Opinion
A098939.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. GREGORY GEETER, Defendant and Appellant.
Appellant, who was convicted of commercial burglary (Pen. Code, § 460, subd. (b)); grand theft (Pen. Code, § 487, subd. (a)); and evading arrest. (Pen. Code, § 148, subd. (a)(1)), contends his trial counsel was ineffective for not calling an expert on eyewitness identification. He also claims the trial court abused its discretion in denying his midtrial motion to represent himself, and in permitting his impeachment with multiple prior convictions. We affirm the judgment of conviction.
I. FACTS AND PROCEDURAL HISTORY
Gordon Lee Pearson was working as the store manager of Samuels Jewelers, in the Serramonte Center, on the evening of October 11, 2001. Only one other salesperson was helping Pearson in the store at that time. Because he was waiting on another customer when appellant entered the store, Pearson told appellant that he would be with him in a moment.
About a minute later, Pearson turned back to where appellant had been to see appellant sitting on the floor behind a gate attached to a jewelry counter. Pearson walked over to the gate, leaned over it, and asked what appellant was doing. Pearson saw that appellant had two plastic bags, one of which had a jewelry display case inside it. Appellant said the display case had fallen down and he wanted to help pick it up. Pearson said that was "bull" and took the bag containing the display case away from him. Appellant, who had stood up as soon as Pearson approached, started walking to the side door of the store. At that moment, two Serramonte security guards were standing outside another entrance talking to each other. When appellant walked out the side door, Pearson yelled to them that "someone needs to check this man out." The guards asked whether appellant had stolen anything; Pearson answered, "I dont know for sure but he sure was trying to."
Appellant, from a distance of about 10 feet away, turned around, raised both hands, and told the security guards, "I didnt get anything."
Appellant started walking away very fast, followed by the two security guards. Appellant left the mall and the guards lost sight of him. At about the same time, a passerby told the two guards he had seen a black male running towards the parking lot. The security guards headed in that direction, and saw appellant standing between two vehicles taking off his jacket, cap, and glasses. He then wrapped the items in a newspaper and place the package underneath a black Ford F-150 truck.
Officers from the Daly City Police Department arrived, and the security guards directed them towards appellant. Appellant began walking in the direction of the freeway, away from the police officers. At one point, appellant turned towards the officers, but when he was ordered to stop, he again began to run, scaling at least two fences in the process. Appellant crossed the freeway, and scaled a fence on the other side, where he disappeared from sight.
Daly City Police Officer Frank Wood drove to the other side of the freeway, and took appellant into custody after he discovered appellant lying face down on the ground.
The security guards and one of the police officers returned to the location of the F-150 truck. They retrieved the package. Inside was a long knife, glasses, a cap with the insignia "Raiders," and a blue jacket. One of the security guards later identified appellant as wearing the jacket, glasses, and cap in the jewelry store. The guard had also seen appellant take them off and stash them underneath the pickup truck.
Pearson was transported to the police station to identify the culprit he had encountered in his jewelry store. Pearson did not recognize appellant at first, as appellant was covered with dirt, and was without the blue jacket or the white cap he was wearing while inside the store. Pearson later positively identified appellant at trial as the person who attempted to steal jewelry from his store. The two security guards were also brought to the police station, and they identified appellant as the man they had chased in the mall.
At trial, appellant denied being the person who was in the jewelry store, or the one seen fleeing in the parking lot. Appellant claimed he had just been drinking and shooting heroin on the side of the freeway when he was discovered by the police.
The matter proceeded to trial on an amended information which charged: count 1, commercial burglary (Pen. Code, § 460, subd. (b)); count 2, grand theft (§ 487, subd. (a)); count 3, evading arrest (§ 148, subd. (a)(1)), a misdemeanor. The information also alleged appellant had suffered a strike prior within the meaning of section 1170.12, subdivision (c)(1), and eight prison term priors pursuant to section 667.5, subdivision (b).
All further section references are to the Penal Code, unless otherwise indicated.
The jury convicted appellant on all three counts, and found the strike and eight prior prison term priors to be true. Appellant was sentenced to 13 years in state prison.
II. DISCUSSION
A. SELF-REPRESENTATION
Appellant first contends the trial court abused its discretion by denying his midtrial motion for self-representation.
1. Additional Factual Background Regarding Self-Representation
On February 5, 2002, less than one week before the scheduled trial date, and again on February 11, 2002, the day trial was to begin, appellant filed two separate Marsden motions. Following hearings, the motions were denied. On February 14, 2002, during the prosecutions case-in-chief, appellant asked to speak with the trial judge about what his attorney speculated would be more Marsden-type issues. Appellant told the court that witnesses he wished to call were not present, and that he did not understand why a knife was being discussed by some witnesses, when he was not charged with using a knife during the commission of the crimes. The court advised appellant that they were still proceeding on the prosecutions case, and that he should discuss his defense with his attorney.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On February 15, 2002, at the conclusion of the prosecutions case-in-chief, appellant moved to represent himself, and the following colloquy occurred:
"[DEFENSE COUNSEL]: We have an issue, Your Honor, and my client wants me to call certain witnesses. [¶] I have told him I have no intention of calling those witnesses for strategic reasons for the trial. He is very insistent upon that. He wants to do that, and apparently, hes at the point where he now wants to make a motion to represent himself, so that he can present these witnesses and conduct the remainder of the trial on his own. [¶] So, there we have it. [¶] THE COURT: Is that correct? [¶] THE DEFENDANT: Yes. [¶] THE COURT: You want to make a motion to represent yourself at this time? [¶] THE DEFENDANT: Yes, I represent myself. [¶] THE COURT: Its late. The District Attorney hasnt finished presenting his evidence. I think its tardy. Let me go look. Ill be right back. [¶] All right. The jurors are still not present. [¶] Mr. Geeter, who do you want to call? [¶] THE DEFENDANT: I want to call the PI, the private investigator. I would like to call Mr. Ben, the other employee up at Samuels Jewelers because I have his statement in here. [¶] THE COURT: The other employee, what? [¶] THE DEFENDANT: The other employee at Samuels Jewelers. [¶] THE COURT: Samuels Jewelers. [¶] THE DEFENDANT: Yes, I have his statement here, and his name is Bacani, B-a-c-a-n-i, and I would like to call Mr. Marlon Santiano back because he also has a statement here that does not match nowhere near what he said on the witness stand, and it was never brought up as well, and also, I have another statement from Mr. Lee thats different here that was not brought up in the courtroom. [¶] THE COURT: Okay. You dont agree with that? [¶] [DEFENSE COUNSEL]: No, Your Honor. There is some strategic reasons, and I cant go into the details with the District Attorney present here, but there are strategic reasons not to call these witnesses and evaluate my client and the private investigator for small points are in my estimation not worth the risk the testimony will create for the case. So . . . [¶] THE COURT: Yeah. Your motion is denied. This appears to be under the discretion of the Court relying on People versus Windham, 19 Cal.3rd., 121 at Page 124 [sic.]. [¶] Your motion is denied. [¶] THE DEFENDANT: So I cant have witnesses in my defense, is what you are saying, Your Honor? [¶] THE COURT: Im saying that your attorney is a competent lawyer. There is apparently a difference in opinion as to the strategy that ought to be followed at this point. Having gone through trials and waited to the point where the District Attorney rests, there appears a dispute as the strategy. [¶] The Court finds it wouldnt be proper for the Court to allow you to proceed. Youre represented by a good lawyer. [¶] What do you think this employee of Samuels Jewelers will do for you? [¶] THE DEFENDANT: Excuse me. What? I think this employment, the - - [¶] THE COURT: What do you think he will testify, that you werent in the store or what? [¶] THE DEFENDANT: Well, for one thing, he never seen me in the store, but the thing, No. 2, he have a different description of the person in there. Both of them have two descriptions and neither one of them fits me, and then not only that, what about the camera? Dont the camera show who went in the store? [¶] THE COURT: Well, your comments just demonstrate the absurdity of trying to second guess [Defense Counsel]. [¶] THE DEFENDANT: Okay. Yes, sir. Okay. I understand that part. [¶] I asked for a motion to suppress the evidence, and I was wondering how that knife gets involved in this case here, and I wasnt charged with it. So how is it? [¶] [DEFENSE COUNSEL]: Your honor, were getting into Marsden kind of issues. Its inappropriate to have the prosecutor present. [¶] THE COURT: Youre right, were not going to deal with this anymore. Weve already gone into the Marsden motion. There is no Marsden issue. [¶] THE DEFENDANT: The knife doesnt have anything to do with the Marsden issue? [¶] THE COURT: Are you going to call any witnesses? Your motion to represent yourself, your motion to represent yourself is denied. [¶] THE DEFENDANT: Its denied? [¶] THE COURT: Yes. Which is what it is because Mr. - - [¶] THE DEFENDANT: Thank you very much. [¶] THE COURT: Your attorney wont do - - [¶] THE DEFENDANT: I said: Thank you very much, sir. [¶] THE COURT: Okay. Now my question, [Defense Counsel], you are talking to your client? [¶] [DEFENSE COUNSEL]: Im trying to talk to the client. [¶] THE DEFENDANT: Yes, Ill take the stand. [¶] THE COURT: Im not talking to you. Im talking to your lawyer. [¶] THE DEFENDANT: Yes, sir. [¶] [DEFENSE COUNSEL]: Were ready. [Appellant] wishes to testify. I have admonished him, and weve discussed it." (Underscoring in original.)
2. The Trial Court Did Not Abuse Its Discretion.
Generally, a defendant has a right to represent himself under the federal Constitution, if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).) However, this right is subject to certain limitations. "A trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.] Faretta error is reversible per se. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729.)
This right of self-representation is unconditional if it is invoked within a reasonable time before the start of the trial. (People v. Burton (1989) 48 Cal.3d 843, 852.) When the motion is not timely, "self-representation no longer is a matter of right but is subject to the trial courts discretion." (People v. Bradford (1997) 15 Cal.4th 1229, 1365.)
A trial courts discretion in making such a ruling is "broad." (People v. Hardy (1992) 2 Cal.4th 86, 196.) "Considerable weight is to be given to the trial courts exercise of its discretion in denying an untimely motion . . . ." (People v. Ruiz (1983) 142 Cal.App.3d 780, 792.) The determination whether the trial court properly exercised its discretion in ruling on an untimely Faretta motion is based on the facts as they appeared at the time of the hearing on the motion. (People v. Moore (1988) 47 Cal.3d 63, 80.) A disagreement over trial tactics is "an insufficient reason to grant an untimely Faretta request." (People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn.4 (Wilkins).)
In considering an untimely Faretta motion, the trial court should assess such factors as "the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham); accord, People v. Barnett (1998) 17 Cal.4th 1044, 1104.)
Not all of the Windham factors are required to favor the denial of the motion, in order to establish there was no abuse of discretion. Our Supreme Court has held that a trial court acted within its discretion in denying a Faretta motion, where only two of the above factors weighed strongly against a grant. (People v. Mayfield (1997) 14 Cal.4th 668, 809-810.) In People v. Marshall (1996) 13 Cal.4th 799, the Supreme Court upheld the denial of a Faretta motion under circumstances where the trial court relied heavily on the absence of any showing that counsel was incompetent. (Marshall, supra, at p. 828.) In Windham, our Supreme Court upheld a denial where the trial court relied almost entirely on the lateness of the request. (Windham, supra, 19 Cal.3d at pp. 125-129.)
Here, as the trial court observed, trial counsel was competent; appellant had demonstrated a proclivity to raise unsubstantiated claims regarding his attorney, as evidenced by the two previous Marsden motions and his attempt to raise Marsden-type issues on February 14, 2002; the reason for appellants request appears to have been purely a disagreement over trial tactics; and appellant made his request very late in the proceedings, at the conclusion of the prosecution case-in-chief. These factors all support the trial courts rejection of appellants Faretta motion.
Appellant cites to People v. Hill (1983) 148 Cal.App.3d 744, 753-754, for the proposition that the trial court should have inquired into and objectively evaluated defense counsels tactical decisions in ruling on his Faretta motion. However, Hill addresses Marsden error, and appellant does not raise such error in his appeal. In any event, inquiry into the reasons for counsels tactical decisions would be of no relevance, since a disagreement over trial tactics is "an insufficient reason to grant an untimely Faretta request." (Wilkins, supra, 225 Cal.App.3d at p. 309, fn. 4.) On this record, it appears that appellants dissatisfaction with his attorney primarily stems from his displeasure that the store manager identified him with certainty as the perpetrator, and his attorneys tactical decision not to call potential witnesses to challenge this identification. Appellant has not established Faretta error.
B. INEFFECTIVE ASSISTANCE CLAIM
Appellant next argues he was denied effective assistance of counsel, because his attorney failed to present expert testimony on the inherent unreliability of eyewitness identifications.
1. Relevant Factual Background re Eyewitness Identifications
Four witnesses identified appellant as the culprit.
a. Pearson
The store manager, Gordon Pearson, positively identified appellant as the person he confronted inside the jewelry store. He had spoken with appellant for about one and a half to two minutes in the store. Pearson described appellant as a black male wearing black pants, a blue shirt, a blue jacket, a black and white cap, and glasses. Pearson had not noticed appellants height, weight, eye color, nose shape, facial structure, mouth shape, teeth, chin, or hair, and he acknowledged his inability to positively identify appellant at the police station because "he looked different." In the initial identification process at the station, Pearson pointed out that the suspect was not wearing the same clothes, and that "the pants were probably the same but the top wasnt." As for his general appearance, appellant was "covered with dirt" at the police station, while the person that Pearson confronted in the store was clean.
b. Santiano
One of the security guards, Marlon Santiano, identified appellant at trial as the person who walked out of the jewelry store. From a distance of about 10 feet, appellant turned towards him; the two made eye contact; and appellant said "I didnt get anything." This interchange lasted for one or two seconds. Santiano then followed appellant as he walked quickly down the mall corridor in the direction of the Burger King where Santiano lost sight of him; the two were 20 to 30 feet apart at that point.
At that point, a passerby told Santiano he had seen a black male running towards the parking lot. In the parking lot, from about 50 feet away, Santiano witnessed appellant wrapping his cap, blue jacket, and glasses in a newspaper, and then place the bundle under a Ford F-150 truck. It was about closing time at the mall, and there were only four vehicles in the parking lot. Santiano noted that there was no overhead lighting, but that the area was not totally dark; there was light from the mall. After the Daly City officers arrived, Santiano saw appellant first walk, and then run, away from the police in the direction of the freeway, and then jump over the fences separating the parking lot from the freeway.
Santiano later returned to the F-150 truck and recovered a newspaper wrapped around a knife. He also retrieved a plastic bag which appellant had carried from the store, as well as the cap, jacket, and glasses he had seen appellant wearing. Santiano identified appellant at the police station, as well as at trial.
c. Fernandez
Aimee Fernandez, another security officer, also identified appellant at trial. Appellant had been first brought to her attention by the manager of Samuels Jewelers (Pearson), who pointed to a black male wearing a blue jacket, black baseball cap, and glasses. The manager said this person was "trying to take something." When this was said, appellant turned towards Fernandez and her fellow security guard (Santiano), stating he had not taken anything. He then put a newspaper under his arm, and began walking away very fast. From about 10 feet distance, Fernandez followed appellant as far as the Burger King. She then radioed a mobile security unit and advised them to look for a black male adult wearing a black cap, glasses, and a blue jacket in the parking lot.
Fernandez proceeded to the outside of the mall where she next saw appellant in the parking lot from a distance of about 20 feet. He was wearing the same clothing he had worn when confronted outside the jewelry store. Appellant stopped beside a pickup truck, took off his jacket, cap, and glasses and put them on the ground. Using her radio, Fernandez gave further directions to the police. After putting the items on the ground, appellant continued walking, but he started to run when the Daly City officers arrived and ordered him to stop. Appellant then jumped over the fence and ran across the freeway. Fernandez later identified appellant at the police station. At trial, she also generally identified most of the items recovered from underneath the Ford F-150 truck.
d. Wood
Officer Frank Wood positively identified appellant at trial. Wood testified that security guards at the shopping center pointed out appellant as a suspect as he was seen walking through the parking lot. From 20 feet away, Wood ordered appellant to stop, but appellant began to run. Wood gave chase for about 100 to 150 feet, running parallel to appellant, until appellant jumped over a fence separating the parking lot from the freeway. Wood was able to see appellants face before he jumped the fence and crossed the freeway.
It took Wood one to one and one-half minutes to drive to the other side of the freeway to search for appellant. Wood estimated that two to three minutes elapsed from the time appellant disappeared on the other side of the freeway to when he next saw him lying face down on the ground. After his arrest, Wood opined, appellant looked much the same as he did as he ran through the parking lot, except he had a lot of dirt and twigs on him, in his hair, and on his clothing.
2. Courts Instructions
The trial court instructed the jury with CALJIC No. 2.91: "The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.
The jury was also given an instruction under CALJIC No. 2.92: "Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness identification of the defendant, including, but not limited to, any of the following: [¶] [The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;] [¶] [The stress, if any, to which the witness was subjected at the time of the observation;] [¶] [The witness ability, following the observation, to provide a description of the perpetrator of the act;] [¶] [The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;] [¶] [The cross-racial [or ethnic] nature of the identification;] [¶] [The witness capacity to make an identification;] [¶] . . . [¶] [Whether the witness was able to identify the alleged perpetrator [on a prior occasion;]] [¶] [The period of time between the alleged criminal act and the witness identification;] [¶] . . . [¶] [The extent to which the witness is either certain or uncertain of the identification;] [Whether the witness identification is in fact the product of [his] [her] own recollection;] and Any other evidence relating to the witness ability to make an identification.
3. Relevant Legal Principles Regarding Eyewitness Identifications
In People v. McDonald (1984) 37 Cal.3d 351 (McDonald), overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914, our Supreme Court held that when "eyewitness identification of the defendant is a key element of the prosecutions case . . . and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony." (McDonald, supra, at p. 377.)
However, the McDonald court also stated that it did not intend to "`"open the gates"" to the presentation of expert testimony on eyewitness identification, and it cautioned that such testimony "will not often be needed." (McDonald, supra, 37 Cal.3d at p. 377.) Thus, the court limited its holding to those situations where the prosecutions case "is not substantially corroborated by evidence giving it independent reliability . . . ." (Ibid.) Nothing in McDonald supports the claim that "expert" testimony may be admitted in an effort to quantify how often an eyewitness identification may be incorrect, or whether a particular eyewitness is or is not accurate in identifying the defendant. Rather, the opinion limits such expert testimony to informing the jury regarding factors that may affect an eyewitness identification. To the extent the expert testimony may refer to the particular circumstances of the identification in question, the testimony is limited to explaining the potential effects of those circumstances on the powers of observation and recollection of a typical eyewitness. (Id. at pp. 370-371.)
4. Ineffective Assistance of Counsel Claim
To prove ineffective assistance of counsel, appellant must show: (1) counsels performance fell below prevailing professional norms and; (2) there is a reasonable probability that there would have been a better result had counsel performed competently. (Strickland v. Washington (1984) 466 U.S. 668, 690.) A reasonable probability is a probability that undermines confidence in the outcome. (Id. at p. 694.)
The standard of review for ineffective assistance of counsel claims was summarized in People v. Lucas (1995) 12 Cal.4th 415 (Lucas): "It is defendants burden to demonstrate the inadequacy of trial counsel. . . . In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. Second, he must also show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [¶] Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel, and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Defendants burden is difficult to carry [on direct appeal] . . . Reviewing courts will reverse convictions on direct appeal on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." (Id. at pp. 436-437, citations and internal quotation and other marks omitted, italics added; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Appellant has failed to demonstrate on this direct appeal that counsels representation fell below an objective standard of reasonableness. Based upon his cross-examination and argument to the jury, defense counsel was certainly aware of the critical issue of identity. After the court instructed on eyewitness testimony under CALJIC Nos. 2.91 and 2.92, appellants attorney argued the issue extensively to the jury. Moreover, nothing in the record leads us to conclude that defense counsel failed to consider offering expert testimony on eyewitness identification. Given that four witnesses—not just one—positively identified appellant as the culprit, appellants trial counsel may well have decided to reject that course for tactical reasons, deciding it was inadvisable to attempt to call such an expert because the witness would be of limited assistance to the defense, or even helpful to the prosecution. Where tactical reasons are possible, we must reject the claim of ineffectiveness made on direct appeal from the conviction. (See Lucas, supra, 12 Cal.4th at pp. 436-437.) We do so here.
C. APPELLANTS PRIOR CONVICTIONS
Finally, appellant argues it was error to allow the prosecution to use eight of his prior felony convictions for impeachment. In particular, appellant maintains that his convictions were both too numerous and too similar to the charged offenses, and thus the trial court abused its discretion by not excluding them under Evidence Code section 352.
1. Additional Background Regarding Prior Convictions
The court granted the prosecutions pretrial motion to use appellants prior felony convictions for impeachment. The court reserved final ruling on the number of convictions to be admitted, however. In the words of the court: "The motion is granted. The Court is going to apply 352 to those convictions, and I am going to think about it, but Im granting the motion. I may not admit them all, but you must assume for the purposes of this motion I will." Before appellant testified, the court revisited its ruling and, after considering the matter again under Evidence Code section 352, held that all of appellants 10 prior felony convictions were admissible for impeachment purposes.
The prosecution referred to eight of these felony convictions in cross-examining appellant. These priors were: (1) 1999 conviction of grand theft from the person; (2) 1994 conviction of petty theft with a prior; (3) 1992 conviction of petty theft with a prior; (4) 1990 conviction of petty theft with a prior; (5) 1987 convictions of robbery and possession of a firearm by a felon; (6) 1986 conviction of petty theft with a prior; (7) 1986 conviction of commercial burglary; and (8) 1984 conviction of grand theft.
2. The Trial Court did not Abuse its Discretion.
A prior felony conviction is admissible for impeachment where the offense involves "moral turpitude," although the trial court has discretion under Evidence Code section 352 to bar the use of such a prior conviction. (People v. Castro (1985) 38 Cal.3d 301, 314 [lead opinion of Kaus, J.] (Castro).) In exercising that discretion, the trial court should consider: (1) the relationship between the offense underlying the prior conviction and the credibility of the witness; (2) whether the prior felony is near or remote in time; (3) the similarity of the prior felony conviction to the current charged offense; and (4) what effect a decision not to testify may have on the defense. (People v. Green (1995) 34 Cal.App.4th 165, 182 (Green).)
Obviously, this fourth factor does not favor reversal. The use of the prior convictions for impeachment did not dissuade appellant from testifying, and he presented his defense fully to the finder of fact. We will discuss the other factors as they become relevant to our examination of the prior convictions in issue.
In applying these factors, trial courts also have broad discretion to admit or exclude prior convictions that are offered for impeachment. "The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded." (People v. Collins (1986) 42 Cal.3d 378, 389-390, citing Castro, supra, 38 Cal.3d 301.) We may not substitute our own judgment for the trial courts exercise of its discretion. (People v. Sword (1994) 29 Cal.App.4th 614, 626 (Sword).) Instead, an appellate court may only overturn a trial courts exercise of discretion if the ruling "`falls outside the bounds of reason." (People v. Williams (1998) 17 Cal.4th 148, 162.)
The burden is on the appellant to affirmatively establish an abuse of discretion, and "unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." (People v. Thompson (1994) 24 Cal.App.4th 299, 308.) The showing is insufficient where the appellant "presents facts which merely afford an opportunity for a difference of opinion." (Sword, supra, 29 Cal.App.4th at p. 626, internal quotation marks omitted.)
a. Similarity
As we have mentioned, appellant claims the prosecutors use of the eight prior felony convictions for impeachment was unduly prejudicial, because convictions of theft, robbery, and burglary were too similar or identical to the charged offenses.
We first point out that even where the two offenses are identical, exclusion is not required. (People v. Johnson (1991) 233 Cal.App.3d 425, 458-459 [no error in admitting prior murder conviction in murder prosecution].) As the court observed in Johnson, "Although we must, of course, scrutinize with care the impeachment use of prior convictions of crimes identical to a charged offense because of the heightened prejudice, no rule dictates their exclusion." (Ibid.) Numerous published decisions have held that prior convictions for the same offense as that currently charged, or similar ones, are not unduly prejudicial and may be used for impeachment. (See, e.g., People v. Dillingham (1986) 186 Cal.App.3d 688, 695 [identical prior convictions]; People v. Stewart (1985) 171 Cal.App.3d 59, 66 [four identical prior convictions].)
Appellant does not dispute that grand theft, petty theft with a prior, commercial burglary, and robbery are all crimes of moral turpitude. (People v. Cudjo (1993) 6 Cal.4th 585, 626 [grand theft]; People v. Waldecker (1987) 195 Cal.App.3d 1152, 1156 [petty theft with a prior and commercial burglary]; People v. Turner (1990) 50 Cal.3d 668, 705 [robbery].) Only two of appellants eight prior felony convictions were for conduct identical to two of the three charged offenses—grand theft and burglary. These convictions occurred in 1999 (grand theft) and 1986 (burglary). Between these dates, of course, appellant suffered a series of other felony convictions—mostly involving petty theft with a prior.
In the present case, it is clear that the courts ruling did not have the prejudicial effect of dissuading appellant from testifying. Indeed, there existed a significant conflict between the prosecution witnesses testimony and appellants, and consequently appellants credibility was a crucial issue at trial. We take note of the fact that a series of crimes relevant to credibility is certainly more probative than is a single such offense. On the facts of this case, to hide appellants past crimes of moral turpitude would have given him a "`"false aura of veracity."" (People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647 (Muldrow).)
b. Number and Remoteness of Prior Convictions
Appellant advances the related argument that the prosecutors use of his eight prior felony convictions may have been prejudicial because they were so numerous, and some were over ten years old.
Nevertheless, the systematic occurrence of numerous convictions, over a long period of time, may create a pattern that is relevant to credibility. (Green, supra, 34 Cal.App.4th at p. 183; Muldrow, supra, 202 Cal.App.3d at pp. 646-648.) Appellant has suffered many felony convictions involving moral turpitude: one in 1984; two more in 1986; and even more in 1987, 1990, 1992, 1994, and 1999. The repetitive nature of these convictions speaks strongly as to appellants believability.
At the least, appellants numerous acts of dishonesty between 1984 and 1999 suggest he has not led "`a legally blameless life." (People v. Beagle (1972) 6 Cal.3d 441, 453.) Under these circumstances, appellants prior felony convictions cannot be considered remote, and any prejudicial effect resulting from the admission of his prior convictions was far outweighed by their probative value. The trial court was not required to exclude such evidence. (See Muldrow, supra, 202 Cal.App.3d at pp. 647-648.)
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: JONES, P.J., SIMONS, J.