P. v. Reyes-Acostas
Filed 8/7/13 P. v. Reyes-Acostas CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR A.
REYES-ACOSTAS,
Defendant and Appellant.
A135566
(Solano County
Super. Ct. No. FCR289113)
Edgar
A. Reyes-Acostas appeals from a conviction of
discretion in admitting evidence of a prior misdemeanor vehicle theft
conviction. We affirm.
STATEMENT OF THE
CASE
Appellant
was charged by an amended information filed on January 23, 2012, with one count
of unlawful driving or taking of a vehicle
(Pen. Code, § 10851, subd. (a)) and one count of receiving stolen property
(Pen. Code, § 496, subd. (a)).
After a jury trial, he was convicted of vehicle theft. On March 9, he was sentenced to a 16-month
jail term. He filed a timely notice of
appeal on May 4, 2012.
STATEMENT OF
FACTS
On
November 18, 2011, Agustin Velazquez drove his 1995 Acura Legend, license plate
No. 5XZX823, to the Solano Mall in Fairfield, where he worked at the food
court from 9:00 a.m. to 9:30 p.m.
He parked in the first row of the parking lot in front of the sign for
the food court, as he regularly did.
Around
midday, Velazquez loaned his car to his friend Jessica Menjivar, who had
borrowed it on several previous occasions.
He remembered her saying she went to the doctor or to take her friend to
the doctor. Velazquez did not give
anyone else permission to drive his car.
He gave Menjivar his only key to the car on a key ring; he did not have
any spare keys. She returned the car key
at about 4:30 or 5:00 p.m. and told Velazquez the car was parked in the
same area where he had parked it that morning.
At about 9:20 or 9:30 p.m., when he finished work, Velazquez went
outside but did not see his car. After
looking for 10 to 15 minutes, he called Menjivar, who confirmed where she had
parked it. Velazquez continued to look
for the car; there were only 20 to 25 cars in the parking lot, and he was sure
his was not there. He called the police
at around 10:00 p.m., said he believed his car had been stolen, and gave a
description of the car.
Menjivar
testified that she asked to borrow Velazquez’s car to take her friend to
Planned Parenthood, but her friend changed her mind, and instead they went
outlet shopping and ate. Menjivar did
not have her own key to Velazquez’s car and when she borrowed the car, he
always gave her the same key and did not keep another one. On November 18, she found the car parked in
the usual area, used it for about four hours, and returned it to the same area
where she had found it at about 3:00 or 3:30 p.m., before starting her
4:00 p.m. shift at work. She was
the only person who drove the car during this time, she had the car keys in her
purse, and she never left the keys outside her sight. She did not immediately give the keys back to
Velazquez when she returned because it was a busy day at work, but took the
keys back to him when work slowed down at about 5:00 p.m. During the hour or so while she was working,
the car keys were on top of her sweater, which was on top of the safe, under
the counter and to the side of the register in the same area where she was
working. She did not drive the car again
that night or see anyone other than Velazquez drive it, and when she went
outside during her break, from about 7:30 to 8:00 p.m., she saw the car
where she had parked it. She did not get
into an accident while she had Velazquez’s car.
Menjivar acknowledged on cross-examination that she did not have a
driver’s license and that she and her friend were cutting school on the day of
these events.
At
12:09 a.m. on November 19, 2011, Police Officer Adam Ponce was driving his
patrol car westbound on Phoenix Drive, about three or three and a half miles
from the Solano Mall. He saw a 1995
Acura, license plate No. 5XZX823, in front of a large apartment complex at
1427 Phoenix Drive. The car was stopped
in the eastbound lane of traffic with its brake lights activated, facing the
wrong direction and blocking the lane of traffic. Ponce saw the two doors on the passenger side
closing. The car moved westbound in the
eastbound lane for 20 to 30 yards, followed the road’s northward curve while
still in the wrong lane, then moved to the middle of both lanes and continued
to a stop sign. Ponce activated his
emergency lights to make a traffic enforcement stop for driving on the wrong
side of the road. The car continued a
short distance, turned northbound, then pulled into an apartment complex and
stopped.
Ponce
approached the driver’s side of the car, where appellant was sitting in the
driver’s seat. Three women were also in
the car. As Ponce walked up to the car
and advised appellant of the reason for the stop, appellant’s hands were on the
steering wheel, and his left hand was shaking as though he was nervous. Ponce asked why he was so nervous and whether
he had a license. Appellant took his
hands off the wheel and held them in front of him, and both hands started
shaking. He told the officer that he did
not have a license and his entire upper body started shaking. Appellant had a “nervous look on his
face.†Ponce ran the car’s information
through police records and learned the car had been stolen. He arrested appellant. The key that was in the car’s ignition did
not say “Acura†on it.
Officer
Ponce, who had investigated at least 100 cases involving stolen vehicles,
described various ways that people can start a stolen vehicle: “Usually they can defeat the ignition by
punching the ignition; they could break the steering column, access the
ignition wires, or hot wiring the car.
They can get a key, any key that fits into the ignition that will turn
it, it sometimes works.†Older cars are
easier to manipulate and start than newer cars.
Ponce
contacted Velazquez, who came and confirmed the car was his. Velazquez had his car key with him. He told Ponce that he had all the keys for
the car and that the key found in the ignition was not his. Velazquez testified that there was damage to
the front end of the car, the front bumper was “crashed†and falling off, and
the sound system was missing. There had
been no damage to the front of the car, and the stereo and speakers had been in
it, when Velazquez last drove it. He did
not know appellant and had not given him permission to drive the car.
Velazquez
told the police his car had been in the parking lot all day; he did not say he
had loaned the car to a friend for part of the day. Asked why he had not mentioned lending the
car, Velazquez said he was not thinking about this when he talked to the police
and they did not specifically ask if he had loaned the car.
Defense
Appellant
testified that around midnight on November 19, 2011, he was walking on Phoenix
Drive from his house to meet his friend Wilbur Chavez. On the way, he met his “old friend†Federico,
whom he had met “from prior other times and contact.†Federico waved appellant over, asked him if
he knew how to drive, and asked him if he could drive some people to their
homes. Federico smelled like beer and
was holding a beer. He handed appellant
the car key and pointed out the car and the people appellant was supposed to
drive. Appellant noticed that the car’s
front headlight was hanging by a string or wire, about to fall off, and that
the stereo was missing. He unlocked the
car with the key and picked up the people Federico had pointed out, drove for
about 30 yards and noticed a patrol car behind him. Appellant stopped the car at a stop sign and
the police officer approached the car.
Appellant rolled the window down.
It was very cold out, and appellant was wearing a “big jacket.†He felt “comfortable,†but he was “a littleâ€
cold when he rolled down the window. The
officer asked for appellant’s license and appellant, knowing he did not have it
with him, “got a little nervous.â€
Appellant did not know that the car Federico had asked him to drive and
given him a key for was stolen; he thought it was Federico’s car and Federico
had given him permission to drive it.
Appellant
acknowledged on cross-examination that he did not know Federico’s last name,
address or phone number, and did not know whether Federico owned a car or was a
licensed driver. Asked if he had been
convicted of stealing a car in April 2011, appellant testified that he had not,
then, when shown the record of his conviction, admitted that his memory had
been refreshed and he had been convicted of that offense.
DISCUSSION
Appellant
contends the trial court abused its discretion in admitting evidence of his
prior misdemeanor vehicle theft
conviction under Evidence Code
name="_ftnref1" title="">[1]
section 1101, subdivision (b), because the fact of the conviction did not
demonstrate the prior offense was sufficiently similar to the charged offense
to warrant admission, and it did not have sufficient probative value to
outweigh its prejudicial effect. He
further urges the court abused its discretion in refusing to sanitize the prior
conviction for purposes of impeachment.
Prior to trial,
the prosecutor stated his intention to seek to impeach appellant with a 2011
misdemeanor conviction for vehicle theft, as well as to use the conviction as
evidence of intent, knowledge that the car was stolen, and lack of mistake,
under section 1101, subdivision (b).
given notice of the prosecutor’s intent to use the car theft conviction as
section 1101, subdivision (b), evidence.
The court stated it was tentatively inclined to exclude the evidence
because it questioned whether the “mere fact of conviction†was probative of
intent, knowledge, or lack of mistake, noting that “[u]sually it’s the
similarity of the circumstances and not the ultimate result.†It deferred ruling until after the
prosecution presented its other evidence.
After the
prosecution presented its witnesses, it renewed its request to admit the prior
conviction under section 1101, subdivision (b).
The defense again objected that it had been given no notice of the
prosecution’s intention to use the vehicle theft conviction in this manner, and
argued that the prosecution was trying to use section 1101, subdivision (b),
improperly to strengthen a “rather weak†case against appellant, that the court
was required to consider the “extraordinary prejudice of letting a jury hear
about conduct that is in some vague sense similar to the current allegation,â€
and that permitting this use of the evidence would violate appellant’s federal
constitutional due process rights.
Considering the
three-page certified copy of the record of conviction, the court stated that
section 452.5, subdivision (b), read in conjunction with section 1280, “allows
the People to prove up prior conduct, whether felony or misdemeanor, via
official court records of a conviction.â€
The court noted that uncharged conduct was traditionally presented by
proving the underlying facts rather than the “report result,†but stated,
“[o]ne of the things that a conviction does is it eliminates any uncertainty
with regard to the intent with which the uncharged facts were committed.†In the present case, the court said, the
evidence was such that appellant’s intent in driving the car was not
“immediately obvious.†The court
expressly acknowledged its awareness that it had to proceed cautiously and could
only admit the evidence if it had “substantial probative value†that was not
outweighed by prejudicial effect, but also noted the “longstanding principal [
between the uncharged act and the charged offense is required in order to prove
intent.†The court found that the prior
conviction was not remote, having occurred less than a year prior to the
charged offense, and had “substantial probative value on the issue of prior intent
and, therefore, serve[d] as compelling circumstantial evidence of his current
intent.†The court expressly considered
the absence of information about the facts underlying the prior conviction but
believed that the fact there was a conviction, and it was so recent, gave it
substantial probative value. It also
noted that the jury would not worry about punishing appellant for uncharged
conduct because he had already been convicted, the proof would not be time
consuming, and the absence of underlying facts would reduce the potential for
the jury to draw prejudicial inferences from such facts. Accordingly, the court stated its inclination
to admit the prior conviction. In
response to defense counsel’s continued argument emphasizing the absence of
information about facts underlying the prior conviction, the court stated that
appellant was free to present evidence concerning the circumstances of the
prior vehicle theft to demonstrate dissimilarities from the present case. Defense counsel objected that this would
improperly shift the burden to appellant and the court disagreed, stating that
the conviction demonstrated sufficient similarities in terms of intent for the
jury to consider it.
The court was
concerned, however, that admitting the certified record of conviction would
allow the jury to see information it should not be permitted to see, as the
document contained information about dismissed counts and punishment. Ultimately, the court concluded that so much
information would have to be redacted that the evidence would be more
prejudicial than probative. Accordingly,
it denied the motion to admit the document.
Turning to the
question of whether appellant could be cross-examined regarding the prior
conviction, the court held that it was relevant for section 1101, subdivision
(b), purposes and also to impeach, as it was a crime of moral turpitude, and
not remote.
title="">[3] Defense counsel continued to object to use of
the evidence under section 1101, subdivision (b), and asked that the prior be
sanitized if used in cross-examination, so the jury would not be told it was
for vehicle theft. This request was
denied, as the court believed sanitizing would “probably [cause] more problems
than non sanitizingâ€: “[T]he fact that
it is a [Vehicle Code section ] 10851, would be probative under 1101(b) the issue
of his intent. And by sanitizing it, it
has no probative value on that issue and invites the jury to speculate as to
what other crime or crimes the defendant may have committed.â€
As indicated
above, on cross-examination, the prosecutor asked appellant if he had been
convicted of stealing a car in April 2011, and appellant said “no.†Pressed by the prosecutor, he said he did not
believe he had been convicted of that crime; the prosecutor asked, “[y]ou were
convicted of doing the exact same thing that you’re charged with here, right?â€
and appellant said he could not recall.
The prosecutor then showed appellant the record of his conviction and
asked if it refreshed appellant’s memory, and appellant acknowledged that he
now remembered being convicted of stealing a car in April of 2011. The prosecutor confirmed, “And it’s true,
right? . . . The same crime that you are now charged with?†and appellant said,
“Yes.â€
Appellant
confirmed on redirect examination that the conviction was a misdemeanor. The court then advised the jury that the
evidence of appellant’s prior conviction was admitted for “limited
purposes.†The court explained, “What
it’s not being admitted for is proof that this individual seated to my right, the
defendant, is disposed to commit crime or has a propensity to commit certain
crimes or types of crimes. You’re not to use that evidence for these
purposes. You can consider it with
respect to credibility or as circumstantial evidence of intent, knowledge or
lack of consent on the day or days in question that are involved in this case,
but not for the purpose of proving propensity to commit crime.†The court told the jury there would be a
further instruction on this issue in the packet they would be given.
After appellant’s
testimony, defense counsel moved for a mistrial based on the court’s admission
of the evidence of appellant’s prior conviction, arguing that appellant had
been prejudiced and “the bell has been rung and it can’t be unrung at this
point.†Defense counsel characterized
the court’s ruling as a “hybrid,†admitting the evidence for impeachment as
well as under section 1101, subdivision (b), and argued that the record of
conviction could not be used to prove a misdemeanor for purposes of section
1101, subdivision (b). The court stated
its belief that section 452.5 created a hearsay exception for official records
of conviction, including misdemeanor convictions.
Denying the
reiterated that the prior offense was a crime of dishonesty with direct bearing
on credibility and was not remote, and that misdemeanor conduct and convictions
can be used for impeachment. Later, the
court added that one of the reasons it ruled as it did was that appellant chose
to testify and was not entitled to a “false aura of credibility,â€
“[p]articularly when it’s combined with some of the 1101(b) issues that the
prior incident was admitted for. They
just seemed to intertwine to the Court.â€
The court
instructed the jury that evidence admitted during the trial for a limited
purpose could be used for that purpose and no other, and instructed fully on
the manner in which the jury could consider the prior conviction.
“Evidence
Code section 1101, subdivision (a) generally prohibits the admission of a prior
criminal act against a criminal defendant ‘when offered to prove his or her
conduct on a specified occasion.’
Subdivision (b) of the statute, however, provides that such evidence is
admissible ‘when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge . . . ).’ †(People
v. Cole (2004) 33 Cal.4th 1158, 1194.)
“The principal factor affecting the probative
value of the evidence of defendant's uncharged offenses is the tendency of that
evidence to demonstrate the existence of†the fact for which it is being
admitted. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).)
In
addition, to be admissible, the evidence “ ‘ “ ‘must not
contravene other policies limiting admission, such as those contained in
Evidence Code section 352.’ †’
(People v. Lewis (2001) 25
Cal.4th 610, 637; accord, People v.
Daniels [(1991)] 52 Cal.3d 815, 856.)
Under Evidence Code section 352, the probative value of the proffered
evidence must not be substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury. (See Ewoldt,
supra, [7 Cal.4th] at p. 404; Evid. Code, § 352.)†(People
v. Cole, supra, 33 Cal.4th at pp. 1194-1195.)
“We
review for abuse of discretion a trial court’s rulings on relevance and
admission or exclusion of evidence under Evidence Code sections 1101 and
352.†(People v. Cole, supra, 33 Cal.4th at p. 1195.) The trial court’s decision “will not be
disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.†(
9-10.)
Intent was clearly at issue in the
present case. Indeed, it was really the
only disputed issue: Appellant did not
contend he was not driving a stolen vehicle, only that he did not know it was
stolen and thought he was driving with the permission of the owner. Other crimes evidence “is admissible in cases
where the proof of defendant’s intent is ambiguous, as when he admits the acts
and denies the necessary intent because of mistake or accident.†(People
v. Kelley (1967) 66 Cal.2d 232, 242-243 [sex offenses].) That is precisely the situation here.
We are not persuaded by appellant’s
argument that the fact of the prior conviction—as opposed to the facts and
circumstances underlying it—could not be used to prove intent under section
1101, subdivision (b). As compared with
some of the other issues addressed by section 1101, subdivision (b), the “least
degree of similarity (between the uncharged act and the charged offense) is
required in order to prove intent. (See
867, 880.) ‘[T]he recurrence of a
similar result . . . tends (increasingly with each instance) to negative
accident or inadvertence or self-defense or good faith or other innocent mental
state, and tends to establish (provisionally, at least, though not certainly)
the presence of the normal, i.e., criminal, intent accompanying such an act . .
. .’ (2 Wigmore [Evidence] (Chadbourn
rev. ed. 1979) § 302, p. 241.)†(
402.) “To be admissible to show intent,
‘the prior conduct and the charged offense need only be sufficiently similar to
support the inference that defendant probably harbored the same intent in each
instance.’ (People v. Yeoman (2003) 31 Cal.4th 93, 121; accord, [
(People v. Cole, supra, 33
Cal.4th at p. 1194.)
name="_ftnref5" title="">[5]
The elements of vehicle theft are straightforward: The prosecution must prove that the defendant
took or drove someone else’s vehicle without the owner’s consent, and that when
doing so the defendant intended to deprive the owner of possession or ownership
of the vehicle for any period of time.
(Veh. Code, § 10851 subd. (a); CALCRIM No. 1820.) Appellant’s prior conviction of this offense
necessarily established that at the time of that offense, he had the requisite
intent to deprive the vehicle’s owner of possession or ownership. That he held this intent on a prior occasion
is probative of the question at issue in the present case—whether he was
driving the stolen car with the intent to deprive the vehicle owner of
possession or ownership, or lacked that intent and believed he was driving with
the permission of the owner. (See
594, 597 [prior conviction “conclusive proof†of defendant’s prior possession
of restricted drugs with intent to sell, relevant to question of intent at time
of charged sale which appellant claimed was result of entrapment].)
In arguing that similarity between the prior offense and
the charged offense cannot be established without proof of the facts underlying
the prior, appellant relies upon People
v. Carter (1993) 19 Cal.App.4th 1236, 1246 (Carter)—specifically, its statement that a court considering
whether the similarity between the charged and uncharged offenses is sufficient
to warrant admission “ ‘ “must look behind the label describing the kind of
similarity or relation between the [uncharged] offense and the charged offense;
it must examine the precise elements of similarity between the offenses with
respect to the issue for which the evidence is proffered and satisfy itself
that each link of the chain of inference between the former and the latter is
reasonably strong.†’ (
[303,] 316, quoting People v. Schader (1969)
71 Cal.2d 761, 775.)â€
(Carter, supra, 19
Cal.App.4th at p. 1246.)
The
question in Carter was whether the
defendant killed the victim in a spontaneous act of self-defense or a
premeditated robbery and murder, and the challenged evidence tended to prove he
had killed a different man shortly before the charged homicide. (Carter,
supra, 19 Cal.App.4th at pp.
1245-1247.) Carter upheld the admission of the evidence after examining the
facts of the uncharged offense and determining that, like the charged offense,
they supported the inference that appellant did not act spontaneously but
rather intended to rob and kill the victims.
supra, 19 Cal.App.4th at pp. 1246-1247.)
In
Carter, there was no conviction
establishing the defendant’s intent in the uncharged offense, and the probative
value of the uncharged offense was only in the inference of intent to be drawn
from the specific underlying facts.
Here, by contrast, the prior conviction necessarily established that on
a recent prior occasion, appellant drove a stolen car with the intent to
deprive the owner of possession or ownership.
That he held this intent on a recent prior occasion supports the
inference that his intent was the same this time he was found driving a stolen
car, and that the extreme signs of nervousness he displayed when stopped by
Officer Ponce were due to his being caught in this act and not, as he claimed,
that he did not have his driver’s license in his possession.
Appellant emphasizes the potential for prejudice from
evidence of prior offenses.
“ ‘Evidence
is prejudicial within the meaning of Evidence Code section 352 if it
“ ‘uniquely tends to evoke an emotional bias against a party as an
individual’ †[citation] or if it would cause the jury to
“ ‘ “prejudg[e]’ a person or cause on the basis of extraneous
factors’ †[citation].’ (
475.) With respect to the risk of undue
prejudice, defendant observes that evidence of other crimes is ‘inherently
prejudicial.’ (See Ewoldt, supra, 7 Cal.4th at p. 404) ‘As Wigmore notes, admission of this evidence
produces an “over-strong tendency to believe the defendant guilty of the charge
merely because he is a likely person to do such acts.†[Citation.]
It breeds a “tendency to condemn, not because he is believed guilty of
the present charge, but because he has escaped unpunished from other
offences . . . .â€
[Citation.] Moreover, “the jury
might be unable to identify with a defendant of offensive character, and hence
tend to disbelieve the evidence in his favor.â€
[Citation.]’ (
317, fn. omitted.) Due to these inherent
risks, ‘uncharged offenses are admissible only if they have substantial
probative value.’ (Id. at p. 318, original italics; see Ewoldt,
supra, at p. 404.)†(
1331.) Appellant particularly stresses
the danger posed by a prior conviction for the same offense as that charged,
leading jurors to believe that “ ‘if he did it before he probably did so
this time.’ †(People v. Beagle (1972) 6 Cal.3d 441, 453.)
Such risks of prejudice are undeniable. But unlike prior convictions used for
impeachment—where the probative value of the prior offense does not depend on
its similarity to the charged offense but on its tendency to undermine the veracity
of the defendant—other crimes evidence is admitted under section 1101 precisely
when its similarity to the charged offense is relevant to prove a disputed
issue. In this context, it is the
similarity of the prior offense that gives the evidence its probative
value. “ ‘ “[T]he
prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.
‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to
the defendant’s case. The stronger the
evidence, the more it is “prejudicial.â€
The “prejudice†referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant
as an individual and which has very
little effect on the issues.’ â€
(People v. Karis (1988)
46 Cal.3d 612, 638; see Vorse [
1009.)†(People v. Escudero (2010) 183 Cal.App.4th 302, 312.)†(People
v. Holford (2012) 203 Cal.App.4th 155, 167.)
Here, the prior
offense had substantial probative value.
As the trial court pointed out, the fact
that appellant had been convicted lessened the risk of prejudice, as there
would be no temptation for the jury to punish appellant for the prior offense. In the opposite situation,
effect of other crimes “is heightened by the circumstance
that defendant’s uncharged acts did not result in criminal convictions. This circumstance increased the danger that
the jury might have been inclined to punish defendant for the uncharged
offenses, regardless whether it considered him guilty of the charged offenses,
and increased the likelihood of ‘confusing the issues’ (Evid. Code, § 352),
because the jury had to determine whether the uncharged offenses had
occurred.†(Ewoldt, supra, 7 Cal.4th
at p. 405.)
The
trial court’s determinations that the prior conviction was sufficiently similar
to the charged offense, and that its probative value was not “substantially
outweighed by the probability that its admission would create substantial
danger of undue prejudice, of confusing the issues, or of misleading the juryâ€
(People v. Cole, supra, 33 Cal.4th at
p. 1195), was not “arbitrary, capricious, or patently absurd.†(People
v. Rodriguez, supra, 20 Cal.4th at p. 9.)
There was no abuse of discretion.
In
light of this conclusion, we need not address appellant’s additional arguments
that the trial court abused its discretion in refusing to sanitize the
conviction for impeachment purposes and that admission of this evidence
violated appellant’s due process right to
a fair trial in that it did not support any permissible inference.
DISPOSITION
The
judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
Further statutory references will be to the Evidence Code unless otherwise
specified.
prosecutor initially sought to use a second misdemeanor conviction for petty
theft of retail merchandise for these purposes as well. The request concerning the petty theft
conviction was subsequently withdrawn because defense counsel represented that
she had been given no notice of this conviction before trial and the
prosecutor, who had taken over the case less than a week before, had to “take
her at her word.â€
