Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC163890
Pollak, J.
Defendant Kenneth Lee James appeals from his conviction on two counts of assault and two counts of battery and associated allegations of great bodily injury resulting from his attack on two men in a hotel room where all three were staying. One of the victims testified at the preliminary hearing but did not appear for trial and could not be located. The trial court permitted this victim’s preliminary hearing testimony to be read to the jury based on his unavailability. Defendant argues that the admission of that testimony was improper because the prosecutor did not exercise reasonable diligence to locate the witness. He also argues that the trial court improperly instructed the jury on the use of certain impeachment testimony. We conclude that there was an adequate showing of reasonable diligence in attempting to locate the missing victim and that, although the instruction on impeachment evidence as given was not applicable, defendant waived the objection by failing to object and, in any event, the inaccuracy in the instruction was harmless. Therefore we shall affirm.
Background
On June 25, 2009, defendant was charged by information with two counts of battery inflicting serious bodily injury (Pen. Code, § 243, subd. (d)) and two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1). The first two counts were alleged to be violent or serious felonies within the meaning of section 1170.12, subdivisions (a), (b), and (c). As to the second two counts, the information alleged that defendant inflicted great bodily injury pursuant to section 12022.7, subdivision (a), and that these were violent felonies within the meaning of section 667.5, subdivision (c)(8). All counts were alleged to be serious felonies within the meaning of section 1192.7, subdivision (c)(8).
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial. David Gibson testified that on March 27, 2009, he had been homeless for approximately one year, and was staying in a room at the Villa Inn in San Rafael with Craig Leslie. Gibson had been a friend of Leslie for about nine years. He had known defendant for two or three years from various “local drinking establishments.”
On March 27, defendant came to Leslie’s room early in the evening, left and then returned. Gibson had been drinking beer and brandy before defendant arrived. The three men drank, watched television and talked without any animosity. “[P]retty early” in the evening, when defendant was still in the room, Gibson laid on the floor near the bed to sleep. Gibson was intoxicated, but could stand. He awoke some time later because he “heard Craig holler at me.” Gibson saw defendant standing over Leslie and beating him. Gibson tried to get up to help and defendant kicked him in the forehead, knocked him down, jumped on him and began beating and stomping on him. Eventually, Gibson became unconscious. When he awoke, defendant kicked Gibson in the ribs and head. Gibson did not know how long the assault lasted, but eventually defendant left the room and Gibson called the motel office. At the hospital, Gibson received stitches on his forehead, nose and one ear. He also suffered four cracked ribs and a punctured lung. He was hospitalized for four days.
Leslie’s testimony from the preliminary hearing was read to the jury. The transcribed testimony was as follows: Leslie knew defendant from “around town for three or four years.” On March 18, 2009, Leslie, Gibson and defendant were staying at the Villa Inn. Leslie rented the room but he allowed defendant to stay with him “because he needed a place to stay.” Leslie had consumed maybe six beers and “a few cocktails” before defendant joined them that afternoon. The three men “hung out, watched TV, talked a while, ” then Leslie laid down on the bed and fell asleep and Gibson went to sleep on the floor. Leslie thought this happened around eight or nine o’clock. Leslie stated that sometime later, “I woke up, kind of got out of the bed, stood up, and all of a sudden [defendant] just came at me, smacked me right in the face, and I went down on the floor. He started hitting and kicking on me.... I called out [Gibson’s] name. [Gibson] stood up and [defendant] went at him.” Leslie did not say anything to defendant before defendant began hitting him. Defendant kicked Leslie on his face, chest and side. The assault continued for three or four minutes, and ended only when Gibson intervened, at which point defendant attacked Gibson. At some point, defendant left the room and Gibson called 911. The police arrived, Leslie was transported to the hospital, and the police took a statement from him. Leslie suffered a broken nose, bruised ribs, and had one of his teeth knocked out as a result of defendant’s attack. He was in the hospital for two days.
The responding officer interviewed Gibson and Leslie. Although he could tell both had been drinking, both appeared to be lucid and ‘[n]either of them had any difficulty staying awake or following the conversation. They were both able to answer questions, definitely appeared to be aware of what was going on in the investigation.” The officer testified that to his knowledge, Leslie is homeless. The interviews took place in separate rooms at the hospital. Gibson and Leslie were not interviewed together, although they were in the same room when the officer spoke briefly with Leslie at the motel. During that conversation the officer was attempting only to determine the extent of the men’s injuries.
On March 28, 2009, the desk clerk at the hotel received a phone call from Leslie’s room and in response called the police and also requested an ambulance. When the police arrived, the clerk accompanied an officer to the room, which he described as “a mess.... [¶] Like there had been a fight or something. It was destroyed.” The two men he saw in the room “looked like they got beat up. They were a mess. Blood all over them; blood all over the room.”
Defendant testified that he had lived in San Rafael for approximately eight to 10 years and knew Leslie and Gibson from local restaurants and bars. On March 27, he met the two at the motel in the morning, then left to have lunch with friends. He returned to the motel around 10:30 or 11:00 p.m. “The room was an absolute mess. [Gibson] was sitting at the table, and [Leslie] was on the bed playing with his computer. There was beer all over the place. The place was totally trashed. They are typically neat people, so I found that kind of odd, how the room was real messy.” Defendant made arrangements to stay with another friend, and stayed at the room for only 30 to 40 minutes. He testified that Gibson and Leslie “were very intoxicated. They were talking. They were just rambling on. I saw [Leslie] fall over as he tried to get another drink, pick himself up. The way they were talking was kind of unpleasant to one another or towards me.” Both men were awake when he left the room. He denied hitting either man.
Defendant called as a witness Dr. Eugene Schoenfeld, a medical doctor who practices psychiatry and addiction medicine. Schoenfeld had reviewed Leslie and Gibson’s medical records, as well as the police reports. He testified that Gibson’s blood alcohol level was.389, which is “very high....” Liver function is measured using ALT, “an enzyme [that is] often elevated when the liver is damaged for any reason.” Schoenfeld testified that Gibson’s ALT level “was elevated at 72, whereas the normal values in the laboratory which conducted the test is 0 to 65.” Leslie’s ALT was 307, and his blood alcohol level was.27. Schoenfeld testified that the elevated ALT levels, combined with the elevated blood alcohol levels indicated chronic alcoholism. He extrapolated that Leslie’s blood alcohol would have been.33 when he lost consciousness the night before, and Gibson’s would have been.45. He stated that most people cannot live with that much alcohol in their blood, “but chronic alcoholics develop a high tolerance for alcohol.” Based on his medical knowledge, he would expect a person with such a high blood alcohol level to have cognitive and memory deficits. He also testified that there is a phenomenon known as an “alcoholic blackout” in which “an individual may be awake, walking and talking, and yet after the time of the alcohol intoxication, they have no memory at all of events that transpired during the blackout.” People in this state may sustain injuries and not know the cause. Schoenfeld had encountered “blackout drinkers” who were adept “at covering up their lack of recall during a blackout.” “It’s something called confabulation. Individuals are trying to remember something and to account for the lapse in memory, they fill in the blanks. Those fill-ins may be true or not.”
On cross-examination, the prosecutor asked Schoenfeld, “Would you agree that two people who recite similar facts about how they sustained these injuries, the nasal fracture, facial lacerations, despite their high blood alcohol level—wouldn’t you agree that that’s an indicator that they are not experiencing memory loss?” Schoenfeld answered, “No, ” and the prosecutor asked, “It’s your position that it is more likely that this is a confabulation where they just kind of fill in the blanks?” and Schoenfeld answered, “I don’t know what happened.” He conceded that he had not evaluated or interviewed Gibson or Leslie, but disagreed that if Gibson was able to meet with police and tell them where he was, what he had been drinking, and what had happened to him, it would indicate Gibson recalled what had actually happened. He did agree that Gibson’s injuries were more consistent with having been beaten than with having fallen down.
The jury found defendant guilty on all four counts and found the two allegations of infliction of great bodily injury to be true. The court suspended imposition of sentence and placed defendant on five years’ probation, conditioned on serving two consecutive six-month jail terms. Defendant timely appealed.
Discussion
Craig Leslie’s preliminary hearing testimony
Defendant argues that the trial court erred when it admitted Leslie’s testimony from the preliminary hearing after he failed to appear at trial. He contends the prosecutor failed to exercise due diligence in attempting to secure Leslie’s presence at trial. This court “independently review[s] a trial court’s determination that the prosecution’s failed efforts to locate an absent witness are sufficient to justify an exception to the defendant’s constitutionally guaranteed right of confrontation at trial.” (People v. Cromer (2001) 24 Cal.4th 889, 901.)
“The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. [Citation.] That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made ‘a good-faith effort’ to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witness’s prior recorded testimony if the prosecution has used ‘reasonable diligence’ (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness.” (People v. Cromer, supra, 24 Cal.4th at p. 892.)
Evidence Code section 1291, subdivision (a)(2) codifies California’s exception to the confrontation requirement. It provides: “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” With exceptions not relevant here, “unavailable as a witness” means among other things that the declarant is “[a]bsent from the hearing and the court is unable to compel his or her attendance by its process, ” or “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subds. (a)(4) & (a)(5).)
Leslie was cross-examined by defendant’s counsel at the preliminary hearing.
Trial was originally set for October 30, 2009. Officer O’Toole testified that on October 24, he served a subpoena on Leslie to appear in court on October 30. The subpoena instructed Leslie to contact the district attorney’s office “to arrange for scheduling issues.” Gibson, who was also subpoenaed to appear at the same time, called the prosecutor the morning of October 30, and said that Leslie was present with him. The prosecutor told Gibson that the trial had been postponed to the following Monday, November 2, and that both men should contact the district attorney that day. The prosecutor did not hear from either of them on Monday, when the trial began. The prosecutor asked the San Rafael police to serve subpoenas on both men to appear on Tuesday, November 3. Gibson was served, appeared and testified on November 3. Leslie, who was not served with the second subpoena, did not appear. Gibson told the prosecutor that Leslie was working in San Bruno and provided him with a telephone number. The number “just [rang] to a generic voicemail.” The prosecutor left a message instructing Leslie to come to court “as soon as possible.”
At the end of the day on November 3, the prosecutor told the court that he had presented all of his witnesses except Leslie, and asked that the case be continued to Thursday so that he might continue to attempt to secure Leslie’s attendance. He stated, “Both these individuals [Gibson and Leslie] appeared at the preliminary hearing and testified at the preliminary hearing. They have been cooperative throughout the proceedings, constantly calling our office, finding out when this case is going to go, to my surprise frankly. That being said, I am surprised that Mr. Leslie did not appear in court yesterday or today or contact our office based on the history we have developed in this case.” The court granted the continuance.
On Thursday, Officer O’Toole testified that he had called the phone number that the police department had on file, and “I have driven around the downtown area of San Rafael where I know he frequents. I have asked [four] other officers to help look for him.” One of those officers is assigned to a foot patrol in downtown San Rafael and “[h]is primary function is to deal with the homeless. He spends a lot of time at St. Vincent’s dining hall, other places where Mr. Leslie and Mr. Gibson have both been known to frequent.” Neither that officer nor the others had been able to locate Leslie. Asked what efforts he made to secure Leslie’s attendance at trial, O’Toole stated, “Looking for him in the downtown area, asking Mr. Gibson to try to help track him down because I know they are friends, asking the other officers to assist in locating him. I have been calling the phone number that we have listed on file, which he’s known to let lapse by not paying the bill.” Gibson had called someone he believed employed Leslie in an attempt to contact him.
The trial court found that “the prosecution team has made reasonable diligence as it is explained under Evidence Code section 240(a)(5) to find Mr. Leslie. Of great importance to this court is the fact that Mr. Leslie was subpoenaed. So the prosecutor’s office..., including the police, did what they could do to subpoena Mr. Leslie. I find those efforts to be significant. Having police officers running around with a subpoena ready for the witness in my experience is rather unusual and kind of above and beyond the call of duty. [¶]... It appears to the court that Mr. Leslie honored the subpoena by, with his friend Mr. Gibson, calling into the prosecutor’s office. There’s lack of clarity on whether or not Mr. Leslie, in fact, was standing with Mr. Gibson when Mr. Gibson was talking to the prosecutor [on October 30], but I think the reasonable inference is that he was. They were friends. Both were subpoenaed to appear in this case.... [¶] So in my opinion the witness who had been subpoenaed checked in. The prosecutor at that point had no reason to believe that Mr. Leslie was a flight risk or would disappear. He had shown up for the preliminary hearing.... [¶]... [¶]... [A]s soon as the prosecutor’s office and prosecution team lost contact with Mr. Leslie, or to put it another way Mr. Leslie didn’t call in on Monday, they started efforts and they did everything they could to find this man, including employing at least five police officers to comb the streets of San Rafael, to go to the address they had for this man, to contact him at the number that they had for him....”
Defendant argues that the prosecutor should have issued a second subpoena on October 30, and that the police did not use reasonable diligence in attempting to locate Leslie once he failed to appear. “[T]he term ‘due diligence’ is ‘incapable of a mechanical definition, ’ but it ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’ [Citations.] Relevant considerations include ‘ “whether the search was timely begun” ’[citation], the importance of the witness’s testimony [citation], and whether leads were competently explored [citation].” (People v. Cromer, supra, 24 Cal.4th at p. 904.) “The prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case....’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee, ’ to ‘take adequate preventative measures’ to stop the witness from disappearing.” (People v. Wilson, supra, 36 Cal.4th at p. 342.)
The terms “reasonable diligence” and “due diligence” are used interchangeably in this context. (People v. Wilson (2005) 36 Cal.4th 309, 341.)
In People v. Valencia (2008) 43 Cal.4th 268 the court found sufficient efforts to locate a witness where the police officer had called the number the witness had given in a police report but found it invalid, went to the home address the witness had given but found he no longer lived there, checked DMV records and visited two additional addresses located through those records to no avail, spoke to five or six people at those addresses, and checked for records of the witness in court records and credit records. In Wilson the court found that the police had exercised due diligence in attempting to locate a witness, Loar, where the officer “made efforts over two days to locate Loar, including visiting his last known address, attempting to locate his known associates, and checking police, county, and state records with the 15 different names Loar had used.” (People v. Wilson, supra, 36 Cal.4th at p. 341.) The court rejected the defendant’s argument that the police also should have “monitored Loar, who was still in prison or recently released at that time[;]... should have attempted to locate Loar’s family, checked with the post office for Loar’s forwarding address, followed up with his visitors in prison, and determined whether he was a party in any civil actions.” (Id. at pp. 341-342.)
Defendant relies on People v. Enriquez (1977) 19 Cal.3d 221, in which, at a hearing on admission of a witness’s prior testimony on January 14, 1975, the defendant called the witness’s mother. The mother stated that although the witness was living in Bakersfield and she could not reach him directly, “she thought she could locate him through his brother who lived in Riverside. When asked on cross-examination by the prosecutor, ‘Why didn’t you ever tell me where he was located?’ she replied, ‘You never asked me. I never talked to you. I told you he had gone to Bakersfield, but I didn’t know where he was at that time....’ On redirect examination the witness testified that she had talked to no one in law enforcement concerning the whereabouts of her son since November 6th.” (Id. at p. 234.) The court found the efforts to locate the witness inadequate to meet the requirement of due diligence under Evidence Code section 1291.
In Cromer, upon which defendant also relies, the crime victim disappeared in June 1997, and “it was not until December 1997, with the January 12, 1998, trial date looming ahead, that the prosecution made any serious effort to locate her.” (People v. Cromer, supra, 24 Cal.4th at p. 903.) The investigators went to the victim’s former residence “five or six times” despite being informed that she no longer lived there. On January 20, the investigators were informed that the victim was living with her mother in San Bernardino. They went to the mother’s address, but when they were informed by someone living there that the victim’s mother was not in and that the person had no idea who the victim was, the investigators simply left a copy of the subpoena at the house without making any further effort to locate the victim or her mother. (Id. at p. 904.) The court found that the prosecution had not exercised due diligence and, therefore, that the previous testimony should not have been admitted at trial.
Unlike the lackluster attempts in the cases upon which defendant relies, the police and the prosecutor in this case engaged in a serious and concerted effort to locate Leslie. Leslie was served with a subpoena to appear on the initial trial date, and the prosecutor reasonably believed that he intended to appear when Gibson indicated that Leslie was with him when they called in on October 30. Although Leslie was homeless, he consistently had been in contact and cooperative with the prosecutor, and O’Toole had multiple contacts with him and a good sense of where to locate him. When Leslie failed to appear on November 2, O’Toole enlisted the help of four other officers to comb San Rafael for him. These efforts were entirely reasonable and consistent with due diligence.
Defendant argues that the prosecutor’s verbal agreement with Gibson on October 30 concerning Leslie’s further appearance violated the provisions of Penal Code section 1331.5. That section provides in part that “[a]ny person who is subpoenaed to appear at a session of court, or at the trial of an issue therein, may, in lieu of appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued, to appear at another time or upon such notice as may be agreed upon.” Defendant argues that the prosecutor was obliged to enter such an agreement with Leslie personally, because the provision does not permit an agreement to be entered through a third party. He cites no authority, and we are aware of none, that supports this proposition. It was reasonable for the prosecutor to rely on Gibson’s representation that Leslie was present with him and that they would both be present the following Monday. Nothing in section 1331.5 prohibits such an arrangement. In any event, an agreement under section 1331.5 is not required to demonstrate due diligence. That the prosecutor could have taken other steps to make Leslie appear does “ ‘not change our conclusion that the prosecution exercised reasonable diligence. “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” ’ ” (People v. Valencia, supra, 43 Cal.4th at p. 293.)The trial court properly admitted Leslie’s testimony at the preliminary hearing under Evidence Code section 1291.
Defendant also argues that the court was required to secure Gibson’s testimony that Leslie was present during the telephone conversation because Penal Code section 1331.5 also provides that “[t]he facts establishing such agreement and the failure to appear may be shown by the affidavit of any person having personal knowledge of the facts.” (italics added). This language is permissive, not mandatory. O’Toole’s testimony was sufficient to establish due diligence in attempting to secure Leslie’s return to court on November 2.
The prosecutor specifically disavowed that he had formed such an agreement with Leslie.
The Attorney General argues that admission of Leslie’s testimony was, in any event, harmless beyond a reasonable doubt. Since defendant’s case rested on the argument that Gibson and Leslie had effectively “confabulated, ” or essentially hallucinated the events of that night, Leslie’s testimony corroborating Gibson’s version of events undoubtedly was significant.
Jury instruction
Defendant argues that the trial court erred in instructing the jury on impeachment evidence. When defendant testified, he was impeached with evidence that after he was arrested and released for the instant charges but before trial, he was arrested for theft after taking the purse of a guest in a hotel lobby. Defendant testified that he took the purse because the owner had left without it and he planned to return it to her. The prosecutor also asked Gibson about a prior felony conviction for unlawful flight. Gibson denied the conviction and the prosecutor presented no further evidence of the alleged crime.
Both defendant and the prosecutor requested CALCRIM No. 316. This instruction has two versions. The court gave version A, which states: “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the 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.” Version B, which was not given, instructs: “If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct 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.”
Defendant argues that the court should have instructed the jury with version B because there was no evidence that he or Gibson had been convicted of a felony. He argues that instructing with version B was “necessary to limit the jury’s use of the impeachment evidence admitted against” him. Defendant did not object to the court using version A and, therefore, the objection is waived. (See, e.g., People v. Geier (2007) 41 Cal.4th 555, 579 [where defendant did not propose modification or alternate instruction, objection to instruction given is waived].) In any event, there is no reasonable probability that instructing the jury with version B would have resulted in a different outcome. (See, e.g., People v. Lomeli (1993) 19 Cal.App.4th 649, 656 [applying standard under People v. Watson (1956) 46 Cal.2d 818, 836 to incorrect instruction on witness credibility], disapproved on other grounds in People v. Hernandez (2004) 33 Cal.4th 1040, 1052, fn. 3.)
“When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge.” (People v. Mayfield (1997) 14 Cal.4th 668, 777.) The jury was also instructed, among other things: “Some of these instructions may not apply, depending on your findings about the facts of this case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts, ” and “You alone must judge the [credibility] or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶]... [¶] Has the witness engaged in other conduct that reflects on his or her believability?” These instructions correctly informed the jury of its duty to weigh credibility of witnesses.
Moreover, the prosecutor stated the matter correctly in his closing argument, telling the jury: “[Defense counsel] said the fact that [defendant] engaged in other conduct—that conduct is not relevant.... [Y]ou are given [a] jury instruction about credibility of witnesses [that] says, ‘Has the witness engaged in other conduct that reflects on his believability?’ Yes. He’s committed a theft. He’s not to be believed. That’s something you can use. That’s why we’re talking about this. That’s why that evidence is in, not to dirty him up. It’s because you need to determine his credibility.”
In People v. Lomeli, supra, 19 Cal.App.4th 649, the court instructed the jury that it could consider a witness’s prior felony conviction in assessing credibility, but the witness had been impeached only with a misdemeanor conviction. The court observed that “In the instant case, the jury was advised that in making its credibility determination, it could take into account the witness’s prior conviction of a felony or misdemeanor. Then, within the same category of witness credibility, the jury was further instructed it must only consider the fact that the witness was convicted of a felony for the purpose of determining the believability of the witness.” (Id. at p. 656.) The court concluded, that “it is not reasonably probable, given the sequence of instructions and their content, the closing arguments in which counsel specifically addressed the limited purpose for which defendant's prior convictions, both felony and misdemeanor, could be considered, i.e., defendant’s credibility, that the jury was confused about how it would consider the misdemeanors.” (Ibid.)
The same may be said here. “We presume the jury followed the instruction as given.” (People v. Cain (1995) 10 Cal.4th 1, 34.) The instruction that defendant objects to simply did not apply to defendant, since there was no evidence he had been convicted of a felony. It is far more likely that the jury would have applied the instruction to Gibson’s testimony, although Gibson denied the felony conviction and the prosecutor produced no evidence of it. Applying the instruction to Gibson’s testimony would undermine the credibility of one of the prosecution’s two eyewitnesses and the only one who testified in person at trial. Further, the alleged crime with which defendant was impeached was a nonviolent property offense, while the crimes with which he was charged here involved violent assaults. Although the instruction as given was inapplicable, there is no reasonable probability that a different outcome would have resulted had the trial court, in instructing that previous misconduct can be considered only for the purpose of evaluating credibility, made no reference to a felony.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.