Opinion
C054442
4-14-2008
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SAVALA, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury found defendant Anthony Savala guilty of receiving stolen property (Pen. Code, § 496, subd. (a)) and not guilty of auto burglary (§ 459). In a bifurcated proceeding, the trial court found true an allegation that defendant had served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced defendant to the middle term of two years in state prison for receiving stolen property and "stay[ed] the imposition of the one-year prior prison term."
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending (1) the trial court abused its discretion in permitting his trial testimony to be impeached with four prior felony convictions, and (2) his conviction for receiving stolen property is not supported by sufficient evidence.
We shall modify the judgment to strike rather than stay the prior prison term enhancement and affirm the judgment as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2006, at approximately 10:30 p.m., Daniel Zimbler heard a loud "pop" as he was leaving his garage, which is located on 21st Street in midtown Sacramento. He looked across the street and saw one man push in the window of his neighbors truck, reach inside, turn with something in his hands, and jog away while another man stood on the sidewalk four or five houses down, "looking around." The man standing on the sidewalk looked at the other man as the other man reached into the truck. The man who reached inside the truck jogged toward the other man, and both drove away in a white Ford Bronco.
Zimbler telephoned 911, and officers with the Sacramento Police Department arrived about 15 minutes later. Officers contacted the owner of the truck, who reported that his Sirius satellite radio had been stolen. As officers interviewed Zimbler, Zimbler saw the white Ford Bronco drive toward the scene, stop, back up, turn, and go another direction. Zimbler alerted the officers, who then took off after the Bronco.
When the officers stopped the Bronco, codefendant Ronald James Benenato was driving, defendant was seated in the passenger seat, and the victims Sirius satellite radio was sitting in plain view on the center console in between the driver and passenger seats. Zimbler identified defendant as the man who "was standing down the block" and Benenato as the man who broke into the victims truck.
Defendant testified in his own defense. On May 16, 2006, at approximately 10:30 p.m., he went to visit a friend who lived at 516 21st Street. When he arrived, he saw Benenato sitting on the stairs in front of his friends house and stopped in the middle of the street. Benenato told him to park, which he did. He then saw Benenato walking toward F Street. After that, Benenato "disappeared." Defendant stood in front of his friends house for a few minutes before Benenato returned. Benenato told defendant, "Come on, lets go to the south area." Defendant did not notice if Benenato was holding anything. Defendant left with Benenato in the Bronco. He did not notice the satellite radio in the Bronco. When they returned so that defendant could retrieve his car, they saw "a bunch of cars," and Benenato just kept going.
DISCUSSION
I
Defendant contends "[t]he trial court abused its discretion in permitting [him] to be impeached with four similar prior felony convictions, two of which were also remote." The People respond that defendant "partially waived and later entirely forfeited" his claim, and in any event, it fails on the merits. We agree defendant forfeited his right to challenge all but one of his prior convictions and find that, even assuming defendant preserved his claim as it relates to each of his prior convictions, it fails on the merits.
Defendant and Benenato were tried together. The prosecutor moved in limine to impeach Benenato with eight prior convictions and defendant with seven prior convictions should they elect to testify. The trial court first addressed the admissibility of Benenatos "impeachment convictions" and noted that "the principal objection is remoteness and the cumulative effect." Finding that it had "to exercise some discretion . . . to avoid . . . the piling on effect," the court ruled that the four most recent convictions, which dated back to 1993, were admissible.
The court then turned its attention to defendant and stated that it was inclined to admit his four most recent convictions: a 1987 conviction for second degree burglary, a 1996 conviction for attempted second degree auto burglary, a 2004 conviction for petty theft with a prior, and a 2006 conviction for grand theft. The court then told defense counsel that it "certainly want[ed] to hear from [him] about this and [his] point of view" and asked if there was "[a]nything [he] want[ed] to add on the record at this point . . . ." Defense counsel responded: "Just that I would object to allowing [defendants 1987 conviction for second degree burglary] in just because of the remote argument, that thats from 1987. [¶] . . . [¶] And that he remained clear or free of any moral turpitude offenses between 1987 and 1996 when he picked up the auto burg[lary] or attempted auto burg[lary]. So I would argue then that that is remote and far removed and that . . . there is a span between the `87 and `96 . . . felonies in that I would . . . request the Court not . . . allow the 1987 conviction in." Defense counsel then explained that he and defendant were still discussing whether defendant was going to testify, and that should defendant choose to testify, he would "raise that issue at that point." The court then stated it would leave its "ruling as it stands," "note [defense counsels] objections," and should defendant decide to testify, "visit it one last time." It then gave a "tentative ruling" that defendant could be impeached with his 1987, 1996, 2004, and 2006 convictions.
Defendant testified at trial. During direct examination, he admitted that he previously had been convicted of "some theft-related offenses," including an attempted auto burglary. During cross-examination, he admitted a 1987 conviction for second degree burglary, a 1996 conviction for attempted second degree auto burglary, a 2004 conviction for petty theft with a prior, and a 2006 conviction for grand theft.
A party on appeal cannot complain of trial court error in admitting evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353, subd. (a).) "The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal." (People v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Here, of the four prior convictions, defendant only objected to the admission of his 1987 conviction for second degree burglary as too remote. Thus, he forfeited his right to challenge the admission of the other three prior convictions on any ground and to challenge the admission of his 1987 conviction on any ground other than its being too remote. However, in order to forestall any ineffective assistance claim, we reach the merits of his challenge as it relates to all four prior convictions.
Defendants claim that he "joined" in Benenatos objections is not supported by the record.
We reject the Peoples assertion that the trial courts ruling was tentative and thus defendant "forfeited any challenge to admission of prior convictions" by "failing to seek a final ruling." When considered in context, it is clear the court intended that its ruling be final unless defendant chose to raise the issue later in the proceedings.
Subject to the trial courts discretion under Evidence Code section 352, any felony conviction that necessarily involves moral turpitude may be used for impeachment, even if the immoral trait is one other than dishonesty. (People v. Castro (1985) 38 Cal.3d 301, 306.) Its exercise of discretion will not be disturbed unless the court exceeded the bounds of reason such that the resulting harm is sufficiently grave to manifest a miscarriage of justice. (People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green).)
In determining whether to admit a prior felony conviction for impeachment, the trial court should consider the following factors: (1) whether the conviction reflects adversely on an individuals honesty or veracity, (2) the nearness or remoteness in time of the prior conviction, (3) whether it 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 impeachment by the prior conviction. (People v. Beagle (1972) 6 Cal.3d 441, 453; accord,Green, supra, 34 Cal.App.4th at p. 182.)
Defendant does not dispute that his prior convictions involve moral turpitude or that they reflect negatively on his veracity. Rather, he argues that two of the prior convictions, which were roughly 10 and 20 years old, were too remote and all four of the prior convictions, which were for theft-related offenses, were similar to the charged offenses.
The fourth factor has no application because defendant took the stand and was impeached with his prior convictions.
If a prior conviction is many years old and is followed by a blameless life, the issue of remoteness of that prior conviction assumes importance. (Green, supra, 34 Cal.App.4th at pp. 182-183.) However, 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. (Id. at p. 183.)
Here — and counting only the felony convictions the court allowed as impeachment — defendants 1987 conviction for second degree burglary was followed by three additional felony convictions in 1996, 2004, and 2006. Such a systematic occurrence of felony convictions "`create[d] a pattern that [was] relevant to [his] credibility." (Green, supra, 34 Cal.App.4th at p. 183, quoting People v. Muldrow (1988) 202 Cal.App.3d 636, 648 (Muldrow).)
Many cases have upheld impeachment of defendants or other witnesses with prior convictions that were as remote as the prior convictions allowed to be used in this case. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 (Mendoza) [10- and 20-year-old convictions allowed for impeachment because defendant did not lead legally blameless life];Green, supra, 34 Cal.App.4th at p. 183 [20-year-old conviction allowed for impeachment because defendant did not lead legally blameless life during interim]; Muldrow, supra, 202 Cal.App.3d at p. 648 [convictions over 20-year period could be used to impeach defendant].) Thus, the remoteness factor would not mitigate against admission of the priors.
We now turn to the issue of the similarity of the priors to the charged offenses. Defendant argues this factor "weighs heavily in favor of exclusion" because "three of the priors were similar to the charged offenses, and one was precisely the same crime as the one charged," namely auto burglary.
"Prior convictions for the identical offense are not automatically excluded. `The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion." (Green, supra, 34 Cal.App.4th at p. 183, quoting People v. Castro (1986) 186 Cal.App.3d 1211, 1216 (Castro).) Nor is there a limitation on the number of prior convictions that may be admitted in a particular case. "`A series of crimes relevant to character for truthfulness is more probative of credibility than a single lapse, and the trial court must weigh against that value the danger of prejudice." (People v. Holt (1984) 37 Cal.3d 436, 452, quoting People v. Duran (1983) 140 Cal.App.3d 485, 500.)
True, "[c]ombining numerosity with identity increases the likelihood of prejudice." (Castro, supra, 186 Cal.App.3d at p. 1216.) But based upon the record before us, we cannot say that the trial court abused its discretion in concluding that the probative value of defendants four theft-related convictions outweighed their prejudicial effect. Defendants trial testimony put his credibility directly at issue. The jury was not required to assess his veracity in a vacuum. (Mendoza, supra, 78 Cal.App.4th at pp. 925-926.)
Finally, any question as to whether the admission of the priors in fact resulted in prejudice is dispelled by the jurys verdict. Although credibility was a key issue in this case, the jury convicted defendant of only receiving stolen property while acquitting him of burglary, thereby demonstrating that it was able to fairly and objectively consider the evidence without being unduly prejudiced by defendants prior convictions. (People v. Watson (1956) 46 Cal.2d 818, 835.)
Accordingly, we find the trial court did not abuse its discretion in ruling defendants 1987, 1996, 2004, and 2006 convictions were admissible for impeachment purposes.
II
Defendant also asserts "that there is insufficient evidence that [he] perpetrated the crime of receiving stolen property and that there is insufficient evidence that [he] aided the crime of receiving stolen property." Because we conclude there is ample evidence to support his culpability as a direct perpetrator in the receiving stolen property offense, we need not address his argument concerning aiding and abetting.
"[T]o sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant had possession of the stolen property." (People v. Land (1994) 30 Cal.App.4th 220, 223.) Possession may be actual or constructive and need not be exclusive. (Ibid.)
Reviewing the record in the light most favorable to the judgment, as we must in a challenge to the sufficiency of the evidence (People v. Racy (2007) 148 Cal.App.4th 1327, 1332), there was substantial evidence from which a reasonable trier of fact could find that defendant was guilty of the offense of receiving stolen property.
There was no dispute the satellite radio found in the Bronco was stolen. Zimbler testified that defendant was "looking around" while Benenato took the radio, watched as Benenato reached into the truck, and left with Benenato moments later in the Bronco. Given this evidence, a reasonable trier of fact could infer that defendant knew the radio was stolen. A reasonable trier of fact could also find that defendant jointly and constructively possessed the radio given its location in the Bronco — on the center console, between defendant and Benenato — and within defendants reach.
When asked whether defendant "look[ed] over to the person that was reaching into your neighbors vehicle at the time," Zimbler responded, "Yes." Contrary to defendants assertion, based on this testimony, the jury reasonably could conclude that defendant "looked over at Benenato while Benenato was breaking into the truck."
In his reply brief, defendant asserts that "[s]ince the jury had a reasonable doubt that [he] was a perpetrator or an aider in the theft of the radio, [the People] cannot rely on any claim that [he] was involved in that theft to support its position," i.e., that defendant "was the lookout for the vehicle burglary." Defendant cites no authority for this assertion. While we were unable to locate any authority directly on point, we find the situation analogous to that where a jury renders inconsistent verdicts. "It is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] [¶] . . . [¶] An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (People v. Lewis (2001) 25 Cal.4th 610, 656; see also § 954 ["An acquittal of one or more counts shall not be deemed an acquittal of any other count"].)
The same holds true here. The jurys not guilty verdict on the burglary charge may be the result of lenity, compromise, or mistake. Thus, we reject the notion that we are precluded from relying on evidence that would support a guilty verdict on the burglary charge in determining whether defendants conviction for receiving stolen property is supported by sufficient evidence.
III
In sentencing defendant, the trial court "stay[ed] the imposition of the one-year prior prison term" enhancement. (§ 667.5, subd. (b).)
As the People point out, the enhancement should have been stricken. "Unless a statute says otherwise, an enhancement may be imposed or stricken, but . . . may not be stayed; to do so is an illegal sentence. [Citation.]" (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231.) We shall modify the judgment by striking the prior prison term enhancement.
DISPOSITION
The sentence enhancement stayed by the trial court is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur:
HULL, J.
CANTIL-SAKAUYE, J.