P. v. Gomez

Filed 3/15/07 P. v. Gomez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed as modified.

Brent D. Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Raymond M. DiGuiseppe, Scott Taylor, Deputy Attorneys General, and Kristen Buie, Certified Law Student, for Plaintiff and Respondent.

A jury convicted defendant Hobert Mejia Gomez of assault with a deadly weapon and attempting to make a criminal threat. The trial court sentenced him to three years in state prison for the assault and an additional one-year concurrent term on the attempt. Defendant claims the trial court committed reversible error by allowing the prosecution to impeach him with a prior Florida burglary conviction and by the manner in which it sanitized reference to that conviction.

He also asserts two sentencing error claims. First, defendant argues the assault and the threat were part of a single criminal act, and the trial court violated Penal Code section 654, subdivision (a) by failing to stay the sentence on count 2. Second, he claims the trial court shorted him a day in calculating his custody credits.

The Attorney General concedes defendants sentencing claims have merit. In light of these concessions, we shall modify defendants sentence. However, we conclude no error occurred in the use of defendants prior Florida conviction to impeach him and affirm his conviction.

FACTS

Around 2:45 one morning, Santa Ana Police Officer Mary Campuzano and her partner went to an apartment complex responding to a call of an assault with a knife. The officers encountered Felix Dosal standing in the complexs parking lot, bleeding from a cut on his chin.

Dosal told Campuzano that he was standing outside a nearby 7-Eleven Store with another man eating some nachos when a third man, later identified as defendant, left the store. Campuzano testified Dosal said defendant began staring at him, and Dosal asked if defendant needed something. Defendant approached Dosal, displayed a knife, pressed it against Dosals chin and said, I could kill you right now if I wanted to. Defendant then cut Dosals chin and walked away. Dosal claimed he followed defendant to the apartment complex and saw him enter one of the units.

Campuzano and other officers obtained an occupants permission to enter the apartment. Finding a bathroom door closed, an officer knocked on it, but no one responded. After several minutes, defendant left the bathroom wearing only a pair of shorts, laid down on a bedroom floor, covered himself with a blanket, and closed his eyes. Campuzano questioned defendant regarding his whereabouts that night. Defendant said he had remained in the apartment all evening. The police brought Dosal to the apartment and he identified defendant as the person who attacked him.

The police arrested defendant. Campuzano gave defendant the Miranda advisement (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), and he agreed to answer questions. Initially, he repeated his claim that he had not left the apartment. Campuzano falsely told defendant a surveillance tape . . . showed him at the location. Defendant then admitted going to the store, but denied becoming involved in an altercation or argument with anyone.

Campuzano also falsely told defendant that the surveillance tape showed him assaulting someone. In response, defendant claimed Dosal tried to force him to buy a bicycle, became angry when defendant refused, at which time he punched Dosal on the chin. Campuzano commented that Dosals cut appeared to have been caused by a knife. Defendant then said he had been confronted by three individuals trying to force him to buy their bicycles and they began swinging at him with their fists and pieces of broken glass bottles. He grabbed a piece of glass and cut Dosal before returning to the apartment. When Campuzano noted defendant was not injured, defendant claimed he was too fast for the attackers.

Campuzano testified Dosal did not have a bicycle when first contacted by the police. She also searched the area outside the store, finding nachos strewn about but no broken bottles. Although the police also searched the apartment, they did not find a knife.

At trial, Dosal repeated his claim defendant approached and cut his chin with a knife, but his description of the encounter and the events leading to it differed from what he told Campuzano. Dosal testified that, as he was eating his nachos, an acquaintance named Carlos was standing nearby with a bicycle. Carlos offered to sell the bicycle to defendant and the two began haggling over the price. Dosal claimed he said to defendant, his friend needed $20, and if defendant thought that was too expensive, then dont buy it. Defendant approached Dosal holding a knife, grabbed his shirt, and placed the knife against his chin, stating, You dont know who I am and I could fuck you up. Dosal replied there was no problem. Defendant moved the knife, cutting Dosals chin, and then walked towards the apartment complex.

Defendant testified in his own defense. As he approached the store, defendant saw Dosal and a man dressed in black conversing near a parked truck. The man in black offered to sell him bicycles. Defendant ignored him. As he left the store, Dosal asked defendant to purchase the bicycles. When defendant declined, Dosal began insulting him and the man in black told Dosal to hit defendant. Dosal kicked defendant, spit on him, and threw something. Defendant then hit Dosal with his fist. The man in black approached and defendant began running away. Dosal threw a bottle at defendant. In response, defendant retrieved a piece of glass and threw it at Dosal. At that point, a third man sitting in the truck, started the vehicle and began to follow him. The man in black jumped into a nearby car while Dosal chased him on foot.

Defendant denied having a knife with him or threatening Dosal. He did not call the police because his mother, who lived with him, was very sick and the police contact might cause the landlord to evict him from the apartment. He claimed that he asked the police to arrest Dosal, but was told to be quiet.

DISCUSSION

1. Introduction

Before cross-examining defendant, the prosecutor sought permission to impeach him with two prior felony convictions: 1) A 1990 California conviction for transportation, sale, or distribution of a controlled substance, and 2) a 1995 Florida conviction for second degree burglary. The court excluded use of the first conviction as being too remote in time, but allowed use of the Florida conviction, directing the prosecutor to refer to that offense as a 1995 felony conviction.

2. Admissibility of Defendants Florida Burglary Conviction

The California Constitution and Evidence Code allow the use of a prior felony conviction to impeach a witness in criminal cases. (Cal. Const., art. I,  28, subd. (f); Evid. Code,  788.) But courts have imposed two restrictions on the use of a felony conviction for impeachment. First, the trial court may preclude impeachment with a prior felony conviction under Evidence Code section 352 if the prejudicial effect of the conviction substantially outweighs its probative value on the witnesss credibility. (People v. Castro (1985) 38 Cal.3d 301, 312-313; People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) Second, to satisfy due process, the crimes least adjudicated elements must necessarily involve moral turpitude. (People v. Castro, supra,

38 Cal.3d at pp. 314, 316-317; People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.)

Defendant does not contend the trial court failed to properly exercise its discretion under Evidence Code section 352 in ruling on the admissibility of his prior convictions. Rather, he contends Floridas burglary statutes least adjudicated elements do not evince moral turpitude because it permits a conviction where a defendant has the intent to commit any offense, not merely a felony or theft-related crime as required by California law, and even where the defendant forms the intent after having consensually entered the premises. These claims lack merit.

First, the mere fact Floridas definition of burglary would not support a felony conviction under California law is irrelevant. California case law recognizes that [w]hether or not a crime committed outside of California is a felony or misdemeanor for the purposes of impeachment, depends upon the law of the jurisdiction in which the offense was committed. . . .  It is the law of the jurisdiction where the crime was committed that determines the character of the offense as a felony or a misdemeanor [citation]. (People v. Theodore (1953) 121 Cal.App.2d 17, 29; see also People v. Miller (1961) 188 Cal.App.2d 156, 170.) In the absence of limitation, a reference to prior felony convictions is deemed to include any prior conviction which was a felony under the laws of the convicting jurisdiction. [Citations.] (People v. Lang (1989) 49 Cal.3d 991, 1038-1039.)

The record establishes defendant suffered a conviction for second degree burglary in Florida. (F.S.A.,  810.02, subd. (3).) Florida law not only describes the crime as a felony (ibid.), but defines the latter term as any criminal offense that is punishable under the laws of this state . . . by . . . imprisonment in a state penitentiary. (F.S.A.,  775.08, subd. (1).) Under Florida law, the punishment for a second degree felony may include a term of imprisonment not exceeding 15 years. (F.S.A.,  775.082, subd. (3)(c).) Thus, defendants Florida conviction constituted a felony.

Second, contrary to defendants claim, Floridas burglary statute satisfies Californias moral turpitude requirement. In People v. Castro, supra, 38 Cal.3d 301, the Supreme Court defined moral turpitude as a general readiness to do evil. (Id. at p. 314.) Castro explained this definition includes not only a felony . . . involv[ing] dishonesty as a necessary element, but crimes that involve moral depravity of any kind (id. at p. 315), since it is undeniable that such conduct has some tendency in reason (Evid. Code,  210) to shake ones confidence in [the witnesss] honesty. (Ibid.)

Under People v. Castro, supra, 38 Cal.3d 301, only if the least adjudicated elements of the conviction necessarily involve moral turpitude is the conviction admissible for impeachment. [Citation.] The least adjudicated elements test means that from the elements of the offense alonewithout regard to the facts of the particular violationone can reasonably infer the presence of moral turpitude. [Citations.] Castro did not intend to preclude use of a prior conviction for impeachment purposes merely because there exists a reasonable set of circumstances under which the crime could have been committed without moral blame. Otherwise, no prior conviction could be used for impeachment. [Citation.] (People v. Feaster, supra, 102 Cal.App.4th at p. 1091.) In other words, a court need not determine that a criminal statute could be violated only with evil intent in order to find that a conviction under that statute evinces moral turpitude, because it is possible to imagine a set of circumstances under which almost any statute might be violated without evil intent; only a substantial assurance that the credibility of a witness is adversely affected by his having suffered [a] conviction for a given offense is required. [Citations.] (People v. Campbell (1994) 23 Cal.App.4th 1488, 1492.)

Cases have recognized a violation of Penal Code section 459, declaring [e]very person who enters any house or other specified structure with intent to commit grand or petit larceny or any felony is guilty of burglary, constitutes a crime of moral turpitude. (People v. Collins (1986) 42 Cal.3d 378, 395; People v. Muldrow (1988) 202 Cal.App.3d 636, 645; People v. Knowlden (1985) 171 Cal.App.3d 1052, 1057; People v. Hunt (1985) 169 Cal.App.3d 668, 675.) Although an intent to commit any felony includes both felonies that necessarily involve moral turpitude and felonies that do not, the distinction is immaterial for present purposes: whether or not the target felony itself evidences a moral defect, burglary remains in all cases the fundamentally deceitful act of entering a house or other listed structure with the secret intent to steal or commit another serious crime inside. A felony conviction of such an act demonstrates a readiness to do evil and hence necessarily involves moral turpitude. [Citations.] (People v. Collins, supra, 42 Cal.3d at p. 395, fn. omitted; see also People v. Statler (1985) 174 Cal.App.3d 46, 54.)

At the time of defendants Florida conviction, that state defined burglary as entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. (F.S.A.,  810.02, subd. (1)(a).) Under the law then in effect, one commits burglary by: 1) entering a structure with the intent to commit an offense therein or 2) remaining in a structure with the requisite intent. [Citations.] (Robertson v. State (1997) 699 So.2d 1343, 1346.) Under the latter scenario to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time the actors right, privilege or license to remain is extinguished. (Ray v. State (Fla.App. 1988) 522 So.2d 963, 965.) While the Florida Supreme Court subsequently disapproved of the foregoing cases in Delgado v. State (2000) 776 So.2d 233, 241. (Nullified retroactively by F.S.A. section 810.015, subdivision (2) (2001).) Delgado limited its holding to cases where, unlike defendants situation, the convictions were not yet final. (Id. at p. 241.) The Florida Legislature later amended the burglary statute to incorporate, with certain limitations, Delgados holding. (F.S.A.,  810.02, subd. (1)(b).)

At least one Florida appellate court has recognized, albeit in dicta, that Floridas former burglary statute constituted a crime involving dishonesty for purposes of witness impeachment under the states evidence code. (F.S.A.,  90.101 & 90.610, subd. (1); Hicks v. State (Fla.App. 1996) 666 So.2d 1021, 1023.) Although some jurisdictions disagree, a majority of the states that have considered the question have concluded burglary is a crime involving dishonesty. (Simpson & Huang, Procedural Rules Governing the Admissibility of Evidence (2001) 54 Okla. L. Rev. 513, 548, fns. 135, 138.) South Dakota, another state declaring burglary as a crime involving dishonesty for witness impeachment purposes (State v. Cross (S.D. 1986) 390 N.W.2d 564, 567), defines the offense as either entering or remain[ing] in a specified structure with the intent to commit any crime. (SDCL,  22-32-1, 22-32-3, 22-32-8.)

Defendant makes much of the fact that Floridas prior burglary statute would have allowed a conviction if a person, after being consensually admitted to anothers residence, committed a simple assault or battery. He notes California cases have held that neither simple assault nor simple battery constitutes a crime involving moral turpitude, and equates the former Florida burglary statute to these offenses. This argument ignores the rationale employed to permit the use of burglary convictions for impeachment. It is not the nature of the target offense that renders burglary a crime of moral turpitude; rather it is the entry of a designated structure with the secret intent to steal or commit another serious crime inside. (People v. Collins, supra, 42 Cal.3d at p. 395; see also People v. Statler, supra, 174 Cal.App.3d at p. 54.)

At the time of defendants 1995 conviction, Florida law recognized consensual entry as an affirmative defense, shifting the burden of proof to show the occupants consent was either explicitly or implicitly withdrawn. (Robertson v. State, supra, 699 So.2d at p. 1346; Ray v. State, supra, 522 So.2d at p. 965.) It is undeniably true that a person would not ordinarily tolerate another person remaining in the premises and committing a crime, and that when a victim becomes aware of the commission of a crime, case law recognized an implicit withdrawal of consent could be shown by the defendants commission of the underlying offense. (Ray v. State, supra, 522 So.2d at p. 966.) For purposes of determining whether a defendants burglary conviction involves moral turpitude, California focuses on the perpetrators commission of the act with a secret intent. The rationale enunciated in Collins should apply regardless of whether the defendant formed that intent at or before his or her entry or whether it arose after the perpetrators consensual entry of the premises.

We conclude the trial court properly found defendants prior Florida burglary conviction constituted a crime involving moral turpitude.

3. Description of Defendants Prior Conviction

Next, defendant contends the trial court erred by limiting reference to his prior conviction as a 1995 felony conviction. He argues this decision allowed the jury . . . to speculate that [his] felony conviction may have been for the same type of crime for which he was on trial or worse.

A trial court has discretion to sanitize reference to a prior conviction admitted for impeachment. (People v. Sandoval (1992) 4 Cal.4th 155, 178; People v. Ballard (1993) 13 Cal.App.4th 687, 697-698.) Defendant notes, the court could have directed the prior conviction be described as a felony involving a crime against property, but he did not make this request at trial, merely submitting the matter. In Sandoval, the Supreme Court held the trial court did not err in offering to limit reference to the defendants prior conviction as a prior felony conviction. (People v. Sandoval, supra, 4 Cal.4th at p. 178.) Defendant does not cite anything in the appellate record supporting his suggestion that the generic reference to his prior conviction prejudiced him. We conclude no abuse of discretion occurred in this case.

4. Harmless Error

Even assuming the trial court erred by either allowing the prosecution to impeach defendant with his Florida conviction or by sanitizing the prosecutors reference to it, the error was harmless.

[T]he cases dealing with improper admission of prior felony convictions for impeachment purposes unanimously hold that the . . . error is not prejudicial per se, but rather subject to the harmless error rule[,] . . . and that the judgment of conviction will be reversed on that ground only if in light of the record as a whole, a more favorable verdict to the defendant would have been reached. [Citations.] (People v. Forster (1985) 169 Cal.App.3d 519, 525-526; see also People v. Lang, supra, 49 Cal.3d at p. 1011.) Given defendants behavior on the night of his arrest, his contradictory statements to Campuzano during the interrogation, and the physical evidence at the scene of the crime, defendants version of the altercation with Dosal would have strained the credulity of a rational trier of fact in such fashion as to render the improper reference[] to [his] previous conviction[] of little consequence. (People v. Betts (1980) 110 Cal.App.3d 225, 234.)

DISPOSITION

The matter is remanded to the superior court with directions to amend the abstract of judgment and prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting to stay the sentence on count 2 under Penal Code section 654, subdivision (a), with the stay to become permanent upon completion of defendants sentence on count 1, and to give appellant one additional day of custody credit. As so modified, the judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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