P. v. Adams

Filed 4/18/07 P. v. Adams CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Charles Robert Adams appeals from his convictions by jury of insurance fraud (Pen. Code, 550, subd. (a)(4))[1]and perjury ( 118, subd. (a)). He admitted having suffered four prior prison terms within the meaning of section 667.5, subdivision (b) and one prior felony strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court sentenced defendant to an aggregate state prison term of six years. Defendant contends that the trial court abused its discretion by not allowing him to impeach a pivotal prosecution witness with pending felony charges or the moral turpitude conduct underlying them, thereby depriving him of his state and federal constitutional rights to due process, to confront and cross-examine witnesses and to present a meaningful defense.

We affirm.

FACTUAL BACKGROUND

The Vehicle Purchase

On October 3, 2005, Steven Oseas met defendant at the Acapulco restaurant in Sunland in order to purchase defendants 1997 Honda automobile for Oseass girlfriend, Nichole Stephenson. Stephensons friend Katie, and Katies boyfriend Turtle,[2]who were also present at the restaurant meeting, had told Stephenson that someone they knew was selling a car.

Oseas and defendant left the restaurant and went to the parking lot so Oseas could inspect and test-drive the car. In the car, defendant gave Oseas various documents including the maintenance records for the vehicle; the cars registration card showing it registered to defendant and Linda Joslyn (Joslyn); defendants contract for the purchase of the car; copies of the cars pink slip showing title in Joslyn and defendant; a document showing that Joslyn, identified as defendants mother, had signed off as a registered owner; and the car key. Oseas gave defendant $3,000 cash, but did not receive the pink slip, a bill of sale, or any other receipt. Defendant said he would give Oseas the original pink slip the next day, as it was in Joslyns safe-deposit box. Oseas and defendant exchanged cell phone numbers. When they returned to the restaurant, Oseas gave the key to the car to Stephenson, who later drove the car home.

In the following days, Oseas spoke with defendant several times by telephone in an effort to obtain the pink slip.[3] The first couple of days, defendant made excuses for not delivering it. On October 7, defendant told Oseas that he wanted an additional $1,000 for the car because the original price was too low. When Oseas refused to pay more because they had a gentlemans agreement, defendant responded, Well, f-it . . .  I got insurance. Oseas did not speak with defendant again.

Defendants Theft Claim

On October 9, 2005, defendant telephoned the police and reported that his car had been stolen. He said he had parked it on October 8, 2005, at 11:00 p.m., and when he went to get it the next day, it was gone. He reported locking and securing the car and still having the keys.

On October 10, 2005, defendant telephoned Allstate Insurance Company (Allstate), his automobile insurance carrier, to report the theft. On October 22, 2005, he signed an affidavit of vehicle theft, which Allstate had sent to him, in the presence of a notary, under penalty of perjury. On the affidavit, he wrote that the car was stolen between 11:00 p.m. on October 8, 2005 and 11:00 a.m. on October 9, 2005. He reported that he had no evidence of its whereabouts and did not suspect anyone. He also wrote that the car had not been offered for sale or trade in the preceding year and that he had two keys to it. He sent the affidavit along with a vehicle transfer form and the two car keys, one an original factory key and one a copy, to Catherine Cary (Cary), the Allstate agent. On November 3, 2005, Allstate issued defendant a check for $5,760.

The Investigation

In late October, Oseas telephoned the Allstate agent who was listed on a card in the cars glove compartment, for information. Oseas was put in contact with Kevin Smith of Allstates special investigations unit. Because the Honda had been reported stolen and was in Oseass possession, Smith contacted Detective Manuel Gill of the California Highway Patrol Vehicle Theft Task Force, to retrieve the vehicle and investigate the matter.

On November 22, 2005, Detective Gill met with Oseas and Stephenson. Oseas told him that there were six people at the restaurant on October 3, 2005, including defendants girlfriend who accompanied him and defendant on a test drive. He said that they negotiated the price at the restaurant over dinner. The police report said nothing about Oseas giving his and Stephensons phone numbers to defendant. Stephenson also told Detective Gill that there were six people at the restaurant and gave the same account of the incident as Oseas. During the meeting, Oseas gave the detective his key to the Honda and the paperwork defendant had given to him. Detective Gill showed Oseas and Stephenson a photographic six-pack, and each independently identified defendant as the person who sold them the car.

On the same day as the interview, Detective Gill inspected the Honda, which was parked two blocks from Oseass residence. There were no signs the ignition had been tampered with or recently worked on. The door and trunk locks did not appear new or replaced, and the cars interior appeared normal.

The Honda was impounded and later inspected by Smith. He had the two keys defendant had sent Allstate, and there was a factory manufactured key inside the car. All of the keys worked properly. The locks also worked, and the ignition did not appear to have been tampered with. Nothing about the cars condition suggested that it had been tampered with, damaged or stolen.

Defense Witness

Linda Joslyn testified for the defense as follows: She was a friend of defendants and cosigned with him on the purchase of the Honda because she had better credit. She insured the Honda on her automobile insurance policy. Defendant and Joslyn each contributed to the down payment and loan payments. The loan was paid off within five months. When it was, she signed off on the pink slip and gave it to defendant, with the understanding he would take it to the Department of Motor Vehicles. She thought defendant would get his own insurance after her name was removed. Before the car was stolen, he told her he intended to keep it. She said that she still had a key to the car that she had not given to defendant.

DISCUSSION

Before Oseas took the stand, defense counsel advised the trial court that charges of assault with a firearm ( 245, subd. (a)(2)) and burglary ( 459) had been filed against him and were pending in the same courthouse. Counsel requested that she be allowed to impeach Oseas by asking him about the moral turpitude conduct, which led to his arrest in the pending matter, claiming that it was relevant to his credibility and to whether he was promised any leniency for his testimony. The trial court refused to allow such questioning unless the defendant could show that Oseas had been offered a benefit in exchange for his testimony in defendants case, stating: We are not going to conduct a mini trial now in this case in that proceeding. Defense counsel conceded there was no evidence of any such benefit. In fact, Oseas had been told by the prosecutor that he would receive no consideration for testifying in this case. The trial court did permit Oseas to be questioned about his prior misdemeanor conviction for throwing an object at a car. (Veh. Code,  23110, subd. (a).)

Defendant contends that the trial court abused its discretion and deprived him of his rights under the federal and state Constitutions to due process, to confront and cross-examine adverse witnesses, and to present a meaningful defense by denying his request to impeach the pivotal prosecution witness with pending felony charges and with the moral turpitude conduct underlying those charges. He argues that both charges, burglary and assault with a firearm, are crimes of moral turpitude and therefore should have been admitted for impeachment.

Respondent contends that defendant forfeited his constitutional claims by failing to raise them in the trial court.

We reject both contentions.

A. Forfeiture of Constitutional Claims

The arguments presented for and against admission of evidence regarding Oseass pending charges, as well as the trial courts comments on the issue, indicated that the trial court rejected the evidence based upon Evidence Code section 352 considerations. Defense counsel urged the relevance of the evidence to Oseass credibility and whether he was promised leniency for his testimony. The trial court expressed concern that substantial time would be consumed in conducting a mini-trial on the pending charges. The constitutional claims raised by defendant are nothing more than additional legal consequences of the exclusion of the evidence defendant claimed was central to his defense. They can therefore properly be raised on appeal without a specific objection in the trial court. (See People v. Partida (2005) 37 Cal.4th 428, 436; People v. Rogers (2006) 39 Cal.4th 826, 850, fn. 7 [the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial courts act or omission, insofar as erroneous for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendants new constitutional arguments are not forfeited on appeal].) Even if the issues were forfeited, we would exercise our discretion to consider them. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party].) We therefore turn to the merits.

B. Impeachment With Prior Criminal Misconduct

Before enactment of Proposition 8 in 1982, the Evidence Code precluded impeaching a person with specific acts of prior criminal misconduct other than a felony conviction. (Evid. Code, 787-788; People v. Lopez (2005) 129 Cal.App.4th 1508, 1522.) Proposition 8 abrogated this rule by adopting article I, section 28(d) of the California Constitution, the so-called Truth-in-Evidence amendment, which declared that relevant evidence shall not be excluded in any criminal proceeding unless the Legislature provides otherwise by a two-thirds vote of each house. Consequently, broader evidence of prior criminal conduct is now admissible. (People v. Wheeler (1994)4 Cal.4th.284, 291-292 (Wheeler).)

Any felony conviction involving moral turpitude, even if the immoral trait is other than dishonesty, may be admissible.[4] (People v. Green (1995) 34 Cal.App.4th 165, 182.) This is because it is undeniable that a witness moral depravity of any kind has some tendency in reason [citation] to shake ones confidence in his honesty. . . .  [] There is . . . some basis . . . for inferring that a person who has committed a crime which involves moral turpitude [even if dishonesty is not a necessary element] . . . is more likely to be dishonest than a witness about whom no such thing is known. . . . (Wheeler, supra, 4 Cal.4th at p. 295.)

Since passage of Proposition 8, past criminal conduct involving moral turpitude, even if it did not result in a felony conviction, may also be admissible to impeach witnesses in a proper case. (Wheeler, supra, 4 Cal.4th at pp. 295-296; People v. Green, supra, 34 Cal.App.4th at p. 182.) Consequently, prior misdemeanor conduct involving moral turpitude is admissible. (People v. Lopez, supra, 129 Cal.App.4th at p. 1522.) Pending charges for offenses involving moral turpitude are admissible to show that a witness may be testifying in order to seek leniency. (See People v. Coyer (1983) 142 Cal.App.3d 839, 842.) Evidence of the underlying misconduct involving moral turpitude, as distinct from a conviction for the misconduct, is admissible. (People v. Lopez, supra, at p. 1522; Wheeler, supra, at pp. 295, 300, fn. 14 [suggesting, in dictum, that misconduct in lieu of conviction may be used for impeachment]; People v. Martinez (2002) 103 Cal.App.4th 1071, 1080-1081 [It is long-standing law that a prosecution witness can be impeached by the mere fact of pending charges to show he may be seeking leniency by testifying].)[5]

Section 28(d) of the California Constitution makes clear, however, that nothing in [that] section shall affect any existing statutory rule of evidence relating to . . . hearsay, or Evidence Code [section] 352.[6] (Wheeler, supra, 4 Cal.4th at p. 291.) The admissibility of past misconduct is therefore limited at the outset by the relevance requirement of moral turpitude. Beyond this, the 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. (Id. at p. 296.)

In exercising its discretion regarding moral turpitude conduct, [A] court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanoror any other conduct not amounting to a felonyis a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, 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. (Wheeler, supra, 4 Cal.4th at p. 296, fns. omitted.)

[S]ection 28(d) makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor. . . .  Thus, impeaching misconduct now may, and sometimes must, be proven by direct evidence of the acts committed. These acts might not even constitute criminal offenses. Under such circumstances, fairness, efficiency, and moral turpitude become more complicated issues. Courts may take these facts into account when deciding under Evidence Code section 352 whether to admit evidence other than felony convictions for impeachment. (Wheeler, supra, 4 Cal.4th at p. 297, fn.7.)

C. Standard of Review

Review of a trial court decision pursuant to Evidence Code section 352 is subject to abuse of discretion analysis. [Citations.] (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) [T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) To constitute an abuse of discretion, the resulting injury [must be] sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, . . . the court [must] exceed[] the bounds of reason, all of the circumstances being considered. (Ibid.) [I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded. (People v. Kwolek (1995)40 Cal.App.4th 1521, 1532.)

D. Evidence Code Section 352 Analysis

1. Relevance

Applying the foregoing principles here, we consider whether the trial court abused its discretion by finding the relevance of the charges pending against Oseas to be substantially outweighed by the danger of undue prejudice, consumption of time or confusion of the jury. Among the factors often considered in making this assessment are whether the prior conviction (1) reflects on honesty and integrity, (2) is near or remote in time to the charged offense, (3) is the same or substantially the same as the charged offense, and (4) the effect of the admission on the defendants decision to testify. (People v. Castro, supra, 38 Cal.3d 307; see People v. Beagle (1972) 6 Cal.3d 441, 453.) Factor 1 has the clearest application where as here, the person subject to impeachment is not the defendant.

The types of charges pending against Oseas are of little direct relevance to his honesty and hence his credibility. He was charged with assault with a firearm and burglary. Both are crimes of moral turpitude. (People v. Hinton (2006) 37 Cal.4th 839, 888 [assault with firearm]; People v. Collins (1986) 42 Cal.3d 378, 395 [burglary].) While assault suggests a general readiness to do evil, it does not directly or necessarily suggest dishonesty. The inference that a person who is violent and assaults someone is likely to be dishonest, while permissible, is very weak. Obviously it is easier to infer that a witness is lying if the felony of which he has been convicted involves dishonesty as a necessary element than when it merely indicates a bad character and general readiness to do evil, although both constitute moral turpitude. Nevertheless, it is undeniable that a witness moral depravity of any kind has some tendency in reason [citation] to shake ones confidence in his honesty. (People v. Castro, supra, 38 Cal.3d at p.315.)

Burglary, on the other hand, remains in all cases the fundamentally deceitful act of entering a house or other listed structure with the secret intent to steal or commit another serious crime inside. . . . (People v. Collins, supra, 42 Cal.3d at p. 395.) But the strength of the inference that burglary is probative of dishonesty varies greatly depending on the particular facts. A person who clandestinely enters a home through a window, in the middle of the night, intending to steal from the homeowner and a person who walks through the front door of a business establishment with the undisclosed intent to assault a person the perpetrator knows is inside, present significantly different strength inferences with regard to the perpetrators dishonesty. Here, there is no indication in the record of the nature of the burglary, and hence the strength of any potential inference of dishonesty.

Further germane to the question of relevance is that the impeaching misconduct consists only of pending charges, not convictions. A felony conviction reliably establishes that the witness committed corresponding criminal acts; a party or witness is unlikely to be surprised by use of felony convictions for impeachment; and the court must determine moral turpitude solely from the least adjudicated elements of the conviction. [Citation.] (Wheeler, supra, 4 Cal.4th at p. 297, fn. 5.) The same cannot be said for pending charges which are more speculative, less relevant to credibility and may, and sometimes must, be proven by direct evidence of the acts committed. Pending charges therefore involve additional considerations in an Evidence Code section 352 analysis. (Wheeler, supra, at p. 297, fn. 5.) Because there is no conviction, trial courts face the possibility of, in essence, having to try these collateral charges in the current trial, thereby consuming an undue amount of time. Also, admission of pending charges strikes at our fundamental notion that a person is innocent until proven guilty. The mere filing of charges against a person is evidence of nothing, if the presumption of innocence is to mean anything. (See fn. 5, ante.)

Finally, there is no indication in the record that Oseas would testify regarding his alleged past misconduct, rather than assert the privilege against self-incrimination, the more likely course. If he asserted the privilege and the defendant was unprepared to present other evidence of his misconduct, all that would be accomplished by allowing such impeachment would be to prejudice the jury with an assertion that the answer might tend to incriminate the witness, without providing any relevant information on the question. While the jury would be instructed that the assertion of the privilege could not be a basis for drawing a negative inference about Oseass credibility (Evid. Code, 913, subd. (a); In re Scott (2003) 29 Cal.4th 783, 816), such an instruction would be of questionable value once the cat was out of the bag.

Defendants claim that he was entitled to inquire about the pending charges to determine whether Oseass testimony was an effort to secure leniency is also of no avail. While such evidence might have relevance, defendants counsel at trial conceded that there was no evidence of any such benefit. The district attorney stated that Oseas was in fact told that he would get no consideration for his testimony against defendant. Defendant never requested an Evidence Code section 402 hearing to probe further into that question, leaving a barren record on that point.

2. Prejudice

Against the comparatively meager relevance of the pending charges, the prejudice and consumption of time that would be caused by their admission is considerable. As mentioned above, introducing evidence of the pending charges and underlying misconduct would complicate the trial and could result in a detour into trying the validity of those charges. Additionally, if Oseas asserted his privilege against self-incrimination before the jury, with no evidence to support the charges, the prosecutions key witness could be substantially undermined with no evidentiary benefit. We cannot say that the trial court abused its discretion in concluding that these factors outweighed the insubstantial relevance of the pending charges.

E. Right to Present a Defense, Confrontation and Due Process

We reject defendants constitutional claims that he was deprived of his right to present a defense, to due process, and to confront the witnesses against him by virtue of the excluded evidence. As a general matter, the [a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense. [Citations.] Although completely excluding evidence of an accuseds defense theoretically could rise to this level . . . . (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)[7] Similarly, the confrontation clause does not prevent the trial court from placing reasonable limits on cross-examination. (People v. Ledesma (2006) 39 Cal.4th 641, 704-705; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) The touchstone of due process is fundamental fairness. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1250.)

While the trial court precluded evidence of, and limited cross-examination regarding, the pending charges and underlying conduct to impugn Oseass credibility, there was substantial other evidence in that regard. The trial court permitted him to be impeached with a prior conviction for throwing an object into a car. Further, there was evidence, emphasized by defense counsel in closing argument, of several inconsistencies between Oseass trial testimony and his and Stephensons statements to police. In short, for justifiable reasons, defendant was only precluded from introducing specified evidence, and not from challenging Oseass credibility. Such a narrow restriction did not compromise the fundamental fairness of the trial.

F. Harmless Error

Even if we were to conclude that excluding evidence of Oseass pending charges and conduct underlying them was erroneous, we would nonetheless find it to be harmless in that it is not reasonably probable that a result more favorable to defendant would have been obtained. (See People v. Castro, supra, 38 Cal.3d at p. 319; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against defendant was strong. There was no dispute that he submitted a notarized declaration, under penalty of perjury, as proof of car theft to Allstate and received payment for his car in return. He offered no explanation as to how Oseas obtained the car, the documents pertaining to it, and the factory manufactured key. Furthermore, the car showed no evidence of forced entry and there was no explanation for why there were cell phone calls between Oseas and defendant in the days after the sale. In short, there was no evidence to refute the Peoples case.

Additionally, as already stated, Oseas was impeached with a prior misdemeanor conviction of a crime of moral turpitude, and defense counsel emphasized in closing argument Oseass lack of credibility by focusing on the numerous inconsistencies between his trial testimony and statements he and Stephenson made to police. The jury nonetheless apparently believed him.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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Analysis and review provided by El Cajon Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Neither Oseas nor Stephenson knew Katie or Turtles real names.

[3] There were cell phone communications between Oseas and defendant on October 3, 4, 5 and 7, 2005, with multiple communications on a couple of those days.

[4] Moral turpitude is a willingness to lie (People v. Lopez, supra, 129 Cal.App.4th at p. 1522) or a general readiness to do evil (see People v. Castro (1985) 38 Cal.3d 301, 314, italics omitted).

[5] Evidence of arrests are inadmissible because it would seriously impair the witnesss credibility while having only a weak thread of relevance on bad character. (People v. Lopez, supra, 129 Cal.App.4th at p. 1523; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 592.)

[6] Evidence Code section 352 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.

[7] Defendants principal constitutional claim is that he was deprived of his right to present a defense. He describes his due process and confrontation clauses claims to be nothing more than the . . . constitutional bases for the right to a meaningful opportunity to present a complete defense. Hence, we need only consider the right to present a complete defense.