P. v. Perry

Filed 4/24/07 P. v. Perry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On appeal from a judgment of conviction of three felonies and one misdemeanor, Frank Enrico Perry argues that allowing the prosecutor to impeach him with his firearm prior was an abuse of discretion. The Attorney General argues the contrary and requests remand for the court to impose a sentence on the misdemeanor. Perry opposes the Attorney Generals request. We will affirm the judgment.

FACTUAL HISTORY

After his sister said something to him about some money he owed her, Perry punched her in the face, causing bruises, headaches, and inflammation. An officer responding to her 911 call arrested him and, after a consensual search, found a .22 caliber semiautomatic handgun and a baggie with 1.64 grams of methamphetamine.

PROCEDURAL HISTORY

A jury found Perry guilty as charged of felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)) (count 1), of possession of methamphetamine while armed with a firearm (Health & Saf. Code, 11370.1, subd. (a)) (count 2), of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) while armed with a firearm (Pen. Code, 12022, subd. (a)) (count 3), and of misdemeanor battery (Pen. Code, 242) (count 4). The court imposed an aggregate 3-year sentence a mitigated 16-month term for possession of methamphetamine plus a 1-year term for the arming enhancement (count 3) with a consecutive 8-month term (one-third the middle term) for felon in possession of a firearm (count 1). The court imposed and stayed a 3-year term for possession of methamphetamine while armed with a firearm (count 2) and imposed no sentence on the misdemeanor battery (count 4).

DISCUSSION

1. Impeachment with Prior

Perry argues that allowing the prosecutor to impeach him with his firearm prior was an abuse of discretion. The Attorney General argues the contrary.

During jury selection, Perry stipulated he had a felony prior for the purposes of Count 1. The court initially ruled that the prosecutor could impeach him with his prior but, after Perrys counsel asked the court to sanitize the prior and the prosecutor asked the court to permit him to establish knowledge by cross-examining him about the nature of the prior, deferred ruling until after direct examination.

At the outset of direct examination, Perry testified that he pled guilty to, in his attorneys words, a felony in the past, because, in his own words, I was guilty. He testified, inter alia, that his sister hit him before he hit her, that he was living in a mobile home outside, not inside, the house where the officer found the handgun and the methamphetamine, and that he knew nothing about either but told the officer he was holding both for his sister. After a sidebar that was not reported, a colloquy ensued about whether the prosecutor could elicit testimony from Perry that his prior was for felon in possession of a firearm. Since, inter alia, he testified he pled guilty to the prior because he was guilty and challenged the pending charge because hes not guilty, the court, expressly on the basis of an Evidence Code 352 analysis, ruled impeachment permissible sanitized, though, as a felony involving possession of a firearm instead of as a felon in possession of a firearm. (Italics added.) The prosecutor so impeached him on cross-examination.

Evidence Code section 352 uses the word prejudice not to refer to the prejudice or the damage to a defense that naturally flows from highly probative evidence (People v. Karis (1988) 46 Cal.3d 612, 638) but rather in its etymological sense of prejudging a person or cause on the basis of extraneous factors (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on another ground by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6). Perrys prior did not prejudge him in that way.

By sanitizing Perrys prior to refer only to a felony involving possession of a firearm, the court precluded the jury from using an identical prior as propensity evidence to find him guilty again of the same crime. For all the jury knew, his prior could have been for a dissimilar crime like possession of a firearm during the pendency of a domestic relations protective order (Pen. Code, 136.2, subd. (a)(7)(B)(i)-(ii)), 12021, subd. (g)) or concealed possession in a vehicle of a firearm not in lawful possession but capable of concealment on the person (Pen. Code, 12025, subds. (a)(2), (b)(4)). Perrys contention that the court allowed the admission in evidence of a prior virtually identical to the charged crime is simply wrong. Sanitizing his prior softened the impact on the jury. (People v. Foreman (1985) 174 Cal.App.3d 175, 182.) Since he chose to testify in his own behalf, he was not entitled to a false aura of veracity. (Id.)

Finally, the court carefully and repeatedly instructed the jury about the limited purpose for which Perrys prior was in evidence. Before the regular charge to the jury, the court stated, Ladies and Gentlemen, the testimony of the nature of Mr. Perrys prior felony conviction may be considered by you only to evaluate his believability and not for any other purpose. Later, the court admonished the jury, During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other, and, If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witnesss testimony. The fact of a conviction does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. (CALCRIM 303, 316.)

The abuse of discretion standard of review permits us to disturb the courts ruling only if the admission of Perrys prior falls outside the bounds of reason. (People v. Kipp (1998) 18 Cal.4th 349, 371, citing People v. Ewoldt (1994)7 Cal.4th 380, 405, superceded by statute on another ground as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505; People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) The courts ruling falls well within those bounds. We reject Perrys argument.

2. Misdemeanor Sentence

The Attorney General requests remand for the court to impose a sentence on the misdemeanor. Perry opposes the Attorney Generals request.

On the premise that the court did not even mention that misdemeanor count at sentencing, the Attorney General characterizes the courts omission as an apparent oversight. The record belies the premise and the characterization alike. Right after calling Perrys case for pronouncement of judgment, the court summarized his three felony convictions and stated, He was also convicted of a misdemeanor battery offense. So the normal presumption that official duty has been regularly performed applies. (Evid. Code,  664; see People v. Mosley (1997) 53 Cal.App.4th 489, 496.) We reject the Attorney Generals argument.

DISPOSITION

The judgment is affirmed.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^* Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.