Opinion
B227066
02-06-2012
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR DONALD ANDERSON, Defendant and Appellant.
Law Offices of George T. Kelly and George T. Kelly for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA084457)
APPEAL from a judgment of the Superior Court of the Los Angeles County, Judith L. Meyer, Richard R. Romero and Charles D. Sheldon, Judges. Affirmed.
Law Offices of George T. Kelly and George T. Kelly for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Arthur Donald Anderson appeals from his conviction for receiving stolen property after a jury trial. He asserts that the evidence was insufficient to support his conviction, that a number of evidentiary errors require reversal, and that an amendment to the information was improper. We reject his arguments and affirm.
STATEMENT OF FACTS
1. Prosecution Evidence
Ulises Moreno's 1993 Honda (license plate No. 4DLP830) was stolen from in front of his house sometime between 12:30 a.m. and 7:30 a.m. on January 7, 2010. Moreno reported the stolen vehicle to the Huntington Park Police Department. Moreno's Honda had several parts that he installed himself and could recognize on sight, including the radiator, the strut bar, the air intake, and a sun visor containing a television screen. These parts were removed when the vehicle was stolen. The vehicle was found two or three days after it was stolen.
On January 7, 2010, at approximately 9:00 a.m., Officer Anthony Garcia responded to a call from Long Beach that a vehicle was blocking a driveway. Upon arriving at the reported address, Officer Garcia found the vehicle covered by a blue tarp. Approximately three-quarters of the vehicle was covered by the tarp, with only the trunk area and license plate exposed. The vehicle was a Honda Civic with license plate No. 4DLP830. It was parked in a dead-end alley next to two garages, at a distance of approximately 50 yards from the entrance of the alley. He ran the Honda's license plate number and discovered that it had been reported as stolen. Officer Garcia testified that Honda Civics and Honda CRX's are commonly stolen vehicles. From his experience, vehicles are commonly stolen using a "shaved key" or by "punching the ignition." A shaved key is one that has been grinded down to where it will fit in almost any ignition and allows the user to "jiggle" and manipulate the lock. Punching the ignition means to force something into the ignition to turn it, such as a screwdriver, or to pull out the entire ignition and access what is behind the ignition.
Officer Garcia requested assistance, and Officer Roger Montell responded. Officer Montell parked and set up surveillance in an alley one block south of where the Honda was parked. Officer Montell observed a black Honda CRX pull into the alley and park next to the stolen vehicle. Appellant and another man exited the CRX, lifted the hood of the stolen vehicle, and began removing parts from it. He also saw them remove parts from inside the stolen vehicle. They put the parts in appellant's vehicle.
Officer Garcia stopped appellant after his vehicle drove away from the alley. Appellant had a male Hispanic passenger in the vehicle with him. Upon walking up to the vehicle, the officer observed vehicle parts in plain view in the back seat. The officer asked appellant if he had been working on the vehicle underneath the blue tarp, and appellant responded that he had been. Appellant said the vehicle belonged to his cousin, "Jorgy," who had asked him to help remove parts from the vehicle. The officer asked if appellant had any knowledge that the vehicle was stolen, and appellant said, "It may have been but I don't know about it." The officer then asked if "Jorgy" had a job, and appellant said, "No. But he always has money." Officer Garcia asked, "Do you think it's a possibility Jorgy may sell stolen parts to obtain money?," and appellant replied, "Yes." Then the officer asked, "So, do you think if Jorgy asked you to remove a car, that he doesn't have a job but always has money selling stolen parts, do you think the car may be stolen?" Appellant again replied, "Yes." Appellant told the officer he had removed a visor with a TV monitor and the radiator from the vehicle. He was going to put the radiator in his own vehicle. Officer Garcia arrested appellant. His passenger, a minor named J.V., was also arrested and charged.
Detective Mark Mattia was the investigating officer and also an expert witness. Detective Mattia is an officer with the City of Long Beach and a member of the multi-agency Task Force for Regional Auto Theft Prevention. He testified that stealing vehicles for parts, and specifically Honda Civics and Honda CRX's, is very popular in the street racing scene. The street racing scene was composed mostly of young people aged 16 to 25. Street racers take vehicles that were meant to be commuter vehicles, like Honda Civics, and make them "fancier and quicker." They steal vehicles that are "tuned," rip out the specific parts that they want, and put the parts on their own racing vehicles. A strut bar was a commonly stolen part, as well as air intakes and more expensive aluminum radiators like the one taken from the stolen Honda. Detective Mattia testified that there was an "epidemic" of Honda thefts in Long Beach.
Detective Mattia testified that the parts found in the backseat of appellant's vehicle were aftermarket parts. Appellant told the detective he was going to install the parts on his own vehicle. Detective Mattia described the interior of the stolen vehicle as "extremely after market" and "highly tuned." The ignition had some severing on the inside, and it looked like a key other than the manufacturer's key had been put in it. The opening of the ignition was wider than normal, and it looked like a key had been shoved in there and roughly manipulated. Detective Mattia recovered tools from appellant's vehicle, including a socket set, screwdrivers, and channel lock pliers. He described them as tools commonly seen at "chop shops." Prominent vehicle thieves had told him that to start a vehicle, they needed only a channel lock plier and screwdriver. Appellant's Honda CRX had an aftermarket engine or an "upgraded" engine that was much larger than what it would normally have. Also, Honda motors have numbers engraved on them by the factory, but the number on appellant's motor had been sawed off and stamped over, so it could not be determined where the motor came from. It was common for vehicle thieves to destroy points of reference like motor numbers so that law enforcement could not determine the origin of numbered parts. Appellant's radiator was a stock radiator, and according to Detective Mattia, the radiator taken from the stolen vehicle would have been a superior one.
2. Defense Evidence
Appellant testified that he owned a 1990 Honda CRX, which he had just purchased on January 2 or 3, 2010. The vehicle came with no engine, but he built and installed the engine that was in the vehicle himself. J.V. was a friend that appellant had known for three or four months at the time of his arrest. The day of his arrest, appellant picked up J.V. in the morning and they drove to Jorgy's house, where they removed parts from the stolen Honda. Appellant believed the Honda to be J.V.'s. J.V. had a different vehicle right before Christmas, but it had been stolen. He "didn't think anything of the fact that the Honda was not at J.V.'s house. J.V. directed appellant to Jorgy's house and to the vehicle.
Appellant stated that at the time he removed parts from the Honda, he did not know it was stolen. When asked why he did not tell any of this to Officer Garcia, appellant replied that the officer did not ask these questions. Appellant agreed that the officer asked about the Honda, and when asked why he did not tell Officer Garcia it was J.V.'s, he answered, "Because I thought it was his [J.V.'s] car."
When Officer Garcia asked appellant if he knew the Honda was stolen, and appellant stated, "It may have been but I don't know about it," appellant meant that the vehicle "might have been stolen" or that he "didn't know the car was stolen." He learned the vehicle was stolen seconds before Officer Garcia pulled him over. Appellant said he did not tell the officer what he was telling the jury because he "didn't think it would go this far." He also said the notion that the Honda may have been stolen was "a thought in [his] head but it didn't cross [his] mind."
Appellant removed two parts from the stolen vehicle, the radiator and the visor. He was going to keep the radiator fan, not the whole radiator, because his fan did not work. J.V. was going to use the visor and the rest of the radiator. Appellant testified J.V. was going to use parts taken from the Honda to "swap the motor out" or "put that in the other car."
PROCEDURAL HISTORY
Appellant was charged with one count of receiving stolen property and one count of damaging or taking part of a vehicle, a misdemeanor. (Pen. Code, § 496, subd. (a); Veh. Code, § 10852.) The jury convicted him of both offenses. The court sentenced appellant to two years in jail and suspended the sentence. The court then placed appellant on formal probation for three years.
STANDARD OF REVIEW
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
From that presumption, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, supra, at p. 314.)
We review a trial court's ruling on matters regarding discovery for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.) Likewise, we review a trial court's decision to admit expert testimony for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.) We also review a trial court's decision to grant a motion to amend the information for abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
DISCUSSION
1. Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to support his conviction for receiving stolen property because there was not substantial evidence he knew the Honda was stolen at the time he removed parts from the vehicle. We disagree.
The crime of receiving stolen property requires that: (1) the particular property was stolen; (2) the defendant was in possession of the stolen property; and (3) the defendant knew the property was stolen. (People v. Reyes (1997) 52 Cal.App.4th 975, 984.) "Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be made to circumstantial evidence. . . . 'Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.'" (People v. Vann (1974) 12 Cal.3d 220, 225, quoting People v. McFarland (1962) 58 Cal.2d 748, 754; see also People v. Anderson (1989) 210 Cal.App.3d 414, 421 ["A long line of authority . . . establishes that proof of knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant's knowledge of the tainted nature of the property. This inference is so substantial that only 'slight' additional corroborating evidence need be adduced in order to permit a finding of guilty"].) "In routine circumstances, the knowledge element is inferred from the defendant's failure to explain how he came to possess a stolen item or his offer of an unsatisfactory explanation or from suspicious circumstances attendant upon his possession of the item." (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019-1020.)
Here, there was substantial evidence to support the knowledge element of the crime. The jury could have inferred appellant's knowledge that the Honda was stolen from suspicious circumstances, appellant's labored and varying explanations about the Honda, and the fact that it was very recently stolen. The Honda was stolen from Moreno sometime between 12:30 a.m. and 7:30 a.m. on January 7, 2010. Officer Garcia responded to the alley where the Honda was parked at approximately 9:00 a.m. that same morning, and appellant was observed taking parts that morning. The Honda was hidden; it was parked 50 yards off the street in an alley and covered with a blue tarp. Appellant testified at trial that he thought the vehicle belonged to J.V., whose previous vehicle was just stolen. He testified that he removed parts for use in his own vehicle and for J.V.'s use in a vehicle, even though J.V. had apparently just lost his vehicle.
But when questioned by Officer Garcia at the time, appellant did not tell the officer the Honda belonged to J.V. Instead, appellant said the Honda belonged to Jorgy, and he was removing parts because Jorgy had asked him to help with this. At the same time, he told Detective Mattia that he was removing parts for his own use and J.V.'s use. Appellant told Officer Garcia the Honda "may have been" stolen, but he did not know about it. He then said Jorgy always had money despite not having a job, and he thought it was a possibility that Jorgy sold stolen auto parts for money. When Officer Garcia asked, "So, do you think if Jorgy asked you to remove a car, that he doesn't have a job but always has money selling stolen parts, do you think the car may be stolen?," appellant replied, "Yes."
Appellant testified he knew the Honda was stolen right before Officer Garcia stopped him, but he did not tell the officer the vehicle belonged to J.V. because he thought it belonged to J.V. a circular statement that does little to explain appellant's reasoning. He also said he did not tell the officer it was J.V.'s because he "didn't think it would go this far." Given the suspicious circumstances in which the Honda was found, appellant's varying and confusing explanations, and the very recent theft of the Honda, the jury had sufficient evidence on which to base the conviction and reject appellant's story.
2. The Prosecution's Expert Witness
Appellant contends that the prosecution deprived him of a fair trial because it failed to timely disclose its expert witness, Detective Mattia. He also contends that the trial court abused its discretion in permitting Detective Mattia to testify as an expert because his testimony violated Evidence Code section 352. Both claims are unavailing. A. Disclosure of Expert Witness
The prosecution's statutory duty to disclose information to a defendant is codified in Penal Code section 1054.1. Subdivision (a) of that section requires the prosecution to disclose the "names and addresses of persons the prosecutor intends to call as witnesses at trial." The prosecution's disclosure must be made at least 30 days prior to trial. (§ 1054.7.)
All statutory references are to the Penal Code unless otherwise noted.
A trial court may make any order necessary to enforce the provisions of section 1054.1, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness, or continuance of the matter. (§ 1054.5, subd. (b).) The court may also advise the jury of any failure to disclose or any untimely disclosure. (Ibid.)
The prosecution's violation of section 1054.1 is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Verdugo (2010) 50 Cal.4th 263, 280.) Thus, the error was prejudicial only if it was reasonably probable that the jury would have reached a different verdict had the discovery been produced in a timely manner. (People v. Watson, at p. 836; People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
While the prosecution did not timely disclose Detective Mattia as an expert witness, the error was not prejudicial. The prosecution did not produce a witness list and told defense counsel that Detective Mattia would testify as an expert on the day the case was called for trial, May 20, 2010. Appellant did not request a continuance, but argued that Detective Mattia should not be allowed to testify. The court permitted him to testify; the detective took the stand on May 24, 2010. The potential harm in failing to disclose the detective was that the defense could have been unable to prepare for trial properly. But here, after defense counsel learned the identity of the expert, he still had four days to prepare for cross-examination. Moreover, Detective Mattia was not completely unknown to defense counsel. He was the only witness to testify at appellant's preliminary hearing and was an investigating officer in the case. Also, the prosecution had earlier disclosed the police report by Detective Mattia. To suggest that the detective was a complete surprise is therefore not correct.
Nevertheless, appellant argues that he was "unable to prepare his defense to demonstrate that he was not a 'street racer' or 'thief.'" Detective Mattia's expert testimony consisted in large part of his knowledge about the street racing scene and its connection to vehicle thefts. The prosecution, however, was not obligated to disclose the substance of the detective's anticipated testimony, only his name and contact information. Further, as we discussed in the foregoing part, the evidence supporting the jury's verdict was sufficient without relying on the detective's expert testimony. We do not see how giving appellant more time with the detective's name and contact information would have meant a reasonable probability of a more favorable verdict.
Appellant asserts that the prosecution's late disclosure denied his right to federal due process and deprived him of a fair trial. Having failed to raise a constitutional issue below, appellant forfeited the issue on appeal. (People v. McPeters (1992) 2 Cal.4th 1148, 1174.) Even had he not, we would not find an error of constitutional dimension. Appellant does not cite any authority for his assertion that the error was a denial of federal due process and a fair trial. Beyond section 1054.1, the only authority appellant cites in this entire section of his brief is Kyles v. Whitely (1995) 514 U.S. 419. Kyles dealt with the state's failure to disclose information pursuant to Brady v. Maryland (1963) 373 U.S. 83, 87, which held that suppression of evidence favorable to the defendant violates due process when the evidence is material to guilt or punishment. Here, the name and contact information of the prosecution's expert witness was not Brady material because it was not evidence favorable to appellant. Kyles and Brady have no application here.
B. Evidence Code Section 352
Appellant contends we must reverse his conviction because Detective Mattia's testimony regarding street racing and vehicle thefts was substantially prejudicial and should have been excluded under Evidence Code section 352. Section 352 gives the court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Appellant has forfeited the issue on appeal. He objected below on relevancy grounds to Detective Mattia's testimony, but not on the grounds that the evidence was more prejudicial than probative. Appellant never asked the trial court to weigh the evidence's probative value and prejudicial effect. A relevancy objection does not preserve for appeal an objection under Evidence Code section 352. (People v. Champion (1995) 9 Cal.4th 879, 913, overruled on other grounds by People v. Combs (2004) 34 Cal.4th 821, 860.)
Even had appellant not forfeited the issue, the case on which he relies to demonstrate error, People v. Martinez (1992) 10 Cal.App.4th 1001, is distinguishable. In Martinez, the defendant was arrested for driving a stolen truck. (Id. at p. 1003.) The trial court permitted the prosecution to introduce the testimony of highway patrol investigators regarding theft rings that transported stolen vehicles to Central America. (Id. at pp. 1004-1005.) The court held that "the clear thrust of the evidence was to establish that defendant 'fit' a certain 'profile,'" and the evidence was "inherently prejudicial." (Id. at p. 1006.) But "[n]ot all testimony concerning general patterns of criminal activity is 'profile' testimony." (People v. Lopez (1994) 21 Cal.App.4th 1551, 1555.) "'Profile evidence is a "point by point examination of profile characteristics" that enable[s] the investigator to justify pursuing the matter.' [Citation.]" (Ibid.)"By contrast, background testimony is not 'profile' evidence and does not specifically address the guilt or innocence of the defendant. Instead, it enables the jury to understand other evidence that does address guilt or innocence." (Id. at p. 1556.) Thus, in People v. Lopez, supra, 21 Cal.App.4th at pages 1554, 1556, expert testimony regarding the general organization of methamphetamine manufacturing rings was held to constitute relevant background information, not profile evidence, because it provided a backdrop against which the jury could understand the meaning of the particular evidence in the case. Similarly, in this case, Detective Mattia's testimony served as background information to help the jury understand the significance of the type of vehicle stolen and the parts taken.
Assuming appellant had not forfeited the issue, and assuming for the sake of argument there was error, any error was harmless under People v. Watson, supra, 46 Cal.2d at page 836. (People v. Hempstead (1983) 148 Cal.App.3d 949, 955.) Again, we have discussed above how the evidence apart from Detective Mattia's expert testimony was sufficient to support appellant's conviction. It is not reasonably probable the jury would have reached a different verdict, had the court excluded his expert testimony. To the extent appellant claims there was a constitutional error in that he was denied a fair trial, we reject that claim also. The "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." (People v. Brown (2003) 31 Cal.4th 518, 545.)
3. Judicial Bias
Appellant next contends that several of the court's evidentiary rulings or statements constituted judicial bias requiring reversal. We do not agree.
Appellant argues judicial bias because the court allegedly concluded at the preliminary hearing that he knew the Honda was stolen when he took parts, and the court refused to hear evidence otherwise. To support this argument, he cites to the hearing on his section 995 motion to set aside the information. The court, in the course of considering appellant's arguments, quoted the following comments from the transcript of the preliminary hearing: "It's just a prelim. The reasonable suspicion is when he took the parts, he knew it was stolen. I'm satisfied. Motion to dismiss is denied." In denying the section 995 motion, the court then went on to say: "I do find based on all the circumstances presented at the prelim, and at the prelim only, that there is a substantial basis to support the magistrate's conclusion . . . . [¶] [The magistrate] can conclude he actually knew it was stolen based on the fact within hours, perhaps eleven, but within hours, he is removing parts from a vehicle that had just been stolen. It's parked illegally in someone's driveway. It's under a tarp. He receives a call to this location. It's all very suspicious, and strong suspicion, probable cause is all that's required . . . ." Appellant seems to suggest that these statements are evidence the court prejudged the case and acted improperly with respect to appellant's evidence of his knowledge.
First, there was nothing at all improper about these comments. "The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made." (People v. Melton (1988) 44 Cal.3d 713, 735.) In each case, whether at the preliminary hearing or the section 995 hearing, the court was merely explaining the reasoning for its rulings. Second, these comments cannot serve as evidence that the court had prejudged the case and was therefore biased at trial. Judge Judith Meyer presided over the preliminary hearing, and Judge Richard Romero presided over the section 995 hearing. A third judge, Judge Charles Sheldon, presided over trial. In other words, the trial judge did not make the comments that purportedly evidenced bias.
Appellant next argues there was judicial bias in that the court refused to allow him to testify about his state of mind. The following portion of appellant's testimony purportedly supports this argument:
"Q. When you left after you removed the parts, where were you going? +------------------------------------------------------------+ ¦"A.¦[J.V.]'s house. ¦ +---+--------------------------------------------------------¦ ¦"Q.¦And what were you going to do there? ¦ +---+--------------------------------------------------------¦ ¦"A.¦Drop off the parts. ¦ +---+--------------------------------------------------------¦ ¦"Q.¦Were you going to keep any of the parts? ¦ +---+--------------------------------------------------------¦ ¦"A.¦The radiator fan because my fan didn't work. ¦ +---+--------------------------------------------------------¦ ¦"Q.¦The radiator fan? ¦ +---+--------------------------------------------------------¦ ¦"A.¦Correct. ¦ +---+--------------------------------------------------------¦ ¦"Q.¦Not the radiator? ¦ +---+--------------------------------------------------------¦ ¦"A.¦The fan. ¦ +---+--------------------------------------------------------¦ ¦"Q.¦Did you have a discussion with [J.V.] about those parts?¦ +---+--------------------------------------------------------¦ ¦"A.¦Yes, that I was going to help him -- ¦ +------------------------------------------------------------+ "THE COURT: Wait. "[PROSECUTOR]: Objection. "THE COURT: That's got to be hearsay. "[DEFENSE COUNSEL]: Well, I think the 'yes' is okay. "[PROSECUTOR]: Foundation.
"THE COURT: I have to strike that too. [¶] Go forward. [¶] Ladies and gentlemen, I've got to decide. The hearsay rule is very complicated. There is a lot of exceptions to it. I've ruled that that one doesn't come in, including the 'yes'."
Appellant argues that when the court told appellant to "wait," it prompted the prosecutor to lodge an objection, thereby improperly undertaking the role of the prosecutor. First, this part of the record does not necessarily demonstrate the court was acting improperly. The transcript is unclear, but the court could have easily been telling appellant to "wait" because the parties were speaking over one another, and the court reporter had to take down the prosecutor's objection. The court has a duty to control proceedings during trial (§ 1044), and if the parties were speaking over one another, the court was entitled to ask appellant to wait for the prosecutor to state his objection. This is not evidence that the court undertook the role of the prosecutor. Second, appellant's contention that the court did not permit him to testify about his state of mind is inaccurate. Appellant testified without interference that at the time he removed parts from the Honda, he did not know it was stolen, he thought it was J.V.'s vehicle, and he did not realize it was stolen until right before Officer Garcia stopped him.
Next, appellant argues judicial bias because the trial court "improperly" allowed the prosecutor to present Detective Mattia's testimony at the Evidence Code section 402 hearing. But the very purpose of a section 402 hearing is to "hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury." (§ 402, subd. (b).) As such, it was not improper for the court to hear a summary of the detective's expert testimony to determine whether it was admissible.
Lastly, appellant argues judicial bias because of the court's rulings on several of defense counsel's objections. He contends the rulings prejudiced his right to a fair trial. The first was a relevance objection when the prosecutor asked appellant on cross-examination whether he still thought the Honda belonged to J.V. after he took the parts and was sent to jail. The court overruled the objection. We see no error here. Relevant evidence is any evidence, including evidence relevant to the credibility of a witness, "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The prosecutor's question seemed designed to test the strength and sincerity of appellant's stated belief that the Honda belonged to J.V. Appellant's response related directly to his credibility as a witness on the key issue in the case -- his knowledge (or lack thereof) that the vehicle was stolen.
The other rulings appellant challenges are two "asked and answered" objections. The first occurred when the prosecutor asked appellant why he did not tell Officer Garcia that he believed the Honda belonged to J.V. The second occurred when the prosecutor asked whether he knew the Honda was stolen before the police stopped him. The court overruled the "asked and answered" objections each time. First, the trial court did not abuse its discretion in allowing the prosecutor to ask similar but not identical questions, as occurred here. (De Witt v. Floriston Pulp & Paper Co. (1908) 7 Cal.App. 774, 783 [question "was to some extent going over the matters to which the witness had already testified, but for the purpose evidently of obtaining a more full explanation of his knowledge . . . . In such cases much is left to the discretion of the lower court as to allowing a question of this kind"].) Second, even if there was error, appellant has made no attempt to demonstrate prejudice, other than to assert in a conclusory manner that he was denied a fair trial. As we have previously explained, the routine exercise of the trial court's discretion under the rules of evidence does not implicate his constitutional right to a fair trial. (See People v. Brown, supra, 31 Cal.4th at p. 545.) In sum, appellant's claims of judicial bias are without merit.
4. Amendment to the Information
Appellant lastly contends that he was denied a fair trial because the trial court permitted a last-minute amendment to the information. We disagree.
On the first day of trial, the prosecution moved to amend the information to change the license plate number of the vehicle that was alleged to have been stolen. The information listed the license plate No. as 3FXB998, which was the number for appellant's vehicle. The court permitted the amendment so that the information stated the license plate number for Moreno's Honda, 4DLP830.
The court may permit an amendment of an information for any defect or insufficiency at any stage of the proceedings. (§ 1009.) The information cannot be amended to charge an offense not shown by the evidence taken at the preliminary examination. (Ibid.) Appellant urges that the court erred in permitting the amendment because the trial evidence and testimony reflected the original number in the information, 3FXB998. But the amendment was proper. The evidence at the preliminary hearing demonstrated that the license plate number of the vehicle from which appellant took parts was 4DLP830. Moreover, the police reports that were produced pretrial also listed the vehicle as license plate number 4DLP830. The original license plate number, 3FXB998, did come in at trial as appellant contends, but only when witnesses were describing appellant's vehicle, not the stolen vehicle.
DISPOSITION
The judgment of conviction is affirmed.
FLIER, J. WE CONCUR:
BIGELOW, P. J.
RUBIN, J.