Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F07790
BUTZ, J.Defendant Kevin Lamart Smalls was convicted following a jury trial of taking or driving a newspaper delivery van that did not belong to him. (Veh. Code, § 10851, subd. (a).) Defendant was sentenced to state prison for an aggregate term of 25 years to life plus two years.
On appeal, he contends his trial counsel was ineffective for failing to object to defendant’s impeachment with multiple prior theft convictions and instead, eliciting evidence of those convictions during defendant’s direct examination. We conclude that the trial counsel was not ineffective in bringing forth evidence of defendant’s prior convictions on direct examination, and shall affirm the judgment.
FACTUAL BACKGROUND
When newspaper delivery supervisor Steve Conrad went into the West Sacramento Safeway around 5:00 am. one morning to deliver papers, he left his van parked outside, with the doors closed, but the engine running. When he emerged from the store between five and fifteen seconds later, his van was no longer parked outside the store; in fact, Conrad could see it turning onto Jefferson Boulevard.
Conrad chased vainly after the van as he called police from his cell phone; moments later, as he was giving a report to police, he text-messaged an employee that his van had been stolen.
Within 10 to 20 minutes, Conrad’s employee (who was familiar with Conrad’s van and its distinctive license plate) called Conrad to report he was then driving behind Conrad’s stolen van on J street downtown.
Conrad’s employee called police and continued to follow the van until police took over the pursuit.
Officers initiated a traffic stop around 65th Street and 18th Avenue. Defendant, the only person in the van, was arrested.
Within 90 minutes from the time his van was stolen, Conrad had retrieved it and checked its contents. All newspapers and cash that had been in the van when it was stolen were still there, and Conrad found nothing in the van that had not been in it when it was stolen.
Defendant testified at trial and admitted driving the van, but denied knowing it was stolen. Rather, defendant testified he obtained it from a homeless acquaintance who owed him money, and had offered to loan him the van for an hour so he could visit the cemetery where his mother is buried. Defendant met the acquaintance in a hotel parking lot in West Sacramento, but could not recall the name of the hotel. Defendant testified he pulled over en route to the cemetery, grabbed flowers from a flower bed, wrapped them in a blue jacket and placed them in the van.
Officers testified no jacket or flowers were found in the van or with defendant when he was arrested.
DISCUSSION
The People moved in limine for permission to impeach defendant, should he testify, with (among other things) various prior convictions, including 1986 convictions for burglary and vehicle theft, and a 1994 conviction for robbery. The court granted the motion as to these felony convictions.
The People also sought permission to impeach defendant with prior conduct involving moral turpitude, including eight arrests between 2004 and 2006, should defendant attempt to testify that he “has led a productive and law-abiding life” since 1994. The court ordered the prosecutor not to mention these events pending a further hearing.
On direct examination, defendant admitted he was convicted of first degree burglary and of vehicle theft in 1986, and was convicted of robbery in 1994. Before this testimony was elicited, the court instructed jurors they could consider this evidence for the limited purpose of evaluating defendant’s credibility.
I. Counsel Was Not Ineffective for Failing To Exclude Evidence of Defendant’s Prior Convictions
On appeal, defendant contends trial counsel was ineffective because she did not attempt to exclude evidence of the prior convictions. He argues that since one (or perhaps all) of the priors would have been excluded under Evidence Code section 352 because they were remote or, in the case of the prior vehicle theft, too similar to the current charged offense, trial counsel’s failure to do so could not be explained as a reasonable tactical choice. Not so.
“‘Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.]’ [Citation.] [¶] ‘“Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.”’ [Citations.]... ‘“In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citation.] [¶] ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal,... “‘Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.’”’” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1447-1448; People v. Mendoza (2000) 78 Cal.App.4th 918, 924 (Mendoza).)
It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. (People v. Osband (1996) 13 Cal.4th 622, 678 (Osband); Mendoza, supra, 78 Cal.App.4th at p. 924.)
We consider first whether defendant’s prior convictions would have been admissible over trial counsel’s objection.
“‘Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment. Together, they 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.” (Mendoza, supra, 78 Cal.App.4th at p. 925.) These factors need not be rigidly followed by the trial court. (Ibid.)
Probative value.
The first factor to be considered is whether the prior convictions reflect adversely on defendant’s individual honesty or veracity. It is undisputed that defendant suffered prior convictions for robbery, burglary, and vehicle theft. California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendant’s credibility. (See Mendoza, supra, 78 Cal.App.4th at p. 925, and cases cited therein.) Thus, defendant’s convictions were clearly probative on the issue of his credibility and this factor would not favor the exclusion of the priors. This is particularly true in light of the fact that defendant’s line of defense at trial was an outright denial of guilt; i.e., his credibility was directly at issue.
Remoteness.
Convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. (Mendoza, supra, 78 Cal.App.4th at pp. 925-926; see People v. Green (1995) 34 Cal.App.4th 165, 183 [court admitted a 20-year-old prior conviction, reasoning that defendant’s 1973 conviction was followed by five additional convictions in 1978, 1985, 1987, 1988, and 1989].) In this case, defendant had not led a legally blameless life since 1994. Not only did he testify he is currently engaged in bartering methamphetamine, but he had been arrested multiple times for theft- and violence-related offenses between 2004 and 2006. Thus, the remoteness factor would not have mitigated against admission of the priors.
Similarity.
“‘Prior convictions for the identical offense are not automatically excluded. “The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.”’ (Mendoza, supra, 78 Cal.App.4th at p. 926, italics added; People v. Tamborrino (1989) 215 Cal.App.3d575, 590.)
Here, two of defendant’s three prior convictions for residential burglary and robbery were not similar to the current vehicle theft charge. Accordingly, this factor would not favor the exclusion of two priors and, though it could have weighed in favor of excluding the vehicle theft prior, would not have compelled it.
Adverse impact on defendant’s right to testify.
The last Beagle factor, has no application in this case because defendant was not inhibited from testifying.
“Balancing the Beagle factors, we conclude that the strong probative value of the priors outweighs their prejudicial effect and that the trial court would have likely overruled the trial counsel’s objection under Evidence Code section 352. Accordingly, the trial counsel’s decision to voluntarily bring the priors out before the jury can be fairly characterized as a reasonable tactical choice designed to demonstrate defendant’s candor and honesty to the jury.” (Mendoza, supra, 78 Cal.App.4th at pp. 927-928.) Therefore, trial counsel was not ineffective for failing to make what would have been a futile motion. (Id. at p. 928; Osband, supra, 13 Cal.4th at p. 678.)
II. Defendant Has Shown No Prejudice from Counsel’s Failure to Request That References to Prior Convictions Be Sanitized
Alternatively, defendant claims trial counsel should have sought to have the prior convictions “sanitized” to “eliminate any reference to the prior auto theft conviction.”
Sanitization of priors involving the same or similar conduct as that for which a defendant is currently on trial is proper. (People v. Foreman (1985) 174 Cal.App.3d175, 182.) In addition, “[t]he scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense.” (People v. Heckathorne (1988) 202 Cal.App.3d458, 462.) Trial courts have discretion to sanitize prior convictions introduced for impeachment. (See, e.g., People v. Massey (1987) 192 Cal.App.3d819, 825; People v. Foreman, supra, 174 Cal.App.3dat p. 182.)
However, we need not decide whether trial counsel’s failure to request that the court sanitize the nature of one of his three prior convictions fell below an objective standard of reasonableness, because defendant has failed to establish there is a reasonable probability that he would have obtained a more favorable result had the court done so. Defendant did not dispute that he drove the van and that the van did not belong to him. Even assuming the jury accepted defendant’s story that he obtained the van from a homeless acquaintance moments after it was stolen, it could have rejected the balance of his testimony as incredible or unreasonable, including his purported belief that his acquaintance’s possession of the van was lawful. Defendant could not identify the location of the motel where he had obtained the van; he got the van from someone he knew from “jail” and the “street,” where people “steal things” and “do what they got to do to get by”; he had never seen the van in the acquaintance’s possession before; and he knew the acquaintance had no lawful employment. Likewise, the jury may have been skeptical of defendant’s claim that he was taking flowers to his mother’s gravesite when none were found in the van.
Under these circumstances, it is not reasonably likely that the outcome would have been more favorable to defendant in the absence of error. Therefore, we need not decide whether counsel rendered ineffective assistance: As we have explained, a defendant claiming ineffective assistance of counsel has the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Mendoza, supra, 78 Cal.App.4th at p. 924.) Prejudice must be affirmatively proved. “‘It is not enough for the defendant to show that [counsel’s] errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (Ledesma, at pp. 217-218.)
Our confidence in the outcome has not been undermined by defense counsel’s failure to sanitize defendant’s prior convictions.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., HULL, J.