PEOPLE v. CARLIN

Filed 4/26/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

On February 16, 2005, a jury found appellant Anthony Carlin to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, 6600 et seq.).[1] The trial court committed appellant to the custody of the State Department of Mental Health for two years pursuant to section 6604 of the SVPA. Appellant appeals from the courts order of commitment. He claims multiple violations of his due process rights, and challenges the sufficiency of the evidence, the adequacy of the jury instructions, the courts refusal to bifurcate the trial, and the constitutionality of the SVPA. We find a violation of due process arising from the Peoples reliance on hearsay evidence to prove predicate sexually violent offenses. We therefore reverse the order.

                                                                                                                                                                I.            Background

At the time of appellants trial, to establish appellant as a sexually violent predator, the People were required to prove that appellant (1) had been convicted of sexually violent offenses against two or more victims; and (2) had a diagnosable mental disorder that made it likely he would engage in sexually violent conduct.[2](Former  6600, subd. (a)(1), as amended by Stats. 2000, ch. 643, 1, p. 3333; People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 151 (Howard).) The definition of sexually violent offense included a conviction for a violation of Penal Code section 288, subdivision (a) (hereafter section 288(a)), if (1) the offense was committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person ( 6600, subd. (b)), or (2) the offending act or acts involved substantial sexual conduct and the victim is a child under the age of 14 (former  6600.1, subd. (a), added by Stats. 1996, ch. 461, 3, p. 2815).[3]

On January 19, 2000, the People filed a petition alleging that appellant came within the provisions of the SVPA for involuntary commitment to the state hospital. The Peoples supporting declaration listed three prior convictions as sexually violent offenses under the SVPA. A trial was held in February 2001, but resulted in a mistrial due to a hung jury. Appellants second trial commenced on January 18, 2005.

At trial, the prosecution relied on appellants 1983, 1987 and 1991 section 288(a) convictions to prove the predicate sexually violent offenses. The prosecutions expert testified that appellant has a pedophilic disorder, that appellants sexual interests and urges persisted at the time of trial, and that appellant has a medium high risk of committing new sexual offenses. Appellants expert testified that appellant is not a pedophile, but is, instead, a situational offender. He concluded that appellant has no mental disorders, has self-control, and is at very low risk to reoffend. Appellant testified on his own behalf that he is not a pedophile and no longer has any interest in boys.

The jury found the petition true, and the trial court committed appellant to the custody of the State Department of Mental Health. Appellant filed a timely notice of appeal. He challenges the Peoples use of his 1987 and 1991 convictions as predicate offenses and focuses on the Peoples attempts to prove that the offenses underlying these convictions involved substantial sexual conduct. Appellant does not contest the Peoples use of his 1983 conviction as a predicate offense.[4]

                                                                                                                                                                 II.           Discussion

A.                 1987 Conviction

Appellant makes two related claims: (1) the People relied on facts other than appellants conviction to show substantial sexual conduct in violation of his due process rights, and (2) there is insufficient evidence that the conviction involved substantial sexual conduct.

On May 5, 1987, appellant pleaded guilty to a violation of section 288(a). According to probation and police reports introduced at trial, appellant was in charge of a weekend jet ski event in March 1987. Appellant hired Thomas H., a 12-year-old, to run errands for the event. The night of March 21, Thomass grandparents invited appellant and his son to spend the night in their RV with several other people. During the night, appellant told Thomas to get in bed with him so that Thomas would be warm. Thomas did and fell asleep. Around 5:00 a.m., Thomas awoke because he felt something heavy on his crotch. The blankets had been pushed down and his pants were unsnapped and unzipped. Appellants hand was grasping his crotch area[,] inside of Thomass pants but on top of his underwear. Thomas tried to move appellants hand and could not, so he eventually told appellant he had to use the bathroom and got out of bed. At trial, appellant testified that he put his left hand between Thomass pants and underwear and rested it only on Thomass inner thigh.

Andy T., 11-years-old, also reported that appellant touched him in the RV that night. Appellant denied touching Andy and pleaded guilty to only one count of child molestation in regard to the March incidents. He was sentenced to three years in prison.

1. Identification of Act

Appellant objects to the prosecutions proof of a sexually violent offense involving Thomas, contending that the record of conviction does not allow us to determine which act appellant was admitting when he pled guilty.

Two separate police reports recount the events that led to the 1987 complaint and conviction and both describe two offenses on March 22one against Thomas and one against Andy. One of the reports, the supplemental police report, also references a separate incident of inappropriate touching between appellant and Thomas. The report states that about five weeks earlier, on February 14 or 15, 1987, appellant spent the night in Thomass grandparents RV and, at one point, drap[ed] his hand over Thomas and allow[ed] it to lie limp over Thomas[s] crotch. The felony complaint that led to the 1987 conviction[5] contains two identical counts alleging violations of section 288(a). Both counts state, in relevant part: [D]efendant(s) did, in the LIVERMORE-PLEASANTON Judicial District, County of Alameda, State of California, on or about March 22, 1987, commit a FELONY, to wit: A violation of Section 288 (a) of the Penal Code of California, in that said defendant did then and there wilfully and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of THOMAS H[.] . . . . (Italics added.) Appellant pleaded guilty to count one, and count two was dismissed.

Appellant contends that because two offenses against Thomas are included in the supplemental police report, and because the criminal complaint references Thomas as the victim for both count one and count two, the People cannot prove that the act to which appellant pleaded guilty was the March 22 act. We disagree. Viewing the record as a whole, we conclude it is clear appellant was charged with one act against Thomas on March 22, 1987, and that appellant pleaded guilty to the offense against Thomas on that date.

There is no indication the February incident was contemplated in the criminal complaint, and it appears that the reference to Thomas in both counts is no more than a typographical error. There is no mention in the criminal complaint of the February date, and there is no indication in either police report that appellant committed more than one lewd or lascivious act against Thomas on March 22. Both police reports refer, however, to a separate offense against Andy on March 22.

It also appears appellant understood the complaint to charge acts against both victims, and that he purposefully pleaded guilty only to the count relating to Thomas. The probation report states: The defendant denies molesting Andy T[.] As proof that he did not commit that crime, the defendant stresses that he refused to plead guilty to Count Two . . . . At trial, appellant testified that he was asked to plead guilty to an offense involving Andy, but pleaded guilty to only the count relating to Thomas because he did not molest Andy.

In short, nothing suggests that either the February incident involving Thomas or the March incident involving Andy was the subject of appellants guilty plea. We therefore reject appellants contention that the prosecution impermissibly relied on acts other than those for which he was convicted in proving the sexually violent offense; the People appropriately relied on the March 22 incident involving Thomas. We also necessarily reject appellants related contention that the prosecutor was allowed to choose which act was involved in the conviction, in violation of due process rights. This contention is not supported by the facts.

2. Substantial Sexual Conduct

Appellant makes two related claims: (a) the People improperly relied on facts other than appellants conviction to show substantial sexual conduct in violation of his due process rights, and (b) there is insufficient evidence that the offense involved substantial sexual conduct.

Contrary to appellants suggestion, the SVPA does not require that the People plead and prove substantial sexual conduct at the time of the underlying conviction. (See former  6600.1, subd. (a).) Because an underlying offense may be based on a violation of section 288(a), which does not require substantial sexual conduct, courts must look beyond the bare elements of the crime to prove that it involved substantial sexual conduct and qualifies as a sexually violent offense. (See, e.g., People v. Fulcher (2006) 136 Cal.App.4th 41, 51 (Fulcher) [noting that if courts were not permitted to look beyond the crime, then a section 288(a) violation would never qualify as a sexually violent offense].)

Appellant, citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), further argues that only substantial sexual conduct admitted as part of the plea or proven to a jury as part of the underlying conviction may be used to prove a sexually violent offense. Appellants contention that Blakely applies to the SVP proceeding is unavailing. Proceedings under the SVPA are civil in nature and are designed to provide treatment to mentally disordered individuals who cannot control sexually violent criminal behavior. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 (Hubbart).) In Blakely, supra, 542 U.S. at pages 303-304,the United States Supreme Court held that a criminal defendant is denied his right to a jury trial if the court relies on facts not found by the jury beyond a reasonable doubt to depart from the statutory maximum. The evidence regarding the incident with Thomas was not used to impose criminal punishment, but to show the nature of the offenses for which appellant already has been convicted. (See generally Hubbart, supra, 19 Cal.4th atp. 1175 [prior sexually violent offenses are used solely for evidentiary purposes to help establish the main prerequisites upon which civil commitment is based; the SVPA does not impose liability or punishment for criminal conduct]; see also Howard, supra, 70 Cal.App.4th at p. 154;  6600, subd. (a)(3) [regarding limited use of prior convictions].) Moreover, the People must prove to the jury beyond a reasonable doubt all SVP elements in the SVP proceeding, including that appellant committed a sexually violent offense. (See 6604.)

Finally, appellants due process rights were not violated because he was given sufficient notice of the prosecutions intent to use the March 22 act involving Thomas in the SVP proceeding. The SVP petition and supporting declaration indicate the People intended to rely on that conviction, and appellant was given the opportunity to rebut the Peoples evidence at trial. (See LaChance v. Erickson (1998) 522 U.S. 262, 266 [core of the due process right is right to notice and meaningful opportunity to be heard].)

As there was no uncertainty about which act was the subject of appellants conviction, and there was no due process violation in its use, appellants only remaining challenge to the 1987 conviction is whether the prosecution presented sufficient evidence the offense involved substantial sexual conduct. In reviewing the evidence sufficient to support a commitment under section 6600, courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be of ponderable legal significance . . . reasonable in nature, credible and of solid value. (Ibid.)

Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender. (Former 6600.1, subd. (b), added by Stats. 1996, ch. 461, 3, p. 2815.) Masturbation encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent[.] (People v. Chambless (1999) 74 Cal.App.4th 773, 783.) Skin-to-skin contact is not required; the touching or contact may be through the childs clothing. (People v. Lopez (2004) 123 Cal.App.4th 1306, 1312, citing People v. Whitlock (2003) 113 Cal.App.4th 456, 463.)

The Peoples evidence is sufficient. One police report states appellants hand was inside of [Thomass] pants on top of his underwear, grasping his crotch area. The other police report and the probation report also describe appellants hand on Thomass crotch. Appellant admitted to the probation officer at the time of the 1987 conviction that he fondled Thomass penis and he reiterated that statement in a letter to the court in 1991. The contact described in the documents and in appellants own words constitutes masturbation, and, therefore, evidence of substantial sexual conduct.

We conclude there is sufficient evidence of substantial sexual conduct and find no violation of appellants due process rights arising from the Peoples use of the March 22 act and the 1987 conviction to prove a sexually violent offense.

3. Refusal to Allow Thomas H. To Testify

Appellant argues that the trial court erred in denying his request to call Thomas to testify, in violation of state law and his due process rights. We find no error and no constitutional violation arising from the courts ruling.

On January 19, 2005, appellant requested he be allowed to call Thomas as a witness. Appellant argued that Thomass testimony was relevant to the predatory and substantial sexual conduct issues. As his offer of proof, appellant said that Thomas would testify that the only interaction between them was described in the police reports, which appellant interpreted to mean that he touched Thomass crotch, but not his penis: Thomas will . . . state that it is he does not know as a matter of fact whether I touched his penis or not. Hes never stated that I did. Appellant also said Thomas would testify that it was a situational offense. The trial court prompted appellant for further offer of proof regarding Thomass proposed testimony, but appellant simply stated: Thomas would give that testimony; that all that occurred between us is all that occurred between us.

The court rejected appellants request, finding the offer of proof inadequate. The court informed appellant it would reconsider appellants request to call Thomas and other witnesses if appellant could produce some current statement of theirs that makes it appear that they would have relevant testimony to offer[.] Appellant points to nothing in the record indicating that he followed up on the courts offer.

To preserve an evidentiary ruling for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony. (See People v. Whitt (1990) 51 Cal.3d 620, 648.) The offer of proof must address the substance, purpose, and relevance of the excluded evidence (Evid. Code, 354, subd. (a)), and must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued (In re Mark C. (1992) 7 Cal.App.4th 433, 444). The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness. (See Gutierrez v. Cassiar Min. Corp. (1998) 64 Cal.App.4th 148, 161-162; Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168.)

We find that the trial court properly rejected appellants offer of proof as inadequate. Appellant essentially stated that Thomass testimony would be the same as his statements referenced in the police and probation reports. He conceded that he was unaware of any statements Thomas made on the issue (either at the time of the conviction or since) aside from those found in the reports. He also acknowledged that he had not, despite the use of an investigator and the availability of the civil discovery process, obtained a statement from Thomas in line with the proposed testimony. (See People v. Angulo (2005) 129 Cal.App.4th 1349, 1368 [noting applicability of the Civil Discovery Act to SVP proceedings, including the ability to depose witnesses prior to trial].) Appellants assertion that the reference to crotch is ambiguous, and does not necessarily imply penis, is simply a restatement of his anticipated argument and does not set forth the actual evidence Thomass testimony would provide.

Appellant contends that the courts ruling violated his due process right to present a defense and to be given a meaningful opportunity to be heard. We disagree. [D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. (Boddie v. Connecticut (1971) 401 U.S. 371, 377.) A mere limitation on the form of evidence presented is not, however, a due process violation. (See People v. Boyette (2002) 29 Cal.4th 381, 427-428 (Boyette); see also People v. Phillips (2000) 22 Cal.4th 226, 238, [As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense].) Appellant was not precluded from presenting other evidence to refute the 1987 conviction or, more generally, from presenting a defense. (See Boyette, supra, 29 Cal.4th at p. 428.) Appellant, for instance, testified on his own behalf that he touched Thomass inner thigh, not his penis.

In People v. Otto (2001) 26 Cal.4th 200, 214 (Otto), the California Supreme Court left open the question of whether a defendant in an SVP proceeding has a due process right to call witnesses such as the victims or other percipient witnesses. The Supreme Court observed, however, that the defendant had the opportunity to confront these witnesses at the time the underlying charges were filed, but instead chose to accept a plea bargain. (Ibid.) In this case too, appellant had an opportunity to confront Thomas at the time of his 1987 plea. His waiver of a trial and failure to challenge Thomass statements at the time of his conviction, the very statements for which appellant sought modification or explanation at trial, undercuts his due process argument. Appellants request to clarify a statement that had not been raised with Thomas in almost twenty years, without any minimal attempt to contact Thomas or confirm the issue ahead of time would simply sanction a fishing expedition. Although not a prohibition on victim testimony, we note that a key purpose behind section 6600, subdivision (a)(3) of the SVPA, which permits the use of documentary evidence to prove the details underlying a conviction, is to relieve victims of the burden and trauma of testifying[.] (Otto, supra, 26 Cal.4th at p. 208.) Allowing appellant to call Thomas in these circumstances would defeat that purpose.

Finally, we note that the trial court left open the possibility that appellant could call Thomas as a witness, provided appellant could show that placing Thomas on the stand would be more than a futile search for a favorable explanation of otherwise clear statements. In this specific context, we cannot conclude the courts ruling violated appellants due process rights.

B.                1991 Conviction

Appellant challenges the Peoples use of the victims post-plea descriptions of the 1990 incident to prove that appellants 1991 conviction involved substantial sexual conduct.

1. Factual Background

Appellant met Ethan F. while on parole in 1989 and developed a relationship with him. Appellant visited Ethan frequently, brought him gifts, and took him camping. In June 1990, appellant took Ethan, then 10 years old, on a trip to an amusement park during which they spent two nights alone together in a Santa Clara motel. According to a 1991 police report that led to charges against appellant, and a probation report related to appellants sentencing, appellant offered Ethan money to have sex with him. Ethan said no. After Ethan fell asleep, appellant repeatedly attempted to fondle Ethan, but Ethan climbed out of bed and slept on the floor of the motel room. On December 1, 1991, appellant pleaded guilty to one count of violating section 288(a) for the June 1990 incident, and he was sentenced to 16 years in state prison.

In January 2000, after the People filed the SVP petition, an investigator with the Santa Clara District Attorneys office contacted Ethan to determine whether he remembered additional details regarding the June 1990 crime. A report dated January 11, 2000 memorialized the investigators conversation with Ethan. According to the report, Ethan said he had been embarrassed and ashamed at the time of the original investigation and had withheld certain details about the crime. Ethan said that although the details in the 1991 police report were accurate, more sex acts occurred than he originally reported; appellant also touched Ethans penis with his hands, skin to skin, appellant masturbated him and forced Ethan to masturbate appellant, and appellant orally copulated him. Ethan also told the investigator that appellant had attempted anal intercourse with him, but was unsuccessful. A 2001 report by the investigator noted that Ethan later clarified that appellant completed anal intercourse, but was unsuccessful in ejaculating.

Appellant disputed this account when called as the Peoples witness at trial. He testified that he asked Ethan if he wanted to have sex and offered him money to let appellant hold his penis, but Ethan said no. Appellant admitted that he attempted to fondle Ethan, but said he was successful only in holding Ethan and sleeping in bed with him.

Appellant called Joseph Haebe, formerly of the Santa Cruz Police Department, to testify regarding the incident with Ethan. Haebe interviewed Ethan in 1991 and prepared the police report that led to the 1991 charges. Haebe testified that Ethan told him that appellant offered him money for sex. Ethan said that appellant made repeated attempts to fondle him inside his underwear, but Ethan did not say that appellant touched his penis or took any other sexually explicit actions.

Kevin Smith, the investigator who interviewed Ethan in January 2000 and prepared the 2000 and 2001 reports, also testified as a defense witness. He confirmed that Ethan told him that appellant touched his penis, made him masturbate appellant, orally copulated him, and unsuccessfully attempted anal intercourse. Ethan also said that on a separate occasion, appellant masturbated him and forced him to orally copulate appellant. Smith testified it is not uncommon for child molestation victims to recall additional details of the crime years later.

Prior to trial, appellant objected to the Peoples request to introduce Smiths 2000 and 2001 reports detailing Ethans updated account of the 1990 incident to prove that the underlying offense for the 1991 conviction involved substantial sexual conduct. After reading the transcript from the 2001 SVP trial, the trial court admitted the reports for the stated purpose. During trial, the People relied exclusively on the reports to show substantial sexual conduct related to the 1991 conviction.

2. Due Process Analysis

Appellant objects generally to the admission of evidence obtained years after the plea to show substantial sexual conduct and contends that admission of the investigators 2000 and 2001 reports, in particular, violated his due process rights.

Felony violations of section 288(a) that result in a conviction may constitute sexually violent offenses. ( 6600, subd. (b).) Prior to Proposition 83, section 6600.1 provided that if the victim of the section 288(a) violation is a child under the age of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a sexually violent offense for purposes of Section 6600. (Former 6600.1, subd. (a), italics added.) Section 6600, subdivision (a)(3) provides, in part: The existence of any prior conviction may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.[6] (Italics added.)

Appellant interprets subdivision (a)(3) of section 6600 as limiting all evidence relating to the underlying offense to evidence that led to a prior conviction and contends that in the case of a guilty plea only those details known at the time of the plea led to the conviction. Appellant thus argues that admission of any post-plea evidence to prove a sexually violent offense is contrary to the statute and, on that basis, is a violation of due process rights. We find no basis in the plain language of the statute to limit a determination of whether the offending act or acts involved substantial sexual conduct to the specific description memorialized in pre-plea documents.

We turn first to the statutory language, giving the words their ordinary meaning. [Citation.] If the statutory language is not ambiguous, then the plain meaning of the language governs. [Citation.] (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) First, the quoted portion of section 6600, subdivision (a)(3) refers only to the admissibility of documents to prove a qualifying offense. This provision does not purport to define offense or offending act as used in former section 6600.1. Second, subdivision (a)(3) authorizes the use of documentary evidence to show the details of the offense that led to a prior conviction, not to show the evidence that ledto a prior conviction. (Italics added.) Third, subdivision (a)(3) specifically authorizes the use of documents prepared after conviction, listing probation reports and reports by the State Department of Mental Health.

In Fulcher, supra, 136 Cal.App.4th 41, the court considered a similar situation involving post-plea evidence. In that case, the victim testified at the SVP trial regarding an act of substantial sexual conduct that was not included in the victims description of the offense prior to the defendants plea and conviction; the victim initially stated only that the defendant put his mouth near the victims penis and at the SVP trial added that the defendant touched the victims penis with his mouth. (Id. at p. 46.) The court rejected the defendants argument that the People cannot rely on evidence outside the record of conviction to show substantial sexual conduct. (Id. at pp. 50-51.) The court explained that because a section 288(a) conviction does not necessarily involve force, duress or substantial sexual conduct, proof of the elements of the offense or evidence contained solely within the record of conviction may be insufficient to establish the offense qualifies as a sexually violent offense. . . . (Id. at p. 51.) Because the statute includes a violation of section 288(a) as a qualifying offense, an interpretation of the SVPA that limits evidence of sexually violent offenses to the record of conviction would be contrary to clear legislative intent. (See 6600, subd. (b), former 6600.1, subds. (a), (b).) We therefore agree with the Fulcher courts implied conclusion that the description of the offense, for purposes of proving a sexually violent offense, is not limited to the precise description found in pre-conviction documents.

Story Continues as Part II..

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] On November 7, 2006, California voters approved Proposition 83, also known as Jessicas Law, which made substantive changes to the SVPA, effective November 8, 2006. For example, as amended, section 6600 requires that the People prove a sexually violent offense against only one or more victims. ( 6600, subd. (a)(1), Prop. 83, 24, approved Nov. 7, 2006, eff. Nov. 8, 2006.) We apply the statute in effect at the time of appellants trial in January 2005, but cite the current statute if the relevant language or provision was unaltered by Proposition 83.

[3] Proposition 83 broadened the category of convictions that constitute a sexually violent offense by omitting the section 6600.1 requirement that the offending act or acts involve substantial sexual conduct. The statute now reads: If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a sexually violent offense for purposes of Section 6600. ( 6600.1, Prop. 83, 25, approved Nov. 7, 2006, eff. Nov. 8, 2006.)

[4] In August 1982, appellant met 11-year-old Matthew J. through Trail Blazers. During a camping trip with the group, appellant fondled Matthews penis under his underwear. In 1983, appellant was convicted of a violation of section 288(a) related to this incident.

[5] The 1987 criminal complaint was discussed at trial and referred to as part of Peoples Exhibit 2; however, it appears to have been inadvertently omitted from the documents received into evidence as part of the exhibit. The complaint is found in the appellate record as an exhibit to appellants August 2002 motion in limine to bar evidence of the 1987 conviction to prove a predicate offense. That motion in limine, with exhibits, was refiled as part of appellants January 2005 motion in limine to bar evidence of the 1987 conviction.

[6] This section was not altered by Proposition 83.