Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI701101, John M. Tomberlin, Judge.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Lynne McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant and appellant Angus Bruce Usher, Jr., (defendant) guilty of second degree robbery. (Pen. Code, § 211.) As a result, he was sentenced to a total term of three years in state prison. On appeal, defendant contends (1) the trial court abused its discretion in allowing his credibility to be impeached with his prior conviction for sexual battery; (2) the trial court erred in failing to preinstruct the jury on the presumption of innocence at the outset of trial; and (3) the deputy erred in giving a legal conclusion regarding his guilt or innocence. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On May 24, 2007, David Pope was driving with his wife in his car when he saw defendant and the victim, Robert Adams, in the middle of the street. A bicycle was lying on the ground near defendant and Adams. At one point, Pope saw defendant punch Adams in the face twice. Pope did not see Adams strike defendant.
San Bernardino County Deputy Sheriff James Evans was on routine patrol when he drove up to the altercation. Deputy Evans saw Adams on the ground in the street tangled up in a bicycle as defendant was punching him. It was obvious to Deputy Evans that defendant was assaulting Adams. Meanwhile, traffic was swerving around the altercation. Defendant eventually stopped hitting Adams, picked up the bicycle, and rode off with it. Adams appeared to be injured and in pain; he was bleeding from his ear. Adams told the deputy that he had just been “beat up” and “the guy stole his bike.”
Deputy Evans pursued defendant, who was riding the bicycle, in his patrol vehicle. When Deputy Evans got close to defendant, he activated his overhead lights and siren. After defendant approached the deputy, he was arrested.
Deputy Evans advised defendant of his constitutional rights, and defendant agreed to speak with the deputy. Defendant told Deputy Evans that he was at a Del Taco and had his cell phone plugged into an electrical outlet when Adams entered the Del Taco and stole his cell phone, causing the altercation. When Deputy Evans informed defendant it was wrong to beat somebody up and take their property and that it was considered strong-armed robbery under the Penal Code, defendant responded that that is what he had done and that he was sorry about it but that he had done it because he was angry. Deputy Evans searched defendant’s person and did not find a cell phone.
Adams testified he never had any contact with defendant prior to the altercation. He explained that he was on his way to work on his bicycle after having had breakfast at Del Taco when he was attacked by defendant in the middle of the street. Defendant was saying something about a cell phone and then began assaulting Adams as Adams was responding, “I don’t know what you’re talking about.” Adams was also yelling out, “call 911.” Defendant hit Adams in the head with his fists, but Adams never swung back. Eventually, defendant knocked Adams off the bicycle and rode off with it. Adams had not given defendant permission to take it. Adams was treated by paramedics and had blood coming out of his ear when they arrived.
Defendant testified on his own behalf. He stated that while he was eating his breakfast outside the Del Taco, he had his cell phone plugged into an electrical outlet inside the Del Taco. After seeing Adams leave the Del Taco and get on his bicycle, defendant noticed that his cell phone was no longer where he had left it. He jumped up because he “had a feeling.” He then confirmed that his cell phone was no longer in the Del Taco, so he disconnected his charger and looked around for Adams. When he did not see Adams, he got a ride from a coworker, who drove him down the road about a half mile. Defendant then asked around if anybody knew “Robert,” and defendant was given information that “Robert” worked at a nearby recycling center. Defendant then entered a liquor store and called the telephone company to have his cell phone service turned off. After having his cell phone service turned off, defendant walked across a parking lot and saw Adams approaching him. Defendant stopped Adams and asked Adams about his (defendant’s) cell phone. After about 10 seconds of conversation, defendant claimed that Adams stood up in front of his bicycle and took a swing at defendant. Defendant ducked and then swung back, hitting Adams with his left and right fists. Adams then fell to the ground.
Defendant further claimed that he was walking away from Adams when Deputy Evans arrived. Defendant said he did not hit Adams for the purpose of taking his bicycle, but only because he was afraid Adams was “trying to take [his] head off.” Defendant asserted that his intent was not to rob Adams and that he did not remember what his response was when Deputy Evans was talking to him about the Penal Code.
On cross-examination, defendant admitted he never saw Adams take his cell phone. He also admitted that he was the one who had approached Adams and that he had punched him. Defendant denied taking Adams’s bicycle. On rebuttal, Deputy Evans explained that defendant was quickly riding away on the bicycle.
II
DISCUSSION
A. Admission of Prior Conviction
Defendant argues the trial court abused its discretion in allowing the prosecution to impeach his credibility with an unduly prejudicial prior sexual battery conviction. Over defendant’s objection, the trial court found defendant’s prior 1991 conviction for sexual battery more probative than prejudicial, noting the elements were very different then the crime defendant was on trial for. The court also noted the crime was not overly remote as defendant had continued to commit crimes thereafter and had suffered convictions in 1996 and 2001 as well.
As a preliminary matter, “‘[n]o witness[,] including a defendant who elects to testify in his own behalf[,] is entitled to a false aura of veracity.’” (People v. Muldrow (1988) 202 Cal.App.3d 636, 646.) Therefore, “if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence under” California Constitution, article I, section 28, subdivision (d). (People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler).) In addition, “the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad.” (Id. at p. 296, fn. omitted.)
Offenses involving moral turpitude include those in which dishonesty is an element and those evincing a “general readiness to do evil.” (People v. Castro (1985) 38 Cal.3d 301, 306, 315.) Such convictions are relevant to a witness’s credibility because a person who has committed a crime of moral turpitude “is more likely to be dishonest than a witness about whom no such thing is known.” (Ibid., fn. omitted; see also Wheeler, supra, 4 Cal.4th at p. 295 [“[m]isconduct involving moral turpitude may suggest a willingness to lie”].)
“The California Supreme Court has divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element.... The second group includes crimes that indicate a ‘“general readiness to do evil,”’ from which a readiness to lie can be inferred. [Citation.] Crimes in the latter group are acts of ‘baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ [Citation.] ‘Although the inference is not as compelling in the latter case, “it is undeniable that a witness’s moral depravity of any kind has some ‘tendency in reason’ [citation] to shake one’s confidence in his honesty.”’ [Citation.]” (People v. Chavez (2000) 84 Cal.App.4th 25, 28-29 (Chavez).)
Chavez considered whether sexual battery involved moral turpitude. Following a well-reasoned analysis, the court found that sexual battery is a crime of moral turpitude. (Chavez, supra, 84 Cal.App.4th at pp. 29-30.) We disagree with defendant’s assertion that “it is highly questionable that sexual battery (Pen. Code, § 243.4, [subd.] (a)) does involve moral turpitude as that term is used in People v. Castro, supra.” We find Chavez controlling and adopt the reasoning in that opinion, and reject defendant’s contrary arguments.
“The admission of past misconduct involving moral turpitude to impeach a witness in a criminal trial is subject to the trial court’s discretion under Evidence Code section 352. [Citation.] On appeal, the trial court’s decision is reviewed for abuse of discretion.... In most instances the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise. [Citation.]” (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091-1092.)
Allowing the prosecution to impeach defendant with evidence showing that defendant had previously committed the crime of sexual battery was not an abuse of the trial court’s discretion. As Chavez aptly explained, sexual battery is a crime of moral turpitude. Additionally, direct evidence that defendant had committed a crime of sexual battery is highly probative of the relative credibility of his testimony, particularly because he attempts to advance a very different version of the events of this case than that given by the victim, eyewitness, and Deputy Evans. (Evid. Code, § 352.)
Furthermore, assuming for purposes of argument that the trial court erred in allowing the prosecutor to question defendant about his prior sexual battery conviction, the error was harmless. Error in the admission of impeachment evidence justifies reversal only if it resulted in a miscarriage of justice. (Evid. Code, § 354.) A judgment may be overturned only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
In this case, there was strong evidence implicating defendant. Defendant was observed punching Adams in the middle of the street while Adams was on the ground. Witnesses David Pope and Deputy Evans observed these actions as percipient eyewitnesses. Thereafter, defendant rode off on Adams’s bicycle, a fact defendant denied at trial, but which Deputy Evans clearly pointed out was what he had observed first hand. In fact, Deputy Evans testified that he had to pursue defendant in his patrol car as defendant quickly rode off on Adams’s bicycle following the assault. Moreover, after being arrested, it appears from Deputy Evans’s testimony that defendant admitted to Deputy Evans that he had committed the crime of robbery, but said he did so because he was angry. Finally, the jury was properly instructed that the impeachment evidence could only be used to evaluate defendant’s credibility. Since juries are presumed to understand and follow instructions, it can thus be presumed that this jury gave the impeachment evidence due weight and nothing more, in consideration of the court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 687.) Under these circumstances, it thus is not reasonably probable that, had the evidence of defendant’s prior misconduct been barred, the jury would have reached an outcome more favorable to defendant. (People v. Watson, supra, 46 Cal.2d at p. 836; Clifton v. Ulis (1976) 17 Cal.3d 99, 105-106.)
B. Preinstruction on Presumption of Innocence
After the jury was sworn and before opening statements, the trial court preinstructed the jurors as to their basic functions, duties, and conduct, and advised them it would give them further instructions on the law at the conclusion of the case. In relevant part, the court stated, “After the People present their evidence, the defense may also present evidence but is not required to do so. Because he is presumed innocent, the defendant does not have to prove that he is not guilty.” The court also explained, “Here’s reasonable doubt.... I will now explain the presumption of innocence and the People’s burden of proof. [¶] The defendant has pleaded not guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt.” The court then went on to provide the jurors with a full definition of reasonable doubt, as provided in the remaining language of Judicial Council of California Criminal Jury Instructions, CALCRIM No. 220. Specifically, the court stated, “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves that the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal. You must find him not guilty....”
Prior to the People’s opening statement, the court again commented on the role of the People and the defense. In pertinent part, the court stated, “When she [the prosecutor] has completed her opening statement, then it would be up to [defense counsel] to make an opening statement at this time. She may otherwise choose to reserve her opening statement until the People have completed their case in chief. [¶] She can make an opening statement at that time or she can never make an opening statement, remembering she has nothing to prove to you. She does not have to put on any defense in order to establish [defendant’s] innocence. I will remind you as I said before in my comments to you in instructions yesterday, what the attorneys say is not evidence.” (Italics added.)
Later, after closing arguments of counsel, the court instructed the jury on the pertinent law in the case, including a defendant’s presumption of innocence and the prosecution’s burden of proof of showing beyond a reasonable doubt that the defendant was guilty of the charged offenses. The jury was provided a written copy of all the instructions for their deliberations.
On appeal, defendant contends the trial court’s misstatement of law regarding his presumption of innocence violated his due process rights. He further claims the court has an obligation to “preinstruct” the jurors on his presumption of innocence and the standard of proof. For this assertion, defendant, who did not make any objection below to the trial court’s preinstruction of the jury or to the order of instructing the jury with the presumption of innocence and the standard of proof, relies on Penal Code section 1122, subdivision (a) to essentially claim such instructions are mandated when a court in its discretion preinstructs the jury. He then asserts the failure to do so in this case violated his state and federal due process rights, requiring reversal. Defendant’s contention is specious.
Initially, we note the record clearly reflects that the court preinstructed the jurors on the presumption of innocence and the standard of proof. Penal Code section 1093 sets out the general order in which a trial should proceed. Pursuant to subdivision (f) of that section, at the conclusion of the evidence and after the closing arguments of counsel, the court may charge the jury and give them a written copy of the instructions. Subdivision (f), however, also provides that “[a]t the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case.” Under Penal Code section 1094, the court may depart from the usual order of trial set forth in Penal Code section 1093 “for good reasons, and in the sound discretion of the Court[.]”
In People v. Valenzuela (1977) 76 Cal.App.3d 218, the court construed these statutes and concluded that it is within the sound discretion of the trial court as to when to instruct a jury and that, even when a party requests an instruction at the close of argument, the court may refuse to reinstruct on a subject already instructed on unless there is a showing that the jury may be confused on the law. (Id. at p. 221.)
Defendant has simply not shown any abuse of the trial court’s broad discretion in the order of instructing the jury on the law in this case. His reliance on Penal Code section 1122, subdivision (a) to argue that a court must preinstruct on the presumption of innocence and the standard of proof is unfounded. That section only requires that the court “shall instruct the jury generally concerning its basic functions, duties and conduct[,]” and does not mention the order of instructing on the law. The record reflects that the court fully complied with Penal Code section 1122, subdivision (a).
Defendant’s contention that the court stated an incorrect statement of law regarding the presumption of innocence when the court commented, “She does not have to put on any defense in order to establish [defendant’s] innocence,” is also unmeritorious. (Italics added.)
The United States Constitution does not require jury instructions to contain any specific language, but they must convey two concepts: the accused is presumed innocent until proven guilty and the accused may be convicted only on proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5; Taylor v. Kentucky (1978) 436 U.S. 478; Coffin v. United States (1895) 156 U.S. 432; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093.) When reviewing such an instruction, the relevant inquiry is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet” the constitutional standard. (Victor, at p. 6.)
The jury here was correctly instructed on the presumption of innocence and the standard of proof. We initially agree with the People that the challenged statement was not an instruction of law, but part of a dialogue with the jurors. In any event, as already noted, defendant did not object to the challenged statement. In addition, after the jury was sworn in and prior to deliberation, the court properly instructed the jurors about the standard of proof and presumption of innocence. Defendant did not later complain that the jury was confused as to these legal concepts to require any reinstruction. Defendant’s attempt to equate his case with one where a trial court clearly misstates or omits the presumption of innocence, and the reasonable doubt standard altogether fails. Likewise, defendant’s claim that the brief challenged statement led the jurors to have an incorrect understanding of the presumption of innocence and the standard of review also fails. Viewing the instructions as a whole, and in light of the record at trial, we conclude it is not reasonably likely the jury understood the challenged statement to mean defendant had the burden of establishing his innocence. (People v. Osuna (1969) 70 Cal.2d 759, 767-768.)
C. Whether Deputy Evans Rendered a Legal Conclusion
During trial, Deputy Evans testified that “the Penal Code—in the Penal Code that taking the property from someone else by means of force or fear is considered strong-armed robbery, and after I said that, [defendant] advised that that is what he did and that he was sorry.” Defense counsel thereafter immediately objected based on foundation.
Defendant complains that the deputy’s “conclusory statement” was an improper testimony that the court should have excluded as the deputy was allowed to testify as to his opinion of law and confused the elements of the crime to the jury.
“If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” (Evid. Code, § 800.) The challenged testimony was not prohibited by Evidence Code section 800. Not only was Deputy Evans a percipient witness to the altercation, he also was a witness as to what he told defendant. Deputy Evans merely testified as to his interview with defendant (what he told defendant near the scene of the crime and what defendant’s response was to the statement), rather than rendering a legal conclusion or giving his opinion at trial. Deputy Evans did not state his conclusion that defendant had committed a strong-armed robbery, but described what he told defendant and defendant’s response thereto. Deputy Evans’s testimony was helpful to the jury’s understanding of defendant’s state of mind following the incident. In addition, Deputy Evans did not opine on the guilt or innocence of defendant. He did not opine that defendant was guilty of robbery.
People v. Torres (1995) 33 Cal.App.4th 37, relied upon by defendant, is inapposite. In that case, the opinion testimony found objectionable was testimony by an expert who was not a percipient witness. (Id. at pp. 43-45.) Torres did not address the admissibility of lay opinion testimony by a percipient witness.
Even if Deputy Evans did not testify as a percipient witness, but rather as an expert, and his challenged testimony should have been excluded, we would discern no prejudice. An improperly admitted opinion does not result in a reversal if it is not reasonably probable the jury would have arrived at a different result had the opinion not been admitted. (People v. McFarland (2000) 78 Cal.App.4th 489, 496.) As previously noted, the evidence against defendant was overwhelming. Two eyewitnesses, Pope and Deputy Evans, as well as the victim, testified that defendant assaulted the victim with his hands in the middle of a street and then took the victim’s bike. On the other hand, defendant’s defense was incredible. Even if the jury were to believe the victim had taken defendant’s cell phone and defendant approached the victim to retrieve his cell phone back, the evidence nonetheless shows that defendant had committed a robbery. Hence, in our view, even if the trial court erred in admitting the challenged testimony of Deputy Evans, there is no reasonable probability of an outcome more favorable to defendant.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.