P. v. Nolette

Filed 1/29/07 P. v. Nolette CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Chidsey, Jr., Judge. Affirmed with directions.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Charles Wilkerson.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant Debra Nolette.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants, Debra Nolette and Charles Wilkerson, appeal from their conviction for assault with a deadly weapon by means likely to produce great bodily injury. (Pen. Code,^[1] 245, subd. (a)(1).) Mr. Wilkerson also appeals his convictions for three counts of child abuse ( 273a, subd. (a)) and one count of criminal threats. ( 422.) Ms. Nolette also appeals from her convictions for three counts of misdemeanor child abuse. ( 273a, subd. (b).) In addition, defendants appeal from the trial courts findings that both Mr. Wilkerson and Ms. Nolette were each previously convicted of serious felonies and served two prior prison terms. ( 667, subds. (a)(1), (b)(i), 667.5, subd. (b), 1170.12.) Ms. Nolette argues there was insufficient evidence to support her convictions in counts 3, 4, and 5. Ms. Nolette further argues that the trial court improperly failed to sua sponte instruct the jurors on the specific intent element of aiding and abetting and allowed the use of a prior conviction, which was remote in time, to impeach her. Mr. Wilkerson argues the trial court improperly refused to exercise its discretion to strike his prior serious felony conviction. Mr. Wilkerson joins Ms. Nolettes arguments to the extent they accrue to his benefit. We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Teresa Donahue lived with her husband, Michael Donahue, and their son, Beau, in a mobile home at 18304 East Avenue T-8 in Llano, California on November 11, 2004. Joanne Hannigan and her husband, William Hannigan, were acting as caretakers for the property on which the Donahues resided as well as the adjacent property at 18484 East Avenue. Their daughter, Lena Hill, and her children lived in a mobile home at 18484 East Avenue on occasion. Ms. Hill assisted Ms. Hannigan in overseeing the property. On November 11, 2004, Ms. Hill lived with her children, Bradley Hill, Jr. and two-year-old twins, Matthew and Brandon Hannigan in Lake Los Angeles. However, Ms. Hill watched over the East Avenue property and went there often. The owners had various cars and other personal items on the property. During the three weeks preceding November 11, 2004, the Donahues reported to Ms. Hannigan and Ms. Hill that a fence had been cut, things were missing, and there were individuals on the property. Ms. Donohue also saw a blue Blazer truck and a white truck on the property at times.

On approximately November 9 or 10, 2004, Ms. Hill went to the property in response to a call from the Donahues. Ms. Hill encountered Robert Downs on the property. Ms. Hill told Mr. Downs that her parents were the caretakers for the property. Ms. Hill also told Mr. Downs that he should not be on the property. Mr. Downs told Ms. Hill that he would pack his things and leave. On November 11, 2004, Ms. Hannigan and Ms. Hill went to the property, where they, with the help of the Donahues, moved the intruders belongings. Ms. Hannigan and Ms. Hill then went to an address on 185th Street, where they returned a dog belonging to someone in the group and advised Mr. Wilkerson, Mr. Downs, Ms. Nolette, and Kristy Kosche to pick up their belongings and stay off the property. Mr. Donahue had previously warned Mr. Downs on two or three occasions to stay off the property. Ms. Nolette was present at the time of one of those conversations. Mr. Donahue had also previously spoken to Mr. Wilkerson. Mr. Wilkerson stated he had permission from Ms. Hill and Ms. Hannigan to remove some items from the property. Ms. Hannigan had never given these four individuals, Mr. Downs, Ms. Nolette, Ms. Kosche, or Mr. Wilkerson, permission to be on the property.

During the three weeks prior to November 11, 2004, the Donahues rewired the chain link fence on the property to secure it where it had been opened. On one occasion, the Donahues hired another man to place a horse panel where the gate and pole had been broken so that the fence was secured. Later, Ms. Donahue noticed that a couch had been moved off the property and a large propane tank was missing. Ms. Donahue had not given anyone permission to take the couch or propane tank away. Ms. Donahue had not authorized anyone to open locks, move fences, or take them down.

On November 11, 2004, Ms. Hannigan and Ms. Hill returned a few hours after their initial warning to the previously mentioned four individuals to stay off the property. Ms. Donahue had notified Ms. Hill that the four had returned to the gate on the property. Ms. Hills three children were in her van. Accompanying Ms. Hill and the three youngsters was Ms. Hannigan. When they arrived at the gate to the property, Mr. Downs was cutting the chain on the side of the gate with bolt cutters. Ms. Hill opened one gate. Ms. Hill then pulled forward close to the other gate to prevent the intruders from entering. A blue Chevy Blazer was parked outside the gate. Ms. Nolette began screaming at Ms. Hill and Ms. Hannigan: B, youre dead. . . . Youre gonna get it. Ms. Nolette referred to Ms. Hill as a snitch-bitch. Ms. Hill opened the driver-side door to the van. Ms. Hannigan saw Ms. Nolette coming toward the van. Ms. Nolette had a chain with a yellow lock attached in her hand. Ms. Hannigan got out of the van. Ms. Nolette said, Bitch, youre gonna get it. Ms. Hannigan shoved Ms. Nolette. This was done in an effort to prevent Ms. Nolette from trying to enter the van, where Ms. Hill and the three children remained. Ms. Nolette slammed the drivers door shut. Also, Ms. Nolette smashed the drivers door window of the van with the chain and lock she held. Broken window glass hit Ms. Hills face and that of her two-year-old son Brandon.

Ms. Kosche then approached swinging another chain with a silver and blue lock attached. Ms. Kosche was yelling profanities. Ms. Hill yelled to Ms. Hannigan: Come on, get in. Get in, Mom, get in. Meanwhile, Ms. Kosche pulled a serrated knife with a dark handle and told Ms. Hannigan, Ill slice you up, bitch. As Ms. Kosche swung the chain, it hit the back of Ms. Hannigans head and neck. Ms. Hannigan had a bump where she was hit and was dazed for a few days thereafter as a result of the injury. Thereafter, Ms. Hannigan saw Mr. Wilkerson move toward the drivers side of the van. Ms. Hill yelled: Theres kids in here. Get away from the car . . . . Mr. Wilkerson said: Lena, you bitch. Youre gonna get it. Im going to kill, you . . . . Mr. Wilkerson shattered another window with the chain and yellow lock, which he then threw into the van. Ms. Hannigan was able to get back into the van. Thereupon, Ms. Hill backed out and drove away. After the incident, Ms. Hill had a bruise on her arm. Ms. Hill did not know when she suffered that injury during the course of the altercation. Ms. Hill and her son, Brandon, suffered cuts from the broken windows. Ms. Donahue had walked to the scene with her cordless phone in her hand. Ms. Donahue heard Ms. Hill yell, My kids, get my kids. Ms. Donahue saw Ms. Hills three boys in the van. Ms. Donahue got into her husbands car, drove to the other end of the property, and called the sheriffs department.

Los Angeles County Sheriffs Deputy Carl Osterthaler arrived at the scene of the incident on November 11, 2004. Deputy Osterthaler identified the knife introduced into evidence as the prosecutors exhibit No. 1 as the one he recovered from the blue Chevy Blazer truck at the scene. Mrs. Hannigan told Deputy Osterthaler that it appeared to be the knife used against her except for the fact that she thought it had a serrated edge. Ms. Hill handed Deputy Osterthaler a chain, which she said had been inside her van. Deputy Osterthaler found a pair of red bolt cutters and another pair of bolt cutters from the rear floorboard of the blue Chevy Blazer. Deputy Osterthaler observed a small lump, redness, and swelling at the base of Ms. Hannigans skull near her neck.

III. DISCUSSION

A. Sufficiency of the Evidence

Ms. Nolette argues that there was insufficient evidence to support her convictions for misdemeanor child abuse in counts 3, 4, and 5. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v.Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v.Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34; People v.Ochoa (1993) 6 Cal.4th 1199, 1206; People v.Barnes (1986) 42 Cal.3d 284, 303; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) Because intent can seldom be proven by direct evidence, it typically is inferred from the circumstances. (People v. Smith (1998) 64 Cal.App.4th 1458, 1469; People v. Edwards (1992) 8 Cal.App.4th 1092, 1099; People v. Wilkins (1972) 27 Cal.App.3d 763, 773.) There was substantial evidence to support Ms. Nolettes convictions.

Section 273a, provides in pertinent part: (a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . shall be punished by imprisonment . . . . [] (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . is guilty of a misdemeanor. Ms. Nolette was convicted of three misdemeanor violations of section 273a, subdivision (b). Mr. Wilkerson was convicted of three felony child abuse charges pursuant to section 273a, subdivision (a). Ms. Nolette argues that she could not have willfully inflicted harm upon the children. Ms. Nolette contends, [A]ll the evidence adduced at trial indicated that [she] did not know children were present until after she broke the window of the van. Ms. Nolette acknowledges that the charges stemmed from her acts as well the acts of Mr. Wilkerson as an aider and abettor. However, Ms. Nolette argues that she had no knowledge of Mr. Wilkersons unlawful purpose when he swung the lock and chain at the passenger window, striking Bradley and showering the twin boys with shattered glass. As a result, Ms. Nolette claims she could not have aided and abetted Mr. Wilkerson.

Section 31 provides in pertinent part: All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed. The California Supreme Court has discussed the mental state necessary for liability as an aider and abettor: To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. [Citation.] Thus, we held, an aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citation.] (People v. Prettyman (1996) 14 Cal.4th 248, 259, original italics, quoting People v. Beeman (1984) 35 Cal.3d 547, 560-561.) The Supreme Court also held: Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.] (People v. Mendoza (1998) 18 Cal.4th 1114, 1123; see also People v. Cleveland (2004) 32 Cal.4th 704, 729; People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

First, there was substantial evidence that Ms. Nolette saw the children inside the van. Ms. Hill had opened the drivers side door and was attempting to get out of the van. This is when Ms. Nolette pushed the door and swung the chain and lock at the drivers door window. The windows of Ms. Hills van were tinted. But there was no testimony, other than Ms. Nolettes, that the windows were so dark that she could not see inside. Ms. Donahue saw Ms. Hill and Ms. Hannigan trying to get out of the van and Bradley coming out through a window. Ms. Donahue was approximately 42 to 45 feet away from the van and had some obstacles obstructing her vision at the time. Photographs of Ms. Hills van were admitted into evidence for the jurors review. Second, there is substantial evidence Ms. Nolette acted as an aider and abettor of Mr. Wilkerson. The evidence demonstrated that both Ms. Nolette and Mr. Wilkerson used the same chain and lock to smash the windows in Ms. Hills van, thereby causing danger and injury to both Ms. Hill and the children inside. Mr. Wilkersons conduct occurred after Ms. Hill yelled: Theres kids in here. Get away from the car. Ms. Nolette continued to yell at Ms. Hill. Youre dead. Youre gonna get it. One of Ms. Hills children got into her lap, where he was presumably visible to those outside the van, particularly since the window had been shattered. When Mr. Wilkerson swung the chain and lock against the right passenger window, it actually hit Bradley. Thereafter, Mr. Wilkerson threw the chain and lock into the van. Because Mr. Wilkerson acted after he was aware of the childrens presence, he cannot benefit from this argument. A rational trier of fact could conclude beyond a reasonable doubt that Ms. Nolette not only knew there were children in the van when she broke the window, but also that she and Mr. Wilkerson aided and abetted each other.

B. Instructions

1. CALJIC No. 3.31

Ms. Nolette argues the trial court had a sua sponte duty to instruct on specific intent as set forth in CALJIC No. 3.51 where the evidence supported the aiding and abetting theory of culpability as to counts 1, 3, 4, and 5 rather than as to counts 6 and 7 alone. CALJIC No. 3.31^[2]was the instruction given to explain the concurrence of an act and specific intent. We presume that Ms. Nolette merely misnumbered the instruction in her argument here. Ms. Nolette further argues, The instruction on general intent alone misled the jury into believing that general intent was sufficient to find [her] guilty on an aiding and abetting theory. Mr. Wilkerson joins in this argument.

2. Waiver

Ms. Nolettes and Mr. Wilkersons argument that that they are entitled to reversal because of a denial of any federal constitutional rights because of instructional error is without merit. If there is a sua sponte duty to instruct on a particular theory, for constitutional or other reasons, there is no requirement that any objection or request for instruction be presented in the trial court. (People v.Cummings (1993) 4 Cal.4th 1233, 1311-1314 [federal due process issue preserved because there was a sua sponte duty to instruct on substantially all of the elements of robbery]; see also  1259, 1469.) However, if there is no sua sponte duty to instruct, as is the case here, under California law in order to preserve any issues, a request for an instruction must be interposed. (People v.Padilla (1995) 11 Cal.4th 891, 971, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [failure to request a particular instruction where there is no sua sponte duty to instruct waived due process contention]; People v.Hawkins (1995) 10 Cal.4th 920, 952 [because there was no sua sponte duty to instruct, instructional error issue waived on appeal]; People v.Saille (1991) 54 Cal.3d 1103, 1118-1120 [right to litigate necessity of intoxication instruction waived on appeal because no request to instruct the jury on such a theory in trial court].) As noted below, there was no sua sponte duty to instruct pursuant to CALJIC No. 3.31. Because there was no request for the inclusion of counts 1, 3, 4, and 5 in CALJIC No. 3.31 or claim in the trial court it was mandated by any constitutional provision, all claims the alleged instructional error violated the federal and state constitutions have been waived. (People v.Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20; People v.Garceau (1993) 6 Cal.4th 140, 173; People v.Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10.) Moreover, as set forth below, any instructional error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.)

3. The instructions were proper when viewed in their entirety

Notwithstanding that waiver, the trial court had no sua sponte duty to instruct on the concurrence of act or conduct and a certain specific intent in the mind of the perpetrator as to counts 1, 3, 4, and 5. In People v. Mendoza, supra, 18 Cal.4th at pages 1122-1123, the Supreme Court explained, The mental state necessary for conviction as an aider and abettor . . . is different from the mental state necessary for conviction as the actual perpetrator. [] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman [supra,] 35 Cal.3d [at p.] 560, original italics.) The jury must find the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense. . . . [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.] (See also People v. Francisco (1994) 22 Cal.App.4th 1180, 1190-1191 [CALJIC No. 3.01 more than adequately advises the jury about the intent required to facilitate an aiding and abetting finding, whether deemed specific or general]; People v. Torres (1990) 224 Cal.App.3d 763, 770 [[I]t is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury. [Citation.]].) In People v. Bolden (2002) 29 Cal.4th 515, 558-559, the California Supreme Court held: An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecutions burden to prove guilt beyond a reasonable doubt. The California Supreme Court also held: [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] (People v.Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 750-754; see also People v.Holt (1997) 15 Cal.4th 619, 677 [instructions are not considered in isolation].)

In this case, the jurors were instructed with CALJIC Nos.: 2.72, requiring that each element of the crime be proven; 3.00, defining principals as those who directly and actively commit the act constituting the crime or those who aid and abet the commission of the offense; 3.01,^[3]defining aiding and abetting; 3.30, explaining the necessity for concurrence of act and general criminal intent as to the lesser offense of child abuse not likely to produce great bodily injury counts 1, 2, 3, 4, and 5; and 3.31, explaining the necessity for concurrence of act and specific intent as to counts 6 and 7; and 17.10, conviction of lesser offenses. The trial court also instructed with CALJIC No. 9.37, as to felony child abuse or endangerment, which defined the term willfully as with a purpose or willingness to commit the act charged in the information. Moreover, the jury was instructed with the elements of misdemeanor child abuse and endangerment in CALJIC No. 16.170 in pertinent part as follows: Every person who willfully inflicts unjustifiable physical pain or mental suffering on a child is guilty of violating section 273a, subdivision (b) of the Penal Code, a crime which is lesser to that alleged in counts 4, 5, and 6. [] . . . [] In the crime charged, there must exist a union or joint operation of act or conduct and general intent. . . . (italics added.) The jury received accurate and complete instructions on the prosecutions burden of proof and the elements of the offenses.

4. Harmless error

Moreover, any error in failing to give a specific intent instruction as to counts 1, 3, 4, and 5 was harmless. As set forth in the preceding discussion, the instructions, when viewed in their entirety, set forth the elements of the charged offenses. Moreover, the evidence established that Ms. Nolette, in the presence of Mr. Wilkerson, approached the van, was shouting profanities at Ms. Hill while attempting to push the van door, and thereafter struck the window adjacent to the drivers seat with a chain and lock. Ms. Hill was struck by the chain and shattered glass. Ms. Hills son, Brandon, was also injured by the shattered glass. Substantial evidence supported Ms. Nolettes convictions. In addition, there was substantial evidence of Mr. Wilkersons intentional acts which injured or threatened the children after learning the youngsters were inside the van. As a result, he was not prejudiced by any failure to instruct the jurors on the specific intent element of felony assault and child abuse.

C. Impeachment Evidence

Ms. Nolette argues the trial court improperly admitted her 1987 assault with force likely to produce great bodily injury conviction to impeach her testimony. Defense counsel sought to limit the use of Ms. Nolettes prior felony convictions pursuant to Evidence Code section 352. Defense counsel argued that the aggravated assault conviction was remote in time and involved substantially similar conduct for which she was on trial. In denying the motion, the trial court noted: The People may make reference to all three felonies. And its predicated upon the following: Yes, its remote and I think if there was a significant period of time in which a defendant did not have contact with the authorities, I think that is one factor that the court can look to. The People, however, would be limited to the time and nature without getting into any specifics about any of the three felonies. After ruling similarly as to Mr. Wilkersons prior convictions, the trial court explained, On balance, the court does not believe that its prejudicial effect outweighs its probative value with respect to the credibility of those witness [who] will [take] the stand.

Evidence Code section 788 provides in pertinent part, For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . . The California Supreme Court has determined that only if the least adjudicated elements of the conviction necessarily involve moral turpitude is the prior offense admissible for impeachment. (Peoplev.Castro (1985)38 Cal.3d 301, 317; see also People v. Walker (2006) 139 Cal.App.4th 782, 800; People v.Campbell (1994) 23 Cal.App.4th 1488, 1492; Peoplev.White (1992) 4 Cal.App.4th 1299, 1303.) Moral turpitude has been described as a readiness to do evil, conduct indicating bad character, and moral depravity. (People v.Lang (1989) 49 Cal.3d 991, 1009; People v.Castro, supra, 38 Cal.3d at p. 314.) The trial court retains its Evidence Code section 352 discretion to bar impeachment when the probative value of prior convictions is substantially outweighed by their prejudicial effect. (People v. Wheeler (1992) 4 Cal.4th 284, 295; People v. Clair (1992) 2 Cal.4th 629, 654; People v. Castro, supra, 38 Cal.3d at pp. 306-313.) We review the trial courts ruling for abuse of discretion. (People v. Clair, supra, 2 Cal.4th at p. 655; People v. Gordon (1990)0 50 Cal.3d 1223, 1239; People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.)

For the first time on appeal, Ms. Nolette argues that her prior assault conviction was not sufficiently relevant to veracity . . . and was therefore inadmissible. However, in her moving papers at trial, she conceded, In this case there are three convictions involving moral turpitude. Ms. Nolette further argued in the moving papers that her fourth contested prior conviction for possession for sale did not involve moral turpitude. In any event, aggravated assault is a crime of moral turpitude. (People v. Rivera (2003) 107 Cal.App.4th 1374, 1381; People v. Elwell (1988) 206 Cal.App.3d 171, 175-177; People v. Cavazos (1985) 172 Cal.App.3d 589, 594-595.)

Ms. Nolette further argues that her aggravated assault conviction was too similar in nature to the current offense to be used for impeachment purposes. Ms. Nolettes prior aggravated assault demonstrates a readiness to do evil as contemplated in People v. Castro, supra, 38 Cal.3d at page 314, and affects her credibility as a witness. (See People v. Dillingham (1986) 186 Cal.App.3d 688, 695.) In Dillingham, our colleagues in Division Seven of this appellate district held: [A]lthough convictions for the same crime should be used sparingly ([People v.] Beagle [(1972)] 6 Cal.3d [441,] 453), the fact that the [] prior convictions were for the same offense [] as the charged crime no longer compels their exclusion. [Citation.] (People v. Dillingham, supra, at pp. 695-696.) Moreover, an accused who chooses to take the stand, as defendant did in this instance, is not entitled to a false aura of believability. (People v. Muldrow (1988) 202 Cal.App.3d 636, 646, quoting People v. Castro (1986) 186 Cal.App.3d 1211, 1217, and citing People v. Beagle, supra, 6 Cal.3d at p. 453.) The Muldrow court noted: As demonstrated in [People v.] Castro[, supra, 186 Cal.App.3d at p. 1217], not even the admission of five identical prior convictions is precluded on grounds of numerosity and/or identity where there is a supported exercise of discretion. (People v. Muldrow, supra, 202 Cal.App.3d at p, 647, original italics.) Here, the trial court carefully reviewed any prejudicial effect of admitting the prior aggravated assault and found it did not outweigh its probative value.

Ms. Nolettes second contention that her aggravated assault conviction was too remote in time is also without merit. In People v. Beagle, supra, 6 Cal.3d at page 453, the Supreme Court held that if a prior conviction was followed by a legally blameless life it should generally be excluded on the grounds of remoteness. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) This is not the case with regards to Ms. Nolette. Her criminal history dates back to age 17 when she was arrested for burglary. Ms. Nolettes 1987 assault with a deadly weapon conviction was followed by additional convictions for: drunk driving on March 9, 1990; destruction of property with an automobile on May 21, 1990; battery on March 26, 1991; first degree burglary on December 31, 1991; drunk driving on October 14, 1994; sale or transportation of a controlled substance on April 10, 1998; and drunk driving on October 4, 2004. Ms. Nolette was also arrested for inflicting corporal injury on a spouse or cohabitant on August 1, 1996, and on November 25, 1997. Ms. Nolette was released when the complainant refused to prosecute. As noted in People v. Muldrow, supra, 202 Cal.App.3d at page 648, the combination of the frequency of convictions throughout the 17 years following the aggravated assault judgment gives merit to the argument that a jury would find her less credible knowing that [she] had not led a law-abiding life since 1987. (See People v. Green (1995) 34 Cal.App.4th 165, 183.)

Finally, the trial court instructed the jurors with CALJIC No. 2.23 as follows: The fact that a witness has been convicted of a felony, if this is a fact, 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 witnesss believability. It is one of the circumstances that you may consider in weighing the testimony of that witness. The prejudicial effect of the evidence of defendants prior conviction was militated by this instruction which the jurors are presumed to have obeyed. (See People v. Ledesma (2006) 39 Cal.4th 641, 725; People v. Avila (2006) 38 Cal.4th 491, 574; People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) No abuse of discretion occurred.

D. Mr. Wilkersons Section 1385 Motion

Mr. Wilkerson argues that the trial court abused its discretion in refusing to exercise its section 1385, subdivision (a) discretion to strike his prior serious felony convictions. While the trial judges order is subject to review for abuse of discretion, the California Supreme Court has made clear:  . . . A courts discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with [Penal Code] section 1385[, subdivision] (a), and is subject to review for abuse. . . . [] The trial courts power to dismiss an action under [Penal Code section 1385, subdivision (a)], while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be in furtherance of justice. (People v. Williams (1998) 17 Cal.4th 148, 158-159, 162, quoting People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; see also People v. Garcia (1999) 20 Cal.4th 490, 499-500.)

The Romero court noted that a trial court abuses its discretion if it strikes a sentencing allegation merely on the basis of the effect on defendant: Nor would a court act properly if guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring defendants background, the nature of his present offenses, and other individualized considerations. [Citation.] (Peoplev. Superior Court (Romero), supra, 13 Cal.4th at p. 531; see People v. Zichwic (2001) 94 Cal.App.4th 944, 959.) The Supreme Court further clarified the standard for reviewing a ruling on whether to strike a prior serious felony conviction: [T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. . . . (People v. Williams, supra, 17 Cal.4th at p. 161; see People v. Carmony (2004) 33 Cal.4th 367, 377; People v. Garcia, supra, 20 Cal.4th at pp. 498-499.) The Supreme Court has explained: [Section 667] not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. (People v. Carmony, supra, 33 Cal.4th at p. 378; see People v. Philpot (2004) 122 Cal.App.4th 893, 904-905.)

Mr. Wilkersons criminal record dates back to his arrest at age 15 for burglary. He was again arrested for armed robbery on March 8, 1974. On July 3, 1974, Mr. Wilkerson was convicted of malicious mischief. He was ordered to serve 30 days in county jail and was placed on 12 months probationary supervision. On August 20, 1975, Mr. Wilkerson was convicted of burglary. He was sentenced to serve 90 days in county jail and was placed on probation for 24 months. On July 15, 1977, Mr. Wilkerson was convicted of robbery. He was sentenced to serve five years to life in state prison. He was discharged from parole on February 4, 1981. On March 14, 1983, Mr. Wilkerson was convicted of felony burglary. On October 10, 1995, Mr. Wilkerson was convicted of being an unlicensed driver and ordered to serve 4 days in the county jail and 12 months of summary probationary supervision. On July 2, 1996, Mr. Wilkerson was found to be in violation of probation. Mr. Wilkerson was again found to have violated his probation on January 27, 1997, following his convictions for battery and driving with a suspended license. Mr. Wilkerson was ordered to serve 20 and 10 days respectively for these 2 newest offenses in county jail and continued on probation. On January 19, 1999, Mr. Wilkerson was convicted of robbery. He was sentenced to two years in state prison. Mr. Wilkerson was released to a re-entry program on December 1, 1999. However, he was returned to prison custody on January 4, 2000. Mr. Wilkerson was paroled on March 24, 2000. His parole was revoked on December 12, 2000. Mr. Wilkerson was paroled on January 25, 2001. On July 5, 2001, he was found guilty of vandalism and was placed on five years probation. On August 30, 2002, Mr. Wilkerson admitted he violated his probation. He was returned to state prison on September 26, 2001. Mr. Wilkerson was again paroled on February 27, 2002. On April 30, 2003, he again admitted he violated his probation and was sentenced to 16 months in state prison. On June 27, 2003, Mr. Wilkerson was released to parole. On May 3, 2004, Mr. Wilkerson was convicted of driving with a suspended license, ordered to serve five days in county jail, and placed on three years summary probation. He was arrested in this case on November 11, 2004.

In denying the section 1385, subdivision (a) motion, the trial court noted: The court has reviewed its authority with respect to its discretion pursuant to In re Romero. The court has looked at a number of factors, including the nature and the circumstances of each of the defendants prior strike[s] as well as the nature and circumstances of the defendants prior criminal history, the remoteness of time, rehabilitation between the time of these offenses and the time of the most recent conviction, whether or not there is a tendency of increasing criminal activity, whether or not theres been a prior history of violence, whether or not drug or alcohol addiction may have been involved. And let me just say this. There is case authority to the effect that drug addiction may be a mitigating factor but theres also case authority to the effect that it may be an aggravating factor if there is a preexisting drug addiction and theres a failure to take affirmative steps to address it. [] I have, in my view, diligently looked at all of the relevant information contained in the file, including my recollection of these events. Ive looked at each and every probation report. Ive reviewed my own personal notes and research materials with respect to my discretion in in re Romero. Ive viewed the Peoples sentencing memorandums. Ive done my own independent research as to the parameters that I have and I believe, based upon the totality of the circumstances, that neither one of the defendants deserve the courts consideration and discretion with respect to striking a strike. There was no abuse of discretion in the trial courts reasoned, factually based decision not to strike one or more prior serious felony conviction findings pursuant to section 1385, subdivision (a). (People v. Cole (2001) 88 Cal.App.4th 850, 874; People v. Strong (2001) 87 Cal.App.4th 328, 346.)

E. Sentencing

The Attorney General argues that the sentencing court improperly stayed the enhancement on one prior prison term pursuant to section 667.5, subdivision (b) as to each defendant. The trial court has corrected this error as to Mr. Wilkerson. The trial court dismissed the prior prison term finding. This contention is now moot as to Mr. Wilkerson. (People v. Yanez (1995) 38 Cal.App.4th 1622, 1625; see People v. Mitcham (1992) 1 Cal.4th 1027, 1053.) However, no further action was taken by the trial court as to Ms. Nolettes section 667.5, subdivision (b) enhancement. The trial court had jurisdiction only to strike the section 667.5, subdivision (b) enhancement because it imposed a five-year section 667, subdivision (a)(1) enhancement as to the same prior conviction. (See People v. Jones (1993) 5 Cal.4th 1142, 1150-1152.) Only the greatest enhancement pursuant to section 667, subdivision (a)(1), should have been imposed. (Id. at p. 1152; see also People v. Baird (1995) 12 Cal.4th 126, 134.) As a result, the section 667.5, subdivision (b) enhancement that was previously stayed by the trial court must be stricken.

IV. DISPOSITION

The matter is remanded to allow the trial court to strike the previously stayed Penal Code section 667.5, subdivision (b) enhancement as to Ms. Nolette. Upon issuance of the remittitur, the clerk of the superior court is directed to prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment as to Ms. Nolette. The judgments are affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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

^[2] CALJIC No. 3.31 was given as follows: In the crimes charged in counts 6 and 7, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpretrator [sic]. Unless the specific intent exists, the crime to which it relates is not committed. [] The specific intent required is included in the definition of the crime set forth elsewhere in these instructions.

^[3] The jury was instructed with CALJIC 3.01 as follows: A person aids and abets the commission of a crime when he or she: [] (1) [w]ith knowledge of the unlawful purpose of the perpetrator, and [] (2) [w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [] (3) [b]y act or advice aids, promotes, encourages or instigates the commission of the crime. [] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.