P. v. Bowles

Filed 4/25/07 P. v. Bowles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.

___________________________________

Daniel Bowles appeals from the judgment entered following a jury trial in which he was convicted of lewd conduct with a child under the age of 14. He contends that the prosecutor committed prejudicial misconduct in questioning a witness, the trial court erred in permitting him to be impeached with a prior conviction, and his motion for a new trial should have been granted. We affirm.

BACKGROUND

Defendant was the physical education teacher of 13-year-old Karin G. at a public middle school in Los Angeles. On June 3, 2003, defendant invited Karin to his home after a minimum day. Karin agreed to come, and when she got into defendants car she put on a hat that defendant gave her so she would not be recognized. Once at defendants home, Karin followed defendant into the bedroom. There, defendant kissed Karin, removed his and Karins clothes, fondled Karins breasts, attempted to penetrate Karin with his penis, and penetrated her with his finger. Afterward, Karin washed herself in the bathroom and got dressed. Defendant then dropped Karin off near her home. Once at home, Karin took a shower, and took two more showers over the next two days.

The day after the incident, Karin told one of her schoolmates what had happened. The schoolmate gave this information to her mother, who in turn informed school authorities. Karin was called into the principals office, where she conceded that she had been with defendant but did not provide details because she wanted to protect defendant. A nurse practitioner who examined Karin on June 5, 2003, found an abrasion and redness in Karins genital area that was consistent with sexual contact. Karins mother later hired a lawyer who filed a lawsuit against defendant and the school district.

A prosecution criminalist testified that analysis of DNA on a swab the nurse practitioner had taken from Karins neck indicated a mixture of DNA from both Karin and defendant.

Testifying in his own defense, defendant denied any sexual contact with Karin. He asserted he had told Karin she could come to his house for help her with homework, but only if she first got permission from her mother. Karin arrived unexpectedly on the day in question. Defendant told her to call her mother for permission to stay. When Karin was unable to reach her mother by phone, defendant took her home. Defendant also presented evidence that his genitals were discolored (and later noted in argument to the jury that Karin had not mentioned this discoloration to authorities).

A defense medical expert testified that the nurse practitioner who examined Karin was in error in finding an abrasion (the physician was of the opinion that what appeared to be an abrasion is a normal part of the female anatomy), and it was impossible for DNA to be recovered after two days and three showers following Karins contact with defendant. A defense DNA expert disagreed with the DNA analysis of the prosecution expert.

An aunt with whom Karin and her mother had previously lived testified that Karin was not truthful with her regarding having a boyfriend and possessing a knife. Karins cousin testified that Karin had once come into his room, closed the door, kissed him on the face and mouth, and put her legs around him.

DISCUSSION

1. Prosecutorial Misconduct

On direct examination of the officer who arrested defendant, the prosecutor asked if the officer had advised defendant of his Miranda^[1]rights. The officer responded in the affirmative. The prosecutor next asked, Did you attempt to speak with him? Defendant immediately objected and requested a sidebar conference. At sidebar, the court ruled that the question was improper. When the conference ended, the court admonished the jury to disregard the question. Defendants later request for a mistrial on this ground was denied, but the court invited defendant to submit a stronger admonition than the one given if he wished to do so. Defendant declined the courts offer.

We reject defendants contention that his judgment should be reversed on the basis of the prosecutors question.

Under Doyle v. Ohio (1976) 426 U.S. 610, 619 [96 S.Ct. 2240], once a defendant invokes his Miranda rights, the prosecutor cannot make use of the defendants postarrest silence. (See also Wainwright v. Greenfield (1986) 474 U.S. 284 [106 S.Ct. 634].) In Greer v. Miller (1987) 483 U.S. 756, 759 [107 S.Ct. 3102], the defendant was asked, Why didnt you tell this story to anybody when you got arrested? Defense counsel immediately objected, and the trial court instructed the jury to ignore the question. (Ibid.) The Supreme Court found that no Doyle violation had occurred, reasoning that although the prosecutor attempted to violate the rule of Doyle by asking an improper question in the presence of the jury (Greer, at p. 765), the trial court did not permit the use of the defendants postarrest silence. (Id. at pp. 764765.) Under the reasoning of Greer v. Miller, there was no Doyle violation in this case.

In his reply brief, defendant attempts to distinguish Greer v. Miller on the basis that [i]n contrast the jury in this case heard that [defendant] was actually advised of his Miranda rights. Defendant is mistaken. Although not specifically stated in the Supreme Courts opinion, the defendant in Greer v. Miller did receive Miranda warnings. (See U.S. ex rel. Miller v. Greer (7th Cir. 1986) 789 F.2d 438, 442, reversed by Greer v. Miller, supra, 483 U.S. 756.) In addition, the United States Supreme Court noted in its opinion that the defendant had received the implicit assurance of Miranda warnings that his silence would carry no penalty. (Greer v. Miller, supra, 483 U.S. at p. 763.) Thus, defendants attempt to distinguish Greer v. Miller must fail.

As a separate issue from whether a Doyle violation occurred, we must determine if defendant was prejudiced by the prosecutors attempt[] to violate the rule of Doyle. (Greer v. Miller, supra, 483 U.S. at p. 765, italics added.) The applicable standard is Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]. (Greer v. Miller, supra, 483 U.S. at pp. 765766; People v. Earp (1999) 20 Cal.4th 826, 858.) Here, there was a single improper question in the context of a lengthy trial, a quick admonition to disregard the question, and no other mention of defendants postarrest silence. Under these circumstances, the prosecutors improper question was harmless beyond a reasonable doubt. (Greer v. Miller, supra, 483 U.S. at pp. 766767.)

2. Impeachment With Prior Conviction

In proceedings conducted outside the presence of the jury, it was established that in 1992 defendant was convicted of felony possession of marijuana for sale. Defense counsel represented that in 1993 the felony was reduced to a misdemeanor and the case was dismissed under Penal Code section 1203.4.^[2] Records were presented to the court that in 1995 and 1996 defendant was arrested for forgery involving sales of counterfeit tickets to sporting events. Neither arrest resulted in charges being filed. As recounted by the trial court, in Phoenix in 1995 defendant discarded a ticket when they approached him, which turned out to be a counterfeit ticket. All the tickets that were sold to these victims were counterfeit tickets. They all identify [defendant] as being the one who sold them . . . . He had the tickets in his pocket at the time that this all went down. And he even offered to give back money, thereby, admitting the fact that he had sold the items to these people and had received their money. As to the 1996 incident in Los Angeles, [defendant] and another individual are selling tickets to victims. The victims identify [defendant] as being involved in that. Hes got the currency in his pocket at the time when they are stopped and the items are recovered.

Defendant argued that his prior conviction was remote and should not be deemed to constitute moral turpitude because it was ultimately reduced from felony possession for sale to misdemeanor straight possession and was then dismissed. Defendant further emphasized that the forgery arrests had not resulted in prosecutions.

The trial court tentatively rejected defendants arguments, stating: Based upon my review of the 1995 and 1996 incidents, I believe that the defendant did engage in conduct which involved moral turpitude in each of those incidents. The court is going to permit the prosecution to impeach the defendant with the 1992 [conviction], subject to further argument on the legal effect of the reduction of that crime to a misdemeanor. No further argument was presented, and when defendant later testified, he was impeached with his 1992 conviction of possession of marijuana for the purpose of sale.

Defendant contends that the trial court abused its discretion in permitting impeachment. We disagree.

No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity. (People v. Beagle, supra, 6 Cal.3d at p. 453; accord, People v. Hinton (2006) 37 Cal.4th 839, 888.) Article I, section 28, subdivision (f) of the California Constitution provides, in pertinent part that [a]ny prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding. But trial courts retain their discretion under Evidence Code section 352 to bar impeachment with such convictions when their probative value is substantially outweighed by their prejudicial effect. [Citations.] (People v. Clair (1992) 2 Cal.4th 629, 654.) In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle[, supra,] 6 Cal.3d [at page] 453 . . . : (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 the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed. [Citation.] (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)

If a conviction occurred long before and has been followed by a legally blameless life, [it] should generally be excluded on the ground of remoteness. (People v. Beagle, supra, 6 Cal.3d at p. 453.) Nevertheless, there may be no conviction that is per se too remote to be used for impeachment. (People v. Burns (1987) 189 Cal.App.3d 734, 738.) In determining whether a prior conviction should be excluded as remote, the trial court may consider such factors as the length of time that has elapsed since the conviction, the length of sentence served on the prior conviction, the nature of the conviction, the age of the defendant at the time the previous crime was committed, and the defendants conduct subsequent to the prior conviction. (Ibid.)

We review a trial courts admission of prior felony convictions for impeachment for an abuse of discretion. (People v. Hinton, supra, 37 Cal.4th at p. 888.) 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.] (People v. Green (1995) 34 Cal.App.4th 165, 182183.)

Here, the trial court recognized that the remoteness of defendants 1992 conviction raised questions about the propriety of admitting it for impeachment and focused on defendants conduct since that time. (See People v. Wilson (1975) 50 Cal.App.3d 811, 819.) The court concluded that defendants subsequent conduct was sufficiently serious to disqualify defendant from being able to testify with the aura of veracity of one who has not sustained a prior felony conviction involving moral turpitude. We further note that when defendant did testify, he explained that he successfully completed probation on his 1992 conviction and the case was then reduced to a misdemeanor and dismissed. Accordingly, defendants contention of prejudicial error in allowing impeachment with his prior conviction must be rejected.

3. Motion for a New Trial

Defendant was charged with five counts of lewd conduct arising from the incident with Karin. During deliberations, the jury requested clarification on which acts went to which counts. The court responded that the prosecutor had not elected to so specify and that defendant could be found guilty or not guilty of each count. Ultimately, the jury reached a verdict on count 1, telling the court that it was hopelessly deadlocked 11 to 1 for conviction on counts 2 through 5. A mistrial was declared on those counts, which were ultimately dismissed in furtherance of justice.

At sentencing, defendant filed a motion for a new trial based on the declaration of Juror No. 1. The declaration provided in pertinent part: I was the not guilty holdout juror, because I didnt think [defendant] guilty of committing the charged lewd acts upon a minor. I voted him not guilty on four [of] the five counts. [] . . . The only thing I thought he actually did was to transport a minor. [] . . . The jury foreman told me that one of the counts against the defendant was for transporting a minor. I voted him guilty on that count, because I believed he had transported the minor. [] . . . Only after the end of the trial did I learn that he was not charged with transporting a minor in any count, and that transporting a minor is not even a crime. [] . . . I believe the jury foreman misrepresented the nature of the charge to me. Had I understood that this count, too, accused [defendant] of committing a lewd act upon a child, I would have voted not guilty on it, too.

At the hearing on defendants motion, the trial court and counsel focused on whether consideration of Juror No. 1s declaration was barred under Evidence Code section 1150, subdivision (a).^[3] The court held that the declaration would not be considered, further noting: This court instructed all of the jurors as to the elements of the offenses, not the jury foreperson. This court provided the jurors with the verdicts. This court clerk read those verdicts in open court. There was never any language in any verdict form or in any instruction that would indicate that the defendant was charged with transporting a minor, or that mere transportation of a minor was tantamount to the offenses which were charged, lewd and lascivious conduct. So the motion for new trial is respectfully denied.

In his moving papers below, defendant argued that a new trial should be granted because Juror No. 1s declaration established that the verdict had been decided by means other than a fair expression of opinion, as prohibited by Penal Code section 1181, subdivision 4.^[4] On appeal, both parties base their arguments on whether juror misconduct had been established under Penal Code section 1181, subdivision 3.^[5]Regardless of which ground for new trial is considered, the trial courts ruling was correct.

The bulk of Juror No. 1s declaration was unquestionably inadmissible as describing the jurors subjective reasoning process, including such phrases as I didnt think [defendant] guilty; the only thing I thought he actually did; I voted him guilty . . . because I believed; I believe the jury foreman misrepresented the nature of the charge; and [h]ad I understood . . . this court, . . . I would have voted not guilty . . . . (See People v. Steele (2002) 27 Cal.4th 1230, 1261.) The only portion of the declaration that could arguably satisfy Evidence Code section 1150, subdivision (a), was that the jury foreperson told [Juror No. 1] that one of the counts against the defendant was for transporting a minor. As explained below, that argument fails.

In People v. Sanchez (1998) 62 Cal.App.4th 460, the defendant was charged with violation of Penal Code section 327, which prohibits contriving, preparing, setting up, proposing, or operating an endless chain. Declarations from two jurors submitted in support of a motion for a new trial each stated that some of the jurors, including [the declarants], included participation in the definition of Endless chain and that jurors openly discussed during deliberations that participation in the Endless Chain was sufficient to satisfy the elements of the offense. (Sanchez, at p. 475.)

The Sanchez court noted that [i]n rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the jurors mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150. (People v. Hedgecock (1990) 51 Cal.3d 395, 418419.) (People v. Sanchez, supra, 62 Cal.App.4th at pp. 475476; see also People v. Lewis (2001) 26 Cal.4th 334, 388.) In holding that the declarations in Sanchez did not satisfy Evidence Code section 1150, the court continued: [W]here, as here, the affidavit or declaration suggests deliberative error in the jurys collective mental processconfusion, misunderstanding, and misinterpretation of the law, particularly regarding the way in which the jury interpreted and applied the instructions, the affidavit or declaration is inadmissible. [Citation.] The mere fact that such mental process was manifested in conversation between jurors during deliberations does not alter this rule. [Citation.] (People v. Sanchez, supra, 62 Cal.App.4th at p. 476; accord, People v. Elkins (1981) 123 Cal.App.3d 632, 636638.)

Here, in commenting that all of the jurors had been given the same instructions and provided with the same verdict forms, and that there was never any language suggesting transportation of a minor was tantamount to a charged crime, the trial court recognized that it was dealing with the type of deliberative error that took place in Sanchez. Cases such as this one and Sanchez may thus be distinguished from situations such as where a juror acquired personal information about the defendant from a source outside the trial process and shared in with other jurors during deliberations (People v. Nesler (1997) 16 Cal.4th 561, 579), or where a juror professed special knowledge of law by virtue of his experience as a police officer and then erroneously stated that robbery did not require an intent to permanently deprive the victim in that case of his property (In re Stankewitz (1985) 40 Cal.3d 391, 399401). (See also People v. Keenan (1988) 46 Cal.3d 478, 540541 [holdout juror threatened with death if she did not vote with the majority].) There was nothing about what the foreperson said here that involved extrinsic or personal information. Rather, the statement was merely a manifestation of the forepersons misunderstanding of the law. The fact that he conveyed this misunderstanding to Juror No. 1 does not operate to permit its consideration under Evidence Code section 1150.

Defendant further argues that Evidence Code section 1150 was abrogated by the Truth-in-Evidence provisions of 1982s Proposition 8 and that People v. Steele, supra, 27 Cal.4th at pages 12631264, which held otherwise, was wrongly decided. We disagree with defendants assessment of Steele, a decision by which we are bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda).

^[2]There is no documentation in the record to substantiate counsels claim regarding reduction and dismissal of the charges, and nothing in Penal Code section 1203.4 appears to allow the reduction of a felony possession for sale conviction to misdemeanor simple possession. And it is permissible to use a prior conviction for impeachment purposes notwithstanding the dismissal of charges under section 1203.4. (People v. Tiner (1970) 11 Cal.App.3d 428, 441, overruled on another ground in People v. Beagle (1972) 6 Cal.3d 441, 451452.)

^[3]Evidence Code section 1150, subdivision (a) provides: Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

^[4]Penal Code section 1181, subdivision 4, permits a new trial [w]hen the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.

^[5]Penal Code section 1181, subdivision 3, permits a new trial [w]hen the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented.

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.