Opinion
B162510.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES WISEMAN, Defendant and Appellant.
Julie Schumer, 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 Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant James Wiseman appeals from the judgment entered following a jury trial that resulted in his conviction of second degree robbery. He contends the trial court erred in denying his request to "sanitize" prior convictions used to impeach his trial testimony. After review, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054), the evidence established that, at about 6:30 p.m. on December 30, 2001, defendant approached the victim in a hospital parking lot, hit her in the face with a closed fist, grabbed her black purse and ran away. Steven Bladen, a hospital security guard, heard someone yelling, was told a nurse had been assaulted, and saw a Black man holding a black purse run to a parked Toyota, throw the purse inside, then get into the drivers seat. The man then got out of the car and headed north on foot. Bladen, who had chased after the man, stopped him. Although at trial Bladen could not identify defendant as the man he had chased, another security guard, Jorge Moreno, testified that he saw Bladen chasing defendant. At the time, the victim told Moreno that Bladen was chasing the man who had assaulted her. After defendant was apprehended, police found the victims purse in defendants car and her cell phone on his person. At the scene, the victim identified defendant as her assailant.
Defendant testified at trial that he was in the hospital parking lot looking for a friend he was supposed to have met there. While walking up stairs, defendant was pushed and fell. When he came to his senses, defendant looked up and saw a man on the top of the parking structure, and a security guard talking to a woman. When defendant walked past, the man said, "hold it." Because this was the man who had pushed him down the stairs, defendant started to run. The man chased him. The next thing defendant knew, he was being handcuffed by police and taken to a field show-up. Defendant could not explain how the victims purse got into his car, and denied that he was in possession of her cell phone.
Defendant was charged by information with second degree robbery. Prior conviction enhancements were alleged pursuant to the Three Strikes law (Pen. Code. § 1170.12, subds. (a) through (d), § 667, subds. (b) through (i)), and Penal Code sections 667.5, subdivision (b) and 667, subdivision (a)(1). After the jury found defendant guilty of second degree robbery, defendant admitted the alleged prior convictions. Defendant was sentenced to a total of 20 years in prison, comprised of five years for the robbery, doubled pursuant to Three Strikes, plus a consecutive five years for each of two section 667, subdivision (a)(1) enhancements.
All further undesignated section references are to the Penal Code.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendants sole contention on appeal is that the trial court erred in not "sanitizing" a prior conviction for robbery and two prior convictions for burglary, which were used to impeach him at trial. He argues the error was prejudicial under the standard announced in People v. Watson (1956) 46 Cal.2d 818, 836. We disagree.
Subject to the trial courts discretion under Evidence Code section 352 (section 352), the California Constitution authorizes the use for impeachment purposes of any felony conviction which necessarily involves moral turpitude. (Cal. Const., art. I, § 28, subd. (f); People v. Castro (1985) 38 Cal.3d 301, 306 (Castro); People v. Green (1995) 34 Cal.App.4th 165, 182 (Green); see also Evid. Code, § 788.) In exercising its discretion under Evidence Code section 352, the trial court should consider the following four factors: (1) whether the prior conviction reflects adversely on an individuals 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 impeachment by prior convictions. (Green, supra, at p. 182, citing People v. Beagle (1972) 6 Cal.3d 441 (Beagle).)
As to the first factor, "A prior involving honesty and truthfulness, thus reflecting upon credibility, weighs heavily on the probative side of the Evidence Code section 352 formula. . . ." (People v. Foreman (1985) 174 Cal.App.3d 175, 182 (Foreman).) As to the second factor, "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. [Citations.]" (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) As to the fourth factor, where the defendant actually testifies, the fourth factor is not an issue. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1533 [defendant conceded he would testify regardless of admission of prior convictions]; see alsoForeman, supra, at p. 182 [when the defendant actually testifies, the appellate court treats "the issue as if the judge had been initially advised defendant would take the stand whether or not the judge ruled the prior was admissible."].)
This leaves the third factor: the similarity of the prior conviction to the charged offense. As noted by the court in People v. Johnson (1991) 233 Cal.App.3d 425: "There is no automatic limitation on the number or nature of prior convictions of crimes involving moral turpitude that may be used to impeach a witness. [Citations.] . . . Although we must, of course, scrutinize with care the impeachment use of prior convictions of crimes identical to a charged offense because of the heightened prejudice, no rule dictates their exclusion. . . ." (Id. at p. 459.) In People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647, for example, the appellate court held the trial court did not abuse its discretion in admitting for impeachment purposes evidence of six prior felony convictions, three of which were identical to the charged offense. And in People v. Stewart (1985) 171 Cal.App.3d 59, 65-66, three robbery convictions were found admissible to impeach the defendant charged with robbery. InGreen, supra, 34 Cal.App.4th at page 183, the court found no abuse of discretion in admitting six prior auto theft related prior convictions in a trial for unlawful driving, noting that " `the systematic occurrence of [defendants] priors over a [19-year] period create[d] a pattern that [was] relevant to [his] credibility. [Citation.]" The number of prior convictions and their similarity to the charged offense are simply factors to be considered in weighing the danger of prejudice. (Ibid.)
In exercising the discretion to admit for impeachment purposes evidence of prior convictions for offenses similar to the charged offense, some courts have attempted to avoid the inherent prejudice by "sanitizing" the prior conviction. For example, in Foreman, supra, 174 Cal.App.3d 175, the prosecutor wanted to impeach the testifying burglary defendant with a prior burglary conviction. The trial court allowed the prosecutor to ask only whether the defendant had been convicted of a "felony involving theft." (Id. at p. 179.) The appellate court affirmed, observing that prior cases disapproving such "sanitization" were implicitly disapproved byCastro, supra, 38 Cal.3d 301, which held that trial courts retained the discretion to exclude evidence pursuant to section 352, which was otherwise admissible under Proposition 8 (Cal. Const., art. 1, § 28, subd. (f)). (Foreman, supra, at p. 180.) Sanitization is not, however, mandatory. The court in Foreman noted that it would also have upheld admission of the admission of the prior burglary conviction without sanitization. (Id. at p. 182.)
Finally, we will not disturb a trial courts exercise of its discretion to admit evidence of prior convictions for impeachment purposes " `. . . 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.] [Citation.]" (Green, supra, 34 Cal.App.4th at pp. 182-183.)
Here, pursuant to Castro/Beagle, defendant moved to exclude evidence of his prior convictions for robbery and burglary if he elected to testify. He argued that the priors were too similar to the charged offense, were remote, and admission would chill defendants decision whether to testify. The prosecutor countered that the remoteness of the priors was not a persuasive factor inasmuch as defendant had been incarcerated for much of the intervening time. Moreover, the prosecutor objected to "sanitizing" the priors because this would give the defendant a false aura of credibility. (SeeBeagle, supra, 6 Cal.3d at p. 453.) The trial court concluded that evidence of the prior convictions was admissible. It offered to review any "sanitizing language" proffered by defense counsel. At the close of the prosecutions case, defense counsel informed the trial court that defendant intended to testify, and asked that any prior convictions used to impeach him be referred to as felonies involving moral turpitude. The trial court denied the request, observing: "I think thats a real dicey operation, because I never know what the jury will think. They may think its more serious than whatever the felony is. So I dont think well sanitize it, well just give them the crime." We find no abuse of discretion.
At trial, defendant admitted prior convictions for two counts of robbery and one count of burglary in 1984 (case No. A029495); one count of burglary in 1990 (case No. NA004455); and one count of burglary in 1993 (case No. NA013275).
This record demonstrates that the trial court was clearly aware of and exercised its discretion under section 352 to weigh whether the priors were more probative than prejudicial. Applying the four relevant factors to the facts, we conclude there was no abuse of that discretion. Defendant does not dispute that the convictions for burglary and robbery reflect on his honesty and veracity, and he concedes that they are not too remote. Defendants election to testify dispenses with the fourth factor. Only the similarity of the prior convictions to the charged offense militated against their admissibility. This, however, was not enough to make the priors inadmissible. Nor did this similarity require that they be sanitized. As noted by the court in Green, supra, 34 Cal.App.4th at page 183, "[s]ince the admission of multiple identical prior convictions for impeachment is not precluded as a matter of law [citation], and a series of crimes may be more probative than a single crime, there was no abuse of discretion. [Citation.]"
In any case, any error in not sanitizing the prior convictions was patently harmless. Defendant was identified at the scene by the victim as her assailant, although she was less sure of the identification at trial. Defendant could not explain why the victims purse was found in his car and her cell phone on his person. Defendants version of events was highly implausible.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J., BOLAND, J.