P. v. Huff

Filed 3/16/07 P. v. Huff CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant of possession for sale of cocaine base (count 1; Health & Saf. Code,  11351.5) and of possession of drug paraphernalia (count 2; Health & Saf. Code,  11364). The jury also found true allegations that defendant had two prior convictions for drug possession and one prior conviction for burglary. She was sentenced to four years in prison on count 1, plus one year for each of the three prior convictions. She was sentenced to 180 days in county jail for count 2, to be served concurrent to the prison term.

On appeal, defendant contends: (1) the admission of evidence of defendants prior crimes was prejudicial error; (2) the use of a prior misdemeanor conviction for spousal battery to impeach a defense witness was prejudicial error; (3) the prosecutor was permitted to impeach another witness with questions about a prior drug crime and reference to an inadmissible rap sheet; (4) the court erred in allowing the prosecutor to introduce improper rebuttal evidence; (5) the court improperly refused to allow defendant to make a motion to suppress evidence during trial; and (6) the prosecutor committed prejudicial misconduct during argument. We reject these arguments and affirm the judgment.

II. FACTUAL SUMMARY

On January 2, 2005, Riverside Police Officer Shea McMahon was patrolling in the area of La Sierra and Magnolia Avenue. According to McMahon, this is an area of high drug activity and drug sales.^[1] At approximately 9:45 a.m., McMahon saw defendant sitting in a car parked in a liquor store parking lot. Defendant had backed into a parking space, and the back of her car was against a block wall. McMahon parked his car about 15 feet away from defendants car. Defendant was talking with a man, who was standing outside the drivers side door. As McMahon got out of his car, the man began to walk away. McMahon ordered him back. McMahon searched the man and found nothing.

McMahon asked defendant if she had anything illegal on her person. She said she did not. McMahon asked if he could search the car. Defendant told him, No. Im not getting out of my car. Defendant appeared very agitated and nervous. McMahon suspected that she was under the influence of drugs. Eventually, defendant got out of the car. When she stood up, she tossed or dropped a plastic baggie onto the ground. McMahon picked it up. The baggie appeared to contain cocaine.

McMahon then searched the defendant and the car. He found what appeared to be rock cocaine in a plastic bag in defendants jacket pocket. The officer asked defendant what it was. She told him it was rock cocaine. She also told him that the cocaine was for her personal use. In the car, McMahon found $155 in cash (in denominations of $20, $10, and $5), three glass pipes, a digital scale, and a glass tube called a shaker. The glass pipes are the kind that are commonly used to smoke methamphetamine or cocaine. The scale is a type of scale commonly used to weigh small amounts of controlled substances. McMahon asked defendant what the shaker was for. She told him that she uses it to breakdown the large pieces of rock into small usable rocks.McMahon also found a piece of paper in the car with six names written on it and numbers, ranging from 20 to 70, next to the names. The paper was described by McMahon and a narcotics detective as a pay/owe sheet normally used by drug dealers. According to a detective, the amounts written on the paper are consistent with dollar amounts used for sales of cocaine. One of the names on the list was Uncle Will.

The weight of the cocaine found in the bag that defendant dropped and in her jacket pocket, including the packaging, was 7.7 grams. According to a narcotics detective, a typical user of cocaine would have between one-tenth of one gram and three grams in his possession. Seven grams of cocaine would cost between $420 and $560. In the detectives opinion, someone possessing that much cocaine is a dealer. Possession of scales, $155 in various denominations, three glass pipes, and a shaker, are further indicia of being a dealer.

The defense theory was that defendant was a heavy user of cocaine, not a dealer.^[2] The defense presented three witnesses: Leroy Huff, Jr., Willie Cornelius, and defendant herself. Leroy Huff, Jr., the defendants husband, testified that defendant was a regular cocaine user, spending about $500 per month on drugs. She did not sell drugs. According to Leroy, the paper identified as a pay/owe sheet was actually a list of people to whom defendant wanted to give gift certificates for helping her move. Leroy said that he knew who Uncle Will was, but did not know any of the other people on the list.

Willie Cornelius testified that he has known defendant for 13 or 14 years, and that she is like a daughter to him. Defendant calls her Uncle Will. He has never seen defendant use drugs, and defendant never gave or sold drugs to him. He had, along with defendants husband, helped defendant move from one house to another.

Defendant testified as follows. She possessed cocaine at the time she was arrested with the intent to smoke it. She had been using cocaine for 15 to 20 years. She will use seven grams of cocaine over a one or two-week period. She smoked cocaine the morning she was arrested and was under the influence at the time McMahon approached. The bag that fell onto the ground held the crumbs of what she smoked that morning. The paper with the names and numbers on it is a Christmas list of people to whom she wanted to give gifts; it has nothing to do with drug sales. She got the $155 cash found in the car at an ATM. She had the glass pipes to smoke cocaine. She uses the shaker to separate the rock cocaine from the junk [used] to rock it up. She uses the scale to ensure that she is getting her moneys worth when she buys cocaine.

Following the conclusion of the defense case, the prosecution was permitted to introduce the testimony of Jennifer Sniff, a forensic technician, who testified as to the contents of a 969b packet evidencing defendants prior convictions and prison sentences.^[3] The 969b packet was also admitted into evidence.

Additional facts will be discussed below where pertinent to the issues raised in this appeal.

III. ANALYSIS

A. Evidence of Prior Convictions Elicited from Defendant

The complaint alleged three prior convictions and prison terms for purposes of Penal Code section 667.5, subdivision (b).^[4] The alleged convictions occurred on: December 7, 2000 (possession of a controlled substance; Health & Saf. Code,  11350); January 7, 2000 (possession of a controlled substance; Health & Saf. Code,  11377, subd. (a)); and April 16, 1996 (burglary; Pen. Code,  459). The defense elected to not bifurcate the trial. Defendant was questioned as to each of these priors.

On appeal defendant contends that the trial court erred in allowing the convictions in as evidence of prior misconduct under Evidence Code section 1101, subdivision (b). While the trial court did rule that evidence of two prior drug possessions would be allowed relative to the issue of knowledge, a close examination of the trial record shows that the evidence actually admitted was not in fact Evidence Code section 1101, subdivision (b) evidence, but rather evidence presented relative to the allegations of the Penal Code section 667.5 prior prison enhancements to which defendant had no objection.

Prior to trial, the People sought a ruling on the admissibility of evidence of two prior incidents involving defendant under Evidence Code section 1101, subdivision (b). One of the incidents was unrelated to any of the prison priors alleged in the complaint; the second resulted in the alleged December 7, 2000, conviction. The following transpired relative to the Peoples motion: [DEFENSE COUNSEL]: Well, Your Honor, I dont think its proper [Evidence Code section] 1101[, subdivision] (b). I think its offered just to show a propensity to do it. I dont particularly mind that, because were not bifurcating; shes not going to testify.^[[5]] Its just a matter of how much comes in. Were going to, you know, shes going to admit. Its going to be in front of the jury already that she is charged with these two drug-related crimes and the second-degree burglary. [] Ive read the Points and Authorities by the People, and theres some assumption in there were going to fight certain elements that we dont intend on fighting. Were not going to say she doesnt know what cocaine looks like, I mean, well concede that. . . . So I dont think theres any issues that can legally be shown by [Evidence Code section] 1101[, subdivision] (b) type evidence. [] I dont think it would be particularly prejudicial against her to show it, because were admitting it already. Its just a matter of kind of undue consumption of time, even to have a live witness come in. . . .

To prove the prison prior allegations, the prosecution was required to show that defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.) If the defendant testifies at trial, evidence of these facts may be elicited from the defendant. (People v. Elmore (1990) 225 Cal.App.3d 953, 957.)

Here, the prosecutor questioned defendant about the alleged prior convictions. She admitted the 1996 conviction for burglary and the January 7, 2000, conviction for possession of methamphetamine.^[6] She stated that she was sentenced to probation for the burglary conviction, and admitted that she went to prison for the January 2000 conviction. She denied being convicted on December 7, 2000. With respect to this denial, the prosecutor then questioned defendant further. Defendant testified that she was inside a motel room in November 2000 when police came to the door. She testified that there was cocaine in the room, but that she did not have drugs in her possession at that time. The following colloquy then occurred:

Q. And were you arrested for the cocaine that they found in that room?

A. I was arrested, yes. [] . . . []

Q. Okay. And were you eventually convicted for having that cocaine?

A. Yes, I was.

Q. And were you convicted for possession of rock cocaine a month ‑‑ a little less than a month later, on December 7th, 2000?

THE COURT: Well, see, I think thats confusing. Isnt that the date she was convicted?

[PROSECUTOR]: Yes, she was arrested on November 20th, and she was convicted on December 7th.

THE COURT: Okay. And that makes sense that the November 20th incident led to the December 7th conviction. So do you understand what hes saying? You remember being arrested, right? [] . . . [] You just said you did a minute ago.

[DEFENDANT]: Okay. Yeah, I remember being arrested.

THE COURT: And a couple weeks after that, remember pleading guilty?

[DEFENDANT]: For what they said?

THE COURT: Yeah, for what they arrested you for.

[DEFENDANT]: Yeah, I guess. I dont remember.

Defendant argues that eliciting from defendant the admissions of her prior convictions was inadmissible under Evidence Code section 1101, subdivision (b).^[7] The evidence was admissible to prove the fact of such convictions for purposes of Penal Code section 667.5, subdivision (b). The prosecutor did not inquire into the conduct relating to the first two convictions, and only briefly brought forth facts relative to the third conviction, for the arguable purposes of impeaching defendants testimony. Defendant denied that conviction and the prosecutors questions directly challenged that denial. (See People v. Arias (1996) 13 Cal.4th 92, 174 [to prove prison prior allegations following defendants testimony that prior conviction was based upon invalid plea, prosecutor was permitted to ask about facts of the underlying charges to which defendant pled].) Thus any error by the trial court in allowing Evidence Code section 1101, subdivision (b) evidence, was of no consequence in that the jury heard only about the fact of the convictions. Indeed, as defense counsels statements during the pretrial discussion shows, the evidence of the convictions clearly coincided with defense counsels tactical decision in trying the case.

B. Impeachment of Leroy Huff, Jr.

Prior to trial, the prosecutor sought a ruling on the admissibility of evidence concerning two prior incidents involving defendants husband, Leroy Huff, Jr. One of the incidents resulted in a conviction in 2000 for simple battery ( 242), the other in a 2004 conviction for battery against a spouse or cohabitant ( 243, subd. (e)(1)). (Defendant was not the victim in either of the prior crimes.) Defendant objected on the ground that the prior offenses were not relevant. The court ruled that evidence of the simple battery would not be admitted, and that evidence of the battery against a spouse could be admitted because it is a crime of moral turpitude.

Following jury selection, defense counsel pointed out that the misdemeanor spousal battery conviction itself, as distinguished from the underlying conduct, is inadmissible ‑‑ a point with which both the prosecutor and the court agreed. He nevertheless suggested limiting inquiry on the prior offense to asking the witness if he was convicted of the crime in order to avoid a minitrial on the issue. He also commented that doing so might be less prejudicial to defendant. The prosecutor apparently agreed, and, in cross-examining Leroy, asked him about his conviction for spousal battery. Although Leroy initially sought to deny, then qualify, the fact of the conviction, he eventually admitted it.

Defendant contends that this evidence was inadmissible for three reasons. First, because spousal battery under section 243, subdivision (e)(1), is not a crime of moral turpitude and cannot, therefore, be used to impeach a witness. Second, even if spousal battery is a crime of moral turpitude, the evidence should have been excluded under Evidence Code section 352. Third, the fact of the witnesss conviction, rather than evidence of the underlying facts of the crime, is not admissible. For the reasons that follow, we hold that a violation of spousal battery under section 243, subdivision (e)(1), is a crime of moral turpitude, and the court did not abuse its discretion in allowing the evidence under Evidence Code section 352. We further hold that, although the fact of the conviction itself is generally not admissible, defendant has forfeited this argument under the doctrine of invited error.

1. Spousal Battery as a Crime of Moral Turpitude

Evidence of past misconduct amounting to a misdemeanor and involving moral turpitude is admissible to impeach a witness in a criminal case, subject to exclusion under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler).) Offenses involving moral turpitude include those in which dishonesty is an element and those evincing a general readiness to do evil. (People v. Castro (1985) 38 Cal.3d 301, 306, 315.) Such convictions are relevant to a witnesss credibility because a person who has committed a crime of moral turpitude is more likely to be dishonest than a witness about whom no such thing is known. (Ibid.; see also Wheeler, supra, at p. 295 [Misconduct involving moral turpitude may suggest a willingness to lie].)

In determining whether a prior crime involves moral turpitude, the court must determine that the least adjudicated elements of the conviction necessarily involve moral turpitude. (People v. Castro, supra, 38 Cal.3d at p. 317.) The least adjudicated elements test means that from the elements of the offense alonewithout regard to the facts of the particular violationone can reasonably infer the presence of moral turpitude. [Citations.] (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.)

A battery is any willful and unlawful use of force or violence upon the person of another. ( 242.) A violation of section 243, subdivision (e), requires proof that the defendant committed a battery against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendants child, former spouse, fianc, or fiance, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship. ( 243, subd. (e)(1).) The question of whether a violation of section 243, subdivision (e), constitutes a crime of moral turpitude for purposes of impeaching a witness has not been addressed by the Court of Appeal in any published decision.

In People v. Mansfield (1988) 200 Cal.App.3d 82 (Mansfield), the Court of Appeal held that a simple battery ( 242) does not necessarily show readiness to do evil or necessarily involve moral turpitude. (Mansfield, supra, at p. 88.) The Mansfield court explained that a battery may occur by the least touching . . . [F]orce against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark. [Citations.] A person need not have an intent to injure to commit a battery. He only needs to intend to commit the act. [Citation.] Thus, a simple battery does not necessarily show readiness to do evil or necessarily involve moral turpitude. (Ibid., italics omitted.)

The Mansfield court further held that felony battery under section 243, subdivision (d), which adds to simple battery the requirement that the battery result in serious bodily injury, is likewise not a crime of moral turpitude. (Mansfield, supra, 200 Cal.App.3d at p. 89.) The court explained: [T]echnically force likely to cause serious bodily injury is not a requirement of section 243. [Citation.] Also, [the] statute ( 243) makes a felony of the act of battery which results in serious bodily harm to the victim no matter what means or force was used. [Citation.] Further, section 243 focuses on the actual injury inflicted, not on the force used. [Citations.] [] Thus, the state of mind necessary for the commission of a battery with serious bodily injury is the same as that for simple battery; it is only the result which is different. It follows that because simple battery is not a crime involving moral turpitude, battery resulting in serious bodily injury necessarily cannot be a crime of moral turpitude because it also can arise from the least touching. Although serious injury resulting from a simple offensive touching may not be likely, in determining whether a certain crime is one of moral turpitude, the reviewing court may not go behind the conviction and take evidence on the underlying facts. [Citation.] (Id. at p. 88, fn. omitted.)

In People v. Lindsay (1989) 209 Cal.App.3d 849 (Lindsay), the defendant was impeached with his prior conviction for battery against a police officer under former section 243, subdivision (c). (Lindsay, supra, at p. 851.) The Lindsay court concluded that this crime does constitute a crime of moral turpitude. (Id. at p. 857.) The court distinguished Mansfield, stating: Battery upon a peace officer involves elements in addition to those necessary for a conviction of simple battery, or battery which causes serious injury: the willful and unlawful use of force must be: (1) upon a peace officer in the performance of his or her duties; and (2) the person committing the battery must know or reasonably should have known the victim of the battery was a peace officer. The latter element clearly involves a different mental state than that in Mansfield. Here, the act must likewise have been intended, but in addition the perpetrator must have known, or should have known, the victim was a peace officer in the performance of his or her duties. [] The knowledge element of the crime of battery upon a peace officer (that defendant know or reasonably should have known the victim was a peace officer in the performance of his duties) clearly involves moral turpitude. There is no doubt the intentional, willful and unlawful use of force upon a peace officer, however slight, coupled with actual knowledge the victim is a peace officer in the performance of his or her duties, is clearly a crime of moral turpitude and demonstrates a readiness to do evil. (Lindsay, supra, at p. 857; see also People v. Clarida (1987) 197 Cal.App.3d 547, 552, People v. Marks (2003) 31 Cal.4th 197, 238 (conc. opn. of Chin, J.).)

For our purposes, Lindsay is significant because the crime of battery against a police officer does not require an intent to cause harm, the infliction of any injury, or any force greater than the force used to commit simple battery. For the Lindsay court, the lack of force required to commit a battery ‑‑ which was essential to the Mansfield holding ‑‑ was immaterial; what mattered was that the battery was committed against a police officer. Thus, although the commission of a battery that causes serious bodily injury is not a crime of moral turpitude under Mansfield, a simple battery against a police officer, regardless of whether the battery causes any injury, is a crime of moral turpitude. (Lindsay, supra, 209 Cal.App.3d at p. 857; see also People v. Williams (1985) 169 Cal.App.3d 951, 957 [a battery by a jail inmate upon a noninmate constitutes a crime of moral turpitude].)

Mansfield was again distinguished in People v. Rodriguez (1992) 5 Cal.App.4th 1398 (Rodriguez), in which the court held that a violation of section 273.5, subdivision (a), was a crime of moral turpitude.^[8] According to the Rodriguez court, the focus of the moral turpitude question is on the requisite animus of the felon: Must the crime be attended by knowledge of circumstances and a conscious decision to exploit them sufficient to signify readiness to do evil? (Id. at p. 1402.) The court then explained: To violate Penal Code section 273.5 the assailant must, at the very least, have set out, successfully, to injure a person of the opposite sex in a special relationship for which society rationally demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable. To have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it wilfully and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude. (Ibid., italics added.)

Although section 273.5, subdivision (a), includes the element of willfully inflicting corporal injury and resulting traumatic injury, as we read Rodriguez, particularly in the light of Mansfield and Lindsay, the intent to inflict injury or causing a traumatic condition (or absence of such intent) is not determinative. (See also People v. Chavez (2000) 84 Cal.App.4th 25, 30 [Intent to do harm is not necessary for moral turpitude].) What makes the conduct a crime of moral turpitude is, most importantly, the assailants exploitation of the special relationship between the assailant and a vulnerable victim. (Rodriguez, supra, 5 Cal.App.4th at p. 1402.)

Here, the crime of spousal battery under section 243, subdivision (e), adds to the crime of battery the requirement that the crime be committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendants child, former spouse, fianc, or fiance, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship. ( 243, subd. (e)(1).) The victim thus has a kind of special relationship with the assailant that may make him or her especially vulnerable. Even though a battery does not require an intent to cause injury or the infliction of injury, it nevertheless requires a willful and unlawful use of force or violence against the person of another. ( 242.) We hold that the commission of a willful and unlawful use of force or violence against a person with whom the assailant is in the kind of relationship described in section 243, subdivision (e), evinces such a readiness to do evil as to constitute a crime of moral turpitude. The court therefore had discretion, subject to Evidence Code section 352, to permit the prosecution to introduce evidence of the prior crime to impeach Leroy.

2. Evidence Code Section 352

Defendant argues that if evidence of the prior crime was a crime of moral turpitude, it should have been excluded under Evidence Code section 352.^[9] She contends that allowing the evidence resulted in an extended mini trial on the conviction and portrayed Leroy as a lying spousal abuser. Preliminarily, we observe that defendant did not object to the evidence of the prior crime on this ground. She has thus forfeited the argument on appeal. (See People v. Ochoa (1998) 19 Cal.4th 353, 453.) However, notwithstanding the failure to preserve the issue for appeal, we find no abuse of discretion.

Contrary to defendants assertion, there was no extended minitrial. The prosecution simply asked Leroy whether he was convicted of violating section 243, subdivision (e). Although he initially avoided answering the question in a straightforward manner and sought to explain or qualify the circumstances surrounding the conviction, the court ultimately instructed him to answer the question with a yes or no. The witness then answered, Yes. No other witnesses or other evidence on the subject was introduced. The evidence, as presented, was not emotionally inflammatory. Nor did it create a substantial likelihood that the jury would use it for an illegitimate purpose. (See People v. Branch (2001) 91 Cal.App.4th 274, 286.) Thus, if the issue was preserved for appeal, allowing the evidence was not an abuse of discretion.

3. Invited Error

Although evidence that Leroy had committed battery of a spouse or other person described in section 243, subdivision (e), was admissible to impeach him, evidence of the conviction itself is inadmissible hearsay. (Wheeler, supra, 4 Cal.4th at p. 300; People v. Steele (2000) 83 Cal.App.4th 212, 223.)^[10] Here, the prosecution introduced evidence of Leroys prior offense by asking him if he had been convicted of violating section 243, subdivision (e)(1). Defendant contends on appeal that this is reversible error. The People assert that defendant is estopped from asserting this error on appeal under the doctrine of invited error. We agree with the People.^[11]

Following the courts ruling allowing the prosecutor to introduce evidence of the spousal battery, the following discussion took place among the court and counsel:

[DEFENSE COUNSEL]: I had one thought about what we talked about in court, about [Leroys] [section] 243[, subdivision] (e)(1) conviction. The conviction is inadmissible itself. Youre going to have to put on actual evidence, ask him questions.

THE COURT: Just ask him, and if the guy admits it, you dont need to put any witnesses on.

[DEFENSE COUNSEL]: What exactly will the question be? Isnt it true you were convicted of this?

[PROSECUTOR]: Your Honor, my understanding, its a misdemeanor, so I dont think I ask him whether he was convicted. I ask him about the facts.

THE COURT: As both of you brought out, its the conduct, not the conviction, which is the impeachment. So just ask him on a certain date did you do certain things, something to that nature.

[PROSECUTOR]: And if he denies it, then I call in the law enforcement officer.

[DEFENSE COUNSEL]: Well, the law enforcement ‑‑ I dont believe the law enforcement was the actual witness. I think the victim was the only witness to it so ‑‑

[PROSECUTOR]: Right, but the law enforcement officer had to talk to the victim or someone. [] . . . []

[DEFENSE COUNSEL]: I dont know what exactly hes going to be asked. I mean, I dont think hes going to deny the whole thing, but he may deny their allegation, so its going to be, like he was arrested because the victim said, Oh, he was doing this and doing that.

Well, if the witness is asked, Well, isnt it true you did this and that, he might say That isnt how it happened. And he may tell the complete truth. And the only way we get to the truth is to have a minitrial to bring in the victim, and then the victim will testify to what she says happened. The witness is going to have to say, Well, no, it didnt happen like this. Heres how it happened. I know the conviction is irrelevant. I mean, its inadmissible, but Im thinking maybe that would be the best way to do it, if we want to get it in.

THE COURT: You want him to ask, Were you convicted of [section] 243[, subdivision] (e)(1)?

[DEFENSE COUNSEL]: Maybe that would be less prejudicial. Basically, . . . hes trying to show that he was involved in a domestic violence thing, misdemeanor level domestic violence. The details, its going to become a trial, a minitrial. I cant see doing anything but.

THE COURT: Let me get the [district attorneys] reaction.

[PROSECUTOR]: I would ask him about the conduct, what happened on such-and-such date. If he admits the conduct and says, Yeah, I got in an argument, I hit my girlfriend, Im done. If he says, No, it didnt happen that way, then I think following what the public defender is saying, then I would ask, Well, werent you convicted of it, though? And I was convicted but I didnt do it.

THE COURT: He wants you to go right to the punch line, Were you convicted of [section] 243[, subdivision] (e)(1) on a certain date for a battery on your spouse or cohabitant?

[PROSECUTOR]: I would like to ask about the facts, first. If he admits it, then were done. If he denies it, then I would, of course, want to impeach him and say, Werent you convicted? Because my understanding of impeaching someone on a crime of moral turpitude, when its a misdemeanor, you ask about the facts, and if they deny them, you can have an officer come in.

[DEFENSE COUNSEL]: I dont think hes going to deny the fact that he got picked up by the police, charged with it, but Im sure hes going to deny that the victims version of it ‑‑ I mean, thats a typical [domestic violence] case.

THE COURT: Exactly. Defense counsels suggestion will make for a much faster trial and still get in what you want to get in. Hes suggesting, and since hes suggesting it, its ‑‑ I dont think theres a problem on appeal, because its beneficial to his side that you say, you ask the witness, Isnt it true that you on such-and-such a date, you were convicted of the misdemeanor [section] 243[, subdivision] (e)(1) battery on a spouse or cohabitant? Thats the end of the story. And you got in what you wanted to get in. You understand what Im saying?

[PROSECUTOR]: I understand what the Court is saying.

THE COURT: Since the defense suggested that, right, if you went that way, they could make an issue of it on appeal, but since theyre suggesting it, would you accept their suggestion?

[PROSECUTOR]: So youre saying I cant go into the facts of it at all?

THE COURT: It wouldnt be necessary if he admitted. What youre trying to get at impeach him with a crime of moral turpitude, but even if we did it your way, you dont get to say, Isnt this a crime of moral turpitude? You just get to ask, Is it true on such-and-such a date you hit your cohabitant Jane Doe? That is what your question is going to be; right? He just wants you to rephrase it a little bit, because his experience and my experience, and possibly your experience, is domestic violence cases, people plead guilty, theres a lot of emotions. Its an extension of family law court. And even if its true, theyre loathe to admit it, because they fear their ex-spouse will through the grapevine hear it and hold it in their face. So were trying to cut out the emotional aspect.

[PROSECUTOR] Your Honor, I might be inclined to do that, but I would like the evening to think about it and talk about it in the morning?

If there was any discussion of this question the following morning or otherwise, it was not transcribed for the record. At trial, the prosecutor asked Leroy, were you convicted on January 15, 2004, for a violation of Penal Code Section 243[, subdivision] (e)(1)[,] which is basically spousal battery? Leroy initially replied, No, but immediately explained that he was convicted, but that he didnt hit anyone. After some attempts to explain the circumstances surrounding the conviction, the court instructed Leroy to answer yes or no. The prosecutor then asked again, Did you plead guilty on January 15, 2004, for a violation of Penal Code Section 243[, subdivision] (e)(1)[,] which is spousal battery? Leroy then answered, Yes. The court then directed counsel to move on to other subjects. Thus, although the record is not perfectly clear, it appears from the prosecutors questions to Leroy, and the courts instructions to the witness, that the prosecutor and the court agreed with defense counsels suggestion and limited the inquiry regarding Leroys prior spousal battery to the fact of the conviction.

Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) In People v. Harrison (2005) 35 Cal.4th 208, defense counsel sought to introduce certain hearsay statements that would aid the defense. (Id. at p. 235.) Although defense counsel acknowledged that the admission of the statement could result in the admission of incriminating statements under Evidence Code section 356,^[12]he nevertheless sought the admission of the hearsay statements as a tactical decision that the defense would have to live with. (People v. Harrison, supra, at pp. 235-236.) The court allowed the witness to testify as to the hearsay statements. In explaining his statements, the witness went on to make a statement incriminating the defendant in the charged murders. On appeal, the defendant argued that the court should not have allowed the incriminating statement into evidence. (Id. at pp. 236-237.) The Supreme Court held that it need not decide the evidentiary issue because the defendant invited any error. (Id. at p. 237.) The court explained: Defense counsel expressly acknowledged that eliciting [the hearsay] testimony . . . was a tactical decision on their part, as they knew that admission of such evidence likely would mean that the portion of [the hearsay declarants] statement attributing the murders to defendant would also be admitted to place the statement in context of the entire conversation between [the declarant] and [the witness] under Evidence Code section 356. (Ibid.)

Here, the application of the invited error doctrine is even more compelling. Defense counsel acknowledged that the use of the conviction was inadmissible hearsay, but nevertheless expressed concern that inquiry on the issue would require a minitrial, and suggested that allowing the use of the conviction would be the best way to do it and might be less prejudicial to defendant. Because it was defense counsels proposal and would aid the defense, the court informed defense counsel, I dont think theres a problem on appeal. Defense counsel did not indicate that he disagreed with the court or that he was reserving his right to assert error on appeal if his proposal was accepted. It thus appears that defense counsel, in attempting to limit the prejudice to defendant, made a tactical decision to try to limit inquiry about the spousal battery to the fact of the conviction. Under these circumstances, any error in allowing use of the conviction at trial was invited by defendant, and may not be asserted on appeal as grounds for reversal.

C. Impeachment of Willie Cornelius

Defendant contends that the court erred in allowing evidence of a prior conviction against defense witness Willie Cornelius, and the prosecutors use of a rap sheet in questioning Cornelius about the prosecution. We find no error.

1. Background

Prior to Corneliuss testimony, the prosecutor sought an order allowing him to impeach Cornelius with evidence of a prior conviction for felony possession of heroin for sale (Health & Saf. Code,  11590), and that he must register as a drug registrant. The court heard argument on the issue, and announced that he is leaning on bringing in, Isnt it a fact you were convicted in 1983 for possession, sales? Following additional argument from defense counsel, the court concluded that the conviction is old, but its probative, and ruled that the evidence would be allowed in.

During direct examination, defense counsel asked Cornelius, do you remember being convicted of possessing heroin for sale back in 1983. Cornelius denied the conviction.. On cross-examination, the following exchange occurred:

Q. [PROSECUTOR]: . . . Now, Mr. Cornelius, what I have in my hand is whats called a rap sheet, and on this rap sheet it states that you were convicted on October 19th, 1983, for possession of heroin for sale.

A. No, sir, I was not convicted.

Q. You were not convicted?

A. No, sir. I did not go to jail for nothing. Ive never been arrested for no narcotics.

Q. So this is wrong?

A. Thats wrong.

Q. Okay. Even though this is a document from the Department of Justice that says ‑‑

[DEFENSE COUNSEL]: Object. Hes testifying.

THE COURT: He said it was wrong. Well leave it at that. You and I and the defense attorney can discuss how good the rap sheet is later.

There was no further attempt to ask Cornelius about the conviction, and the rap sheet was not admitted into evidence.

2. The Admissibility of the Conviction

Evidence of a prior felony conviction involving moral turpitude is admissible to impeach a witness in a criminal trial. (People v. Collins (1986) 42 Cal.3d 378, 381.) Here, there is no dispute that the prior offense ‑‑ possession of heroin for sale ‑‑ was a crime of moral turpitude. (See People v. Castro, supra, 38 Cal.3d at p. 317.) A trial court has discretion, under Evidence Code section 352, to exclude such evidence when its probative value is substantially outweighed by its prejudicial effect. (People v. Castro, supra, at p. 317.)

Here, the evidence of the conviction was probative not only on the issue of defendants veracity generally, but on the issue of the nature of the purported pay/owe sheet. According to defendant, the list was a Christmas gift list. Corneliuss name was on the sheet. He testified that he does not mess with drugs. If this is true, it would support defendants characterization of the document. On the other hand, evidence that Cornelius had previously possessed heroin for sale would not only reflect negatively on Corneliuss veracity, but tend to weaken the defense argument that the document was a gift list. The probative value of the evidence was certainly diminished by the age of the conviction, a fact considered by the court. Nevertheless, in light of its substantial probative value, we cannot say that the court abused its discretion in allowing the evidence.

3. The Prosecutors Use of the Rap Sheet

Defendant further contends that the prosecutor was improperly permitted to impeach Cornelius by referring to a document in the prosecutors hand as a rap sheet, which purportedly stated that Cornelius was convicted of possession of heroin for sale in 1983. Defendant, however, made no objection to the prosecutors initial reference to the document. Nor can it be said that the defense counsels prior objection to the admission of evidence of the conviction rendered futile an objection to the prosecutors reference to the rap sheet. Thus, she has forfeited this argument on appeal. (See People v. Chatman (2006) 38 Cal.4th 344, 385 & fn. 16, Evid. Code,  353.) When the prosecutor again referred to the document as a document from the Department of Justice, defendant objected on the ground that the prosecutor was testifying. The court did not allow further questioning. The rap sheet itself was not offered or admitted into evidence. There was no error.

D. Reopening the Prosecutions Case to Permit Evidence of Prison Priors

After the defenses first witness, the prosecutor requested that he be allowed to reopen [his] case to present the 969b packet. The court told the prosecutor: If she takes the stand and she admits it, you dont need that. You could introduce it as an item of evidence later, and if she denies it or doesnt take the stand, Im going to let you reopen to do just that.

Later, at a recess taken during the cross-examination of defendant, the following colloquy occurred among the court and counsel:

[THE PROSECUTOR]: My final issue, Your Honor, is I was going to have Jennifer Sniff come in and reopen my case to go over the 969b packet so it can be moved into evidence.

THE COURT: Okay. You can do that after hes done with his case.

[DEFENSE COUNSEL]: For the record, Id object to his being allowed to reopen with respect to that.

THE COURT: All right.

Following the conclusion of the defense case, the court then asked, Any rebuttal-type testimony or additional testimony or evidence that the People would like to present? The prosecutor then called Sniff, who testified as to the contents of a 969b packet evidencing defendants prior convictions and prison sentences. The 969b packet was also introduced into evidence.

Defendant contends that the 969b packet and Sniffs testimony was improper rebuttal evidence. The evidence presented through Sniff and the 969b packet, defendant argues, was introduced to prove part of the Peoples case-in-chief, namely, the prison priors. As such, she concludes, it was improper to introduce it at the rebuttal stage of the proceedings. The argument is based upon a mischaracterization of the evidence as rebuttal evidence. As shown by the discussion among counsel and the court as set out above, it is clear that the prosecution sought to reopen the case to put on the new evidence, and that the court allowed the prosecutor to do so. Following the defense case, the prosecutor was asked to put on any rebuttal evidence or additional testimony or evidence. (Italics added.) The evidence was thus introduced pursuant to the reopening of the prosecutions case, not as rebuttal evidence. Moreover, the objection defendant asserted was to the reopening of the prosecutions case. Defendant never asserted any objection on the ground that the evidence was improper rebuttal evidence.

With respect to reopening the prosecutions case, [i]t is well settled that the trial court has broad discretion to order a case reopened and allow the introduction of additional evidence. [Citations.] (People v. Goss (1992) 7 Cal.App.4th 702, 706; see also  1093, subd. (d), 1094.) The court has such discretion even after jury deliberations have begun. (People v. Newton (1970) 8 Cal.App.3d 359, 383.) Factors to be considered in reviewing the exercise of [the trial courts] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence. [Citation.] (People v. Rodriguez (1984) 152 Cal.App.3d 289, 295.)

Here, the prosecutor offered no explanation for failing to present the evidence earlier. However, the request to reopen the prosecutions case was made relatively early ‑‑ during the presentation of the defense case; there is no reason to believe that the jury accorded the evidence undue emphasis based upon the timing of its presentation; and the evidence was potentially very significant on the issue of the defendants prison priors. Significantly, defense counsel, in objecting to reopening the prosecutions case, did not assert that any prejudice would result and did not request a continuance. (See People v. Rodriguez, supra, 152 Cal.App.3d at p. 296.) The court did not abuse its discretion in allowing the evidence.

E. Defense Motion to Suppress Evidence

During trial, defendant moved to suppress evidence obtained during McMahons search of defendant and her car. Ordinarily, such a motion must be made prior to trial. ( 1538.5, subds. (f), (i).) However, under subdivision (h) of section 1538.5, a suppression motion may be made during trial [i]f, prior to the trial, . . . opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion. Defense counsel asserted that this subdivision applied here because McMahons trial testimony indicated that he may have blocked defendants car when he pulled into the liquor store parking lot, preventing her from leaving; and defendant was, at that point, detained without probable cause. According to defense counsel, the possibility that McMahon may have blocked defendants path out of the parking lot was not known to him prior to trial.

The courts have recognized a due diligence requirement for a belated motion to suppress under Penal Code section 1538.5, subdivision (h). (People v. Frazier (2005) 128 Cal.App.4th 807, 828, citing People v. Martinez (1975) 14 Cal.3d 533, 537-538.) It is not enough that defense counsel was unaware of the ground for the motion; a defendant must also show that, with due diligence, he could not have known the factual basis for the motion. (People v. Frazier, supra, at pp. 828-829.) InMartinez, testimony at a preliminary hearing did not indicate that a pink slip to a car obtained by the police was the product of a search of the defendants pockets. (People v. Martinez, supra, at p. 537 & fn. 2.) Trial testimony, however, revealed that the pink slip was the product of a search, which the defendant argued was illegal. (Id. at pp. 535-536.) The defendant then moved to suppress the evidence. The trial court denied the motion on the ground his failure to make the motion earlier was inexcusable. (Id. at p. 535.) The Supreme Court affirmed, stating: Had defense counsels access to information concerning the case been limited to the transcript of the preliminary hearing, the grounds for the motion would not have been as apparent before as they were after [the officer who conducted the search] testified at trial. . . . [] However, counsel was not limited to the preliminary hearing transcript. He could have learned the grounds for a pretrial suppression motion by simply interviewing his client. (Id. at p. 537.)

Here, the ground for the midtrial motion to suppress was McMahons trial testimony about the location of his patrol car relative to the location of defendants car. The respective positions of the cars, like the search of the defendants pockets in Martinez, were certainly within the defendants knowledge. Her counsel could have learned the information by simply interviewing his client. Accordingly, the trial court did not err in denying defendants motion.

F. Prosecutorial Misconduct

Defendant contends that certain statements made by the prosecutor during closing argument constitute misconduct and require reversal.

A prosecutors conduct during trial may amount to a violation of either the United States Constitution, California law, or both. Misconduct by the prosecutor violates the federal Constitution only if it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Harris (1989) 47 Cal.3d 1047, 1084, citing Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [94 S.Ct. 1868, 40 L.Ed.2d 431].) Conduct by a prosecutor that does not amount to a denial of due process will constitute prosecutorial misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) If the conduct amounts to prosecutorial misconduct under state law, we will reverse the conviction only if it is reasonably probable that a more favorable result for defendant would have been reached absent the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant points to two statements she describes as disparaging defense counsel. First, after pointing out certain differences between McMahons testimony and defendants testimony, the prosecutor told the jury: So someone is lying. Who was lying? Officer McMahon or [defendant]? Someone is lying, because she said that he wasnt standing directly in front of her; he didnt see [the bag of cocaine] come out of her hand. So who is lying? Thats up to you to decide. [] Before we go even further into all the lies that this defense is going to present to you . . . . Defense counsel objected to the statement that were going to produce lies as improper argument. The court stated, Argument is just argument. You view it the proper way.

Second, in his rebuttal argument, the prosecutor stated: [Defense counsel] said that I made a personal attack against him. Its not a personal attack against him. We both have jobs to do. Hes a public defender like he said. He has a job to do. No matter how he feels about the case, he has to represent her. He has to represent her no matter what he [sic] says. Even if he believes in his heart that shes lying, he still has to represent her and . . . . At this point, defense counsel objected to these statements as improper. The objection was sustained. The prosecution then continued, And thats his job. Defense counsel asked the court to admonish the jury not to consider it. The court told the jury: Ignore that. Youre not here trying to psychoanalyze the defense counsel or read his mind. Just go by what the ‑‑ what the evidence came out. . . .

The prosecutors comments, we find, were improper. However, in light of the prosecutors entire argument, it was not so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process. To the extent that it could constitute misconduct under California law, we hold that it is not reasonably probable that a more favorable result for defendant would have been reached absent any misconduct.

Defendant also contends that the prosecutor misstated the evidence. The prosecutor told the jury that defendant had been convicted in 1996 for possession of a controlled substance, in 1996 for second degree burglary, and twice in 2000 for drug possession. Defense counsel objected on the ground that such facts were not in evidence. The court overruled the objection. On appeal, defendant argues that there was no evidence of a 1996 conviction for possession of drugs. In fact, as the People assert, the 969b packet admitted into evidence includes evidence of each of the four convictions referred to by the prosecutor during argument.

In reply, defendant points out that the 1996 conviction for possession of a controlled substance resulted in probation, not a prison term; and that conviction was not alleged as a prison prior. Nor was defendant impeached with evidence of that conviction. The evidence of that conviction was thus arguably irrelevant. It was, nevertheless, admitted into evidence without objection from the defendant. (The 969b packet could, of course, have been redacted to omit evidence of the irrelevant conviction.) The prosecutor did not, therefore, misstate evidence. To the extent that the prosecutors reference to that conviction might have suggested to the jury that it should be used as either impeachment evidence or evidence of a prison prior, we hold that any error was harmless.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] A narcotics detective, however, testified that the part of town where defendant was arrested is not normally a location for rock cocaine to be dealt at.

^[2] The jury was instructed that it could find defendant guilty of the lesser offense of possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a).

^[3] The 969b packet is named for Penal Code section 969b (969b packet). This section provides: For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, refor