Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. NA079291. Gary J. Ferrari, Judge.
Karyn H. Bucar, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendant, Andy Grajeda, was convicted of six counts of criminal conduct arising from an incident in which he used an assault weapon to force his friend from a vehicle, held his friend at gunpoint for a period of time, absconded in the vehicle, crashed the vehicle, and then fled from the scene of the accident. He was convicted of false imprisonment (Pen. Code, § 236), assault with an assault weapon (Pen. Code, § 245, subd. (b)), criminal threats (Pen. Code, § 422), carjacking with a firearm (Pen. Code, § 215, subd. (a)), possession of an assault weapon (Pen. Code, § 12280, subd. (b)), and hit and run driving (Veh. Code, § 20002, subd. (a)). He also received two sentencing enhancements under Penal Code section 12022.53, subsection (b), for use of a firearm in the commission of his crimes. He contends that the trial court erred by: (1) refusing to allow evidence to impeach respondent’s key witness, and (2) imposing an unauthorized firearms enhancement on the criminal threats count. Respondent contends the trial court improperly failed to impose court security fees and criminal conviction assessments in its judgment. We modify the judgment to exclude the sentencing enhancement on the criminal threats count and to impose the requested fees, and we otherwise affirm the judgment.
FACTS
On August 6, 2008, at approximately 12:30 p.m., taxi driver Rene Auvray picked up defendant, and a woman named Elisha, in Wilmington, California. Defendant had an object resembling a large duffel bag in his possession. They made several stops. On the third stop, at a residence in Torrance, the taxi driver heard what sounded like latex plastic being handled by defendant. Defendant got out of the taxi, carrying the duffel bag, and wearing latex gloves. A black car pulled up behind the taxi cab. The driver was Matthew J., and the residence was Matthew J.’s home. Defendant and Matthew J. had been friends for 15 years.
Defendant approached Matthew J.’s car with the duffel bag, exclaiming, “You don’t give me what you owe me, I will kill you.” The duffel bag concealed a stick or tube-shaped object, which defendant pointed at Matthew J., while Matthew J. was sitting in his car. Pointing the object at Matthew J., defendant ordered him out of the car, and then walked him to the back of Matthew J.’s residence. Once in Matthew J.’s backyard, defendant removed the duffel bag, revealing a gun. Defendant was still wearing latex gloves. Defendant pointed the gun at Matthew J., saying that he couldn’t trust him and that he could kill him if he wanted to. Then defendant demanded Matthew J.’s keys. Matthew J. gave defendant the keys, and defendant took off in Matthew J.’s car. Matthew J. gave a report to the police.
Defendant later parked and left Matthew J.’s car in another part of town. That evening, defendant went with a female friend to the house of an acquaintance, Teresa Castaneda, to ask her for a ride. Castaneda drove defendant and his friend several blocks from her house and dropped them off.
Police had noticed Matthew J.’s parked car, which was reported stolen earlier that day. While watching the car, police saw defendant being dropped off at the vehicle, and then saw defendant drive away in it. The police pursued defendant, and the pursuit ended in San Pedro when defendant crashed into a boat parked on the street. Defendant got out of the car and ran from the scene of the accident, but he was taken into custody. When the police searched Matthew J.’s car after it had been returned to him, they found latex gloves in the passenger compartment.
Police executed a search warrant on Castaneda’s home. Inside a plastic laundry bin they found an assault-type rifle, two magazines that fit the weapon, with 23 rounds in one of the magazines and five rounds in the other. The officers also found in the bin two documents bearing defendant’s name, one also depicting a photograph of defendant, both showing defendant’s address.
DISCUSSION
Defendant contends the trial court erred by: (1) not permitting defendant to present evidence to impeach respondent’s key witness, and (2) imposing an unauthorized firearms enhancement on count 4, the criminal threats count. Respondent contends the trial court erroneously failed to impose court security fees and criminal conviction assessments.
1. Impeachment evidence
At trial, the court excluded evidence of a 1996 sustained juvenile petition for voluntary manslaughter as to witness and victim, Matthew J. Defendant contends that the trial court’s ruling was an abuse of discretion, was based on an improper legal standard, and violated his Sixth Amendment right to confrontation. We disagree.
a. Standard of review
A trial court’s ruling to admit or exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.) “ ‘Where... a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation].” (Ibid., original italics.)
b. The trial court did not abuse its discretion in excluding evidence of Matthew J.’s prior conduct.
Matthew J. provided testimony on behalf of the prosecution. In 1996, when Matthew J. was 17 years old, he suffered a sustained juvenile petition for voluntary manslaughter, for a death resulting from a school fight. Over defendant’s objection, the trial court granted the prosecution’s motion to exclude any evidence of the juvenile adjudication. The jury never learned of this past conduct.
Under our Evidence Code, a witness may be impeached with evidence of a prior felony conviction. (Evid. Code, § 788.) Also, prior misdemeanor conduct involving moral turpitude is admissible impeachment evidence. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296, superseded by statute on another point as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460.) The belief is that “[m]isconduct involving moral turpitude may suggest a willingness to lie.” (Wheeler, at p. 295.) Therefore, such evidence is routinely deemed relevant to credibility determinations, subject to a trial court’s broad discretion under Evidence Code section 352. (Wheeler, at p. 296.) Even evidence of juvenile misconduct demonstrating moral turpitude may be admissible, regardless of whether the conduct resulted in an adjudication rather than a criminal conviction. (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.)
(See also Cal. Const., art. I, § 28, subd. (f), par. (4) [“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court”].)
The parties do not dispute that voluntary manslaughter is a crime of moral turpitude. (See People v. Coad (1986) 181 Cal.App.3d 1094, 1107 [finding that voluntary manslaughter involves moral depravity].)
Juvenile adjudications have been deemed inadmissible under article I, section 28, subdivision (f), of the California Constitution, on the basis that they are civil in nature and not criminal. (People v. Sanchez (1985) 170 Cal.App.3d 216, 218.) Nevertheless, the underlying conduct may be admissible for purposes of impeachment. (See People v. Lee, supra, 28 Cal.App.4th at p. 1740.)
Evidence Code section 352 vests the court with discretionary authority to exclude evidence where the probative value of the evidence is outweighed by a substantial danger of undue prejudice, confusion of the issues, or may mislead the jury. (Evid. Code, § 352.) Admissibility of impeachment evidence under the Evidence Code section 352 balancing test may involve an inquiry into: (1) whether the prior conviction reflects on honesty, (2) whether it is remote in time, (3) whether it is similar to the conduct for which the witness-accused is on trial, and (4) what effect admission would have on the defendant’s decision to testify. (People v. Castro (1985) 38 Cal.3d 301, 307 (Castro).) These factors are not rigid standards, but rather are suggested considerations. (Ibid.) Also, when the witness subject to impeachment is not the defendant, the primary factors for consideration are whether the conviction (1) reflects on honesty, and (2) is near in time. (People v. Clair (1992) 2 Cal.4th 629, 654.) Clearly, the other factors discussed in Castro serve no purpose if the witness being impeached is not the defendant. (Castro, at p. 307.)
Here, the trial court made express findings that the prior misconduct was remote in time; the witness had not been convicted of any crime in the 12 or 13 years since the juvenile adjudication; and the witness was only 17 years old at the time of the death. Remoteness, alone, may form a sufficient basis for exclusion of evidence under Evidence Code section 352. (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1554 (Pitts).) Courts generally consider five factors in determining whether a crime is too remote to be used for impeachment purposes: (1) the length of time since the conviction, (2) the length of sentence served for the underlying conviction, (3) the nature of the conviction (convictions involving dishonesty are more probative of veracity), (4) the age of defendant at the time of the previous crime, and (5) the conduct subsequent to the prior conviction. (People v. Burns (1987) 189 Cal.App.3d 734, 737-739 [decided under Cal. Const., art. I, § 28, subd. (f), par. (4)].)
In Pitts, the trial court excluded evidence of a crime victim’s 10-year-old prior juvenile adjudication for murder on the basis of remoteness under Evidence Code section 352, adopting a bright-line rule that any crime over 10 years old could not be used for impeachment purposes. The Court of Appeal found no abuse of discretion in excluding the evidence and establishing the bright-line rule, reasoning that “when the question is purely a matter of time, ten years is a reasonable place to draw the line. [¶]... In our view establishing 10 years as the presumptive cut-off date for prior convictions is an exercise of discretion.” (Pitts, supra, 233 Cal.App.3d at p. 1554, fn. omitted.)
Here, the trial court did not abuse its discretion in excluding the evidence of Matthew J.’s prior conduct. The trial court found that due to the remoteness of the events adjudicated in the juvenile petition, the probative value was significantly diminished. Matthew J. was a minor at the time of the events and had not committed any crime or other act of moral turpitude in the 12 to 13 years since. The trial court was free to conclude that these facts, taken together, militated against admission.
We disagree with respondent’s contention that the prior manslaughter adjudication is collateral to any matter at issue in this case and thus had no relevancy. Respondent relies on People v. Rodriguez (1999) 20 Cal.4th 1, 9 (Rodriguez) and People v. Lavergne (1971) 4 Cal.3d 735, 742 (Lavergne) for this proposition. In Rodriquez, a prosecution witness observed a homicide from the roof of his apartment. Rodriguez sought to impeach the witness with evidence that he did not have the apartment management’s permission to be on the roof. The Supreme Court determined that the proffered impeachment evidence was properly excluded as irrelevant and collateral to any matter at issue in the case, as the evidence did not tend to prove whether the witness was in fact on the roof. (Rodriguez, at pp. 9-10.) Also, the evidence did nothing to attack the witness’s credibility. (Ibid.) Similarly, Lavergne concerned collateral issues that were likewise excluded on the basis of relevance. (Lavergne, at p. 744.) Conversely, the present case concerns the impeachment value of a crime of moral turpitude, which may be probative of witness credibility, and therefore relevant.
c. The trial court did not apply the wrong legal standard in its Evidence Code section 352 analysis.
Defendant also argues that the trial court applied the wrong legal standard when it conducted its Evidence Code section 352 analysis. The record reveals that the trial court commented that “when we are dealing with a witness as opposed to the defendant, the rules are a little more liberally applied than when we are dealing with the defendant.” There is nothing in the record indicating that a more liberal standard was actually applied, or that the trial court failed to consider the proper factors, discussed above. Also, a reviewing court looks at the result reached by the trial court, and not its rationale. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1494 [finding that even if the trial court wrongly concluded that all felonies involved moral turpitude, that the ruling permitting defendant’s impeachment with a prior felony vandalism conviction was not in error].) Here, it is clear that the trial court properly considered the remoteness of the conduct and the absence of any subsequent criminal conduct as a basis for determining whether the evidence should be excluded.
a. The trial court did not violate defendant’s right to confrontation.
Defendant urges that the exclusion of impeachment evidence violated his Sixth Amendment right of confrontation. Under the Sixth Amendment of the United States Constitution, a defendant has the right to confront and cross-examine the witnesses presented against him. (Douglas v. Alabama (1965) 380 U.S. 415, 418-419.) This right may be violated when appropriate cross-examination is prohibited. (Olden v. Kentucky (1988) 488 U.S. 227, 231.)
The right to confront witnesses is subject to reasonable judicial limitations. Specifically, a court may limit the right to confront adverse witnesses “ ‘based on concerns about harassment, confusion of the issues, or relevance.’ ” (People v. Brown (2003) 31 Cal.4th 518, 545.) And, it has been held that exclusion of evidence under Evidence Code section 352 does not generally violate a defendant’s Sixth Amendment right to confrontation. (Brown, at p. 545.) Rather, such an application of state evidentiary law will only violate a defendant’s constitutional rights if the defendant can show that the “ ‘prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation].’ ” (Ibid.) In this case, it is clear that Matthew J.’s credibility would not have been significantly impugned by introduction of evidence of his past misconduct, given its remoteness in time and the crime-free life he led in the 12 or 13 years that followed.
And, even if defendant’s Sixth Amendment rights were violated, the conviction is not subject to reversal if the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Alexander (2010) 49 Cal.4th 846, 910.) Whether an error was harmless depends on a number of factors, including: (1) the importance of the witness’s testimony to the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the witness’s testimony, (4) the extent of cross-examination permitted, and (5) the strength of the prosecution’s case. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)
Here, defendant was able to adequately cross-examine Matthew J. by questioning him about his use of alcohol on the day of the incident and his relationship with defendant. Also, much of Matthew J.’s testimony was corroborated by the testimony of taxi driver Auvray, who witnessed defendant tell Matthew J. to get out of his vehicle and lead Matthew J. to the backyard with a stick-shaped object pointed at his back. Auvray testified that defendant was yelling and that Matthew J. appeared surprised. Further, he testified to observing defendant running from the backyard where he had taken Matthew J., and then driving away in Matthew J.’s car. Also, Teresa Castaneda testified that defendant had come to her house on the evening in question. And, when a search warrant was executed there, a Ruger Mini-14 assault-type rifle was discovered, which did not belong to her or any member of her household. The length of the gun resembled the item Auvray testified to observing in defendant’s possession, and the gun was found with papers bearing defendant’s name and address. Consequently, it is clear that defendant’s conviction was based on the convergence of many facts, verified and corroborated by a number of witnesses. As such, any purported error was harmless under any standard. (Chapman, supra, 386 U.S. at p. 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [harmless].)
Courts have applied two standards for assessing harmless error: (1) the Chapman test (harmless beyond a reasonable doubt standard); and the Watson test (harmless error standard). (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.) The more stringent Chapman test applies in cases where federal constitutional errors are made, with the less stringent Watson test applying in other cases. For an explanation of these different standards, see People v. Coad, supra, 181 Cal.App.3d at pages 1111 to 1112 and footnote 9.
Defendant’s claims of prejudice are simply not supported. He urges that the district attorney embellished Matthew J.’s credibility during her closing statement, and that the jury asked the reporter to read back Matthew J.’s testimony, evidencing some doubts as to its credibility. First, the district attorney did not improperly embellish Matthew J.’s credibility. Rather, the district attorney highlighted the friendship between defendant and Matthew J., a fact which was not contradicted by any evidence. The district attorney emphasized that “[Matthew J.] minimized the defendant’s conduct.... He kept trying to justify and minimize. Why? Because this is his friend. He didn’t want to testify and point the finger. But he came in here, he did the right thing, ... and I think his testimony is hands down credible, believable and you should accept what he’s saying as the truth of the matter.” The district attorney stated her opinion regarding the credibility of the testimony, an opinion based largely on the relationship between the parties, and not Matthew J.’s character for truthfulness.
Second, defendant’s inference that the jury was troubled by Matthew J.’s testimony is unsupported and speculative. (See People v. Walker (1995) 31 Cal.App.4th 432, 438-439 [lengthy jury deliberations did not imply the existence of a reasonable doubt, and merely indicated the jury’s proper performance of its civic duty].)
Therefore, we conclude that the trial court did not abuse its discretion in excluding the evidence and find no constitutional error.
2. Sentencing enhancement
Defendant argues that the firearm enhancement imposed on count 4, the criminal threats count, should be stricken, as count 4 was not a qualifying offense for which such an enhancement may be imposed. Respondent agrees. Count 4 of the information charged defendant with criminal threats in violation of Penal Code section 422. The firearm enhancement was alleged under Penal Code section 12022.53, subdivision (b), which provides for sentencing enhancements for specified felonies that are committed with firearms. Subdivision (a) lists the applicable felonies. Penal Code section 422 is not listed among them. An unauthorized sentence may be corrected at any time by an appellate court, whether or not there was an objection in the trial court. (People v. Zackery (2007)147 Cal.App.4th 380, 386.) Clearly, the enhancement--which added three years and four months to defendant’s sentence--was not authorized. As such, the judgment must be modified accordingly.
3. Security fees and criminal conviction assessment
Respondent argues that the judgment should be modified to include fees that the trial court failed to assess. Courts have routinely held that an appellate court has jurisdiction to modify and correct a sentencing error as a matter of law, without the need for preservation of the issue for appeal, or a cross-appeal. (See People v. Smith (2001) 24 Cal.4th 849, 852-854; People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Stone (1999) 75 Cal.App.4th 707, 717.)
Defendant’s reply brief is silent on this issue.
Respondent argues that no court security fee was assessed for each conviction under Penal Code section 1465.8, subdivision (a)(1). This section provides that “a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense, including a traffic offense.” (Ibid.) Prior to 2009, the assessment was $20. (Stats. 2009, 4th Ex. Sess. 2009, ch. 22, § 29, p. 29.) The fee is mandatory, and must be imposed for each of the convicted offenses. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) In this case, the trial court imposed only one $20 fee, notwithstanding defendant’s conviction on six separate counts. As such, the judgment must be modified to reflect the imposition of six such $20 fees.
The minute order reflects that the required fees were imposed for each offense. However, the reporter’s transcript indicates that only one set of fees was imposed. Where there is a discrepancy, the reporter’s transcript controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
Also, only one criminal conviction assessment was imposed under Government Code section 70373. Government Code section 70373, subdivision (a)(1), provides that an “assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony.” This fee is also mandatory. In this case, the trial court only imposed one $30 fee, notwithstanding defendant’s conviction on six separate counts. As such, the judgment must be modified to reflect the imposition of six such assessments.
See footnote 7, ante.
DISPOSITION
The judgment is affirmed as modified to exclude the sentencing enhancement on count 4, and to impose additional court security fees and criminal conviction assessments. The superior court is directed to prepare an amended abstract of judgment and shall forward a certified copy of the same to the Department of Corrections.
We concur: RUBIN, Acting P. J.FLIER, J.