Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. Nos. 05CM4418, 06CM0219 & 06CM2907.. Peter M. Schultz, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clayton S. Tanaka and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
HILL, J.
Defendant Michael Rodney Valdez was convicted of various crimes arising out of three actions consolidated for trial. In Case No. 06CM0219, the jury found defendant guilty of one count of battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)), one count of resisting arrest resulting in serious bodily injury (§ 148.10, subd. (a)), and two counts of resisting arrest (§ 148, subd. (a)(1)). The jury deadlocked on one count each of attempted robbery, making criminal threats, and attempting to take a firearm from a peace officer. At sentencing, defendant pled no contest to the count of making criminal threats (§ 422), and the other two counts were dismissed. In Case No. 06CM2907, the jury found defendant guilty of willfully failing to appear in court in connection with the felony charges in Case No. 06CM0219 (§ 1320.5). The jury also found true the enhancement allegation that at the time of his failure to appear, defendant was released from custody on bail within the meaning of section 12022.1. Finally, in Case No. 05CM4418, the jury found defendant guilty of misdemeanor diversion of construction funds (§ 484b). Defendant was sentenced to a total prison term of six years and four months.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the trial court abused its discretion by permitting defendant to be impeached with his 1989 conviction for transporting narcotics; and (2) Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 220 (CALCRIM), the reasonable doubt instruction, is ambiguous and constitutionally deficient. We will affirm.
FACTS
Case No. 05CM4418
On June 27, 2005, John Lawrence paid defendant a $500 deposit for a $5000 roofing job defendant was to begin work on while Lawrence was on vacation. Defendant cashed the $500 check but never preformed the work he was hired to do and avoided Lawrence’s attempts to contact him.
In his defense, defendant claimed he used the funds to purchase supplies. However, due to financial problems eventually leading to bankruptcy, defendant was unable to start the job.
Case No. 06CM0219
On December 12, 2005, defendant went into a Money Mart three times, trying to cash a check, and was belligerent towards employee Allison Debem, after she requested additional information from defendant before she would cash his check. Debem observed that defendant was carrying a police scanner when he came into the store.
After defendant left a third time, a telephone call came into the store. Debem recognized defendant’s distinctive voice. He instructed that she leave $2500 in an alley next to the store and that her life depended on it. When Debem moved towards the door to lock it, defendant told her not to move and to turn and go to the safe. He also said he had a scanner and that she knew he did. Now hysterical, Debem ran to the restroom, locked herself in, and called 911. During the incident, Debem had her store manager on a different phone. She put the two phones together and the store manager heard defendant tell Debem to leave $2500 outside the store and not to call the police.
On defendant’s behalf, Fannie Loya testified that on December 12, 2005, her husband wrote defendant a check for $400 for work he did at their house. Defendant testified he went to Money Mart twice that day to cash a $400 compensation check. He denied that he went to the Money Mart a third time or threatened anyone. He was at his children’s Christmas concert at a nearby church. Three other witnesses, including defendant’s mother, testified to seeing defendant at the concert.
On December 16, 2005, police officers went to defendant’s house in connection with the Money Mart incident. After two officers knocked on the door, defendant called down from an upstairs window that he had just gotten out of the shower and asked if he could meet them at the station, but the officers indicated they would wait for him. A moment later, defendant emerged from a side door onto the front patio. He started walking towards one of the officers, but then his eyes suddenly got big and he turned and ran a few feet back into the house. The officers grabbed him by his arms, pulled him back onto the patio, and he started to struggle. Defendant was told he under arrest for the Money Mart incident.
A third officer, Dale Williams, ran up to assist the other two officers. Defendant head-butted Officer Williams and broke the officer’s nose. Officer Williams also felt a strong pull on his service revolver and yelled, “Let go of my gun.” Later, defendant apologized to Officer Williams for head-butting him, but said it was all he could do since the other two officers were holding his arms.
In his defense, defendant claimed the officers charged him and grabbed his arms when he came out of the house and denied that he tried to run back inside. They did not tell defendant he was under arrest. Defendant also denied that he head-butted Officer Williams, claiming they accidentally knocked heads when the officer ran “full steam” into defendant. Defendant also denied trying to grab the officer’s firearm, explaining it was impossible because his arms and legs were being held by the other officers. According to defendant, the officers slammed him face down into the ground and punched and kicked him while he was on the ground.
At the hospital, defendant did not apologize to Officer Williams for intentionally head-butting him or for inflicting any injury on him. Rather, he simply said to the officer, “Sorry we met this way.”
Raymond Sandoval, a friend and neighbor of defendant, who witnessed the arrest, testified that the officers grabbed defendant as soon as he came out of the house. Sandoval did not see defendant head-butt Officer Williams, but he reported that he saw one of the officers punching defendant in the face two or three times.
Case No. 06CM2907
Defendant failed to appear in court on April 28, 2006, as ordered in connection with the charges stemming from the Money Market incident.
DISCUSSION
I. Use of Prior Conviction for Impeachment
Prior to defendant’s testimony, the trial court ruled, over the defense’s objection, that the prosecution could admit evidence of defendant’s 1989 conviction for transporting narcotics for impeachment purposes. The fact defendant had a prior felony conviction came in during the following line of questioning on cross-examination:
“[THE PROS1ECUTOR]: You have had a prior felony conviction, have you not?
“[DEFENDANT]: Years ago, yes, ma’am. I made a mistake.
“[THE PROSECUTOR]: In fact, it was close to 1990; is that right?
“[DEFENDANT]: ’88, ’89, yeah, somewhere in there.
“[THE PROSECUTOR]: November 16th, ’89, does that sound right?
“[DEFENDANT]: Possibly. It was when I was a kid, yeah.”
On redirect examination, defendant estimated he was 19 or 20 years old in 1989.
Defendant now contends the trial court abused its discretion by allowing evidence of his 1989 conviction to be admitted for impeachment purposes due to its remoteness. We reject defendant’s contention and conclude the trial court did not abuse its discretion in permitting defendant to be impeached with his prior conviction.
“[A]ny felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty ....” may be used to impeach a defendant testifying in his own defense. (People v. Castro (1985) 38 Cal.3d 301, 306 (Castro).) Crimes of moral turpitude are those whose least adjudicated elements evince “‘bad character’ and ‘general readiness to do evil.’” (Id. at p. 315.) If a prior conviction is of a crime that does not involve moral turpitude, it may not be admitted. “If it does, it is prima facie admissible, subject to the exercise of trial court discretion.” (Id at p. 316.) The admission of evidence of prior felony convictions for impeachment purposes is subject to the weighing test of Evidence Code section 352. (Id. at pp. 312-313.)
In deciding whether to admit a defendant’s prior convictions, the trial court is guided, but not bound, by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441 (Beagle). (See People v. Clair (1992) 2 Cal.4th 629, 654.) These factors are: (1) the conduct’s probative value for honesty; (2) the remoteness of the prior conviction; (3) the similarity between the impeachment conviction and the crime charged; and (4) the effect on the defendant who does not testify out of fear of being prejudiced by impeachment of prior convictions. (People v. Castro (1986) 186 Cal.App.3d 1211, 1216.)
“‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
Here, after addressing the Beagle factors and applying the Evidence Code section 352 weighing test, the trial court found defendant’s prior conviction for transporting narcotics was admissible for impeachment purposes. In that regard, the court stated:
“It appears that the pertinent factors involved in the question are that, first, the crime is a moral turpitude crime under Castro, the type which is permissible for impeachment, and it is not a crime directly bearing on honesty or veracity in a manner that theft or perjury crimes do, but it is a moral turpitude crime. It is rather remote, 17 and a half years old.
“On the other hand, based on the information presented, the defendant has not led a crime-free life since then. It is dissimilar from any of the charged offenses in this case, so there’s little danger of the jury engaging in impermissible reasoning along the lines of, ‘Well, the defendant did it before so he must have done it this time also.’
“So there are factors weighing on both sides of the issue of its admissibility. On balance, the Court finds that the probative value of the proffered evidence does outweigh any undue prejudice, and the People will be allowed to ask about the conviction.”
California courts have found that criminal drug offenses involving sale, transportation or possession for sale are crimes of moral turpitude. (People v. Vera (1999) 69 Cal.App.4th 1100, 1103.) Thus, it is clear defendant’s 1989 conviction for transporting narcotics was admissible for impeachment purposes. Further, the fact that it was not similar to the charged offenses also supports the trial court’s decision that the probative value of admitting the conviction outweighed the potential prejudice from doing so. Additionally, defense counsel did not contend that allowing defendant to be impeached with the 1989 conviction would affect defendant’s decision whether to testify, nor did he explain how the failure to testify would prejudice the defense.
Moreover, the significance of the remoteness factor is diminished when “the defendant has not led a legally blameless life” during the intervening time between his prior conviction and when he testifies. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926, and cases cited therein.) Here, the record discloses, as noted by the prosecutor, that defendant’s 1989 conviction was followed by a 1990 misdemeanor conviction involving disorderly conduct and prostitution; he was sentenced to a four-day jail term and three years’ probation. In 1991, defendant was returned to jail after his probation was revoked. In 2006, defendant was convicted of possessing methamphetamine; sentencing for that conviction was still pending during his trial in the instant case. Notwithstanding the 15-year gap between his 1990 misdemeanor for disorderly conduct/prostitution conviction and his 2006 methamphetamine possession conviction, the record reflects that defendant has not led a legally blameless life since his 1989 conviction for transporting narcotics, and thus supports the trial court’s finding that the conviction was not too remote to be used for impeachment purposes.
We find the only “prejudice” accruing to defendant from the use of his prior conviction was the damaging impact on his credibility and therefore his case. However, this sort of impact has never been enough by itself to establish an abuse of discretion under Evidence Code section 352. (People v. Bolin (1998) 18 Cal.4th 297, 320 [“prejudice” for purposes of Evid. Code, § 352 is not synonymous with “damaging”; it refers instead to “evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues”].) Thus, we conclude that the trial court did not abuse its discretion when it allowed defendant to be impeached with his 1989 conviction for transporting narcotics.
II. CALCRIM No. 220
Defendant argues at great length that CALCRIM No. 220 is ambiguous because it does not clarify that an “abiding conviction” requires a subjective feeling of certitude rather than an objective assessment of the evidence. He maintains that the instruction does not accurately track the language of section 1096. He focuses on the language italicized below.
Defendant sums up the problems with CALJIC No. 220 as “the obfuscation of the scope properly given to the jurors’ individual subjectivity in the reasonable doubt standard, the creation or aggravation of an ambiguity contained in the phrase ‘abiding conviction,’ and finally a failure to convey the appropriate impression that proof beyond a reasonable doubt requires on the part of the jurors a subjective certitude of the truth of the charge.”
Section 1096 provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’” (Italics added.)
The trial court instructed the jury pursuant to CALCRIM No. 220:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal trial is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
The government must prove beyond a reasonable doubt every element of a charged offense. (In re Winship (1970) 397 U.S. 358, 361-368.) There is no standard formula for instructing on the meaning of reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’” (Ibid.; People v. Mayo (2006) 140 Cal.App.4th 535, 542.) Section 1096a provides that a court “may” instruct with the reasonable doubt instruction of section 1096, but it does not require that precise language. (People v. Freeman (1994) 8 Cal.4th 450, 503.)
CALCRIM No. 220 plainly required the prosecutor to prove the defendant guilty beyond a reasonable doubt. Indeed, the final sentence of the instruction stated: “Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The trial court also instructed with CALCRIM No. 103 regarding the presumption of innocence and the prosecution’s burden of proving every element of the crimes beyond a reasonable doubt. This instruction reiterated the prosecution’s burden of proof.
Furthermore, we do not believe the jurors, when instructed simply to reach an “abiding conviction” – without being informed that an abiding conviction is a feeling, as stated in section 1096 – failed to give the case the grave consideration necessary or failed to recognize the need for “subjective certitude.” An abiding conviction, even without further explanation, connotes the weighty nature of the judgment and the importance of the decision. (See, e.g., People v. Barillas (1996) 49 Cal.App.4th 1012, 1022 [use of term “abiding conviction” without “moral certainty” is adequate instruction].) Employing plain language, CALCRIM Nos. 103 and 220 correctly conveyed the concept of reasonable doubt in the instant case.
Accordingly, we conclude there is no reasonable likelihood that the jurors understood the instructions as diminishing the seriousness of the task and thereby diluting either the presumption of innocence or the reasonable doubt standard. In other words, there is no reasonable likelihood that the jurors applied the challenged instruction in a way that violates the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73: People v. Cain (1995) 10 Cal.4th 1, 36.)
CALCRIM No. 220 has survived other constitutional challenges as well. (E.g., People v. Guerrero (2007) 155 Cal.App.4th 1264; People v. Westbrooks (2007) 151 Cal.App.4th 1500; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154; People v. Flores (2007) 153 Cal.App.4th 1088.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HARRIS, Acting P.J., DAWSON, J.