Kabirs store, appellant explained he did so, because Kabir had taken his beer. He also attacked the credibility of Soto.
DISCUSSION
Appellant contends the trial court erred in allowing him to be impeached with a 1981 burglary conviction, because the People had not proved that prior conviction met the statutory elements of burglary under California law. There was no error.
During a pretrial conference, the prosecutor indicated he intended to impeach appellant with three priors involving moral turpitude, i.e., a 1981 burglary of a habitation conviction; a 1983 aggravated battery on a police officer conviction; and a 1995 petty theft conviction. The court excluded the 1995 prior as involving a misdemeanor.
Appellants attorney argued the 1981 prior should be excluded on the grounds it was 23 years old and from another jurisdiction. He also argued the 1983 prior should be excluded for the reason it was 19 years old and the fact a police officer was the victim did not necessarily mean it involved moral turpitude.
In response to the courts inquiry, appellants attorney stated that he had "no independent information[,]" but appellant said the 1981 and 1983 priors were misdemeanors. He added that according to the probation report, the 1981 prior occurred in "San Antonio" and that appellant was charged with "burglary of habitation." He did not dispute that such crime involved moral turpitude. However, he argued the fact appellant was placed in jail for 70 days was not "in and of itself . . . dispositive as to what level of criminality was charged."
The court announced the People had to show that these two priors involved felonies before it would proceed further. The prosecutor stated he had available for review "the multi-state rap sheet reflecting the location and charge level for each" and that "[t]hey do appear to both be felonies." The prosecutor then agreed to show the sheet to appellants counsel as well.
On another occasion, the prosecutor stated he was informed by the State Attorneys Office in Manatee County, Florida, that they were unable to obtain records, because they were on microfiche, and referred him to the criminal division of the Court Clerks Office. The court clerks office confirmed from its records that the 1983 conviction for aggravated battery on a police officer was a felony. It also confirmed that the 1981 case, "case number . . . 83CF1494, which was the burglary charge, . . . was a felony conviction for a . . . burglary of a dwelling[.]" He argued that both cases therefore "reflect felony convictions for crimes which [involve] moral turpitude."
Appellants attorney indicated his desire to investigate further, because appellant told him the dwelling was the hotel where he was staying and "there are legal issues that are slightly different from if its a single house."
When the hearing resumed on a subsequent occasion, appellants attorney reaffirmed his earlier arguments and added that although the prosecutor had been diligent in his efforts, the People failed to show that the 1981 and 1983 priors involved felonies rather than misdemeanors.
The prosecutor argued that it was "entirely legal and appropriate to inquire of [appellant] if in fact he has a felony conviction." He stated there was "no doubt in my mind theyre felonies. The clerk of the court where the offenses occurred has confirmed that [and] separate and apart from [this] fact[, there are] the written documents I have." He then argued that since he had "every good faith basis to believe they are felony charges[,]" the only thing to consider was the remoteness of the priors.
The court found that "based on counsels conversation with the criminal [court] clerk as well as the rap sheet before him, theres a good faith belief on [the prosecutors] part, and I believe that he has sufficiently shown that in fact [appellant] was convicted of the two felonies in the early `80s." After concluding both priors were remote, the court ruled that the People could impeach appellant only with the prior burglary conviction.
During cross-examination, the prosecutor asked if appellant had "a 1983[sic] conviction for burglary; is that correct?" He responded, "Yes."
"[F]or impeachment purposes a prior felony conviction `may be shown by the examination of the witness, or the record of the judgment, thus permitting a witness to be orally questioned concerning prior felony convictions (People v. Allen [(1961)] 189 Cal.App.2d 706, 710 . . .), `[s]uch cross-examination is limited by the requirement that it must be conducted in good faith. (People v. Linyard [(1957)] 151 Cal.App.2d 50, 55 . . . .)" (People v. Perez (1962) 58 Cal.2d 229, 238, citations omitted; see also Evid. Code, § 788, which is based on former Code Civ. Proc., § 2051; see also People v. Osband (1996) 13 Cal.4th 622, 695.)
We conclude that the record contains ample evidence to support the trial courts finding that the prosecutor had a good faith belief that appellant had suffered a 1981 conviction for burglary of a dwelling, which is a crime involving moral turpitude. (See, e.g., People v. Collins (1986) 42 Cal.3d 378, 395; People v Muldrow (1988) 202 Cal.App.3d 636, 644-645; People v. Knowlden (1985) 171 Cal.App.3d 1052, 1055-1057; People v. Almarez (1985) 168 Cal.App.3d 262, 267; see generally, People v. Castro (1985) 38 Cal.3d 301; see also People v. Curtis (1969) 70 Cal.2d 347, 359-360.) As the trial court pointed out, the prosecutor not only had the rap sheet containing information regarding such conviction but he also conducted other pertinent investigatory steps with the proper custodian of such information, the Court Clerk of the court in which such prior conviction was sustained by appellant. (See, e.g., People v. Williams (1991) 228 Cal.App.3d 146, 152; see also People v. Steele (2000) 83 Cal.App.4th 212, 223.)
Appellant argues that the rap sheet and information supplied by the court clerk were incompetent, and thus, not evidence. He complains the prosecutor did not provide the defense with a copy of such rap sheet, nor did he move to admit it into evidence. He further complains that "the prosecutor had no valid foundation upon which to represent that the prior conviction qualified as [a] felony in California for purposes of impeachment[,]" because such representation was based on "the double hearsay representation that he had called the [court] clerk . . . and had been informed that the burglary was `of a dwelling[.]"
We disagree. Initially, we point out the record reflects that the prosecutor agreed "to make the rap sheet available to the court for it to inspect and review." When the court asked the prosecutor to show the rap sheet to appellants counsel as well, the prosecutor said, "Certainly." The record does not reflect that the prosecutor failed to do so or that appellants counsel requested a copy and the prosecutor refused to provide him with one.
We further point out that after the prosecutor informed the court and appellants counsel of what the court clerk had told him regarding the prior conviction as involving a "burglary of a dwelling," appellants counsel did not object on the ground of hearsay. The absence of such objection precludes his hearsay claim urged now on appeal for the first time. (People v. Garceau (1993) 6 Cal.4th 140, 179.) Moreover, to the extent the defense sought to verify what was told the prosecutor, the prosecutor stated he was "happy to furnish counsel with the phone number for the clerks office if he wishes to call and confirm it." Appellants counsel indicated that he would "look into it further" since appellant stated that it was the hotel where he was staying; however, he further indicated that he was not challenging what the prosecutor was stating as "incorrect" since he had "nothing but faith with this district attorney."
Also, contrary to his claim, there is no requirement, for impeachment purposes, that the People prove the out-of-state prior conviction proffered for impeachment involved the same elements as the same underlying offense in California.
The fallacy in appellants position lies in his reliance on cases which concern the proof of a prior conviction for the purpose of sentence enhancement, which involves a different standard. For instance, People v. Lewis (1996) 44 Cal.App.4th 845 involved the issue of whether the defendants Louisiana 1967 attempted aggravated escape conviction constituted a "serious felony" (§ 1192.7, subd. (c)), and thus, a qualifying strike under the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)). As the Lewis court pointed out, "[t]he three strikes law imposes additional penalties for a current felony conviction if a prosecutor pleads and proves the defendant" has suffered a prior conviction which qualifies as a strike. (Id. at p. 848, italics added.) Similarly, People v. Dean (1984) 161 Cal.App.3d 493 involved the issue of whether defendants prior Alabama and Riverside County burglary convictions qualified for the purpose of imposing five year prior serious felony enhancements therefor under section 667, subdivision (a)). In order to prevail, it was incumbent on the prosecutor to prove the prior involved one of the "serious felony" offenses listed in subdivision (c) of section 1192.7, subdivision (c). (Id. at pp. 499-502.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J. and HASTINGS, J. --------------- Notes: All further section references are to the Penal code unless otherwise indicated.