P. v. Baker

Filed 2/20/07  P. v. Baker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge.  Affirmed in part and reversed in part.

            A jury convicted Pamela J. Baker of conspiracy (Pen. Code,^[1] §  182, subd. (a)(1); count 1), residential burglary (§§  459, 460; count 2), two counts of receiving stolen property (§  496, subd. (a); counts 4 & 6), and grand theft (§  487, subd. (a); count 5).  In a bifurcated proceeding, Baker admitted she had four " probation denial priors" (§  1203, subd. (e)(4)), two serious felony priors (§  667, subd. (a)(1)), and two priors under the Three Strikes law (§§  667, subds. (b)-(i), 1170.12).  The trial court then revoked probation in two earlier cases (San Diego Superior Court Case numbers SCE222812 and SCN145193) and set the matter for sentencing.

            After striking one of Baker's prior strike convictions in the present case, the court sentenced her to prison for a total term of 20 years, eight months, consisting of eight years for the count 2 residential burglary, two consecutive 16-month terms for the count 4 receiving stolen property and the count 5 grand theft, and two consecutive five-year terms for the prior serious felony convictions.  Pursuant to section 654, the court stayed the imposition of sentence on the count 1 conspiracy conviction and the count 6 receiving stolen property conviction.  The court ran the terms imposed for each of the revoked probation cases concurrent to the sentence imposed in the present case.

            Baker appeals, contending her count 6 conviction for receiving stolen property should be reversed because she was convicted of theft of the same property in count 5 and cannot properly be convicted of both.  Baker also claims that the trial court erred by failing to instruct the jury it could not convict her of both crimes alleged in counts 5 and 6, and that it abused its discretion under Evidence Code section 352 when it admitted evidence of her prior convictions for impeachment.  The People concede the count 6 conviction must be reversed, but argue Baker's instructional error claim is moot and her abuse of discretion assertion is without merit.  We agree with the People and accordingly reverse in part and affirm in part.

FACTUAL BACKGROUND

            Baker does not challenge the sufficiency of the evidence which shows that over the weekend of July 23 to 24, 2005, she and Jeremy Abshere^[2] stole tools from two unoccupied houses that were under construction and were then arrested while taking items from a third house whose occupants were away for a short time.  Specifically, a locked home being remodeled on Rosemont Street in San Diego and a new house being framed on Baja Mar Street which was surrounded by a locked chainlink fence in San Diego were broken into and items were discovered missing when construction workers returned to each site on Monday, July 25, 2005.  A new shop vacuum was taken from the Rosemont home and various saws and other expensive tools were taken from the Baja Mar house.

            Around 12:15 p.m. on Sunday, July 24, 2005, a neighbor looking out the window of her home saw a red car back into the driveway of the Blanchard family home across the street from hers on Princeton Street in San Diego.  When the neighbor next looked out her window she saw a woman walking from a vacant house on Princeton Street to the red car with a gas can.  After putting the gas can in the back of the car, the woman got into the driver's seat.  The neighbor then saw a man coming from the area of the vacant house walk toward the front door of the Blanchard home and then the car, where he leaned into the passenger's window and spoke to the woman before going around to the

far side of the garage.  The neighbor again saw the man walk around the front of the Blanchard house to the other side and go through a wooden gate.  When the neighbor next saw the man, he was on the roof of the Blanchard garage going into the house through an open window.  While this was going on, the woman remained in the car, facing away from the house, and appeared to use a cell phone.  The neighbor called the police and described the ongoing action.

            Responding police officers parked around the corner and walked up the driveway to the Blanchard home.  When the woman in the car noticed the approaching officers, she started to drive the car forward, but stopped when an officer told her to do so.  About a minute later, the man came out of the Blanchard house carrying a gym bag, containing coins, cash, silverware and jewelry, and a 12-pack of soft drinks.  The man and woman were taken into custody and identified respectively as Abshere and Baker.  The shop vacuum taken from the Rosemont Street home and the missing tools from the house being constructed on Baja Mar Street were recovered in a search of the back seat area of Baker's red car.  The police also recovered bolt cutters from the car.

The Defense

            Baker testified on her own behalf, stating she had first met Abshere, who worked in construction, through a mutual friend on July 4, 2005, and had seen him two or three times before the July 23-24, 2005 weekend in question.  Baker considered Abshere a friend and he had given her $300 to help with her rent.  On the evening of July 23, 2005, Abshere had come to her apartment to take a shower and borrow her car.  He returned to her apartment at about 4:00  a.m.  Later that morning, Baker drove with Abshere to La Jolla Shores in her car which had numerous tools in it, including three bolt cutters, that had not been there before lending her car to Abshere.  Abshere told Baker the tools were for his uncle.  After taking a short walk on the beach, Abshere asked Baker to drive him around to pick up more tools for his uncle.

            Abshere first directed Baker to an address on Rosemont Street where he was gone about 10 to 15 minutes while she waited in the car.  When he returned, Abshere placed a shop vacuum in the back of her car.  He then directed her to an address on Baja Mar Street where she again stayed in her car.  After about seven or eight minutes, Abshere returned carrying two buckets of tools, which he also put in the back of Baker's car.  Abshere then directed Baker to an address on Princeton Street, telling her to back into the driveway so he could unload the tools at his uncle's house.  Abshere got out of the car and walked toward the front door.  He returned within two minutes, telling Baker he was going around back to see if his uncle and aunt were there and that he would then come back for the tools.

            After Abshere went through the gate to go around to the back of the house, Baker, who was low on gas, decided to ask one of the neighbors for some gas.  As she walked across the street with her gas can, she changed her mind and went back to her car.  When Baker could not then reach Abshere on his cell phone, she walked to the front door, rang the doorbell and knocked.  Not receiving a response, she went back to her car again.  After Abshere had been gone about 10 to 15 minutes, Baker started her car to leave because it was hot and he was taking too long.  Baker then saw the police and turned off her car as directed.  Baker claimed that Abshere had not told her what he was doing; that she had no idea he was doing anything other than what he had told her, i.e., picking up and taking tools to his uncle; and that she did not know the property in her car was stolen until the police arrived.

            Baker admitted she had a June 12, 2002 felony conviction for a residential burglary she committed three years earlier, and that she had also been convicted on October 16, 2002, of committing robbery.

DISCUSSION

I

COUNT 6 MUST BE REVERSED

            Baker contends, and the People concede, her count 6 conviction for receiving stolen property based on the same property for which she was convicted of theft in count 5 should be reversed.  As the parties recognize, one cannot be convicted of both stealing and receiving the same property, even where the defendant is convicted under an aiding and abetting theory.  (§  496, subd. (a); People v. Allen (1999) 21 Cal.4th 846, 851-853; People v. Donnell (1975) 52 Cal.App.3d 762, 768-769.)  Because counts 5 and 6 charged Baker respectively with the theft of property and the receiving of the stolen property taken from the same framing contractor victim who was working on the Baja Mar Street house (Robert Bacon), and the jury convicted Baker of both crimes involving the same property, the count 6 conviction for receiving stolen property must be reversed.  (People v. Stephens (1990) 218 Cal.App.3d 575, 586-587.)

II

INSTRUCTIONAL ERROR CLAIM

            Because we have determined that Baker's conviction for receiving stolen property in count 6 must be reversed, we agree with the People that her related assertion the trial court erred in failing to sua sponte instruct the jury it could not convict Baker of both counts 5 and 6 for stealing and receiving the same property is moot and need not be addressed.

III

IMPEACHMENT WITH PRIORS PROPER

            In limine, the prosecutor requested he be able to use the facts of Baker's prior convictions for residential burglary and robbery in his case-in-chief under Evidence Code section 1101, subdivision (b) on the issue of her intent and knowledge, or in the alternative to use the facts regarding the priors to impeach Baker if she testified.  Defense counsel opposed the request.  The court deferred ruling on the Evidence Code section 1101, subdivision (b) aspect of the request, stating as to impeachment, Baker could be impeached with her two priors if she testified.  When defense counsel then asked the court to require the prosecutor to sanitize those priors, the prosecutor objected that it was important to use both as is because Baker was denying any criminal intent to steal and any knowledge that Abshere was stealing property from houses burglarized that weekend.  The trial judge noted it saw a " problem with what you call sanitizing these.  Clearly a robbery is a robbery. . . .  [¶] The other residential burglary I am inclined to let that in as a residential burglary.  I think it's appropriate to sanitize.  Jurors get to wonder.  They speculate on all kinds of things.  That is not a good way to handle it.  [¶] I will give you that much information.  You can talk about that."

            Later that day, the court heard further argument on the Evidence Code section 1101, subdivision (b) motion regarding the admission of the facts of the priors.  The court ruled the facts of the priors could not come into evidence in the prosecutor's case-in-chief, but depending on Baker's testimony might later be admissible.  The court said it would look at the matter again.

            During a break in the trial, defense counsel asked the court to make a final ruling on the Evidence Code section 1101, subdivision (b) matter.  The court reiterated its ruling not to allow evidence of the priors in the prosecution case and stated it would have to wait and see what happened in Baker's testimony to see if that opened the door to anything.  When counsel inquired whether the court would sanitize the priors, the court stated it would not sanitize the robbery prior conviction but would wait to see what Baker claimed in her testimony to determine whether the residential burglary prior should be sanitized.  The court stated that if Baker claimed she did not know what was going on, then it thought the unsanitized prior residential burglary would be very relevant on the issue of intent and knowledge and such would be allowed.

            Later, during a break in testimony, the prosecutor asked the court for more guidance regarding impeachment with the priors on cross-examination when Baker took the stand.  The prosecutor revisited its earlier arguments regarding Evidence Code section 1101, subdivision (b), again seeking permission to go into the factual details of Baker's conduct in those earlier cases as impeachment because Baker would be putting her mental state in this case at issue.  Defense counsel continued to oppose the prosecutor getting into the facts of the priors.  The trial judge told the prosecutor:

" I understand that there have been times when people have testified in such a way that it would be misleading.  . . . Absent that I will not allow you to get into the facts of these cases.  I will allow you to use them to impeach [Baker].  Maybe . . . this is something that I should have you sanitize, the residential burglary in her past.  This is not a robbery.  [¶] I will allow you to use the robbery in 2002 to impeach the defendant and I will allow you to use the residential burglary.  I think the probative value out weighs any prejudice on that, but I'm not going into the facts of those prior cases unless something new happens."

The court suggested " a sidebar if . . . something happened."

            Subsequently, near the end of Baker's direct examination, defense counsel asked Baker whether she had been convicted of " a felony crime in San Diego Superior Court" for " a residential burglary" and also " for a robbery."   Baker answered affirmatively when counsel then asked her whether on " this occasion [she was] telling the jurors [she] didn't know the property was stolen."

            On cross-examination, the prosecutor questioned Baker further on her prior convictions.  When the prosecutor asked Baker whether she was telling the jury that she did not know that the property in the back of her car was stolen even though she had a conviction for residential burglary, the court asked counsel for a sidebar conference.  Although there had been no objection, the court cautioned the prosecutor that even though he could use the prior for impeachment, it did not want him to indicate to the jury " that because she stole before, so she stole this time."   The court offered to permit defense counsel to go into the facts to show the difference between the earlier residential burglary and the current one, and also " to read the instruction of when a felony conviction can be used."   The prosecutor stated he had no problem with the court sanitizing the prior and instructing the jury the prior evidence was " only offered for a limited purpose for the credibility of the witness."

            The court then asked the parties whether they wanted it to read CALJIC No. 2.23, which states, " The fact that a witness has been convicted of a felony, if this is a fact, it may be considered by you only for the purpose of determining the believability of that witness.  The fact of a conviction does not necessarily destroy or impair a witness's believability.  It is one of the circumstances that you may consider in weighing the testimony of that witness."   Both counsel agreed.  When the jurors were next present, the court read the agreed upon prior conviction limiting instruction.  At the end of trial, the court readmonished the jury as to the limited nature of the prior conviction evidence in the instructions.

            On appeal, Baker contends the trial court abused its discretion under Evidence Code section 352 when it permitted the prosecution to impeach her with her prior convictions for residential burglary and robbery.  She specifically argues the court erroneously determined the probative value of the priors outweighed their prejudicial effect and could be used for impeachment because they were too similar to the offenses for which she was on trial and there was a great risk of undue prejudice from the jury's misuse of the prior convictions as propensity evidence.  This claim has no merit.

            Contrary to Baker's assertion, it was defense counsel who, in questioning Baker, proceeded to first elicit before the jury the fact that Baker had previously been convicted of residential burglary and robbery.  Thus technically, " [t]he doctrine of invited error bars [Baker] from challenging the ruling on appeal.  [Citation.]"   (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.)

            Moreover, as a substantive matter, the trial court's ruling admitting the prior convictions for impeachment purposes was well within its range of discretionary judgments.  "   'Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment.  Together, they provide discretion to the trial judge to [admit] evidence of prior felony convictions when their probative value on credibility is [not] outweighed by the risk of undue prejudice.  [Citation.]'  [Citation.]  In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 (hereafter, Beagle):  (1) whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions.  [Citation.]  These factors need not be rigidly followed.  [Citation.]"   (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza).)  The ruling based on these Beagle factors 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."   (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

            Here, as noted above, Baker testified.  The priors for residential burglary and robbery that Baker admitted on direct examination were both crimes of moral turpitude and thus highly probative on the issue of her credibility.^[3]  (Mendoza, supra, 78 Cal.App.4th at p. 925.)  Although they were theft-related offenses and thus similar to the current theft charges, they were recent, having been committed within three years of the current crimes.  The court considered all of these facts and found the probative value for impeachment outweighed any prejudice to Baker.  "   '  " The identity or similarity of current and impeaching offenses [was] just one factor to be considered by the trial court in exercising its discretion."   '  [Citation.]"   (Id. at p. 926.)  Because the court clearly balanced the Beagle factors and provided the option to counsel to sanitize at least the residential burglary prior or go into its facts to show that the prior was different from this case, we cannot find any abuse of discretion in the court's ruling that the priors could be used to impeach Baker's credibility.  To have ruled otherwise on this record would have given Baker a "   '  " false aura of veracity."   '  [Citations.]"   (People v. Hinton (2006) 37 Cal.4th 839, 888.)

            To the extent Baker is attempting to argue that the prosecutor's subsequent questioning of Baker on cross-examination about the priors was improper and created the risk they might be misused as propensity evidence, the record reflects defense counsel did not object to such questioning.  Rather, the court on its own cautioned the prosecutor not to proceed with such questioning which might violate the court's earlier ruling that the

underlying facts of the priors were not admissible under Evidence Code section 1101, subdivision (b), and then as a precaution admonished the jury to only consider the priors on the issue of Baker's credibility.  Neither prejudice nor abuse of discretion is shown regarding the admission into evidence of Baker's priors.

DISPOSITION

            The count 6 conviction is reversed.  In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

                                       HALLER, J.

                                   McINTYRE, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1]           All statutory references are to the Penal Code unless otherwise specified.

^[2]           Abshere, originally charged as a codefendant in this case, pled guilty before trial and is not a party to this appeal.

^[3]           Because defense counsel's decision to have Baker disclose her priors before the jury can fairly be characterized as a reasonable tactical choice to show Baker's candor and honesty, any claim that counsel was ineffective for doing so would likely fail.  (See Mendoza, supra, 78 Cal.App.4th at pp. 927-928.)