Opinion
A129028
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH RICHARD WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-091303-8)
INTRODUCTION
Defendant Joseph Richard Wilson allegedly entered a garage in which Michael Washington was sleeping. A jury convicted Wilson of first degree burglary. Washington testified at trial that Wilson entered the garage, waking him. Defendant testified at trial that he never entered the garage. Each man had numerous prior convictions involving moral turpitude, but Washington had many more than defendant. The trial court limited the number of convictions that could be used for impeachment of Washington to four, and the number that could be used for impeachment of defendant to three. The trial court also sanitized all seven prior convictions, so that the jury would learn only that the two men had suffered prior convictions for moral turpitude crimes, and their dates.
On appeal, defendant argues the trial court abused its discretion in limiting and sanitizing Washington's convictions, and that the error was prejudicial because the jury would have had a different impression of Washington's credibility if it had known more about his criminal record; that he is entitled to additional presentence credits for time spent in prison on a parole violation, and that he should not have been assessed a probation report fee because there is insufficient evidence to prove that he had the ability to pay it. Defendant also argues that his counsel was ineffective for failing to impeach Washington with all of his prior convictions, and failing to object to their sanitization; eliciting prejudicial evidence from defendant, and failing to object to the probation fee. We affirm because we find no abuse of discretion or ineffective assistance of counsel.
STATEMENT OF THE FACTS
In July 2009, Elizabeth Washington lived in a three-bedroom residence in Antioch with her daughter and her nephew, Michael Washington. Michael Washington was sleeping on a couch in the attached garage. Ms. Washington did not give defendant permission to enter her house; Michael Washington did not give defendant permission to enter the garage.
In the early morning hours of July 13, Michael was on the couch, with a sheet over his head to keep dust out of his nose and eyes, when he "heard a motion of someone slid[e] up under the garage [door]." The garage door was open about two feet. There was aluminum foil and other material on the ground. Next he heard some rattling and the moving around of "stuff" located on a table. At this point, he "rose the sheet off from over my head [and] saw the defendant standing up in my garage." He made direct eye contact with defendant. He testified there was "no chance that I'm mistaken. I know he was in my garage. . . . I seen him with my own eyes."
Washington said, "What the hell?" "[A]t that time he seen me, he dropped to his . . . knees and fled." As defendant rolled out from under the door, Washington "jumped up . . . dived up under it [and] gave chase."
Washington chased defendant down the sidewalk, into an alleyway and out to a street where Washington caught up to defendant and had him up against a fence. Washington was saying, "Someone help me. Someone help me. This guy just burglarized my house. Would people come out and help me?" Washington picked up a big rock and held it in his hand. Defendant was telling Washington to let him go, "I didn't take nothin', man." When Washington briefly took his eyes off defendant, defendant jumped over a fence into a yard. Washington ran through some loose boards in the fence and followed him.
Defendant swung a shovel at Washington three or four times, but never hit Washington with it. Washington grabbed a 10-foot fiberglass pole to defend himself and hit defendant in the legs with it twice, breaking the pole. Defendant then hopped over the fence into the next yard, landing headfirst on concrete. At that point, Washington snatched the shovel and told defendant to get down and not move. Defendant "laid down on his stomach and I got on top of his back." The police arrived in 15 to 20 seconds.
Kevin Morrow and Dustin Kelly, both of whom lived in Antioch on July 13, 2009, saw two men up against a fence. One was white or Mexican, and the other was a black man. Each of them heard the black man yelling for someone to call the police. Each of them saw the men jump over a fence.
When Antioch Police Officer James Perkinson arrived at the scene, he saw a black man holding a shovel and defendant on the ground. The black man said defendant had tried to break into his home. Officer Perkinson searched defendant's pockets and found two screwdrivers and shaved keys.
Defendant testified on his own behalf. He denied ever entering Washington's garage. He said he was walking down the street at 7:30 in the morning on the way to meet his friend Nick in Antioch when he dropped his phone. It broke into pieces, and the back cover landed in the driveway of a residence. Washington came out of the garage, stood near a car, and asked him what he was doing. Defendant "told him, 'It's all right. I'm just passing through. I'm on my way.' " Washington said, " 'No, fuck that. I'm going to get my gun.' " Frightened, defendant started "trotting along." Washington gave chase, yelling " 'Call 911. He stole something from me.' " Defendant, now running full speed, went down an alley and jumped over fences to avoid getting attacked by Washington. Washington caught up with him, hit him in the knee with a wooden furniture leg, and on the head with a shovel. Defendant suffered two head wounds that required 14 stitches. He was carrying the items that were found in his pockets because he was asked to bring them to help his friend gain access to his car. The friend had locked his car keys in the trunk of his newer model car and he did not want to "spend 50 to 60 bucks for a tow truck to come and open [it]." Defendant knew these tools are also used by thieves.
STATEMENT OF THE CASE
Defendant was charged by information with first degree burglary of an inhabited dwelling. (Pen. Code, § 459, 460, subd. (a).) The information also alleged that a nonaccomplice was in the residence at the time of the burglary, that defendant personally used a deadly weapon, a shovel, and that he was on parole when he committed the offense. (§ 667.5, subd. (c)(21), 12022, subd. (b)(1), 1203.085, subd. (b).) In addition, the information alleged a prior strike, a prior serious felony conviction and four prior prison terms. (§ 667, subds. (b)-(i)/1170.12, 667, subd. (a)(1), 667.5, subd. (b).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
The jury convicted defendant of first degree residential burglary while another person was in the residence. The jury found not true that defendant used a deadly weapon. In a bifurcated trial, the court found three of the four charged prior convictions to be true. It also found that defendant was on parole when he committed the current offense, and had served the prior prison terms. On June 23, 2010, the court sentenced defendant to state prison for nine years. A timely notice of appeal was filed.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion by Limiting Impeachment of the Complaining Witness.
Defendant contends the trial court abused its discretion by allowing him to impeach Michael Washington with only four of his 11 prior convictions and none of his arrests. Specifically, he contends that the court erred in excluding "the 1984 and 1992 thefts, 1985 and 1995 drug offenses, 1987 robbery, and the 2000 spousal abuse conviction," as well as Washington's 2009 arrest for spousal abuse. He claims the rulings were in error because these convictions bore directly on honesty, were not too remote in light of Washington's failure to lead a legally blameless life, and Proposition 8 abrogated previous case law limiting the use of crimes of violence for impeachment. As a result of the court's error, he argues, Washington had an undeserved aura of credibility before the jury. As we explain below, we find no abuse of discretion.
Factual Background
Defendant sought to impeach the complaining witness, Michael Washington with all of his criminal history, which included nine arrests, none of which resulted in convictions of any sort, and 11 convictions. The trial court declined to allow impeachment with arrests, stating that it was the court's "standard practice with defendants, and it should be with the witness as well" to exclude arrests: "I was already a sitting judge when . . . [People v.] Wheeler [(1992) 4 Cal.4th 284 (Wheeler)] . . . came down that said you could put in something other than felony convictions, and that's all fine, but a mere arrest of somebody just leads to a mini trial as to whether something happened or not." The court allowed Washington to be impeached with a 1994 conviction for welfare fraud, a 1994 conviction for perjury, and a 1993 conviction for second degree burglary. After defense counsel argued that "the jury's going to get the impression that 1992 was Mr. Washington's only bad year and that he has since 1992 not . . . committed any crimes of moral turpitude," the court reconsidered its ruling and also allowed impeachment with Washington's most recent conviction, a simple battery (§ 242) from 2006.
Washington had: (1) four arrests for corporal injury of a cohabitant (§ 273.5), one in 2009, one in 2002, one in 1992, and one in 1993; (2) one arrest for felony assault (§ 245, subd.(a)) in 1992; (3) two arrests for robbery (§ 211), one in 1981 and one in 1982, both of which resulted in dismissals, and (4) one arrest for shooting at an inhabited dwelling (§ 246), and one for possession of a gun by an ex-felon (§ 12021) in 1982.
Although defendant claims that Washington had suffered 12 prior convictions for moral turpitude, the chart prepared by defense counsel shows 11 such convictions: (1) one conviction for petty theft (§ 484) in 1984; (2) one conviction for robbery (§ 211) in 1987; (3) one conviction for furnishing a counterfeit controlled substance (Health & Saf. Code, § 11355) in 1985; (4) & (5) one conviction for welfare fraud (Welf. & Inst. Code, § 10980), and one conviction for perjury (Pen. Code, § 118) in 1994; (6), (7) & (8) one conviction for second degree burglary (§§ 459/460, subd. (b)), one conviction for petty theft with a prior theft conviction (§§ 484/666), and one conviction for simple battery (§ 242) in 1993; (9) one conviction for sale/transportation of a controlled substance (Health & Saf. Code, § 11352. subd. (a)) in 1995; (10) one conviction for battery on a cohabitant (§ 273.5) in 2000; and (11) one conviction for simple battery (§ 242) in 2006.
The court also allowed impeachment of defendant with three prior convictions: a car theft from May 2003, a commercial burglary from June 2006, and a residential burglary from January 2008. The court indicated that it felt it was "important to be somewhat equal in those things, to not load up one with" too many convictions. Furthermore, the court explained that it did not allow impeachment with the battery on a cohabitant because it was "more of a violent situation," and the risk that it would be used to show a propensity to commit crime instead of impeachment of credibility was "too high."
According to the probation report, defendant had six prior convictions: four convictions for car theft (Veh. Code, §10851), two misdemeanors in 2001, one felony in 2001, and one felony in 2003; one felony conviction for second degree burglary (§§ 459/460, subd. (b)) in 2006; and one conviction for first degree burglary (§§ 459/460, subd. (a)) in 2008.
At defense counsel's request, the court agreed to "sanitize" defendant's convictions so that the jury would learn only that defendant had suffered convictions for "a felony of moral turpitude" and the date of conviction. On its own initiative, the court extended its ruling to Washington, so that the jury would learn only that he had convictions for "two felonies and a misdemeanor of moral turpitude" and the dates of conviction. The court stated: "I think that's a fair request on the defense's part. There is such a concern about [Evidence Code section] 1101[, subdivision] (a) propensity inclusions. I think that gives us a picture." Defense counsel did not object to the trial court's extension of its ruling to a prosecution witness.
Washington was actually impeached with the years in which the offenses were committed.
Analysis
Article 1, section 28, subdivision (f) of the California Constitution provides in relevant part: "Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding." For the purposes of this subdivision, the term "prior felony conviction" means a conviction that necessarily involves moral turpitude, i.e., a readiness to do evil. (People v. Castro (1985) 38 Cal.3d 301, 306, 313-317 (plur. opn.); id. at p. 322 (conc. & dis. opn. of Grodin, J.) (Castro).)The trial court retains its discretion under Evidence Code section 352 "to bar impeachment with such convictions when their probative value is substantially outweighed by their prejudicial effect." (People v. Clair (1992) 2 Cal.4th 629, 654 (Clair), citing Castro, supra, 38 Cal.3d at pp. 306-313 (plur. opn.); id. at p. 323 (conc. & dis. opn. of Bird, C. J.).) In exercising this discretion, the trial court is "to be guided-but not bound-by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441, [citation] and its progeny. [Citation.] When the witness subject to impeachment is not the defendant, those factors prominently include whether the conviction (1) reflects on honesty and (2) is near in time. [Citation.]" (Clair, supra, 2 Cal.4th at p. 654.)
We review the trial court's ruling on impeachment of a prosecution witness with his or her prior convictions for abuse of discretion. (Clair, supra, 2 Cal.4th at p. 655.)
Clair, supra, 2 Cal.4th 629, is instructive. In that case, the prosecutor moved for an order prohibiting the defendant from impeaching an " 'important witness' " (id., at p. 655) with a 22-year-old prior conviction for voluntary manslaughter. Conceding that the conviction necessarily involved moral turpitude, the prosecutor successfully argued that the prior conviction was remote in time, did not strongly reflect on honesty, and was not followed by any other convictions. (Id. at p. 654.) The trial court found that the prior conviction was marginally relevant, but highly prejudicial and excluded it under Evidence Code section 352 "primarily because of the remoteness of time." (Clair, supra, at p. 655.)
On appeal, defendant Clair argued that the trial court had erred in granting the prosecutor's motion, but our Supreme Court found no abuse of discretion. "It was altogether reasonable for the court to conclude that the conviction was 'highly prejudicial' and only 'marginally relevant' 'because of the remoteness of time.' Surely, another court might have concluded otherwise. That fact, however, reveals nothing more than that a reasonable difference of opinion was possible. Certainly, it does not establish that the court here 'exceed[ed] the bounds of reason . . . .' [Citation.]" (Clair, supra, 2 Cal.4th at p. 655.)
The Clair court acknowledged that article 1, section 28, subdivision (f) of the California Constitution "militates in favor of allowing a party to use any prior felony conviction to impeach any witness in any criminal proceeding." (Clair, supra, 2 Cal.4th at p. 655.) It also recognized that the prosecutor characterized the witness as an "important witness." (Ibid.) However, the Supreme Court observed: "The [trial] court was aware of these matters as well. Nevertheless, it proceeded to grant the People's motion. We cannot say that its decision was unreasonable." (Ibid.)
Applying this standard to the case before us, we conclude that the trial court did not abuse its discretion. Unlike the trial court in Clair, the trial court in this case did not totally preclude impeachment. The trial court reviewed Washington's criminal record and permitted the defense to impeach him with three convictions relevant to honesty—welfare fraud, perjury, and burglary—despite the fact that the three convictions were 16 and 17 years old. The court excluded a 26-year-old petty theft, a 25-year-old drug offense, a 23-year-old robbery, a 17-year-old burglary, petty theft with a prior, and misdemeanor battery, a 15-year-old drug offense and a 10-year-old battery on a cohabitant. When defense counsel complained that the jury would be left with the false impression that Washington had an unblemished record after 1992, the court reconsidered and allowed impeachment with a 2006 misdemeanor conviction for simple battery.
We cannot say the court's decision was unreasonable, capricious or arbitrary. The convictions excluded by the court were minimally probative, but carried a high potential for prejudice. All but one of Washington's convictions was extremely old. Some of those excluded by the court were for crimes of domestic violence that did not reflect especially on honesty, but did tend to brand Washington as a bad person. Thus, the excluded convictions were, at most, minimally probative and highly likely to prove prejudicial. Given that Clair cautions that reflection on honesty and nearness in time are the most prominent factors that bear on impeachment of a witness, the court did not act unreasonably in attempting to satisfy defendant's legitimate need to impeach Washington's credibility with the most probative and least potentially prejudicial convictions at its disposal.
Defendant cites People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599 (Burrell-Hart); People v. Taylor (1980) 112 Cal.App.3d 348, 363-364; People v. Reeder (1978) 82 Cal.App.3d 543, 553 (Reeder);and People v. Mizer (1961) 195 Cal.App.2d 261, 269 (Mizer),for the proposition that "[i]n applying Evidence Code section 352, the court must admit defense evidence which is more than slightly probative, notwithstanding its potential to prejudice the prosecution's case." In Burrell-Hart, the court stated: "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense. (People v. Taylor (1980) 112 Cal.App.3d 348, 364 [citation]; [Reeder, supra,]82 Cal.App.3d [at p.] 553 [citation].) Of course, the proffered evidence must have more than slight relevancy to the issues presented. [Citation.]" (Burrell-Hart, supra, 192 Cal.App.3d at p. 599, italics added.) In Mizer, the court stated: "We believe that it is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact." (Mizer, supra, 195 Cal.App.2d at p. 269, italics added.) These cases are inapposite because, as discussed above, the excluded convictions were minimally probative at best.
Defendant faults the trial court for stating "[i]t's important to be somewhat equal in those things, to not load up one with . . . ." Defendant argues this comment shows that the trial court was "simply balancing the number of priors to be admitted, not exercising its discretion in a sound manner as to which priors should be admitted." We disagree.
"[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. [Fn. omitted.] Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Wheeler, supra, 4 Cal.4th at p. 296.) As we read the record, the trial court's reasoning, taken as a whole, indicated that it was endeavoring to ensure that the impeachment evidence admitted against both Washington and defendant gave the jury a fair picture of each man's present character for honesty without "(a) necessitat[ing] undue consumption of time or (b) creat[ing] substantial danger of undue prejudice, of confusing the issues or of misleading the jury." (Evid. Code, § 352.) We see no abuse of discretion in the court's ruling that allowed the jury to see that neither man had an undeserved aura of veracity when testifying.
The Trial Court Did Not Abuse Its Discretion by Excluding Evidence of Washington's 2009 Arrest for Spousal Abuse.
On cross-examination, Washington explained that, at a prior hearing, he did not remember his prior convictions because "[i]t's been so long again in my life, [and] I have done changed my life . . . ."
At the preliminary hearing, Washington was asked, "Do you recall being convicted of a misdemeanor battery on April 3rd, 2006?" He testified he could not remember.
The trial court did not permit defense counsel to impeach Washington with his 2009 arrest for corporal injury of a cohabitant, rejecting defense counsel's argument that Washington had "opened the door" to impeachment by "creating an impression to the jury that since 2006 he has had absolutely no run-ins with the law . . . ." Reiterating that "[a]rrests are almost never admissible . . . ," the court observed that maybe Washington had not created that impression. The court observed that the question asked at the preliminary hearing was about the date of conviction, not the conduct, and Washington's answer may have reflected his inability to remember the date of conviction only. Further, the court reasoned, "You can clean up your act and be wrongfully arrested. That's the thing that concerns me." The court ruled: "So here's my point. I see your point too, and I see that . . . somebody could construe that as saying, 'I don't remember the conviction at all, whatever [the] date.' But when you take that with the big picture, which is that I have ruled that it is highly prejudicial for certain types of crimes to come in when there's ample conviction of felony impeachment under the witness instruction that's given about conviction of a felony that coming into things that are highly emotional to people, such as domestic violence, any violent crimes, that it's a 352 situation . . . . [¶] And I think it's 352. I don't debate the sincerity of your argument about the law, that it might be impeachable, but I think when you weigh the probative value with the date problem . . . and the fact that he did admit other felonies at the prelim, he wasn't denying anything, and . . . the purpose of my allowing these questions is simply to put him in the category of someone convicted of a felony . . . . [¶] I think the 352 analysis to me is rather clear so I'm going to deny the request to reopen that topic."
Moreover, the court permitted defense counsel to cross-examine Washington extensively about the circumstances under which his memory about his prior convictions improved by the time of trial. Washington testified that the district attorney had given him the transcript of the prior hearing to read "and he told me that I had to plead moral competence [sic]or whatever how you say it, on those cases because those cases did happen in my life at one point." Washington did not repeat his assertion that he had changed his life.
We perceive no abuse of discretion. The court understood and carefully weighed the arguments for and against allowing impeachment with a recent arrest for corporal injury of a cohabitant and struck the balance in favor of exclusion. The court struck a fair balance. As defendant acknowledges, arrest evidence is normally excluded because its prejudicial effect substantially outweighs its probative value (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523) and it tends to lead juries to infer bad character. (Grudt v. Los Angeles (1970) 2 Cal.3d 575, 592.) Here, in addition, the arrest was for a violent and emotionally charged crime that Washington may have disputed. Moreover, it was unclear whether Washington had denied remembering the 2006 battery offense itself or the date of conviction at the preliminary hearing. In either event, clarifying the matter to set the stage for impeachment with a later arrest promised to be a time consuming, confusing and potentially prejudicial endeavor, while the probative value of a somewhat recent arrest for a violent offense was minimal at best, especially in light of the availability of convictions for offenses that were highly probative on the question of veracity. Finally, the court allowed counsel leeway to explore Washington's prior memory lapses in other ways. The trial court did not abuse its discretion in excluding evidence of Washington's 2009 arrest for corporal injury of a cohabitant.
The Trial Court Did Not Abuse Its Discretion by Sanitizing Washington's Prior Felony Convictions.
Defendant also argues that the trial court abused its discretion by sanitizing Washington's felony convictions. As noted, defense counsel requested that one of defendant's prior convictions be sanitized so that the jury would not be prejudiced by learning that he had a prior conviction for the same offense as the one for which he was on trial. The court granted that request, finding it "fair," because of concerns about propensity evidence under Evidence Code section 1101, subdivision (a). The court evidently considered the risk so grave that the jury would misuse defendant's and Washington's convictions as evidence of bad character, that it opted to sanitize all of their prior convictions. Sanitizing prior convictions by excluding evidence of the nature of the conviction is a well-established method of minimizing the prejudice from impeachment by prior convictions. (See, e.g., People v. Valentine (1986) 42 Cal.3d 170, 171; People v. Massey (1987) 192 Cal.App.3d 819, 825.) In our view, it was not unreasonable for the court to seek to minimize the risk that the jury would be distracted from its task of making relative credibility determinations by the sheer variety of prior convictions suffered by both men.
Defendant argues, however, that "[n]o court has sanctioned sanitization of the prior convictions of a witness other than the defendant." He posits that since "the purpose of sanitization is to prevent undue prejudice to the defendant from impeachment with priors that are similar to the charged offense, or which are inherently inflammatory in nature, it would seem to be inappropriate as a matter of public policy to apply sanitization to prosecution witnesses." We disagree because the People, too, are entitled to a fair trial. Moreover, "[t]he trial court has a statutory duty to control trial proceedings, including the introduction and exclusion of evidence. [Citation.]." (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Sanitization falls well within the court's discretion on evidentiary issues involving impeachment of any witness.
Article 1, section 28, subdivision (f) of the California Constitution is not limited to criminal defendants. Neither is Evidence Code section 788, which permits impeachment by felony conviction, nor Wheeler, supra, 4 Cal.4th 284, which allowed impeachment by misdemeanor conduct, ["a witness's prior convictions are relevant for impeachment, if at all, only insofar as they prove criminal conduct from which the factfinder could infer a character inconsistent with honesty and veracity. [Citations.]" (Id. at p. 299; italics added.) Nor is Evidence Code section 452.5, which created the hearsay exception that paved the way for impeachment by misdemeanor conviction (Wheeler, supra, 4 Cal.4th at p. 300, fn. 14; People v. Duran (2002) 97 Cal.App.4th 1448, 1460). And, the rationale for felony impeachment applies to any witness. (Castro, supra, 38 Cal.4th at p. 314 ["if the felony of which the witness has been convicted does not show a 'readiness to do evil,' the fact of conviction simply will not support an inference of readiness to lie."], italics added.) The court did not err in extending the benefit of sanitization to a prosecution witness.
Inasmuch as we find no error, we need not and do not address defendant's argument that "the error in limited impeachment was harmless beyond a reasonable doubt." Further, since the Attorney General does not argue forfeiture, and since we have addressed on the merits defendant's claim that sanitization of Washington's prior convictions was error, we need not and do not reach defendant's arguments against a finding of forfeiture.
Defendant Has Not Demonstrated Ineffective Assistance of Counsel.
Defendant's final impeachment-related contention is that his counsel rendered ineffective assistance of counsel by (1) failing to object to the sanitization of Washington's prior convictions; (2) failing to impeach Washington with all four prior convictions authorized by the court; and (3) inadvertently opening the door to the prosecution's impeachment of defendant with a fourth prior conviction. According to defendant, Washington's crimes of violence (spousal abuse, assault and battery), "would have been admissible pursuant to Evidence Code section 1103, subdivision (a)(1) in support of [defendant]'s claim of self-defense against Washington's aggression." Defendant also argues that the combination of impeaching Washington with only two prior convictions, and impeaching defendant with four prior convictions, was "especially prejudicial" because it created the impression that "Washington, who had a much worse record, . . . look[ed] as if he had only two felonies which had happened a long time ago and that he had subsequently cleaned up his life, whereas [defendant] appeared to have so many felonies that he was trying to hide some of them." For the reasons discussed below, we disagree.
Under state law, "[a] defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 440; People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).)The rule is the same under federal law. "To establish ineffective assistance of counsel 'a defendant must show both deficient performance by counsel and prejudice.' " (Premo v. Moore (2011) ____ U.S. ____ [131 S.Ct. 733, 739] citing Knowles v. Mirzayance (2009) 556 U.S. 111, ____, [129 S.Ct. 1411, 1419].) However, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland).)Prejudice, in this context, means a reasonable probability of a different result. " ' " '[A] reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' " (Anderson, supra, 25 Cal.4th at p. 569; see also Strickland, supra, 466 U.S. at pp. 687-688.)
Analyzing defendant's claims with these principles in mind, we find no prejudice from counsel's asserted failures to object. Washington was impeached not only with his prior convictions, but also with numerous inconsistencies between his prior testimony and his trial testimony about where defendant was standing when Washington first saw him, whether he was facing the doorway into the house, and whether defendant touched anything on the work table. Furthermore, Washington's 2006 conviction left no doubt that he had not entirely cleaned up his life since 1992. In our view, impeachment with one more conviction from 1992 does not create a reasonable probability of a more favorable outcome.
Similarly, defense counsel's inept handling of defendant's prior convictions for impeachment, which opened the door to the prosecution's introduction of a fourth prior conviction, did not result in potentially game-changing prejudice. Defendant forthrightly admitted the conviction, and the trial court quickly moved to minimize the importance of the prior conviction. Moreover, it is clear defendant's credibility was not completely destroyed, inasmuch as the jury evidently believed his testimony that he did not attack Washington with a shovel. For this reason also, there is no merit in defendant's claim that he was prejudiced by defense counsel's failure to argue that Washington's crimes of violence were admissible under Evidence Code section 1103 to support defendant's claim of self-defense.
[Defense Counsel]: "Mr. Wilson, . . . you, like Mr. Washington, have suffered convictions, correct?
[Defendant]: "Yes.
[Defense Counsel]: "I'm sorry. Isn't it true that you were convicted of a crime of moral turpitude in—well, were you convicted of two crimes of moral turpitude in 2003?
[Defendant]: "Yes.
[Defense Counsel]: "Do you remember the dates of the first 2003 conviction?
[Defendant]: "I would recall they were in July.
[Defense Counsel]: "Okay. And then the—there was a second conviction in 2003?
[Defendant]: "The same day as—I got sentenced the same day at the same time.
[Defense Counsel]: "And then there was a conviction in 2006, correct?
[Defendant]: "Yes.
[Defense Counsel]: "And that was a crime involving moral turpitude, correct?
[Defendant]: "Yes.
[Defense Counsel]: "It was a felony?
[Defendant]: "Yes.
[Defense Counsel]: "So you've committed three felonies?
[Defendant]: "Yes, I have."
On cross-examination of defendant, the prosecutor's first question was: "Isn't it true that you were also convicted of a felony crime of moral turpitude from . . . 2008?
[Defendant]: "Yes.
[Prosecutor]: "And in fact the conviction date was January 31st, 2008?
[Defendant]: "That's not the correct date. It is March 26th.
[The Court]: "Counsel, I'm going to ask you to move along. I don't see any serious relevance between the difference between January and March."
On the other hand, defendant had potential burglary tools in his pocket, two independent witnesses corroborated Washington's testimony it was he, and not defendant, who was aggrieved enough to be calling for the police, and he impliedly admitted that he entered the garage when he implored Washington to let him go because he didn't take anything. On this record, we are not convinced that the combination of impeaching Washington with only two prior convictions, and impeaching defendant with four prior convictions, created the impression that Washington had only a few, very old felonies, and that he had subsequently cleaned up his life, whereas defendant had so many felonies he was trying to hide them. Defendant has not demonstrated he was prejudiced by counsel's asserted failings.
Defendant is Not Entitled to All of the Additional Presentence Credits He Seeks.
The trial court awarded defendant 180 days of custody credits and 27 days of conduct credits, for a total award of 207 days. Defendant claims that he is actually entitled to 346 days of custody credits and 51 days of conduct credit for a total of 397 days. The Attorney General concedes that defendant should be credited for 212 days of custody credit for the date of arrest (July 13, 2009) and from November 24, 2009 to and including June 23, 2010, the date of sentencing, for a total of award of 243 days, including 31 days of conduct credit.
The Attorney General disputes that defendant is entitled to credit from July 14, 2009 to November 23, 2009, based on a remark by the trial court that "the minutes show[ed]" defendant had posted bail. Defendant disagrees that the minutes show he posted bail, and argues that he could not have posted bail because he was continuously in the custody of the California Department of Corrections and Rehabilitation (CDCR) for a parole violation.
Our review of the record demonstrates that defendant is correct that the minute orders do not show he posted bail. However, the CDCR log pertaining to defendant's prior prison terms demonstrates that the current offense was not the sole basis of his parole revocation. Therefore, as we explain, he is not entitled to dual credit for that period of time.
Section 2900.5, subdivision (b), (hereafter section 2900.5) provides that "credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." In People v. Bruner (1995) 9 Cal.4th 1178, our Supreme Court construed section 2900.5 as requiring a rule of strict causation to be applied in cases where the same conduct is implicated in multiple proceedings: "[W]e hold . . . that where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Under Bruner's "rule of strict causation: '[a] prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.' ([Bruner, supra,] 9 Cal.4th [at p. 1191], italics added; [citations].)" (People v. Callahan (2006) 144 Cal.App.4th 678, 685.)
Bruner's strict causation rule precludes presentence credits for the time defendant spent in prison custody on a parole violation because the record shows that defendant's loss of liberty was not solely attributable to proceedings related to the same conduct for which he was convicted in this case. The CDCR chronological history log shows that a parole hold was placed on defendant one day after he was arrested on this matter. It also shows that on August 18, 2009, his parole was revoked and he was assessed a seven-month parole term for three out of five charges ("dismissed charges 2 and 5"). And, as of August 26, 2009, defendant was discharged from Alameda County Case Nos. H34082 and H34081, but he remained in custody on Alameda County Case No. H44136 and Contra Costa County Case No. 050605683. None of those case numbers relates to this case. As of November 19, 2009, defendant had spent 128 days on the parole revocation that commenced with the hold placed on July 14, 2009. He was finally released from custody on the parole revocation on November 24, 2009.
In sum, our record does not disclose the nature of the five revocation charges. However, it does reveal that defendant's parole revocation did not solely involve his conduct in the case under review here. Accordingly, we find no error with respect to the trial court's denial of defendant's request for custody credits related to his parole revocation, since he cannot demonstrate that the current case was a "but for" cause of his incarceration on a parole revocation. At best, he has demonstrated "that the misconduct which led to his conviction and sentence was 'a' basis for the revocation matter as well." (Bruner, supra, 9 Cal.4th at p. 1194.) Under Bruner, this showing is not sufficient to justify the award of credits. (Ibid; see also People v. Purvis (1992) 11 Cal.App.4th 1193, 1196 [denying custody credits where defendant spent approximately eight months in confinement before sentencing where his initial arrest for parole violations was based only in part on conduct underlying his present conviction for forgery and auto theft], cited approvingly in Bruner, supra, 9 Cal.4th at p. 1191.)
Therefore, defendant is only entitled to 212 days of custody credit for the date of arrest (July 13, 2009) and from November 24, 2009 to and including June 23, 2010, the date of sentencing, for a total of award of 243 days, including 31 days of conduct credit. We will order that the abstract of judgment be corrected to reflect that amount.
Probation Report Fee
The probation report recommended, and the trial court imposed, a probation report fee of $176. Defendant contends that the record lacks sufficient evidence to prove that he had the ability to pay that amount. He points out that, according to the probation report, he had no assets. Defendant reported that as a teenager he held a variety of jobs. However, at the time of sentencing, he was 28 years old. Nevertheless, his grandmother reported that he "had a good job," although the report does not specify when he had the job or what the job was. Defendant emphasizes that he was about to start a nine-year-prison sentence, and thus, there was no likelihood that he would be able to obtain employment within one year from the date of the hearing. Defendant acknowledges that he did not object to the imposition of the probation report fee in the trial court, but argues that no objection below is required in order to preserve a due process claim of insufficient evidence for appeal. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397; Jackson v. Virginia (1979) 443 U.S. 307, 318 (Jackson).)
Other than citing Jackson, supra, 443 U.S. 307 for the proposition that "[a] judgment made in the absence of substantial evidence is a violation of due process," defendant does not explain how due process is violated here. We note that due process concerns have not arisen in any of the myriad cases finding forfeiture for failure to object.
Citing People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis),the People assert that defendant has forfeited his claim by failing to object to imposition of the fee at sentencing. For the following reasons, we agree.
A condition precedent to imposition of a probation report fee is the determination that defendant has the ability to pay it. As provided in pertinent part by section 1203.1b, subdivision (b): "The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative."
The term "ability to pay" as defined by section 1203.1b, subdivision (e), "means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the preplea or presentence report, . . . and probation supervision or conditional sentence, and shall include, but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." Under the statute, the defendant's " 'ability to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783 [drug program fee].)
The statute also sets out elaborate procedures for determining a particular defendant's ability to pay. Here, as in Valtakis, supra, 105 Cal.App.4th 1066, none of these procedures were followed. The probation report made no determination of defendant's ability to pay, and did not advise defendant of his right to a separate hearing on that issue, although it did recommend that defendant pay a probation report fee of $176. On the other hand, it is evident that the court here made some sort of implicit determination of defendant's financial resources, because at the same time that it imposed the modest probation report fee, it declined to impose attorney's fees, stating, "The court finds under all the facts and circumstances that it's unlikely that you have the financial ability to pay attorney's fees so the payment of attorney's fees will be stayed."
"The forfeiture rule for sentencing error is a judicially created doctrine invoked as a matter of policy to ensure the fair and orderly administration of justice." (People v. Butler (2003) 31 Cal.4th 1119, 1130 (conc. opn. of Baxter, J.).) "In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ' " 'discretionary sentencing choice[].' " ' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 880-881, fn. omitted.)
In a series of cases involving appellate challenges to sentencing decisions, our Supreme Court has consistently "distinguished between unauthorized sentences—those that 'could not lawfully be imposed under any circumstances in the particular case' [citation]—and discretionary sentencing choices—those 'which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.' [Citation.] As to the former, lack of objection does not foreclose review: 'We deemed appellate intervention appropriate in these cases because the errors presented "pure questions of law" [citation] and were " 'clear and correctable' independent of any factual issues presented by the record at sentencing." [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.' [Citation.] With respect to the latter, however, the general forfeiture doctrine applies and failure to timely object forfeits review. Such '[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention.' [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1113.)
See, e.g., People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Welch (1993) 5 Cal.4th 228, 234-235; People v. Scott (1994) 9 Cal.4th 331, 351-354; People v. Tillman (2000) 22 Cal.4th 300, 302; People v. Smith (2001) 24 Cal.4th 849, 852. Refinement of the forfeiture rule continues. (People v. McCollough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513.) In that case, the Court of Appeal applied the forfeiture doctrine to the defendant's argument that the record did not contain substantial evidence of his ability to pay the unobjected to $270.17 jail booking fee (Gov. Code, § 29550.2) imposed by the trial court at sentencing.
Valtakis, supra, 105 Cal.App.4th 1066, teaches that the policy considerations that inform the forfeiture rule in criminal cases are applicable to the situation before us. In Valtakis, Division Two of this court concluded "that failure to object in the trial court to statutory error in the imposition of a probation fee under [Penal Code] section 1203.1b waives the matter for purposes of appeal." (Id. at p. 1072.) While the probation officer in Valtakis recommended imposition of a $250 probation fee in the presentencing report, neither the officer nor the trial court made a finding of ability to pay or gave notice to the defendant of the right to a separate hearing by the court, as required by section 1203.1b. Nor did the trial court hold a separate hearing or make its own determinations. (Valtakis, supra, at pp. 1070-1071.) Nevertheless, the Valtakis court concluded that imposition of a probation fee without a hearing or evidence of ability to pay did not result in an unauthorized sentence, "for a probation fee could have been lawfully imposed had an ability to pay appeared, a clearly fact-bound determination. 'In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner' [citation], which is exactly the claim here: the probation fees, otherwise permitted, were procedurally flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of evidence that the defendant had the ability to pay). The unauthorized-sentence exception does not apply. [Citation.]" (Id. at p. 1072, italics added; see also People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 (Gibson).) The Valtakis court further observed that the case law has "uniformly held that defendants likewise cannot complain for the first time on appeal of restitution fines imposed without findings or evidence of ability to pay [citations], even when characterized as unauthorized due to legal error [citations]." (Valtakis, supra, at p. 1072.) Finally, the court pointed out that to "allow a defendant and his counsel to stand silently by" as the court imposes a probation fee, (id. at p. 1076) and then contest it for the first time on an appeal not only contravenes the objective of section 1203.1b and other recoupment statutes that " 'reflect a strong legislative policy in favor of shifting the costs stemming from criminal acts back to the convicted defendant' " and " ' " 'replenishing a county treasury from the pockets of those who have directly benefited from county expenditures,' " ' " (Valtakis, supra, at p. 1073) but "would also be completely unnecessary, for the Legislature has provided mechanisms in section 1203.1b for adjusting fees and reevaluating ability to pay without an appeal anytime during the probationary period [citation] or the pendency of any judgment [citations]." (Valtakis, supra, at p. 1076.)
We agree with the court's reasoning in Valtakis, and follow it here. Defendant was informed through the probation report that imposition of a probation report fee of $176 pursuant to section 1203.1b was recommended. Thus, he had notice and the opportunity to object at the sentencing hearing about the amount or his ability to pay, yet failed to do so. The imposition of probation costs was not an unauthorized sentence. Instead, it was imposed in a procedurally and factually flawed manner. The asserted errors in the imposition of probation costs could have been readily corrected or avoided and more appropriately reviewed on appeal had defendant interposed a timely objection in the trial court. Thus, in the interest of ensuring the fair and orderly administration of justice, like the Valtakis court, we also conclude that defendant forfeited his challenge to the imposition of probation costs. (Valtakis, supra, 105 Cal.App.4th at p. 1076; Gibson, supra, 27 Cal.App.4th at p. 1469.)
Defendant also argues defense counsel rendered constitutionally inadequate assistance of counsel by failing to object to the probation report fee. We disagree because in the first place, "rarely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical." (People v. Lewis (2001) 25 Cal.4th 610, 678; People v. Scott (1997) 15 Cal.4th 1188, 1223.) More importantly, defendant has not demonstrated how he was prejudiced by counsel's lapse. The trial court's comments at sentencing show that the court was well-acquainted with the contents of the probation report. The court also stated that considering "all the facts and circumstances," it had decided that defendant could not afford to pay attorney's fees, although it did impose the probation report fee, thus impliedly finding that defendant could afford to pay $176. Defendant has not identified any additional facts in the appellate record that defense counsel could have used to persuade the court to change its ruling, if he had lodged an objection. If such facts exist outside the record, "[a] claim of ineffective assistance . . . is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Defendant has not demonstrated ineffective assistance of counsel on the appellate record.
CONCLUSION
The court did not abuse its discretion in limiting the number of prior convictions which could be used for impeachment of the prosecution's complaining witness, or in sanitizing them. Defendant is not entitled to all of the presentence credits he seeks, although he is entitled to some additional credits. Defendant has forfeited his challenge to the probation report fee. Ineffective assistance of counsel has not been demonstrated.
DISPOSITION
The superior court is ordered to amend the abstract of judgment to reflect that defendant is entitled to 212 custody credits and 31 conduct credits. As amended, the judgment is affirmed.
Marchiano, P.J. We concur: Dondero, J. Banke, J.