P. v. Briggs

 

 

 

 

 

 

 

 

Filed 10/3/13 
P. v. Briggs CA5

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   IRVIN LEE BRIGGS,   Defendant and Appellant.

F065162   (Kern Super. Ct. No. BF135929A)     >OPINION

 

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County.
 John R. Brownlee, Judge.

            Gideon
Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton
Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

>INTRODUCTION

            Appellant/defendant
Irvin Lee Briggs was involved in an argument with two men.  He obtained a semiautomatic handgun and fired
multiple shots at them while they were in the parking lot of a commercial
business.  No one was injured from the
gunshots.

Defendant was charged and convicted
of count II, discharging a firearm at an inhabited
dwelling house or occupied building (Pen. Codehref="#_ftn2" name="_ftnref2" title="">^[1],
§ 246); count III, possession of a firearm by a felon (§ 12021, subd.
(a)(1)); and count IV, assault with a firearm (§ 245, subd. (a)(2)), with
an enhancement for personally using a firearm (§ 12022.5, subd. (a)).  The jury found him not guilty of count I,
attempted murder, and deadlocked on the lesser included offense of href="http://www.fearnotlaw.com/">attempted voluntary manslaughter.  As to all counts, the court found he had a
prior serious felony conviction (§ 667, subd. (a)), one prior strike
conviction (§§ 667, subds. (b)-(e) & 1170.12, subds. (a)-(e)), and
served four prior prison terms (§ 667.5, subd. (b)).  He was sentenced to an aggregate second
strike term of 23 years.

            On appeal,
defendant contends the trial court abused its discretion when it permitted the
prosecution to impeach his trial testimony with his prior conviction for
robbery in 2000.  Defendant contends the
evidence was prejudicial, the prior conviction was remote to the charged
offenses, and the court should have sanitized the nature of the offense.  We affirm.

>FACTS

            Around 8:00
a.m. on March 3, 2011, witnesses at the Kern Schools Federal Credit Union saw
an incident occur between defendant and two other men in the parking lot.  Defendant was by himself.  The other two men appeared to be with each
other.  The two men were arguing and
yelling at defendant.  One of the two men
kept his hand in his pocket, and a witness thought that man might have had a
weapon.

As they continued to argue and
yell, defendant appeared to walk away from the two men, but the two men
followed him.  One of the two men pushed
defendant, and they started to shove each other.  A woman who happened to be driving near the
dispute yelled at the three men “to stop being ghetto,” and they stopped
fighting.

The two men walked away from
defendant.  Defendant stayed in the
parking lot.  Within 10 seconds, a white
SUV appeared on the street.  Defendant
waved at the SUV, and it pulled into the parking lot.  Defendant walked up to the passenger side,
opened the door, and asked the driver, “[W]here’s the gun at?”  Defendant leaned into the vehicle and pulled
out a handgun.  The SUV immediately left
the area.

Defendant racked a round into the
handgun and fired a shot at the two men. 
Defendant racked the gun and again fired at the two men.  Defendant walked toward the men and continued
to fire gunshots in succession, without pausing.  The two men ran away and were not hit.  After defendant finished firing, he picked up
his backpack and walked away.

The investigation

            The police
responded to the scene and found six spent shell casings on the ground, all
within a radius of five feet.  There was
a bullet strike in the wall of the credit union building, about five to six
feet above the ground.  The bullet was
embedded too far into the wall to recover. 
There was a spent bullet on the ground, just outside the building.  The recovered bullet and shells were
nine-millimeter Luger rounds, and consistent with being fired from a semiautomatic
handgun.

            Several
days after the shooting, defendant appeared at the sheriff’s department and
turned himself in.  Bakersfield Police
Officer Jerry Whisenhunt transported him to the police department.  Whisenhunt had prior encounters with
defendant and noticed he had shaved his head since their previous meeting.  Defendant said he had shaved his head “a
couple of days ago.”  Defendant also said
he had been visiting his mother in Los Angeles. 
Defendant had a bus pass dated March 8, 2011, from Lancaster.

            Peter
Collins was later identified as one of the two men who argued with defendant,
and who was later fired on by defendant. 
At trial, Collins was called as a prosecution witness, but invoked his href="http://www.mcmillanlaw.com/">right to remain silent and refused to
answer questions.

>DEFENSE

            Officer
Douglas Mansker testified that around 9:20 a.m. on the same day as the
shooting, he responded to a dispatch in a different part of town, regarding a
man running down the street and removing his clothes.  Mansker had to draw his weapon to detain the
man, who was later identified as Peter Collins. 
Collins appeared confused, disoriented, and under the influence of PCP.

Officer Mansker testified that
Collins did not have a weapon, and he did not say anything about a disturbance
or shooting.  However, Collins’s
fingerprint was found at the employee entrance to the credit union, and the
credit union’s surveillance videotape showed Collins trying to open the employee
entrance.

Later that afternoon, Officer Ryan
Kroeker spoke to Collins at the jail. 
Collins was calm, and he did not appear under the influence.  Collins said he smoked PCP the previous night
with some friends, and it gave him a “bad trip.”  He smoked marijuana in the morning, which
reactivated the PCP, and he began “tripping” again.

Defendant’s testimony

            Defendant,
who was 40 years old, testified that he was convicted of robbery in 2000 or
2001, and second degree burglary in 2005. 
In March 2011, he was living with his cousin, Calvin, near the credit
union.  Defendant attended Bakersfield
College.  Defendant’s other cousin,
Sheridan Rogers, was murdered in 2010 and the suspect was “still loose.”

            Defendant
testified that on the morning of March 3, 2011, he walked to the bus stop to go
to school.  He heard a noise, turned
around, and saw two men walking behind him. 
Defendant did not know them.  One
man was later identified as Collins.  The
other man had his right hand in his pocket. 
The men kept asking him, “[W]hat’s up[?]” and used a racial expletive.

The men continued to walk toward
defendant.  As they got closer, defendant
saw that Collins was holding a revolver and the hammer was pulled back.  The other man kept his hand in his pocket,
and defendant thought he also had a gun. 
The men looked mean and scary, and defendant thought they were
“tripping” on something.  Defendant was
afraid these two men were responsible for the murder of his cousin.

            Defendant
testified the two men turned around, walked away from him, and headed toward a
car.  Defendant continued walking to the
bus stop, but the men ran towards him. 
Defendant thought they were going to kill him.  Collins swung at defendant and hit him in the
head.  The other man stood by and kept
his hand in his pocket.  Defendant was
dazed and backed into the street to get help. 
Defendant thought Collins was high on something.  Collins repeatedly swung at defendant until a
woman shouted to stop “being ghetto.” 
Collins yelled that she should mind her own business.  Collins and the other man walked back to
their car.

            Defendant
testified that his cousin, Calvin, who lived in the area, drove by in his white
SUV.  Defendant called out to Calvin,
walked up to the passenger side of the vehicle, and asked Calvin if he had his
gun with him.  Defendant did not wait for
Calvin to respond.  He reached into the
vehicle and grabbed the weapon.

            Defendant
knew Calvin kept the gun loaded, and he racked the slide to frighten the two
men.  The men looked at him, but they
continued to walk away.  Defendant again
racked the slide and fired three or four shots in the air.  The men ran away.  Defendant put the gun in his pocket, grabbed
his backpack, and walked away.  Defendant
later threw the gun in a trash can.

            Defendant
testified he left Bakersfield and visited his mother in Los Angeles.  He knew he was wanted because he saw himself
on the news.  He returned to Bakersfield
and surrendered.

Verdict and sentence

            Defendant
was charged with count I, premeditated attempted murder (§§ 187,
subd. (a); 189; 664), with an enhancement for personally and intentionally
discharging a firearm (§ 12022.53, subd. (c)); count II, discharging
a firearm at an inhabited dwelling house or occupied building; count III,
possession of a firearm by a felon; and count IV, assault with a firearm, with
an enhancement for personally using a firearm.

Defendant initially pleaded not
guilty by reason of insanity.  He later
withdrew his insanity plea, and a jury trial was held on the substantive
offenses.  Defendant was convicted of
counts II, III, and IV.  The jury found
him not guilty of count I, attempted murder. 
It deadlocked on the lesser included offense of attempted voluntary
manslaughter, and the court declared a mistrial on that count.

THE
COURT PROPERLY ADMITTED

DEFENDANT’S
PRIOR CONVICTION FOR ROBBERY

            Defendant
contends the court abused its discretion when it permitted the prosecution to
impeach his trial testimony with his prior convictions for both burglary in
2005 and robbery in 2000.  Defendant
argues his burglary conviction, by itself, would have been sufficient to
impeach his testimony, and the court should have excluded his 2000 robbery
conviction because the use of two prior convictions was prejudicial, the
robbery conviction was too remote, and the nature of the robbery offense should
have been sanitized.

A.    
Background

            Prior to
trial, the prosecution moved to impeach defendant’s expected trial testimony
with three prior felony convictions: 
unlawfully taking or driving a vehicle in 1991, robbery in 2000, and
second degree burglary in 2005.

            Defense
counsel argued the robbery conviction could not be used for impeachment because
it was 12 years old and too remote, and the crime of robbery itself was too
prejudicial.  Counsel further asserted
that the prosecution’s impeachment request could be accomplished with just the
prior conviction for burglary.

The court extensively reviewed
defendant’s record and found he was convicted of the vehicle offense in 1991,
his parole was revoked in 1993, 1995, and 1997, and he was discharged in 1998.  He was convicted of robbery in March 2000,
his parole was revoked in 2003, and he was convicted of burglary in 2005 and
sentenced to three years.  He was
arrested in the instant case in 2011.

The court excluded the 1991 vehicle
conviction because it was too remote. 
However, the court found defendant had not led “a crime-free life” since
the vehicle conviction in 1991, and particularly since the robbery conviction
in 2000.  It granted the prosecution’s
motion to impeach him with both the robbery and burglary convictions.  The court found the probative value of the
two prior convictions outweighed any prejudicial effect.

Defense counsel asked the court to
sanitize the prior robbery conviction. 
The court denied the request because that would result in defendant
being asked whether he had been convicted of a crime of moral turpitude:  “The jury sits there and goes … moral
turpitude, holy cow.  What, did he burn
down an orphanage or what did he do, you know.”

The court subsequently instructed
the jury about the limited admissibility of defendant’s prior convictions, and
“not to consider [the prior convictions] for any other purpose except for the
limited purpose of determining defendant’s credibility.”

B.   
Impeachment

Article I, section 28, subdivision
(f) of the California Constitution authorizes for impeachment purposes “the use
of any felony conviction which necessarily involves moral turpitude,” subject
to the trial court’s exercise of discretion under Evidence Code section 352.  (People v. Castro (1985) 38 Cal.3d
301, 306.)  “ â€˜No ... defendant who
elects to testify in his own behalf is entitled to a false aura of
veracity.’  [Citation.]”  (People v. Tamborrino (1989) 215
Cal.App.3d 575, 590.)

Robbery and burglary are crimes of
moral turpitude.  (People v. Gray
(2007) 158 Cal.App.4th 635, 641; People
v. Collins (1986) 42 Cal.3d 378, 395.) 
“ â€˜[T]he admissibility of any past misconduct for impeachment is
limited at the outset by the relevance requirement of moral turpitude.  Beyond this, the latitude [Evidence Code]
section 352 allows for exclusion of impeachment evidence in individual cases is
broad.’  [Citations.]  When determining whether to admit a prior
conviction for impeachment purposes, the court should consider, among other
factors, whether it reflects on the witness’s honesty or veracity, whether it
is near or remote in time, whether it is for the same or similar conduct as the
charged offense, and what effect its admission would have on the defendant’s
decision to testify.  [Citations.]”  (People
v. Clark (2011) 52 Cal.4th 856, 931 (Clark).)

“A trial court’s exercise of
discretion in admitting or excluding evidence is reviewable for abuse
[citation] and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice [citation].”  (People v. Rodriguez (1999) 20 Cal.4th
1, 9-10.)

C.   
Analysis

        The
court did not abuse its discretion when it permitted the prosecution to impeach
defendant with his prior conviction for robbery, in addition to the burglary
conviction.  First, it is settled that
both robbery and burglary are crimes of moral turpitude.  In addition, convictions for robbery,
burglary, and other theft-related offenses “are probative on the issue of the
defendant’s credibility. 
[Citations.]”  (>People v. Mendoza (2000) 78 Cal.App.4th
918, 925 (Mendoza).)

        Second,
defendant’s robbery conviction was not too remote, even though it occurred in
2000 and defendant committed the instant offenses in 2011.  As the court explained, and the record
demonstrates, defendant had not led a crime-free life in the interim.  “If a prior felony conviction has been
followed by a legally blameless life, remoteness is important.  [Citation.] 
Thus, the court may consider defendant’s conduct subsequent to the prior
conviction.  [Citations.]”  (People
v. Tamborrino, supra, 215
Cal.App.3d at p. 590.) 
“[C]onvictions 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 name="citeas((Cite_as:_78_Cal.App.4th_918,_*92">life since the time of the
remote prior.  [Citations.]”  (Mendoza,
supra, 78 Cal.App.4th at
pp. 925-926.)  For example, in People
v. Green (1995) 34 Cal.App.4th 165 (Green),
the court admitted a 20-year-old prior conviction because “his 1973 conviction
was followed by five additional convictions in the years 1978, 1985, 1987,
1988, and 1989.  Accordingly, ‘the
systematic occurrence of [defendant’s] priors over a 20-year period create[d] a
pattern that [was] relevant to [his] credibility.’  [Citation.]” 
(Id. at p. 183.)

        Third, the prior robbery conviction and the
charged offenses were not similar.  (Cf. >Clark, supra, 52 Cal.4th at p. 932.) 
As to the fourth factor, defendant has not argued that the court’s
evidentiary ruling affected his decision to testify, and it has no application
to this case since defendant actually took the stand.  (See, e.g., Mendoza, supra, 78
Cal.App.4th at p. 926.)

            Defendant
argues the court abused its discretion when it permitted impeachment with his
prior convictions for burglary and
robbery.  Defendant asserts the prior
burglary conviction was sufficient for impeachment purposes by itself, since it
was an offense of moral turpitude, and relevant and probative of
credibility.  This argument is
meritless.  “[T]here is no limitation on
the number of prior convictions with which the defendant’s credibility can be
impeached.  [Citations.]”  (Mendoza,
supra, 78 Cal.App.4th at
p. 927.)  As the California Supreme
Court has recognized, “a series of crimes may be more probative of credibility
than a single crime.  [Citations.]  ‘ â€œ[W]hether or not more than one prior
felony should be admitted is simply one of the factors which must be weighed
against the danger of prejudice. 
[Citation.]” â€™ 
[Citation.]”  (>Clark, supra, 52 Cal.4th at p. 932-933; see also Mendoza, supra, 78
Cal.App.4th at pp. 923, 927 [10 prior convictions]; Green, supra, 34
Cal.App.4th at p. 183 [six prior convictions]; People v. Muldrow (1988) 202 Cal.App.3d 636, 646, [six prior
convictions].)

In this case, the court’s decision
to permit impeachment with two prior convictions of moral turpitude, which were
not similar to the charged offenses but were probative of defendant’s
credibility, was not an abuse of discretion. 
Impeachment of defendant with only one prior conviction “would have
given him a ‘false aura of veracity’ because it would suggest that defendant
has led a generally legally blameless life, whereas he has not been able to
remain crime-free for any significant period of time” since his robbery
conviction.  (Mendoza, supra, 78
Cal.App.4th at p. 927.)

            Defendant
further argues the court abused its discretion when it denied his motion to
sanitize the nature of his prior robbery conviction.  There is no requirement that a court must
sanitize a prior felony conviction, even if the prior offense is similar to the
charged crime.  (See, e.g., People v.
Dillingham (1986) 186 Cal.App.3d 688, 695; People v. Gutierrez
(2002) 28 Cal.4th 1083, 1139.)  As the
California Supreme Court has explained, however, name=SearchTerm>sanitizing the prior conduct does not necessarily alleviate
the potential for prejudice.  (>People v. Barrick (1982) 33 Cal.3d 115,
127, abrogated by statute on another point as stated in People v. Collins, supra, 42 Cal.3d at
p. 393.)  A trial court’s attempt to
sanitize a prior conviction of moral turpitude, by reference to it only as a
“serious felony,” represents an attempt “to tread between the pitfalls of
identifying the prior conviction as an offense similar or identical to the
charged offense [citation], and not identifying the felony at all.  [Citation.]” 
(People v. Barrick, >supra, 33 Cal.3d at p. 127.)  By precluding any reference to the precise
offense, the court prevents “direct
prejudice” to a defendant, but “removes one risk of harm only to create a
number of others equally grave.”  (>People v. Rollo (1977) 20 Cal.3d 109,
119, italics in original, superseded by statute on another point as recognized
in People v. Castro, supra,
38 Cal.3d 301.)  Such a sanitizing device
may infringe on the jury’s role as “arbiter of the probative effect” of the
convictions upon the defendant’s credibility and, as noted by the court in this
case, invite the jury’s speculation that the offense involves “some form of
unspeakable conduct” or a conviction of a nature that is “especially damaging
to the defendant’s credibility.”  (>People v. Rollo, supra, 20 Cal.3d at pp. 118, 119; see also >People v. Massey (1987) 192 Cal.App.3d
819, 825.)  The court did not abuse its
discretion by declining to do so.

            Finally,
the witnesses testified that defendant fired toward the two other men;
defendant testified he fired shots in the air to scare them.  The court could have properly concluded that
admission of defendant’s unsanitized prior conviction “was necessary to inform
the jury fully as to defendant’s credibility.” 
(People v. Johnson (1991) 233
Cal.App.3d 425, 459.)  The jury was
properly instructed as to the limited admissibility of defendant’s prior
convictions, and we presume the jury followed the instruction.  (Clark,
supra, 52 Cal.4th at p. 934; >People v. Holt (1997) 15 Cal.4th 619,
622.)

>DISPOSITION

            The
judgment is affirmed.