Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02SF0345
ORDER MODIFYING OPINION AND DENYING REHEARING
RYLAARSDAM, ACTING P. J.
It is ordered that the opinion filed herein on June 30, 2008, be modified as follows:
1. On page 5, after the third full paragraph beginning “The court was justified,” insert the following paragraph:
In his reply brief, defendant argues Francisco failed to properly advise him on the consequences of a refusal. “As a general proposition, points raised for the first time in a reply brief will not be considered unless good reason is shown for failure to present them earlier. [Citations.]” (People v. Whitney (2005) 129 Cal.App.4th 1287, 1298.) Defendant has waived the issue by failing to show why he did not assert it in his opening brief. But even on the merits the argument is unavailing. Since a faulty admonition goes only to the weight of the evidence, a “‘refusal’ to submit to a chemical test may be properly admitted as evidence in a court of law despite the failure of the arresting officer to advise [the defendant] that the ‘refusal’ could be used as such.” (People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 119.)
2. On pages 6 and 7, the paragraph following subheading number 3 of the Discussion beginning “Although neither party gives” is deleted and the following is inserted in its place:
Next defendant attacks the prosecution’s impeachment of his wife, Christine Dreiling, with evidence she wrote a bad check because the jury ultimately learned her conduct resulted in a misdemeanor conviction. Since his argument misstates what occurred, we reject the contention.
In 1993, Dreiling wrote some bad checks. Criminal charges were filed against her and she ultimately pleaded guilty to a single misdemeanor count of issuing a check without sufficient funds and with the intent to defraud. (Pen. Code, § 476a, subd. (a)). At trial the prosecution sought to impeach Dreiling with this conviction. The court overruled defendant’s Evidence Code section 352 objection, but directed the prosecutor to ask Dreiling only if she “wrote a check without sufficient funds with the intent to defraud.” “If the witness says, ‘yes,’ that’s the end of the inquiry. If the witness says, ‘no,’ then you move on . . . to prove up that conduct.”
When the prosecutor asked Dreiling if she wrote “a check knowing that there was insufficient funds with the intent to defraud,” she responded, “I cannot answer it yes or no.” The prosecutor pressed Dreiling on whether she “committed th[is] act,” and without objection, she responded “[t]here was an incident in 1993” that resulted in “a charge to that effect[] and . . . a plea to that effect.” Later, the prosecutor returned to this issue, and Dreiling admitted, over objection, she had been “accused . . . of committing an act where [she] passed a check with the intent to defraud” and pleaded guilty to the charge “[b]ased on advice of counsel . . . .”
No error occurred. With a single exception not applicable under the facts of this case (see Evid. Code, § 452.5, subd. (b); People v. Lopez (2005) 129 Cal.App.4th 1508, 1522, fn. 8), “[m]isdemeanor convictions . . . are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion. [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 373; see also People v. Wheeler (1992) 4 Cal.4th 284, 295-299.)
“Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach” a witness. (People v. Harris (2005) 37 Cal.4th 310, 337.) Moral turpitude offenses “include[] crimes in which dishonesty is an element (i.e., fraud, perjury, etc.).” (People v. Chavez (2000) 84 Cal.App.4th 25, 28.) Thus, issuing a check knowing one’s account lacked funds to cover it with the intent to defraud the payee is relevant to the issue of a witness’s credibility. While the admissibility of such evidence is also subject to the trial court’s discretion under Evidence Code section 352 (People v. Harris, supra, 37 Cal.4th at p. 337), the record reflects the court engaged in the proper balancing of the relevant factors before finding Dreiling’s misconduct admissible and, under the record before us, we cannot conclude its ruling constituted an abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.)
Furthermore, the trial court limited the prosecutor to asking Dreiling about her conduct, i.e., knowingly writing a bad check. In response to the prosecutor’s initial questions, Dreiling admitted issuing such a check, but denied knowing the account lacked funds to cover it or that she intended to defraud the payee. The jury learned of her criminal conviction when, in response to a question about “what [she] did,” Dreiling disclosed “[t]here was a . . . charge . . . and . . . a plea to that effect.” Given this testimony, we cannot conclude it was error for the prosecutor to subsequently ask Dreiling if she “admitted that [she] had actually committed that act . . . .”
3. On page 7, the first sentence of the last paragraph following subheading number 5, stating “Defendant claims some five sentencing errors,” is modified to read:
Defendant asserts several sentencing errors.
4. On page 8, delete the second full paragraph beginning “Defendant next contends.”
5. On page 9, the first paragraph, beginning “Defendant also attacks the prison term enhancement,” is modified by adding the following at the end of the paragraph:
In his reply brief, defendant again alters course, claiming the one-year enhancement under Penal Code section 667.5, subdivision (b) was unlawful because the trial court used the underlying prior conviction to double his base term under the Three Strikes law (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). Again, we note defendant failed to timely assert the claim. (People v. Whitney, supra, 129 Cal.App.4th at p. 1298.) Even so, since “the Three Strikes provisions . . . articulate an alternative sentencing scheme,” “not an ‘enhancement’ provision,” no erroneous dual use of the prior conviction occurred here. (People v. Cressy (1996) 47 Cal.App.4th 981, 991.)
6. On page 9, delete the word “spend” in the first sentence of the last paragraph beginning “The final attack on the” and insert in its place the word “spent” so that the sentence reads:
The final attack on the sentence is the failure of the court to grant defendant presentencing credit for time he spent in an alcohol/drug treatment facility.
7. On page 9, insert the following paragraph after the last paragraph beginning “The final attack on the”:
In his reply brief, defendant asks us to take judicial notice of several documents relating to the custodial nature of his alcohol/drug treatment facility. To avoid any unfairness, appellate courts generally decline to either take judicial notice of matters not presented to the trial court (People v. Hardy (1992) 2 Cal.4th 86, 134) or, as previously noted, consider issues raised for the first time in a reply brief (People v. Whitney, supra, 129 Cal.App.4th at p. 1298). Defendant fails to explain why he did not seek to either introduce this material at his sentencing hearing or request the trial court take judicial notice of it at that time. Therefore, we deny his request.
These modifications do not change the judgment.
The petition for rehearing is DENIED.
WE CONCUR: O’LEARY, J., IKOLA, J.