Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Nos. VCF183076, VCF164269 & VCF161801, Kathryn T. Montejano, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Eric Daniel Brown (appellant) was found guilty of carjacking (Pen. Code, § 215), robbery (id., § 211), and unlawful taking or driving of a vehicle (Veh. Code, § 10851). He was acquitted of receiving a stolen vehicle (Pen. Code § 496d, subd. (a)). The jury found true the allegation that appellant personally used a firearm in the commission of the carjacking and robbery, within the meaning of Penal Code section 12022.53, subdivision (b).
The trial court sentenced appellant to an aggregate term of 15 years in state prison, consisting of the midterm of five years for the carjacking, plus 10 years for the gun enhancement. Pursuant to Penal Code section 654, the court stayed a three-year term for the robbery conviction with an additional 10-year term for the gun enhancement and a two-year term for the unlawful taking of a vehicle conviction.
On appeal appellant contends that the trial court abused its discretion when it admitted two prior theft related convictions for impeachment purposes, that there is insufficient evidence to support the jury’s true finding that appellant used a firearm, and that the abstract of judgment must be corrected. We agree only with his last contention and in all other respects affirm.
FACTS
In the early morning hours of April 30, 2007, James O’Banion was driving his green 2003 Kia Rio in Porterville to deliver newspapers to various stores and businesses. About 3:30 a.m., he noticed two young males walking a few blocks from the store where he had just completed a delivery. One of the men, appellant, waved his hands, asking O’Banion to stop. O’Banion stopped the car, but left the engine running. The interior dome light was on. Appellant told O’Banion he needed help because his car had run out of gas. O’Banion said he had a delivery schedule to keep and could not offer assistance. Appellant opened the passenger door, sat down on the passenger seat, pointed a gun at O’Banion, and told him “‘Get out of the car you Mother F-er and give me your wallet and I’m going to take your car.’” O’Banion was afraid he would be shot and quickly got out of the car. O’Banion did not give appellant his wallet. Appellant and the other male quickly drove away in the car. O’Banion thought the entire exchange took no more than one minute.
O’Banion ran to a nearby open doughnut shop and called the police. He thought the men were going to return and shoot him. He told the 911 operator his car was stolen at gunpoint by two Mexican men wearing dark clothing and caps. He told the operator appellant had said, “I’m going to blow your fucking ass away, and get out of your car[.] I’m going to take your car.” O’Banion described appellant as weighing about 160 pounds.
At trial, O’Banion described appellant as two to three feet from him while in the car, and that he clearly saw appellant hold a revolver or pistol. O’Banion testified that he recognized a gun when he saw one, and that the gun appellant was holding appeared real to him. O’Banion identified appellant in court.
At the time of the theft, O’Banion’s paycheck was in the glove box of the car. Around 9:00 a.m. that day, someone tried to cash O’Banion’s check at a convenience store in Porterville, but O’Banion’s employer had stopped payment on the check.
About 4:00 p.m., Detective Genaro Pinon was in an unmarked vehicle when he spotted a green Kia Rio in the Lindsay area. Once he determined that the vehicle was reported stolen, he called for backup and continued to follow the vehicle. At one point, appellant stopped the car by an orange grove, got out and walked 20 feet from the car, returned and drove away. At that point, Pinon called for fellow officers to initiate a traffic stop, pulled over in his vehicle, and ordered appellant out. Pinon searched appellant but found no weapon.
That evening around 8:00 p.m., O’Banion identified appellant in a photographic lineup as the person who stole his car at gunpoint earlier that day. O’Banion thought appellant “looked as close as anybody could to the person that had the gun that took my car.”
Defense
Psychologist Robert Shomer testified as an expert in the area of eyewitness identification, perception, and memory in stressful situations. Shomer testified that identification of strangers was unreliable and that cross-racial identifications were less reliable than identifications within the same race. He also testified that a person in a stressful situation was more likely to focus on the “most deadly part of the situation,” or in this case the weapon, rather than the person holding the weapon.
Appellant testified in his own behalf, stating that he had been drinking and snorting cocaine on the morning of April 30, 2007. According to appellant, he left his brother’s house in Porterville with his friend Hovy at around 10:00 or 10:30 a.m. and the two walked to a friend of Hovy’s to get a ride to the Tav Kam. When they got to the friend’s, they saw some people sitting in a vehicle. The people in the car gave appellant and Hovy a ride to the Tav Kam.
Appellant offered these people, whom he did not identify, gas money in exchange for a ride from the Tav Kam to Tulare. The driver stopped for gas in Porterville around noon and later stopped at an apartment building in Lindsay. When the other occupants left the vehicle, appellant remained in the backseat and passed out. When he awoke, the others had not returned, but since the keys were in the car, he took it. Appellant was driving back to where his friend Hovy had been when he was stopped and arrested.
DISCUSSION
1. Did the trial court commit reversible error in allowing the prosecutor to impeach appellant with two prior convictions?
Appellant contends the trial court erroneously permitted the prosecutor to impeach him with two prior felony convictions, claiming they were not sufficiently sanitized. We disagree.
A. Background
On the first day of trial, following an apparent earlier in-chambers discussion not recorded, the trial court ruled that, if appellant testified at trial, he could be impeached with his two recent felony convictions for violating Vehicle Code section 10851 (unlawful taking or driving a vehicle) and Penal Code section 496d (receiving stolen property). The trial court limited the admission, stating, “The language that could be used would be that you have suffered two separate felony convictions that are theft related within the last two years.”
Thereafter, on cross-examination, the prosecutor asked appellant “[Y]ou have two separate theft-related felony convictions within the last two years; isn’t that true?” Appellant answered: “Actually, I pled to a lesser charge. It was—I had—I was in—I was into buying cars, used cars last year and—” The trial court overruled defense counsel’s objection that the answer was nonresponsive. Appellant continued, stating: “Okay. And based on that, when I moved to Porterville, I guess that area was—had a high—high rate of theft. I had bought a van—” Defense counsel again objected and asked to approach the bench. Following an off-the-record discussion, the trial court asked the prosecutor to repeat the question.
The following exchange then occurred between the prosecutor and appellant:
“Q. Isn’t it true that you have two separate theft-related felony convictions within the last two years?
“A. Like there were—I pled to a lesser charge—or I don’t know—I don’t know how it happened, but like I—what had happened was I had bought these cars in Porterville. I had just moved there. I was buying used and—used cars and stuff like that, and it happened twice. One of the cars was like stolen like probably like a block away from my house, and the cops came to my house. I was still—I was still—I barely moved—was barely moving into my house right there and had all my clothes and everything in the van, my kids’ toys and stuff, and the lady came. [¶] They brang that charge up, and they just ran it concurrent because I had bought that—a week before that, I had bought a car, and the car also was—was stolen, and it was from Porterville. It was the same area, and they just ran all of it concurrent, and it was—it was—it was something similar to that, and I pled to it because it was just like I was already in jail for probably like—had six months in jail, and I just pled to a lesser charge.”
During closing, the prosecutor argued that the two most important “pieces of information that you received in this trial” were O’Banion’s identification of appellant and the fact that appellant was in O’Banion’s car when he was stopped. At that point in her argument, the prosecutor described appellant as an individual who had “two separate theft-related felony convictions within the last two years.” During rebuttal the prosecutor stated, “You heard evidence of [appellant’s] prior felony theft convictions that he testified to yesterday. You, as the triers of fact, may consider this evidence among other factors because one of the jury instructions, CalCrim 226 that I went over yesterday with you, tells you that you can.” The trial court subsequently instructed with CALCRIM No. 316 as follows:
“If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of a witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
B. Applicable law and analysis
Prior felony convictions are admissible to impeach the credibility of a witness where the least adjudicated elements of the prior crimes necessarily involve moral turpitude, subject to the trial court’s discretion under Evidence Code section 352 to exclude such evidence. (People v. Castro (1985) 38 Cal.3d 301, 306-307, 312-313, 314, 317; People v. Beagle (1972) 6 Cal.3d 441, 452-453, partially superseded by statute as stated in People v. Castro, supra, at pp. 306-313.) A crime of moral turpitude reflects directly on the honesty of a witness. (People v. Hunt (1985) 169 Cal.App.3d 668, 675; People v. Boyd (1985) 167 Cal.App.3d 36, 45.) And theft related crimes are probative on the issue of the defendant’s credibility. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
In performing an Evidence Code section 352 analysis the trial court is to consider the following factors: (1) whether the prior conviction “‘rest[s] on dishonest conduct’”; (2) the “nearness or remoteness of the prior conviction”; (3) whether “‘the prior conviction is for the same or substantially similar conduct for which the accused is on trial’”; and (4) “‘what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.’” (People v. Beagle, supra, 6 Cal.3d at p. 453; see People v. Castro, supra, 38 Cal.3d at p. 307.) Other relevant circumstances may also be considered. (People v. Collins (1986) 42 Cal.3d 378, 392.) Trial courts have “broad discretion to admit or exclude prior convictions for impeachment purposes, … and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.” (Id. at p. 389; see People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
A witness may be impeached with the name or type of crime and the date and place of a prior felony conviction, but not the underlying circumstances and facts of the offense. (People v. Allen (1986) 42 Cal.3d 1222, 1270; People v. Santos (1994) 30 Cal.App.4th 169, 176-177.) A trial court may exercise its discretion to sanitize the descriptions of prior convictions where the nature of the unsanitized prior convictions would be more prejudicial than probative of the witness’s credibility. (People v. Castro, supra, 38 Cal.3d at pp. 305-306, 319; People v. Massey (1987) 192 Cal.App.3d 819, 825.) Sanitizing prior convictions is typically reserved for cases in which the impeaching offenses are similar to the current charges, said similarity rendering them more prejudicial than probative. (See, e.g., People v. Heckathorne (1988) 202 Cal.App.3d 458, 464, fn. 2.) But sanitization of a prior felony conviction properly admitted for impeachment purposes is an exceptional step for a trial court to take. The Supreme Court in People v. Rollo (1977) 20 Cal.3d 109, partially superseded by statute as stated in People v. Castro, supra, at pages 306-313, described it as giving the defendant the “archetypal Hobson’s choice of (1) remaining silent on the point and subjecting himself to the … speculation by the jury, or (2) divulging the nature of his prior conviction and incurring an equally grave risk that the jury will draw an impermissible inference of guilt. Either way leads to prejudice .…” (Rollo, at p. 120.)
Although appellant acknowledges that three of the four Beagle factors favor admissibility of the prior convictions (they are crimes of moral turpitude and appellant’s credibility was at issue; the convictions were not remote; and admission did not prevent appellant from testifying), but he asserts that the trial court abused its discretion “in not more fully sanitizing the prior conviction evidence used for impeachment of his credibility.” Appellant argues that, because the current and prior offenses were both theft related, the trial court should have restricted reference to the prior convictions as “offenses involving moral turpitude” rather than being “theft-related” which were incurred “within the last two years,” which suggested that he “engaged in an ongoing pattern of committing theft related offenses.” We disagree.
We find helpful People v. Foreman (1985) 174 Cal.App.3d 175, in which the defendant was charged with burglary. Officers responded to a silent alarm at a store at 4:00 a.m. and discovered the defendant in front of the store, beginning to run away. The defendant did not stop when ordered to. He was apprehended and arrested. A gas station attendant nearby saw a person on the roof of the building, 10 feet off the ground, jump off and run away. He later saw that same individual, the defendant, in a police car. Burglary tools were found on the roof of the building, and a duffel bag of jewelry from the display case was found in the store. (Id. at pp. 177-178.) A witness for the defendant and the defendant both testified that they were together drinking until 4:00 a.m., when the defendant decided to walk home. (Id. at p. 178.)
Following a motion to exclude evidence of a prior burglary conviction, the trial court partially sanitized a prior conviction for burglary by allowing reference to the conviction as a “felony involving theft.” Despite the court’s ruling, the defendant took the witness stand and testified fully regarding his version of the events. He was impeached with the prior burglary as “sanitized.” (People v. Foreman, supra, 174 Cal.App.3d at p. 179.)
This court stated that three of the four Beagle factors favored admission of the prior conviction: (1) the prior involved moral turpitude and theft, directly reflecting upon the defendant’s honesty and truthfulness; (2) the prior conviction was recent, two years before the current offense; and (3) while it is uncertain what effect the admission would have on the defendant, he did testify fully to his version of the events. The fourth Beagle factor, that the prior was for the same conduct for which the defendant was on trial, was unfavorable to admission. But,
“[w]hile the Beagle guidelines suggest identical or similar priors should be admitted sparingly, where, as here, there are no other available priors, the prosecutor must either offer the identical prior or forego the impeachment altogether. We do not think under the facts of this case the Beagle guidelines required the trial court to bar any impeachment.” (People v. Foreman, supra, 174 Cal.App.3d at p. 182, fn. omitted.)
We found no error, noting that the prior was never identified to the jury as an identical offense. The fact that the identity of the offense was softened by “sanitization” made the prior similar, but not identical, to the present offense. The references to the prior as a “felony involving theft” precluded any speculation the prior involved a heinous crime. Moreover, the defendant, having chosen to testify in his own behalf, was “not entitled to a false aura of veracity.” (People v. Foreman, supra, 174 Cal.App.3d at p. 182, citing People v. Beagle, supra, 6 Cal.3d at p. 453.)
Here, while the prior convictions were the same as two of the charged offenses, the trial court partially sanitized the prior convictions, ordering that they be referred to only as “felony convictions that are theft related,” not unlawful taking or driving of a vehicle or receiving a stolen vehicle. It appears only appellant’s unsolicited explanation of the prior convictions rendered those offenses similar to the charged offenses. Appellant attempted to explain the prior convictions by asserting he twice unknowingly bought a stolen vehicle and that he entered a guilty plea because he was “already in jail.” We do not think appellant can attempt to explain a prior conviction at trial and thereby mitigate its effect on the jury and then complain on appeal that his description of the prior conviction rendered it too similar to the charged offense.
In any event, we find that the prior convictions as sanitized here were proper, notwithstanding the possibility of jury speculation. There were no other available priors. The court had a choice to allow the prior convictions wholly, risking the prejudice inherent in being similar crimes to those charged, or to follow Foreman and allow them to be described as “theft-related.” The description of the prior convictions as “theft-related” likely prejudiced the jury less than the unspecified description “felonies involving moral turpitude,” which has the ability to conjure up possibly heinous offenses. (People v. Massey, supra, 192 Cal.App.3d at p. 825.) The only other choice was to forbid the use of the priors whatsoever, but this would give appellant’s testimony a “false aura of veracity.” (People v. Benton (1979) 100 Cal.App.3d 92, 97.)
We find no abuse of discretion.
2. Was there sufficient evidence to uphold the finding that appellant used a firearm?
Appellant contends there is insufficient evidence to support the jury’s determination that he personally used a firearm in the commission of the carjacking or robbery because a weapon was never recovered and there was no evidence that the gun O’Banion saw was a “firearm” as opposed to a replica or toy gun. We disagree.
Our role in reviewing a challenge to the sufficiency of evidence is a limited one. “[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal is not warranted “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
As with a substantive offense, each element of a sentencing enhancement must be proven beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-326.) The question is whether “any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 225.)
In performing our review of the record, we are further limited by the fact that it “‘“is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.” [Citation.]’” (People v. Smith (2005) 37 Cal.4th 733, 739.) “[I]t is not within our province to reweigh the evidence or redetermine issues of credibility.” (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Consequently, even the “uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.)
It was alleged that in the commission of the carjacking and robbery, appellant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). Section 12001, subdivision (b) defines a “firearm” as “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” Use of a replica or toy gun not meeting this definition would not trigger the enhancement. (People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7.) Section 12022.53, subdivision (b) states: “The firearm need not be operable or loaded for this enhancement to apply.”
The trial court instructed the jury with CALCRIM No. 3146 which contains the applicable definitions of “personal use” and “firearm.” The instructed stated:
“A firearm is any device designed to be used as a weapon from which a projectile is discharged or expelled through the barrel by force of an explosion or other form of combustion. A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded. [¶] Someone personally uses a firearm if he intentionally does any of the following: Displays the firearm in a menacing manner, hits someone with the firearm or fires the firearm. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
When no gun is recovered, “[t]he character of [a] weapon may be shown by circumstantial evidence,” such as “testimonial descriptions of the weapon and its role in the commission of the crime.” (People v. Hayden (1973) 30 Cal.App.3d 446, 451-452, overruled on other grounds in People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10; see People v. Aranda (1965) 63 Cal.2d 518, 533, superseded by statute on another ground, see People v. Fletcher (1996) 13 Cal.4th 451, 465; People v. Green (1985) 166 Cal.App.3d 514, 517.)
Here, O’Banion told the 911 operator his car was stolen at gunpoint and that the individual holding the gun had said he was going to “blow your fucking ass away.” At trial, O’Banion testified that appellant sat down on the passenger seat of his car, while the dome light was on, and had “the gun pointed at” him. Appellant said, “‘Get out of the car you Mother F-er and give me your wallet and I’m going to take your car.’” O’Banion looked down and saw the gun and immediately got out of the car. O’Banion testified that he was only two to three feet away from appellant who was holding “a revolver.” When asked if he was familiar with guns or whether he could recognize a gun “when you see one,” O’Banion stated, “Yes.” When asked whether the gun he saw was a revolver, O’Banion stated, “All I know, it was a pistol and it … looked real to me at the time.” O’Banion testified that, although he could not say whether appellant cocked the hammer, O’Banion responded as if it were a real gun.
There was no evidence introduced that would support the conclusion that the weapon was a toy gun or a replica. The inference that the weapon was, in fact, a real gun was supported by the fact that appellant used it in the commission of the carjacking and robbery, pointing it directly at O’Banion as if it were a real gun. (People v. Hayden, supra, 30 Cal.App.3d at p. 452 [jury can draw inference regarding nature of weapon from its “role in the commission of the crime”]; cf. People v. Rayford (1994) 9 Cal.4th 1, 23 [appellate court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].) Thus, while the circumstantial evidence was “‘“susceptible of two interpretations,”’” there was sufficient substantial evidence to support the interpretation chosen—that the weapon O’Banion saw was a “firearm.” (People v. Snow, supra, 30 Cal.4th at p. 66 [while “‘“it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, … it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt”’”]; cf. People v. Dominguez (1995) 38 Cal.App.4th 410, 422 [evidence that defendant made threat to kill the victim and victim felt “sensation of the cold steel cylindrical object” constituted “sufficient evidence to support a jury finding of the use of a firearm”].)
Sufficient evidence supports the true finding of the firearm allegation.
3. Must the abstract of judgment be amended?
The trial court sentenced appellant to 15 years in state prison: the middle term of five years for the carjacking conviction, with an additional 10 years for the gun use enhancement. The court imposed the middle term of three years on the robbery conviction, with an additional 10 years for the gun use enhancement, and the middle term of two years on the unlawful taking or driving of a vehicle conviction, but stayed sentence on both pursuant to Penal Code section 654. Nonetheless, the abstract of judgment reflects three gun use enhancements pursuant to section 12022.53, subdivision (b).
Appellant contends, and respondent does not disagree, that the abstract of judgment should be corrected to reflect only two Penal Code section 12022.53, subdivision (b) enhancements. We agree and will order the abstract of judgment corrected to delete the reference to the third section 12022.53, subdivision (b) enhancement. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order abstract of judgment corrected that does not accurately reflect oral judgment of sentencing court].)
DISPOSITION
The court is directed to correct the abstract of judgment to delete the third Penal Code section 12022.53, subdivision (b) gun use enhancement. The court is directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As corrected, the judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.