Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. KA083023. Charles E. Horan, Judge.
J. Kahn, 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, Susan Sullivan Pithey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
INTRODUCTION
Defendant and appellant Joseph P. Sanchez was convicted of second degree murder. (Pen. Code, § 187, subd. (a).) He was sentenced to a total of 60 years to life in state prison. He contends the trial court erred in permitting the prosecution to impeach him with a 12-year-old robbery conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On April 22, 2008, at approximately 2:00 p.m., Elaine Garza was involved in a verbal and physical fight with another woman at the Victory Motel. After the fight, Garza drove Mark Gallardo and another male away from the motel. Garza then became involved in a road rage incident in which she yelled and pursued a Lexus. When the Lexus stopped in a commercial parking lot, Garza pulled her car next to the Lexus and parked. Garza yelled obscenities at defendant and Marco Garcia, the occupants of the Lexus. Garza also yelled, “I got a gun.”
Defendant and his co-defendant Marco Garcia were tried by separate juries. We have included only those facts presented to defendant’s jury.
Garza and Gallardo both got out of Garza’s car. Defendant got out of the passenger’s side of the Lexus, holding a Razor scooter. The trunk to the Lexus popped open and defendant walked to the trunk. Garza and defendant argued and then defendant shot Garza. Garza, who was not armed, fell to the ground. She died from the gunshots. Garza had eight gunshot wounds to her body, including multiple fatal wounds.
After the shooting, defendant rode his scooter to the Victory Motel. Soon after the shooting, El Monte Police Officer Joe Garcia saw defendant at the motel. Officer Garcia arrested defendant as defendant left room 15. Defendant had a loaded handgun in his waistband. Defendant’s scooter was recovered in room number 15.
A criminalist recovered seven expended shell casings from the parking lot. All seven casings had been fired from defendant’s gun. Additionally, the criminalist examined the five bullets found in Garza’s body. The criminalist determined two bullets had been fired from defendant’s gun. The criminalist could not determine the origin of the other bullets because they were too damaged.
2. The defense case.
Defendant claimed the shooting was in self-defense. He argued Garza was a violent and aggressive person, and he had defended himself only after he heard Garza announce she had a gun. In support of this defense, defendant testified to the following. He met Garza one or two days before the shooting at the Victory Motel. The day of the shooting he went back to the motel to pick up some money from another woman so he could buy methamphetamine. He saw Garza physically fighting with another female. Because someone said the police were coming, he threw his scooter into the trunk of a car belonging to a woman named Silvia, and the two drove off. He called Gallardo on his cellular telephone and told Gallardo to meet him at a store. When Gallardo arrived at the store, defendant took drugs from Gallardo’s trunk and his scooter from Silvia’s trunk. He then put the drugs in Silvia’s trunk. He heard Garza cuss at him. She yelled that she had a gun and was going to kill him. Garza put her hand under her shirt as if she were reaching for a weapon. Because he believed Garza was going to shoot him, he grabbed his gun and shot her four or five times. He left the parking lot because he wanted to surrender peacefully, away from the scene.
Defendant also presented the testimony of Victor Joseph Flores, Garza’s husband. Flores testified that Garza was an aggressive, paranoid, and threatening person, who had assaulted him and threatened to shoot someone at his workplace numerous times. According to Flores, Garza usually carried a gun in her brassiere.
The owner of the Victory Motel and one of the motel’s housekeepers testified that on the evening of the shooting, they had heard two women fighting in front of room 15. Upon the owner’s request, one of the women left in a vehicle.
3. Procedure.
A jury convicted defendant of second degree murder. (Pen. Code, § 187, subd. (a).) The jury also found a number of gun enhancements true. (Pen. Code, §§ 12022.53, subds. (b), (c), (d).) Thereafter, defendant admitted having suffered one prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and one serious or violent felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant also admitted having served four prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total of 60 years to life in state prison.
Defendant appeals from the judgment.
DISCUSSION
The trial court did not abuse its discretion in permitting the prosecutor to impeach defendant with a prior robbery conviction.
Defendant unpersuasively contends that the trial court erred in permitting the prosecutor to impeach him with a prior robbery conviction.
1. Additional facts.
Defendant had a lengthy criminal history including the following felony convictions: (1) a December 6, 2005 conviction for being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)); (2) a January 10, 2002 conviction for possessing a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); (3) a May 3, 1999 conviction for theft and unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); and (4) January 23, 1997 convictions for robbery while armed with a knife (Pen. Code, § 211), theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and grand theft of a firearm (Pen. Code, § 487, subd. (d)).
Prior to the March 2009 trial, defendant moved to prevent the prosecution from impeaching him with the January 23, 1997 robbery conviction. Defendant argued it was remote in time because this conviction was 12 years old. Additionally, he suggested the robbery conviction was unrelated to the present charges because it involved a knife, wherein the present charges involved a gun. The trial court denied defendant’s motion. Thereafter, the prosecutor impeached defendant with all of his prior felony convictions.
2. Discussion.
“Under Evidence Code 788, a defendant who testifies may be impeached with a prior conviction of any felony evincing moral turpitude, defined as the ‘general readiness to do evil.’ (People v. Castro (1985) 38 Cal.3d 301, 313-316.)” (People v. Campbell (1994)23 Cal.App.4th 1488, 1492.) The admission of such evidence is “subject to the court’s discretion under Evidence Code section 352. [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 337.) “ ‘Together, [Evidence Code sections 788 and 352] provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. [Citation.]’ [Citation.] In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 (hereafter, Beagle): (1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed. [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza); accord, People v. Green (1995) 34 Cal.App.4th 165, 182.)
We review a trial court’s ruling permitting the use of prior criminal convictions to impeach for abuse of discretion. (People v. Green, supra, 34 Cal.App.4th at pp. 182-183; People v. Muldrow (1988) 202 Cal.App.3d 636, 648.)
Defendant concedes robbery involves moral turpitude. Thus, a robbery is probative on the issue of a defendant’s credibility and meets the first Beagle factor. (People v. Collins (1986) 42 Cal.3d 378, 395; People v. Gray (2007) 158 Cal.App.4th 635, 641; Mendoza, supra, 78 Cal.App.4th at p. 925; Evid. Code, § 785 [permitting introduction of evidence reflecting on credibility].)
Defendant focuses his argument on the second factor, remoteness. He argues the 1997 robbery conviction is remote as it occurred 12 years before his trial in the instant matter.
A prior criminal act remote in time generally lessens its probative value. (Mendoza, supra, 78 Cal.App.4th at p. 925.) “However, convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. [Citations.] In fact, in People v. Green[, supra, ] 34 Cal.App.4th [at page] 183, the court admitted a 20-year-old prior conviction, reasoning that defendant’s 1973 conviction was followed by five additional convictions in 1978, 1985, 1987, 1988, and 1989. The court reasoned that ‘the systematic occurrence of [appellant’s] priors over a 20-year period create[d] a pattern that [was] relevant to [his] credibility.’ (Ibid., citing People v. Muldrow, supra, 202 Cal.App.3d at p. 648.)” (Mendoza, supra, 78 Cal.App.4th at pp. 925-926.) Another consideration in favor of admission of a remote prior is if the intervening convictions themselves are probative on the issue of a defendant’s honesty and credibility. (Id. at p. 926.)
Here, defendant did not lead a legally blameless life since 1997, when he was convicted of robbery, as well as theft and the unlawful driving or taking of a vehicle, and grand theft of a firearm. Rather, every two or three years, defendant systematically committed another felony. Two years after his 1997 convictions, including the robbery conviction, he was convicted of theft and unlawful driving or taking a vehicle. This was followed by a 2002 conviction for possession of a controlled substance while armed, and a 2005 conviction for being a felon in possession of a firearm. The present crime occurred three years later, in 2008. His convictions over the past 12 years showed a pattern of criminal conduct relevant to his credibility. Thus, the 1997 robbery conviction is not remote as defendant led a criminal life, not a blameless life, since the time of the robbery.
As to the third factor, whether the prior conviction was for the same or substantially similar conduct to the charged offense, the robbery conviction involved a knife, whereas this murder involved a gun. These are not the same or substantially similar crimes that might lead jurors to believe “ ‘ “if he did it before he probably did so this time.” ’ ” (Beagle, supra, 6 Cal.3d at p. 453.)
The last Beagle factor is whether an accused may be deterred from testifying out of fear of being impeached with his or her prior convictions. This factor is irrelevant as defendant was not deterred from testifying. (Mendoza, supra, 78 Cal.App.4th at p. 926.)
Lastly, defendant suggests “[t]he evidentiary error [or permitting the introduction of the robbery conviction] rose to the level of a Due Process violation because the introduction of so many prior convictions prejudiced [him]....” However, any possible prejudice to defendant was lessened because he was impeached only with the fact that he had been convicted of the crimes; the prosecutor did not reveal the underlying facts of those crimes. Further, the Evidence Code section 352 safeguards required the trial court to balance the probative value of the prior convictions against any potential prejudice. In doing so, the court recognized that prior conviction evidence was highly relevant on the issue of defendant’s credibility. There is no limit on the number of priors that may be used to impeach a defendant’s credibility, and where none of the priors are identical to the charged crime, courts have approved impeachment with as many as 10 priors to avoid giving defendant a “ ‘false aura of veracity.’ ” (Mendoza, supra, 78 Cal.App.4th at p. 927.) Therefore, the evidentiary ruling did not violate defendant’s due process rights by making the trial fundamentally unfair. (Cf. People v. Partida (2005) 37 Cal.4th 428, 439 [“the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair”]; People v. Falsetta (1999) 21 Cal.4th 903, 910-922.)
In a related argument, defendant contends “that the trial court should have limited the number of prior convictions on which the prosecutor could impeach [him] because the prejudicial effect of the number of priors outweighed any probative value.” He further argues that the other priors should not have been used to impeach because they were primarily drug related and thus, were not properly used to impeach. However, in the trial court defendant objected only to the introduction of the robbery conviction. Thus, he has forfeited these other arguments. (Evid. Code, § 353, subd. (a); People v. Lawson (1999) 69 Cal.App.4th 29, 35-36, fn. 5.) In any event, as discussed above, the trial hinged on if the jury believed defendant’s assertion that he acted in self-defense. Thus, the evidence relating to his prior convictions was particularly probative and admissible as this evidence was relevant to defendant’s credibility.
Thus, he trial court did not abuse its discretion in permitting the prosecution to impeach defendant with his prior robbery conviction.
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P. J.RUBIN, J.