Opinion
D069705
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. WALTER RAMIREZ CONSUEGRA, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD250910) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Walter Ramirez Consuegra guilty of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) (count 1), unlawful sexual intercourse with a minor under 16 years of age (§ 261.5, subd. (d)) (count 2), lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)(1)) (count 3), and child molestation (§ 647.6, subd. (a)(1)) (count 4). The trial court sentenced Consuegra to an aggregate term of eight years in prison. The court imposed an eight-year upper term on count 1 for rape of an intoxicated person, stayed the execution of the sentences on counts 2 and 3 pursuant to section 654, and sentenced Consuegra to 365 days in jail with credit for time served on count 4.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Consuegra claims that the trial court abused its discretion in failing to exclude certain uncharged sexual offense evidence pursuant to Evidence Code section 352. Consuegra also claims that the court abused its discretion in permitting the prosecutor to impeach him with evidence that he had previously suffered a felony conviction for petty theft with a prior. Finally, Consuegra claims that the prosecutor committed misconduct through the use of argumentative and improper questions during her cross-examination of him at trial. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
1. The charged offenses
One evening in August 2012, two girls, 15-year-old K.M. and her 16-year-old friend D.C, were drinking alcohol and smoking marijuana at a trailer park. Consuegra's 15-year-old son, A.R., lived in the trailer park. K.M. and A.R. were friends, and they had previously kissed. At approximately 8:00 p.m. that evening, A.R. arrived and asked K.M. and D.C. if they wanted to come with him to Consuegra's house. The girls agreed. Consuegra picked up A.R, K.M., and D.C. in his car. On the way, D.C. asked Consuegra whether he smoked marijuana, and he said he did. Consuegra drove to D.C.'s dealer and gave her $20 to buy marijuana.
After the group arrived at Consuegra's house, the teenagers smoked marijuana in Consuegra's presence. D.C. told Consuegra that they should go buy some alcohol. At about this time, Consuegra asked K.M. how old she was. K.M. told him that she was 15. D.C. and Consuegra left the residence to purchase alcohol and came back about 30 minutes later with two bottles of liquor that Consuegra had purchased. The entire group, including Consuegra, began drinking and smoking marijuana. Within about an hour, K.M. was feeling intoxicated.
D.C. left at around midnight. After D.C. left, Consuegra asked K.M. if she wanted some crystal methamphetamine. K.M., who was on the verge of passing out, said yes. K.M. entered the bathroom and snorted a line of a substance that she thought was crystal methamphetamine, which Consuegra had placed on the counter. She expected the crystal methamphetamine to wake her up, but she still felt sleepy.
K.M. returned to the living room and started talking to A.R. The two got into a bed that was in the living room and had sex. Consuegra sat on the corner of the bed throughout the encounter. After having sex with A.R., K.M. passed out in the bed with A.R. on one side of her and Consuegra on the other.
The next morning, A.R. saw Consuegra and K.M. making motions as if they were "having sex" under the covers. According to A.R., K.M. was moaning "like a sex moan." A.R. tugged on Consuegra's foot in an effort to get him to stop, but Consuegra just moved his foot and continued.
2. Events shortly after the charged offenses
K.M. awoke alone in the bed with no recollection of having had sex with Consuegra. A.R. seemed upset. A.R. told K.M. that he had to go to school and that Consuegra would drive her home. At the end of the ride, as Consuegra was dropping K.M. off, Consuegra told K.M. that he was sorry for having sex with her. K.M. responded that she forgave him.
K.M. testified that she asked Consuegra to drop her off approximately a block away from her house.
After Consuegra dropped K.M. off, she went to D.C.'s house. K.M. told D.C. that she had blacked out this previous evening and that Consuegra had told her that he had sex with her.
3. Consuegra's police interview
The People played a videotape of the interview at trial. Although Consuegra states in his brief that a "transcript of the interview is available to this Court," and cites to an exhibit that was marked in connection with a pretrial motion in limine, that exhibit is not contained in the clerk's transcript. Since the exhibit is not material for our disposition of any of the issues raised on appeal, we rely on Consuegra's summary of the interview contained in his brief on appeal and Consuegra's trial testimony concerning the interview.
In January 2014, police interviewed Consuegra. Consuegra admitted " 'fucking with that girl [K.M].' " A police detective asked Consuegra, "So you were having sexual intercourse?" Consuegra responded, "I think so, yeah." In addition, a detective asked Consuegra, "You were having sexual relation [sic] with her?" Consuegra responded, "Yes, uh-huh." The detective also asked, "What position were you having sexual relations?" Consuegra responded, "Okay. I was lying down, and she was lying down."
In his brief on appeal, Consuegra states that during the interview, he stated that he found himself " 'fucking with this girl,' " i.e., having sexual intercourse with K.M.
4. The uncharged sexual offense evidence
As discussed in detail in part III.A.2.c, post, the People presented evidence that Consuegra committed uncharged sexual offenses against 16-year-old N.C., and 15-year-old B.Q. B. The defense
Consuegra admitted purchasing alcohol and drinking with K.M. and D.C, but denied having sex with K.M. In discussing his police interview, Consuegra stated that, when he agreed with an officer that he had a "sexual relation" with K.M., he meant that "something had happened in a way that she was on top of [him]." Consuegra also denied engaging in any sexual conduct with N.C. or B.Q.
III.
DISCUSSION
A. The trial court did not abuse its discretion in failing to exclude uncharged sexual offense evidence pursuant to Evidence Code section 352
Consuegra claims that the trial court abused its discretion in failing to exclude, pursuant to Evidence Code section 352, evidence of Consuegra's commission of uncharged sexual offenses that was otherwise admissible pursuant to Evidence Code section 1108. We review the trial court's ruling for an abuse of discretion. (See, e.g., People v. Robertson (2012) 208 Cal.App.4th 965, 991 ["A challenge to admission of . . . sexual misconduct under Evidence Code sections 1108 and 352 is reviewed under the deferential abuse of discretion standard"].)
1. Governing law
a. The statutory scheme
Evidence Code section 1108, subdivision (a) provides:
"In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101,[] if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
Evidence Code section 1101 provides in relevant part: "(a) Except as provided in this section and in [Evidence Code] Section[ ] . . . 1108 . . . , evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 352 provides:
"The court in its discretion may 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."
b. Relevant case law
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court described the factors that a trial court should consider in determining whether to exclude evidence that is otherwise admissible pursuant to Evidence Code section 1108, pursuant to Evidence Code section 352:
"[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, at p. 917.)
The Falsetta court explained that "the probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense." (Falsetta, supra, 21 Cal.4th at p. 917.)
A trial court need not expressly refer to all of the Falsetta factors in considering whether to exclude evidence pursuant to Evidence Code section 352. (People v. Villatoro (2012) 54 Cal.4th 1152, 1183 [" '[W]e are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement,' " italics added].)
2. Factual and procedural background
a. Pretrial briefing
Prior to trial, Consuegra filed a motion in limine to exclude evidence of his commission of uncharged sex offenses with B.Q. Consuegra argued that the evidence should be excluded pursuant to Evidence Code section 352 because the sexual offenses he allegedly committed against B.Q. bore little similarity to the charged offenses against K.M. In support of this argument, Consuegra contended that the charged offenses involved allegations of a single incident of sexual conduct, Consuegra's use of alcohol and drugs with the victim, and a victim who was a "relative stranger." In contrast, Consuegra maintained that the uncharged offenses involved his alleged acts in "grooming" a young girl whom he met through his role as a church chaplain, and maintaining a sexual relationship with her over a period of seven months. Consuegra also maintained that none of the alleged sexual incidents with B.Q. involved alcohol or drugs. Consuegra argued that the fact that he was "facing charges" with respect to the alleged offenses committed against B.Q. supported excluding the evidence since he had not suffered any convictions with respect to those charges, and he would be forced to defend against the allegations involving B.Q. in both this case and in the separate case involving B.Q.
On the same day that Consuegra filed his motion to exclude the evidence, the People filed a brief in which they requested permission to present evidence of Consuegra's commission of uncharged sexual offenses against B.Q. and N.C pursuant to Evidence Code section 1108.
The People argued that Consuegra had carried on a sexual relationship with 15-year-old B.Q. from approximately September 2012 to March 2013 and that during this period, the two had sexual intercourse approximately 10 times and B.Q. orally copulated Consuegra approximately 10 times.
With respect to N.C., the People sought to present evidence that in September 2012, while N.C. was 16 years old and was A.R.'s girlfriend, she went to a hotel room with A.R. and Consuegra. Consuegra purchased alcohol for A.R. and N.C. and A.R. got drunk and passed out. While the three were lying in a single bed together, N.C. felt Consuegra touching her legs and trying to touch her vagina. N.C. stood up and went to the bathroom. When she returned, Consuegra was lying on the floor.
While the People acknowledged that the admission of uncharged sexual offense evidence offered under Evidence Code section 1108 is subject to potential exclusion pursuant to Evidence Code section 352, they argued that the trial court should not exercise its discretion to exclude the evidence of Consuegra's commission of uncharged sexual offenses against either B.Q. or N.C. The People contended that the evidence had substantial probative value because both the charged and uncharged incidents involved minors and the incidents all occurred "around the same time." In addition, the People argued that the evidence would not be overly time consuming to present and that the "potentially prejudicial effect of the testimony is minimal as the most 'serious' charges are reflected in the conduct [Consuegra] is charged with in the current case," because there was no allegation of "rape of an intoxicated victim" with respect to the uncharged offenses.
b. The court's ruling admitting the evidence
After holding a hearing at which the court heard argument from both defense counsel and the prosecutor, the court ruled that the evidence of Consuegra's commission of uncharged sexual offenses against B.Q. and N.C would be admissible. The court reasoned in part that there was "a presumption in favor of admissibility of . . . conduct, that is generally within a reasonable amount of time of the charged conduct in a case." The court noted that both the charged and uncharged conduct allegedly occurred close in time and all of the alleged conduct involved teenage girls aged 15 or 16. The court commented that the conduct involving N.C. and K.M. was "very similar." In addition, the court remarked that the fact that Consuegra was alleged to have had sexual intercourse with both K.M. and B.Q. made the "nature of the conduct" similar with respect to the charged and uncharged offenses involving B.Q. The court further remarked that it viewed the crimes involving B.Q. and K.M. as "crimes of opportunity." With respect to the possibility of prejudice, the court stated that it did not consider the uncharged offenses with respect to either N.C. or B.Q. to be unduly inflammatory. The court stated that Consuegra's alleged "actual contact" with N.C. was less than was allegedly involved with K.M. With respect to B.Q., the court stated that although the alleged frequency of incidents was greater than the charged offenses, the incidents were less inflammatory than those involving K.M. since Consuegra was alleged to have had sex with K.M. while she was unconscious after supplying her with drugs and alcohol.
The court stated that, in its view, Consuegra had exploited the "opportunity" of being in the same bed with K.M. in committing the charged offense. The court remarked that "the opportunity for [B.Q]," was that Consuegra was in a "position of trust as a member of the church staff," at the church at which he had met B.Q.
c. Evidence at trial
i. N.C.'s trial testimony
N.C. testified that she began dating A.R. in 2010. In September 2012, then 16-year-old N.C, A.R., and Consuegra stayed in a hotel room together overnight. On the way to the hotel, the three stopped at a liquor store and Consuegra bought beer. Once they arrived at the hotel, N.C. drank three or four bottles of beer. A.R. drank ten to fifteen bottles of beer and began vomiting. At some point around 11:00 p.m. to 12:00 a.m., A.R. passed out on the only bed in the room. Shortly after A.R. passed out, N.C. and Consuegra got in the bed with A.R. to go to sleep.
N.C. woke up between 2:00 and 3:00 a.m. She felt someone touching her leggings on top of her vagina. N.C. turned to see if it was A.R., but it was not. It was Consuegra. Consuegra quickly pulled his hand away. N.C. got out of the bed and went to the bathroom. When she came out of the bathroom, Consuegra was lying on the floor.
ii. B.Q.'s trial testimony
B.Q. met Consuegra through her church. In July 2012, just before B.Q. turned 15, Consuegra called her on the phone and they began talking on a regular basis. In late August or early September of 2012, Consuegra began a sexual relationship with B.Q., despite knowing that she was 15 years old. Over a period of approximately seven months, Consuegra had sexual intercourse with B.Q. on more than 50 occasions. B.Q. also performed oral sex on Consuegra approximately 25 times. The sexual activity stopped when B.Q.'s sister told their mother about what was occurring.
3. Application
The trial court reasonably determined that evidence of the uncharged offenses with respect to both N.C. and B.Q. bore substantial probative value in proving Consuegra's commission of the charged offenses. To begin with, all of the uncharged and charged offenses involved Consuegra's alleged sexual conduct with teenage girls who were 15 or 16 years old. In addition, the trial court reasonably determined that the incident with N.C. was "very similar" to the charged offenses involving K.M. Consuegra knew both N.C. and K.M. as the girlfriend of his son. In addition, both incidents occurred after Consuegra provided the girls with alcohol and while they were unconscious in a bed with Consuegra and his son. The trial court also reasonably found that the "nature of the conduct" with B.Q. was similar to the charged offenses in that both involved Consuegra allegedly having sexual intercourse with a 15-year-old girl. In sum, the trial court reasonably found that the similarities of the uncharged and charged offenses supported the admissibility of the uncharged offense evidence. (See Falsetta, supra, 21 Cal.4th at p. 917 [noting that "the probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses"].)
The trial court also reasonably found that the timing of the alleged uncharged offenses supported admissibility of the uncharged offense evidence. The charged offenses occurred in August 2012, while the uncharged offense with N.C. allegedly occurred in September 2012, and the uncharged offenses with B.Q. allegedly began in September 2012 and continued for seven months. The close temporal proximity of the uncharged and charged acts increased the probative value of the uncharged offense evidence. (See People v. Yovanov (1999) 69 Cal.App.4th 392, 404 [stating that probative value of uncharged sexual offense evidence will depend on several factors including the "temporal proximity [of the uncharged acts] to the charged acts"].)
The trial court also reasonably determined that the introduction of the uncharged offense evidence would not be unduly prejudicial in that the conduct was "less[e]r conduct" than the charged offenses. (See People v. Lewis (2009) 46 Cal.4th 1255, 1287 [stating the fact that evidence of uncharged offense was "less inflammatory" than charged offenses supported conclusion that trial court did not abuse its discretion under Evidence Code section 352 in refusing to exclude evidence offered pursuant to Evidence Code section 1108].) Evidence that Consuegra attempted to touch N.C.'s vagina was far less inflammatory than Consuegra's act of having sexual intercourse with K.M. while she was unconscious. The trial court also reasonably found that Consuegra's conduct with B.Q. was, as the court phrased it, "less aggravating and less inflammatory," in that B.Q. was not under the influence of alcohol or drugs and was conscious during the sexual activity with Consuegra.
Further, although not specifically mentioned by the trial court, the introduction of evidence of the uncharged offenses was unlikely to mislead the jury, since the evidence pertaining to the uncharged offenses was entirely distinct from that involving K.M. In addition, the probative value of the uncharged offense evidence was also increased by the fact that the charged and uncharged offenses involved different victims. (See Falsetta, supra, 21 Cal.4th at p. 917.) Finally, the trial court could have reasonably determined that the introduction of the uncharged offense evidence would not be overly time consuming.
Consuegra's arguments to the contrary are unpersuasive. First, quoting the trial court's statement that there is "a presumption in favor of admissibility" of uncharged sexual offense evidence, Consuegra contends that the trial court's erroneous "reliance on a nonexistent 'presumption' clearly reflected the use of an improper and [in]correct legal standard in admitting . . . the evidence." However, the Supreme Court has repeatedly used language similar to that employed by the trial court in describing the admissibility of uncharged sex offense evidence pursuant to Evidence Code section 1108. (See, e.g., People v. Merriman (2014) 60 Cal.4th 1, 42 [defendant "faces a presumption favoring the admissibility of sexual offense evidence under Evidence Code section 1108 to show propensity to commit the charged offense"].) Falsetta, cited by Consuegra, is not to the contrary. In Falsetta, the Supreme Court rejected the defendant's argument that Evidence Code section 1108 created an "improper presumption favoring admissibility of other sex evidence to prove disposition." (Falsetta, supra, 21 Cal.4th at p. 919, italics altered.)
Consuegra also argues that the "only factual similarity" that the trial court noted with respect to the charged and uncharged offense evidence was that the "incidents involved females who were roughly the same age (fifteen to sixteen)." On the contrary, the trial court stated that the uncharged incident involving N.C. was "very similar" to the charged offense, noting that incidents were "similar enough" that the evidence would likely be admissible under Evidence Code section 1101, subdivision (b) to show "the defendant's unique method . . . in molesting young girls." With respect to B.Q., the trial court remarked that the uncharged offenses involved the same conduct (i.e., sexual intercourse) as involved with K.M., and that both crimes were "crimes of opportunity." Thus, we reject Consuegra's argument that the "only factual similarity" that the court referred to in admitting the uncharged offense evidence was that the victims were nearly the same age.
Evidence Code section 1101, subdivision (b) permits the introduction of evidence of the defendant's bad acts for purposes of establishing the defendant's identity in committing a crime only when the " 'the uncharged misconduct and the charged offense . . . share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.' " (People v. Leon (2015) 61 Cal.4th 569, 598.)
Finally, Consuegra argues that the trial court's ruling ignored the many differences between the uncharged offenses and the charged offenses. We are unpersuaded. As discussed above, the uncharged offenses bore substantial similarities with the charged offenses. In any event, whatever dissimilarities did exist, they were not of such magnitude as to require exclusion of the evidence. (Cf. People v. Escudero (2010) 183 Cal.App.4th 302, 311 ["the prior offense evidence had substantial probative value despite the differences in the ages of the females"]; People v. Soto (1998) 64 Cal.App.4th 966, 984 [" ' "[m]any sex offenders are not 'specialists', and commit a variety of offenses which differ in specific character" ' "].)
Accordingly, we conclude that the trial court did not abuse its discretion in admitting evidence of uncharged sexual offenses. B. The trial court did not abuse its discretion in permitting the prosecutor to impeach Consuegra with evidence that he had previously suffered a felony conviction for petty theft with a prior
Consuegra claims that the trial court abused its discretion in permitting the prosecutor to impeach him with evidence that he had previously suffered a felony conviction for petty theft with a prior. Consuegra contends that the trial court should have excluded the evidence pursuant to Evidence Code section 352.
1. Governing law and standard of review
Evidence Code section 788 provides in relevant 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."
Although Evidence Code section 788 broadly states that a witness may be impeached by evidence demonstrating that the witness has suffered a felony conviction, the conviction must be one for a crime of moral turpitude. (See People v. Wheeler (1992) 4 Cal.4th 284, 296 (Wheeler).) In addition, trial courts retain discretion to exclude evidence of a witness's prior felony conviction pursuant to Evidence Code section 352. (See Wheeler, supra, at p. 296.) "When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (People v. Edwards (2013) 57 Cal.4th 658, 722 (Edwards).)
" 'A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Lucas (2014) 60 Cal.4th 153, 240.)
2. Factual and procedural background
Prior to trial, Consuegra filed a motion in limine to exclude evidence of a 2000 felony conviction for petty theft with a prior (§§ 666, 484) as well as three misdemeanor convictions: a 2012 conviction for solicitation of an act of prostitution (§ 647, subd. (b)), and 1997 convictions for willful infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) and petty theft (§§ 484, 488). With respect to the 2000 felony conviction for petty theft with a prior, Consuegra acknowledged that "theft is a crime of moral turpitude," but urged the court to exclude evidence of the conviction pursuant to Evidence Code section 352. In support of this contention, Consuegra argued that the conviction was "fifteen years old," that he was only 25 years old at the time of the conviction, that the court had imposed felony probation on him as a result of the conviction, and that he had remained law abiding for 12 years after the conviction. In addition, Consuegra stated that "the defense believes that Mr. Consuegra is eligible for relief under [Proposition 47] which would reduce this felony conviction to a misdemeanor." With respect to the misdemeanor convictions, Consuegra argued that the two convictions from 1997 were remote, that he was only 22 years old when he suffered the convictions, and that he had been placed on probation for the convictions. With respect to the 2012 misdemeanor solicitation conviction, Consuegra contended that this conviction should be excluded because it was a " 'sex' crime," and therefore carried a "huge risk of creating a substantial danger of undue prejudice."
Among numerous other provisions, Proposition 47 designated as misdemeanors certain theft crimes that were previously felonies. In addition, Proposition 47 created provisions authorizing persons who have previously suffered certain felony convictions to file an application to seek the designation of the prior convictions as misdemeanors. (See § 1170.18, subds. (f)-(h)).
The trial court held a hearing on Consuegra's motion. At the outset of the hearing, the court stated that it would exclude all three of the misdemeanor convictions. With respect to the 2000 conviction for felony petty theft with a prior, the court stated:
"My inclination is to, at this point, allow the petty theft with a prior, although, that is not a really firm decision, I will tell you that. It is kind of old. It is a petty [theft] with a prior. It is right on point in terms of what we are using prior convictions for, the crime that involves dishonesty. And the crimes of dishonesty, it is crime with moral turpitude and it is the quintessential one that affects credibility. So in that sense, it comes in . . . . The conduct qualifies even if it is a misdemeanor. But it is old, it's 2000."
Thereafter the court confirmed with the prosecutor and defense counsel that the only conviction that Consuegra had suffered after 2000 was the misdemeanor solicitation conviction. The court then reconsidered its ruling and tentatively excluded evidence of the conviction for petty theft with a prior, stating:
"The prior . . . petty theft from 1997, that would be out. That would not be coming in. The petty [theft] with a prior conviction is a felony in 2000, presumptively, that comes in, subject to [Evidence Code section] 352. [¶] And you know what, based upon the fact that we have [Evidence Code section] 1108 evidence that is definitely coming in, I think that is way more probative on just about everything. My tendency is to exclude it. But as I said, that's not etched in stone. [¶] You may come back, [Ms. Prosecutor], with a reason of why I should allow you to impeach with that prior. I'll reconsider it, but it is unlikely."
At trial, outside the presence of the jury, during a break in Consuegra's direct testimony, the prosecutor requested that the court revisit the issue of the admissibility of the 2000 conviction for petty theft with a prior. After hearing argument from both the prosecutor and defense counsel, the court stated:
"The real question in my mind is whether or not the defendant has been portrayed in the false forum [sic.] [¶] In other words, if there is something about the testimony that he has given thus far which would cause me to change my mind about the probative value of a 15-year-old petty [theft] with a prior."
It appears likely that the court intended to say "in a false aura." (See People v. Disa (2016) 1 Cal.App.5th 654, 672 ["it has been said that a defendant is not entitled to a false aura of veracity"].)
The prosecutor responded, "I don't know at this point that we have that. . . . [¶] . . . [¶] But I think, perhaps, maybe, if we can have another break before I start cross, or if we [can] go [to] sidebar. . . . So I know don't [sic] what his statement will be, will be contrary or opposite to what his previous statements, or what others have said. [¶] So maybe at this point it is premature, and I'll review it with the court depending on what the defendant testifies to."
After the court indicated a willingness to revisit the issue, defense counsel requested that, if the court were to rule the conviction admissible, the court do so at a sidebar during her direct examination of Consuegra so that defense counsel would be able to ask Consuegra about the conviction during direct examination. The court agreed to defense counsel's request and reaffirmed that its tentative ruling was to exclude the evidence, stating: "You know, maybe [Ms. prosecutor] will have a clearer way of presenting whether it is probative at the time. But right now I'm not hearing that."
Thereafter, Consuegra resumed his testimony, stating that on the day of the alleged charged crimes he had been planning on attending church. The following colloquy then occurred:
Earlier in his testimony, Consuegra stated that he considered himself to be a religious person, that he was raising his daughters in a "Christian household," and that he attended church "four or five times a week."
"[Defense counsel]: Is this house[] . . . near where you go to church?
"[Consuegra]: Seven minutes.
"[Defense counsel]: Okay. And is there anyone from your church, anyone that you know from church that lives by this house?
"[Consuegra]: The minister is across the street from my house.
"[Defense counsel]: But you knew this person who lived across the street, you knew him as your minister?
"[Consuegra]: And all my neighbors know that I am a man that has an [sic] impeccable conduct. You could tell."
Defense counsel was referring to the house in which Consuegra resided at the time of the charged offenses.
During a second break in Consuegra's testimony, outside the presence of the jury, the prosecutor requested that the court revisit the admissibility of the 2000 felony conviction for impeachment purposes. The prosecutor argued that the defendant had testified that his neighbors knew him to have " 'impeccable conduct,' " and that admitting the prior would give the jury a "fuller picture." Defense counsel argued against admission of the prior, noting the remoteness of the conviction and stating that the prior did not "really [have] any bearing on what his neighbors know about him." After further argument from the prosecutor, the court ruled that the prior would be admissible, reasoning in part:
"[I]t's not too remote in time. It was a close call when I was discussing it beforehand. And the fact of the matter is, the defendant has placed himself within a cloak and a false aura of veracity. He is asserting the fact that he has impeccable character traits, and that is inconsistent with his history as a thief, a batterer, and as a felon. [¶] And so, inasmuch as the petty [theft] with a prior is conduct that is, in fact, most probative, it is a theft-related offense is what this is all about."
After hearing additional argument from defense counsel, the court reaffirmed its ruling stating in part, "Under [Evidence Code section] 352, I don't think that [it] is unduly prejudicial alone. I think it is highly probative of giving the credibility [sic] of a witness, and the jury is entitled to know what the extent of his record is."
During the resumption of his direct testimony, defense counsel asked Consuegra, "Do you remember in the year 2000, about 15 years ago, that you pled guilty to a charge of petty theft with a prior? Do you remember that?" Consuegra responded affirmatively. Defense counsel asked, "Do you know what that charge was all about?" Consuegra responded that he thought that he had stolen some shoelaces.
On cross-examination, the prosecutor asked, "Sir, to make sure we're all on the same page, you're a convicted felon; correct?" Consuegra responded, "Yes."
3. Application
In considering the factors that the California Supreme Court has outlined as being relevant in determining whether to admit a witness's prior conviction for impeachment purposes, the trial court reasonably determined that the prior conviction for petty theft with a prior had significant probative value in reflecting on Consuegra's "honesty or veracity." (Edwards, supra, 57 Cal.4th at p. 722; see People v. Gurule (2002) 28 Cal.4th 557, 608 ["theft crimes necessarily involve an element of deceit"].) Not only did the trial court reasonably state that a conviction for petty theft with a prior conviction was "the quintessential one that affects credibility" (see In re Garcia (2014) 58 Cal.4th 440, 460 [" ' "There is certain conduct involving fraud, perjury, theft, embezzlement, and bribery where there is no question but that moral turpitude is involved," ' " italics added]), the court reasonably found that the probative value of the conviction for impeachment purposes increased after Consuegra's testimony "clothed defendant in a ' " 'false aura of veracity.' " ' " (People v. Clark (2011) 52 Cal.4th 856, 932.) The probative value of the 2000 felony conviction also was increased by the fact that the trial court precluded the prosecutor from presenting evidence of Consuegra's three other convictions.
Consuegra's primary argument on appeal is that the remoteness of the conviction supported its exclusion. While the conviction occurred approximately 15 years before the trial of the charged offenses, and, as the trial court acknowledged, such remoteness tended to support excluding the evidence, the remoteness of the conviction did not require exclusion, particularly since Consuegra had not lived a "blameless life" in the interim. (People v. Green (1995) 34 Cal.App.4th 165, 183 ["Appellant's earliest prior conviction occurred in 1973, 20 years before this trial commenced. Despite its age, that conviction was nonetheless admissible because appellant did not subsequently lead a blameless life"]; People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 (Mendoza) [stating that "convictions remote in time are not automatically inadmissible for impeachment purposes," and that "[e]ven a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior"].) In addition, although not specifically mentioned by the trial court, the fact that the conviction for petty theft for a prior was not for the same or similar conduct as the charged offenses also supported its admissibility. (See Mendoza, supra, at p. 926.)
As noted previously, the trial court excluded evidence that Consuegra suffered a 2012 conviction for soliciting an act of prostitution.
Consuegra makes no argument that the final factor—the "effect [of a prior conviction's] admission would have on the defendant's decision to testify" (Edwards, supra, 57 Cal.4th at p. 722)—supports reversal.
Consuegra's other arguments also are not persuasive. Consuegra contends that the trial court should have excluded the 2000 felony conviction because "[Truman v. Thomas (1980) 27 Cal.3d 285, 296 (Truman)] generally precludes the impeachment of a witness based on an offense that has or could be reduced to a misdemeanor." (Italics added.) In Truman, the conviction had been reduced to a misdemeanor, and the Supreme Court concluded that "[s]ince the conviction was not a felony, it is not admissible for purposes of impeachment." (Truman, supra, 27 Cal.3d at p 296, citing Evid. Code, §§ 787, 788.) The Truman court did not state, nor suggest, that felony convictions that could be reduced to a misdemeanor are inadmissible for impeachment purposes. In any event, Truman's holding that misdemeanor convictions are excludable pursuant to Evidence Code sections 787 and 788 does not apply in criminal proceedings in the wake of the adoption of section 28(d) of the California Constitution in 1982. (See Wheeler, supra, 4 Cal.4th at p. 292 ["Evidence Code sections 787 and 788 no longer preclude the introduction of relevant misdemeanor misconduct for impeachment in criminal proceedings"].) Thus, the conviction clearly was not inadmissible under Truman.
"In June 1982, the voters adopted Proposition 8, an initiative measure designed to make significant substantive and procedural changes in California criminal law. Among Proposition 8's provisions was section 28(d), the so-called 'Truth-in-Evidence' amendment to the Constitution. Section 28(d) declares that 'relevant evidence shall not be excluded in any criminal proceeding' unless the Legislature provides otherwise by a two-thirds vote of each house." (Wheeler, supra, 4 Cal.4th at p. 291.)
Finally, Consuegra contends that the trial court should have excluded evidence of the prior conviction because it was "nonserious," noting that he testified that the prior conviction involved only the "theft of some shoelaces." This contention fails for two reasons. Consuegra cites no case law supporting the contention that the seriousness of the crime is a relevant factor for a trial court to consider when determining whether to exclude a prior felony conviction being offered for impeachment. Even assuming that the seriousness of the underlying offense is a factor to be considered, defense counsel never made any offer of proof with respect to the nature of the conduct giving rise to the conviction, and it was only after the trial court ruled that the conviction was admissible that Consuegra testified that the conviction was based on his theft of shoelaces. Under these circumstances, the fact that the conviction was purportedly suffered for, as Consuegra argues in his brief, "the theft of some shoelaces," does not demonstrate that the trial court erred in admitting the evidence.
Accordingly, we conclude that the trial court did not abuse its discretion in permitting the prosecutor to impeach Consuegra with evidence that he had previously suffered a felony conviction for petty theft with a prior. C. The prosecutor did not commit misconduct during her cross-examination of Consuegra
Consuegra claims that the prosecutor committed prejudicial misconduct through her use of argumentative and improper questions during her cross-examination of him.
1. Governing law
"The use of deceptive or reprehensible methods to persuade the jury constitutes [prosecutorial] misconduct." (People v. Sanchez (2016) 63 Cal.4th 411, 475.) " ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)
To preserve a claim of prosecutorial misconduct on appeal, " 'the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' " (People v. Clark (2016) 63 Cal.4th 522, 577.)
While the Supreme Court continues to use the phrase "prosecutorial misconduct," the court has also observed, " '[t]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
2. The prosecutor's cross-examination of Consuegra
Consuegra contends that the prosecutor committed misconduct during her cross-examination of him at trial in the following ten instances:
1. The prosecutor asked Consuegra whether the Christian faith condones lying, whether Christian men rape children, and whether "someone of impeccable character or conduct" rapes children. Shortly thereafter, the prosecutor asked Consuegra, "You testified . . . that others would consider you to have impeccable character or conduct. Do you remember testifying to that?" Consuegra responded, "Maybe[,] I did not mean to say perfect." The prosecutor then asked Consuegra, "So a perfect person does not rape children, but if you're imperfect, you rape children, is that what you're saying?" The court sustained defense counsel's objection that the question was "argumentative."
2. The prosecutor asked Consuegra, "Is it Christian to allow 15-year-olds to drink and smoke and get high in your house?" The court overruled defense counsel's "relevance" and "argumentative" objections.
3. The prosecutor asked Consuegra why he had not told the teenagers at his house on the night of the charged offenses to stop smoking or to go home. After Consuegra replied that he was "going to" but that he did not smell the odor of smoke again, the prosecutor asked Consuegra, "So they got a pass the first time, is that what you're saying?" The trial court sustained defense counsel's "argumentative" objection. Shortly thereafter, the prosecutor asked Consuegra, "So you were more concerned about not seeming rude than telling a 15-year-old how to abide by rules in your house?" The court overruled defense counsel's "argumentative" objection.
4. The prosecutor asked Consuegra if he was being "disrespectful and inappropriate" by having underage girls in the house, and whether that was the reason that he turned the lights off at the house. When Consuegra denied that was the case, the prosecutor asked Consuegra, "You know that God can see you even if the lights are off; correct?" Defense counsel objected, stating, "Calls for speculation. Lack of foundation. Argumentative." The court overruled defense counsel's objections, sating, "Overruled, if you know."
5. The prosecutor asked Consuegra if he remembered his testimony that he was "having fun" on the night that A.R., K.M., and D.C. were at the house. When Consuegra stated that he did not recall saying that, the prosecutor asked Consuegra "[a]gain, do you have memory problems?" The court sustained defense counsel's "argumentative" objection.
6. The prosecutor asked Consuegra if he remembered a portion of his interview with police in which he was asked whether he had ejaculated inside of K.M. After Consuegra stated that the police officer was not asking him about K.M., the prosecutor asked, "So then it was the time that he was asking you about the other 15-year-old that you raped, [B.Q.]?" The court sustained defense counsel's argumentative objection.
7. In discussing his interview with police, the prosecutor asked, "So you are in an interview with detectives from the San Diego Police Department, they're questioning you about raping a 15-year-old girl, and you are just going to let it go? Is that what you're telling us?" Consuegra responded, "Believe me, honestly, I didn't know how serious this was in relation to how clear you have to be when you have to talk here." The prosecutor then asked, "You didn't know that a 37-year-old man getting a 15-year-old girl drunk and high, raping her was serious; is that what you're telling us?" The trial court overruled defense counsel's objection that the question misstated the testimony.
8. The prosecutor asked Consuegra if he remembered the name of B.Q.'s father. After Consuegra replied that he did not, but that "if someone mentions it to me, I will," the prosecutor asked Consuegra, "[D]o you have memory problems?" The court sustained defense counsel's "asked and answered" objection.
9. The prosecutor questioned Consuegra as to whether he had returned voluntarily to the United States from Mexico after a warrant was issued for his arrest. When Consuegra replied that he had returned voluntarily to the United States, the prosecutor twice asked whether a police detective who had testified that the detective had been in contact with United States Marshall's office to secure Consuegra's return to the United States had lied. The court sustained defenses counsel's objections that the questions constituted improper impeachment.
10. The prosecutor asked Consuegra whether he believed that someone could confess and "then be forgiven of their sins." The court sustained defense counsel's relevance objection.
3. Application
With respect to instances 1, 5, 6, 8, 9, and 10 described above, the trial court sustained defense counsel's objections, and defense counsel did not ask for any additional admonition to cure any potential prejudice from the prosecutor's mere asking of the questions. Defense counsel was required to request an admonition in order to preserve a claim of prosecutorial misconduct on appeal. (See, e.g., People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1241 (Hajek) ["A claim of prosecutorial misconduct is not preserved unless the defendant makes a timely objection and requests an admonition, and even then the issue is preserved only if the admonition was insufficient to cure any harm"].) Thus, Consuegra forfeited his claims with respect to these purported instances of misconduct. (Ibid. ["Because Hajek . . . did not request admonitions when objections were sustained, we conclude his claim is forfeited"].)
In any event, the trial court instructed the jury that the attorneys' questions "are not evidence," and that "[if] I sustained an objection [to an attorney's question], you must ignore the question." Consuegra fails to demonstrate on appeal why the trial court's sustaining of defense counsel's objections with respect to the questions referred to in instances 1, 5, 6, 8, 9, and 10 did not sufficiently cure any potential prejudice. Nor does Consuegra explain why defense counsel was relieved of the obligation of requesting some further admonition to the extent that the trial court's sustaining of the objection was insufficient. Thus, Consuegra has not demonstrated that any prejudicial misconduct occurred with respect to the cross-examination referred to in instances 1, 5, 6, 8, 9, or 10 above. (See, e.g., People v. Fuiava (2012) 53 Cal.4th 622, 687 ["The trial court sustained defendant's objection to the question . . . eliminating any possibility of prejudice"].)
We reject Consuegra's argument, raised in a footnote in his reply brief, that the People were required on appeal to explain "what form of admonition should have been requested, or how that admonition would have cured the situation." Case law is clear that it is defense counsel's burden to request an admonition (Hajek, supra, 58 Cal.4th at p. 1241) and we are aware of no authority suggesting that the People are required on appeal to demonstrate how an unrequested admonition would have cured any potential harm. In addition, we reject Consuegra's argument, also raised in a footnote in reply, that no requests for an admonition were required in this case because of the purported "frequent and pervasive" nature of the prosecutor's misconduct. As discussed in the text below, while some of the prosecutor's questions were improper, the prosecutor's cross-examination did not rise to the level of prosecutorial misconduct, much less "frequent and pervasive" misconduct. --------
With respect to instance 3 (the prosecutor's questioning of Consuegra regarding whether he was concerned with seeming rude in deciding not to tell the teenagers not to leave his house on the night of the charged offenses), the trial court did not err in overruling defense counsel's objection that the question was argumentative. Just prior to the prosecutor asking the question, Consuegra had testified that he had not told his guests to stop smoking because "I did not want to be rude with them." Thus, the prosecutor's question was designed to elicit relevant evidence and was not argumentative. (See People v. Chatman (2006) 38 Cal.4th 344, 384 [An argumentative "questioner is not seeking to elicit relevant testimony," italics added].) Similarly, the court did not abuse its discretion in overruling defense counsel's objection that the prosecutor had misstated Consuegra's testimony in questioning Consuegra concerning his police interview (instance 7). Consuegra's testimony that he "didn't know how serious this was," was ambiguous, and, the prosecutor was therefore entitled to ask a clarifying question.
While the trial court erred in failing to sustain defense counsel's "argumentative" objections with respect to the prosecutor's questions, "You know that God can see you even if the lights are off; correct?" (instance 4), and, "Is it Christian to allow 15-year-olds to drink and smoke and get high in your house?" (instance 2), these questions, whether considered individually or cumulatively, did not rise to the level of prosecutorial misconduct, particularly since it was Consuegra who repeatedly interjected his religious faith into the trial during his direct examination. (See fn. 10, ante.) Indeed, even assuming for the sake of argument that all of the instances of purported misconduct are to be considered, notwithstanding Consuegra's forfeiture of misconduct claims premised on those questions for which the trial court sustained his objections, Consuegra fails to establish that any prosecutorial misconduct occurred, much less the existence of reversible prosecutorial misconduct. While some of the questions were improper, they did not come close to rendering the trial fundamentally unfair or constitute a reprehensible method of attempting to persuade the jury. (See People v. Peoples (2016) 62 Cal.4th 718, 794 (Peoples) ["While improper, [the prosecutor's] question does not constitute prejudicial misconduct," and stating, that the " 'critical inquiry on appeal is not how many times the prosecutor erred but whether the prosecutor's errors rendered the trial fundamentally unfair or constituted . . . reprehensible methods to attempt to persuade the jury' "].) As in Peoples, "[t]he prosecutor's argumentative questions in this case did not meet this standard." (Ibid.)
Accordingly, we conclude that the prosecutor did not commit misconduct in her cross-examination of Consuegra.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.