Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR911120B
Richman, J.
This case arises out of a fight that broke out in a gas station between Thomas Asman on one side and defendant, Franklin Lowery, and one or two of his companions on the other. As a result of the mêlée, the defendant was convicted of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and aggravated assault with personal infliction of great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)). He was acquitted of illegal possession of metal knuckles. (Pen. Code, § 12020, subd. (a)(1).) He was sentenced to six years in prison for the aggravated assault with great bodily injury, with a three-year sentence for felony battery imposed but stayed pursuant to Penal Code section 654.
Defendant makes three claims on appeal: (1) his two prior misdemeanor convictions for brandishing a firearm (Pen. Code, § 417, subd. (a)(2)) and evading a pursuing peace officer (Veh. Code, § 2800.1) were inadmissible for impeachment because they were not, in the abstract, crimes of moral turpitude; (2) the trial court should have given the jury a unanimity instruction sua sponte on the great bodily injury enhancement, requiring it to determine unanimously whether the injury was inflicted by kicking or by use of metal knuckles; and (3) the felony battery, when considered with the great bodily injury enhancement, had the same elements as aggravated assault, and thus the dual conviction violated the double jeopardy clauses of the state and federal Constitutions, as well as Penal Code section 654.
We affirm.
FACTUAL BACKGROUND
1. The prosecution’s case
On September 30, 2006, between noon and 1:00 p.m., the victim, Thomas Asman, accompanied by his 14-year-old son, Kevin, was filling his Jeep with gas at Flyer’s Mobil station in Clearlake. Asman and Kevin went into the convenience store to pay for the gas and get something to drink. Asman left the store before Kevin did. Just after he walked outside, a white car swerved toward Asman and nearly ran over his feet. There were four people in the car, including defendant, who was in the front passenger seat.
The driver of the car, Jesse Cole Smith, called Asman a “punk-ass bitch.” Asman walked over to the white car, which had parked about 15 to 25 feet from him, firing back some obscenities. When Asman got within four feet of the car, Smith alighted and the two men got into a fist fight, with Asman admitting he threw the first punch. While they were fighting, defendant got out of the car and went around the back of it, yelling at Asman and approaching him in a threatening manner. Once defendant came within reach of Asman, Asman punched him, too, again throwing the first punch. Smith and the defendant both fought with Asman simultaneously.
Kevin came out of the store and asked defendant and Smith what they were doing to his father. A third passenger, who had been sitting on the driver’s side in the back seat of the white car, got out and tried to break up the fight. He handed Kevin his father’s hat as the fight broke up approximately one to five minutes after it started. After the fight, the white car drove off, and Asman thought the episode was over.
Asman returned to fueling his Jeep, but soon the white car returned to the scene and screeched to a halt beside Asman’s Jeep. Defendant yelled at Asman, “Do you want more?” Defendant tried to get out of the car, but Asman pushed or kicked the passenger door closed. Defendant nevertheless made it out, he and Asman began fighting again, and Asman threw defendant into some poles. Smith then joined the fight, striking Asman on the back of the head, below the ear. Asman was either knocked unconscious immediately or fell after tripping over a trash can. When Asman regained consciousness he was on the ground in a fetal position being punched and kicked.
Kevin testified that during the second altercation one of the other passengers helped Smith hold Asman down, while defendant retrieved a set of what appeared to be shiny, gold-colored brass knuckles from under the front seat of the white car. After slipping the metal knuckles on his hand, defendant hit Asman in the ribs and head, while Asman was on his hands and knees. Kevin ran into the store, and when he came out the police were already there. Various witnesses testified that the assault lasted somewhere between 10 seconds and five minutes.
Kevin, when shown an array of six photographs before trial, could not identify defendant as a participant in the fight. However, he identified defendant in court as the front seat passenger who hit his father with the metal knuckles.
Two passersby, David Field and Walter White, also witnessed the fight while stopped in traffic. Both saw two men kicking Asman while he was on the ground. Field reported that a third person from the white car came up behind Asman and “helped get him to the ground.” Field said the attack was “mostly a kicking thing”; he did not see any weapons. Field had not been able to identify any of the assailants in photographic lineups, and he could not identify defendant in court.
White testified he saw two men kicking a third in the upper body area, while the victim was on his hands and knees on the ground. He identified defendant as one of the men doing the kicking. White, like Field, did not see any weapons.
When the police arrived they found Asman sitting on the curb of one of the islands in the gas station, somewhat dazed and incoherent, bleeding from the nose and mouth. His eye was turning black and he had multiple small lacerations. Asman spent the next three days in the intensive care unit and two more days in the hospital on morphine. He had six broken ribs, a punctured lung, fractured nose and jaw, and numerous scrapes and bruises. He was unable to return to his job as a tow truck driver for 30 days. Neither Smith nor defendant was injured.
One of the police officers searched the white car with Smith’s permission and recovered a set of metal knuckles from the center console. The officer did not notice any blood on the metal knuckles, and he did not take fingerprints from them. He also identified defendant as being one of the people associated with the white car.
During trial, the prosecution played a surveillance video of the fight for the jury. Both Asman and defendant used the video to illustrate their testimony.
2. Defense
Defense counsel claimed that Asman was the aggressor and defendant was simply defending himself. He also argued that it was Smith who caused Asman’s injuries, not defendant.
Defendant testified that on the day in question he asked Smith, whom he had only met earlier that week, for a ride to Flyer’s Mobil station so he could use the pay phone. First they picked up two of Smith’s friends, whom defendant apparently did not know. Defendant did not recall any “odd driving” by Smith as they arrived at the gas station. After Smith parked the car, Asman approached the driver’s window and yelled, “You got something to say?” Defendant testified he was confused by Asman’s question and simply responded, “no.” He had the impression that Smith might have known Asman, as they seemed to be “messing with each other.”
Defendant got out of the car and headed toward the convenience store to get some change for the phone, but Asman intercepted him and punched him. Smith was still in the car exchanging words with Asman, but once Asman and defendant started fighting, Smith got out and tried to break it up. Asman then also hit Smith. When Asman fell backward, Smith was about to “jump on him right there[,]” but defendant stopped him. As the fight wound down, defendant picked up Asman’s hat and handed it to Kevin, and Asman walked off.
The four men in Smith’s car tried to leave the gas station, but their way was blocked by other cars. Smith then pulled his car up near Asman’s Jeep (though defendant denied that the car “screeched” to a halt). Asman approached the white car, and Smith “screamed something” at Asman as he neared the passenger side window. Asman responded by striking defendant through the open window.
Defendant forced his way out of the car, and he and Asman began fighting again. Asman slung defendant into a pole, but Asman then tripped over a trash can and fell. Asman and defendant continued fighting. Smith got out of the car and tried to pull Asman off defendant. At some point, Asman grabbed defendant’s left wrist, so defendant hit him a couple of times to break free. When Asman let go, defendant walked away.
When defendant turned around he saw Smith kicking Asman while Asman was on the ground. Defendant then pulled Smith off of Asman, but Asman got up and started trying to fight both Smith and defendant again.
Defendant and Smith eventually returned to Smith’s car, just as the police arrived. The police searched the car and found the metal knuckles. The defendant denied using or knowing about the presence of the metal knuckles.
As a consequence of an evidentiary ruling discussed in detail below, defendant admitted on direct examination that he had previously been convicted of two misdemeanors, brandishing a firearm and flight from a pursuing police officer. The trial court instructed the jury at the end of defendant’s testimony that the misdemeanor convictions could only be used to assess his “credibility” or “believability on the stand” and not for purposes of determining whether “he’s a bad person or likely to commit violence or anything of that nature....”
DISCUSSION
I. The Trial Court Properly Allowed the Prior Misdemeanor Convictions for Impeachment.
Defendant claims that the court improperly ruled that he could be impeached with his prior misdemeanor convictions for brandishing a firearm (Pen. Code, § 417) and evading a pursuing peace officer (Veh. Code, § 2800.1). More precisely, he argues that because the least adjudicated elements of the prior misdemeanors did not involve moral turpitude, they were not admissible for impeachment, and their admission deprived him of due process.
The Attorney General urges us to find these claims have been forfeited by the failure to assert them in the trial court. Even on the merits, however, he claims that the misdemeanors here involved were crimes of moral turpitude and their use as impeachment did not violate due process. Finally, he argues that even if the prior misdemeanors were not properly admitted, their use at trial did not prejudice the defendant.
A. The Proceedings Below
The district attorney sought permission through an in limine motion to introduce evidence of the two prior misdemeanor convictions that defendant had sustained in 2006. The district attorney rested his theory of admissibility on the convictions themselves, arguing that the least adjudicated elements of the offenses evince moral turpitude. He also argued that both priors were more probative than prejudicial. He told the court he could prove the prior convictions using a certified CLETS rap sheet.
California Law Enforcement Telecommunications System.
Defense counsel did not file any opposition to the district attorney’s in limine motion. He did not object to the admission of the priors on grounds of relevancy or hearsay and did not contest the court’s conclusion that the crimes involved moral turpitude. Counsel’s only argument was that the brandishing conviction was more prejudicial than probative under Evidence Code section 352 in that it was somewhat similar to the charged offense and appeared to involve a “threat of violence,” thereby making the defendant appear to the jury to be “a violent person.” He did not object at all to admission of the prior conviction for evading a pursuing peace officer. Neither party put the facts of the underlying offenses before the court.
All statutory references, unless otherwise indicated, are to the Evidence Code.
The trial court ruled that both of the prior offenses were “found by case law to constitute moral turpitude,” that they were “probative of [the defendant’s] credibility should he testify,” and that both “occurred in 2006, so there is no problem with remoteness....” It also found their proof would involve no undue consumption of time, in light of the availability of the CLETS printouts. The court acknowledged that the brandishing prior “does involve violence, but it’s a different type situation,” and found it was not “so similar that it would be highly prejudicial.” It ruled that only the convictions themselves, and not the underlying conduct, would be admitted, and that the jury would be given a limiting instruction to the effect that it should consider the priors “only for the purpose of the defendant’s credibility.”
Defendant claims this instruction was never given. In fact, the trial court did instruct the jury at the end of defendant’s testimony that the testimony was admissible only for assessing defendant’s credibility. It also included CALCRIM No. 303 in its concluding instructions. These instructions were sufficient to limit the jury’s consideration of the prior convictions to defendant’s credibility.
In light of the court’s ruling, defense counsel ultimately elicited from his own client an admission of the two prior misdemeanor convictions. No documents proving the prior convictions were ever introduced.
B. Defendant’s Argument That His Misdemeanor Convictions Were Inadmissible for Impeachment Was Forfeited, and He Has Failed to Establish Ineffective Assistance of Counsel in Failing to Object.
At the outset, defendant questions whether prior misdemeanor convictions, as opposed to misdemeanor conduct, are admissible for impeachment. No such issue was raised in the trial court, and as defendant seems to realize, the issue is not properly before us. The absence of appropriate objection deprived the prosecution of an opportunity to establish admissibility by laying before the court the nature of defendant’s underlying conduct. (See People v. Holt (1997) 15 Cal.4th 619, 666-667, People v. Cadogan, supra, 173 Cal.App.4th at p. 1515.)
People v. Wheeler (1992) 4 Cal.4th 284, held that, in light of the passage of Proposition 8 in 1982, misdemeanor conduct could be used for impeachment in criminal cases, but neither documentary nor testimonial evidence of a prior misdemeanor conviction could be admitted over a hearsay objection. (Id. at pp. 290-293, 298-300.) Wheeler nevertheless noted that the Legislature would be free to create a hearsay exception “that would allow use of misdemeanor convictions for impeachment in criminal cases.” (Id. at p. 300, fn. 14.) A decade later, People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1461, concluded that the Legislature had, in fact, created such a hearsay exception, at least for official records of a prior conviction, by enacting section 452.5 in 1996. Defendant attempts to cast doubt on Duran’s interpretation of section 452.5 by pointing out that the Supreme Court itself has more recently reiterated the rule of Wheeler in People v. Chatman (2006) 38 Cal.4th 344, 373. (See also People v. Cadogan (2009) 173 Cal.App.4th 1502, 1514-1515 & fn. 4.) Whatever may be the merits of defendant’s argument, it was not preserved for appeal.
Indeed, even his more serious contention—that the two prior misdemeanor convictions did not involve moral turpitude when considered in light of their least adjudicated elements—has been forfeited. The claim is in essence a relevancy argument, and neither that general objection nor a more specific articulation of the issue was raised at the time of the trial court’s ruling. Therefore, it has not been preserved for appeal. (§ 353, subd. (a).)
Even where prior felony convictions are concerned, relevancy in the impeachment context is circumscribed by the concept of moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 313-314.) Any conviction that does not evince moral turpitude does not meet the threshold relevancy requirement under section 786 that it must reflect on the witness’s “honesty or veracity.”
In a supplemental brief, defendant points out that there was no proof of service on the prosecutor’s in limine motion. From this fact, defendant infers that his trial counsel may not have received a copy of the motion, and he attempts to construct an ineffective assistance of counsel claim based on that inference. The record, he argues, “does not indicate that defense counsel reviewed the two cases that the prosecution cited.” Rather, defendant asks us to infer that his trial attorney “simply accepted the court’s representation” that the cases cited by the prosecutor support the proposition that his prior misdemeanor convictions involved moral turpitude.
It is true that the in limine motion has no proof of service attached, and it appears to have been filed on June 19, 2007, the same date it was argued and ruled upon. Nevertheless, we are unwilling on this record to conclude that defense counsel did not receive a copy of the motion in sufficient time to frame an informed response. The court declared a lunch recess at 11:52 a.m., with the jury scheduled to return at 1:30 p.m. Counsel were instructed to return at 1:15 p.m. for a hearing on the prosecutor’s motion. Thus, it appears that defense counsel, at the very least, could have used the lunch hour to review the cases cited in the prosecutor’s motion and to distinguish them at the hearing on the motion. We cannot infer from this record that counsel failed to conduct even this most fundamental and routine duty on his client’s behalf.
Defendant has not filed a petition for writ of habeas corpus, as is usually required for claims of ineffective assistance of counsel. (People v. Snow (2003) 30 Cal.4th 43, 111.) If, in fact, defense counsel did not receive a copy of the in limine motion in time to review the cited cases and formulate a response, then at the very least, appellate counsel should have obtained a declaration from him to that effect and filed an appropriate petition. We cannot accept defendant’s constitutional claim based on an ambiguous record, where no claim of lack of notice was raised below.
When the motion was heard, defense counsel admitted without hesitation that the convictions had occurred. This suggests he had discussed the issue with his client. Defense counsel made no comment on the record to suggest that he was surprised by the motion, that he did not have time to prepare an informed response, or that the procedure employed was otherwise unfair. He did not disagree with the court’s observation that brandishing a firearm and evading a peace officer are crimes of moral turpitude and made no attempt to distinguish the cases cited by the prosecutor. He offered no explanation of the facts underlying the prior convictions so as to demonstrate that his client’s prior conduct did not involve moral turpitude. He did not object to the use of misdemeanor convictions as hearsay and did not argue that CLETS printouts are not an “official record of conviction” under section 452.5. His only objection was that the prior brandishing offense was more prejudicial than probative under section 352.
On appeal defendant does not raise an issue under section 352.
Under these circumstances, defendant’s appellate contention regarding moral turpitude has been forfeited. (People v. Marks, supra, 31 Cal.4th at pp. 228-229.) The record fails to negate the possibility of a tactical reason for the course chosen by defense counsel. Presumably he had ascertained the facts underlying the prior convictions from his client. Perhaps, knowing the facts would reveal moral turpitude, he was resigned to having the prior conduct admitted for impeachment, and he preferred it to come in simply as an admission of a prior conviction rather than to have all the details brought before the judge and jury. There is no basis for concluding that defendant was deprived of constitutionally adequate representation. (Strickland v. Washington (1984) 466 U.S. 668.)
A similar procedural defect was present in Wheeler itself, which held the hearsay issue had been waived by failure to object. (Wheeler, supra, 4 Cal.4th at p. 300.) Likewise, in People v. Marks (2003) 31 Cal.4th 197, 228-229, the Supreme Court held that a defendant’s failure to challenge the admissibility of prior convictions used for impeachment on grounds that they did not involve moral turpitude barred his raising that issue on appeal.
C. The Prior Misdemeanor Convictions Necessarily Involved Moral Turpitude.
Despite defendant’s forfeiture of the issue of moral turpitude, we discuss it on the merits to explain why the court’s ruling was not erroneous. In conducting our analysis we will look to the least adjudicated elements of the misdemeanor convictions, just as we would if prior felonies were involved.
Moral turpitude has been defined variously as a “ ‘general readiness to do evil’” (People v. Castro, supra, 38 Cal.3d 301, 314), “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man” (People v. Mansfield (1988) 200 Cal.App.3d 82, 87), or “conduct involving violence, menace, or threat” (People v. Williams (1999) 72 Cal.App.4th 1460, 1464). People v. Castro, supra, divided crimes of moral turpitude into two groups: (1) crimes in which dishonesty is an element (i.e., fraud, perjury, etc.); and (2) crimes that indicate a “ ‘general readiness to do evil,’ ” from which a readiness to testify falsely may be inferred. (38 Cal.3d at pp. 314-316 & fn. 10.) Crimes in the first category tend to be more probative as impeachment than those in the second. (Id. at p. 315.)
“Whether a conviction involves [moral] turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions.” (People v. Collins (1986) 42 Cal.3d 378, 390; People v. Maestas (2005) 132 Cal.App.4th 1552, 1556; People v. Garrett (1987) 195 Cal.App.3d 795, 798.) Collins noted that although most decisions regarding the admission of prior felonies for impeachment are within the trial court’s broad discretion, if the crime does not “necessarily” involve moral turpitude, it is “inadmissible as a matter of law.” (Collins, supra, at p. 389.) Because it is a question of law, the limited issue whether the court correctly determined that defendant’s prior misdemeanors were crimes of moral turpitude must be reviewed de novo. (See Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1407 [issues of law reviewed de novo]; People v. Gray (2007) 158 Cal.App.4th 635, 640 [judge, not jury, decides whether moral turpitude involved].)
1. Brandishing a Firearm
Defendant’s prior conviction for brandishing a firearm (Pen. Code, § 417, subd. (a)(2)), necessarily involved the “rude, angry or threatening” exhibition of a firearm, whether loaded or unloaded, in the presence of another person. The same subdivision outlaws the unlawful use of a firearm in “any fight or quarrel.” The conviction alone does not reveal whether defendant’s conduct involved exhibition of a firearm alone or unlawful use in a fight. We will presume it involved only exhibition.
The prosecutor specified that the prior conviction was for violating Penal Code section 417, subdivision (a)(2), so we know that the weapon brandished was a firearm and not some other type of weapon (see Pen. Code, § 417, subd. (a)(1)). It was not established in the trial court whether the defendant brandished a concealable firearm or another type, or whether the offense occurred in a public place or in a private setting.
The brandishing statute requires that the firearm be a more significant weapon than a BB or pellet gun. (In re Jose A. (1992) 5 Cal.App.4th 697, 700-702.) The victim need not be aware of the presence of the firearm (People v. McKinzie (1986) 179 Cal.App.3d 789, 794), and the weapon need not be pointed directly at the victim (People v. Sanders (1995) 11 Cal.4th 475, 542). Any claim of self-defense, however, is negated by the conviction. (Pen. Code, § 417, subd. (a)(2).)
Defendant appears to concede that brandishing a firearm involves moral turpitude when done in a threatening manner. He argues, however, that, applying the least adjudicated elements test, the question is whether “exhibiting an unloaded firearm in a rude manner in the presence of another person” evinces a readiness to do evil. He also seems to argue that an angry brandishing likewise involves no moral turpitude.
The Attorney General cites People v. Lepolo (1995) 55 Cal.App.4th 85 (Lepolo) for the proposition that a conviction for brandishing a firearm evinces moral turpitude. In Lepolo, the defendant not only brandished a machete, but threatened a uniformed police officer with it. (Id. at pp. 88-89.) Although he was never convicted of any crime, because Lepolo’s conduct involved moral turpitude, the prior conduct was admissible for impeachment. (Id. at pp. 89-90.)
Lepolo also said, “Even if we were to view Lepolo’s conduct narrowly, as constituting merely brandishing a weapon, Lepolo cites no authority holding that even the least adjudicated elements of brandishing do not involve moral turpitude.” (Lepolo, supra, 55 Cal.App.4th at p. 91.) The Attorney General argues that Lepolo “impliedly held that the least adjudicated elements of brandishing a weapon do involve moral turpitude.” However, since Lepolo relied heavily on all of the surrounding circumstances, including threats made by Lepolo after he was arrested (id. at pp. 89-92), we cannot agree that the case stands for the broad proposition that the least adjudicated elements of brandishing involve moral turpitude. At most it says there is no authority to the contrary.
The Attorney General also likens the case to People v. Lang (1989) 49 Cal.3d 991, 1010, in which the Supreme Court held that escape without force involves moral turpitude because it “necessarily involves some form of stealth, deceit, or breach of trust, and the potential for violence is always present when an escaped felon is recaptured.” He also cites People v. White (1992) 4 Cal.App.4th 1299, 1305, holding that discharging a firearm at an inhabited dwelling is a crime of moral turpitude, even though it requires no intent to cause injury and the residence is temporarily unoccupied, because such a crime always “ ‘present[s] a potential for violence.’ ” These cases tend to suggest that a defendant’s act in creating a potential for violence reflects moral turpitude, but the actual firing of a gun involved in White and the stealth and deceit involved in Lang make those cases distinguishable.
The Attorney General also argues that brandishing a firearm involves moral turpitude because “simply exhibiting a firearm in a rude manner will always risk causing mental terror to the victim because a firearm is a menacing weapon with an immediately apparent and well-known capacity to injure and kill.” He cites People v. Thornton (1992) 3 Cal.App.4th 419, 424, holding that making terrorist threats under Penal Code section 422 involves moral turpitude. Aside from the fact that brandishing need not be accompanied by verbal threats, the Attorney General’s argument is somewhat diminished by the fact that, as noted earlier, the victim need not be aware of the brandishing. (People v. McKinzie, supra, 179 Cal.App.3d at p. 794.)
For his part, the defendant relies primarily on People v. Mansfield, supra, which held that felony battery does not involve moral turpitude because it requires only “ ‘the least touching.’ ” For simple battery, the touching “need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.” (200 Cal.App.3d at p. 88.) Although a felony battery results in serious injury, neither intent to inflict such injury nor force likely to produce it is an element of the offense. Thus, Mansfield held felony battery is not a crime of moral turpitude.
Defendant also distinguishes People v. Williams, supra, which held that crimes of moral turpitude include any which require “ ‘violence, menace or threat.’ ” (72 Cal.App.4th at pp. 1464-1465.) He argues that because brandishing may involve a “rude” display alone, without also being “threatening,” Williams and similar cases do not apply.
We find none of the cases cited by the parties dispositive of the issue. Neither party cites authority squarely holding that brandishing a firearm is or is not, in the abstract, a crime of moral turpitude. We have conducted our own research and have found no case on point.
However, we do not believe the trial court erred in ruling the brandishing offense admissible. We conclude an “angry” brandishing, like a “threatening” one, involves moral turpitude for the very reason that a person who reaches for a weapon in a state of anger increases the risk of injury to others if his emotions thereafter overwhelm his reason.
Preliminarily, we question defendant’s premise that moral turpitude must be judged by separating out “rude” displays of firearms from other more menacing displays. The “rude, angry or threatening” language all constitutes a single element of the offense. (See CALCRIM No. 983.) A jury is not asked to distinguish a “rude” display from an “angry” or “threatening” one, nor do we feel bound to do so. Our duty to apply the least adjudicated elements test does not require us to strain our imaginations to conjure up an offense with the described criminal elements that would be innocent in nature. The crime, in the abstract, implies a menacing or socially unacceptable display of the weapon, which qualifies it as involving moral turpitude.
As this Court has previously observed, “the ability to imagine a set of circumstances under which a penal statute can be violated without moral fault cannot be the measure of the moral turpitude that is involved in violating that statute. If that is what is required by the least adjudicated elements test, no crime would ever involve moral turpitude.” (People v. Thomas (1988) 206 Cal.App.3d 689, 698.) In Thomas, we held that an aggravated assault conviction is properly used for impeachment. “ ‘It is the use of the deadly weapon which elevates the assault to a moral turpitude crime.’ [Citation.]” (Id. at p. 695.) Central to our conclusion was that the introduction of a deadly weapon “permits the inference that the actor realized the likelihood of injuring the other person and therefore demonstrated a readiness to do evil.” (Ibid.) We believe the same is true when the crime is brandishing rather than assault.
Generally speaking, crimes involving weapons, especially firearms, pose a risk of violence, even if, as with brandishing, they do not require an intent to do harm or actual resulting harm. (See, e.g., People v. Nelums (1982) 31 Cal.3d 355, 359-360 [even “passive display [of a firearm] may stimulate resistance”]; People v. Jackson (1979) 92 Cal.App.3d 899, 903 [even with an inoperable weapon, “[t]he danger remains that the reaction by the victim or some third person to the appearance of the gun will cause harm to befall someone”].) Indeed, many violations involving firearms have been held to involve moral turpitude, without any injury or intent to injure being among the least adjudicated elements. (People v. Robinson (2005) 37 Cal.4th 592, 624, 626 [misdemeanor possession of concealed handgun (dictum) (Robinson)]; People v. Williams (2009) 170 Cal.App.4th 587, 608 [possession of firearm by ex-felon]; People v. Garrett, supra, 195 Cal.App.3d at pp. 799-800 [federal felony conspiracy to possess sawed-off shotgun]; People v. Littrel (1986) 185 Cal.App.3d 699, 703 [possession of firearm by convicted felon]; People v. Feaster (2002) 102 Cal.App.4th 1084, 1089, 1092-1093 [misdemeanor negligent discharge of firearm under Pen. Code, § 246.3, which could result in injury or death]; see also, People v. Rivera (2003) 107 Cal.App.4th 1374, 1378-1382 [misdemeanor possession of deadly weapon with intent to assault].)
Some of these cases involve especially dangerous weapons ordinarily used for criminal purposes (Garrett), or possession with a criminal intent, actual or presumed (Rivera, Williams and Littrel), or actual discharge of the weapon (Feaster). Nevertheless, we conclude that the willing exhibition of a firearm in a socially unacceptable manner shows a fundamental disregard for the potential terror and violence that may ensue. If carrying a concealed firearm is a crime of moral turpitude (Robinson, supra, 37 Cal.4th at p. 626), then brandishing a firearm must be all the more so. Brandishing a firearm involves a significant threat to public safety through its risk of an accidental, negligent or intentional discharge, or of provoking a violent reaction by the victim or an onlooker. Moreover, the display of a gun in the presence of another person is sufficiently alarming by its nature to evince a willingness to frighten, intimidate or threaten another, regardless whether such fear results. This willingness to engage in antisocial conduct with a firearm “violates generally accepted standards of moral behavior” (People v. Thornton, supra, 3 Cal.App.4th at p. 424), thereby rationally increasing the likelihood that an offender guilty of brandishing is less likely to respect the mandate of the law that he testify truthfully.
Therefore, regardless of whether it might theoretically be possible to imagine a brandishing offense that involves simple “rudeness,” we think that term, construed in light of the statute as a whole, implies a lack of social responsibility sufficient to allow a brandishing conviction to impeach a witness’s credibility. Our conclusion is bolstered by the fact that the Legislature has defined a violation of Penal Code section 417, subdivision (a)(2) as an offense involving “the violent use of a firearm.” (Pen. Code, § 12001.6, subd. (c).)
2. Evading a Pursuing Peace Officer
Defendant also claims that misdemeanor evading a peace officer is not a crime of moral turpitude. Arguing to the contrary, the Attorney General relies on People v. Dewey (1996) 42 Cal.App.4th 216 (Dewey). Defendant points out, however, that Dewey dealt with a felony violation of Vehicle Code section 2800.2, whereas defendant’s offense was a misdemeanor under Vehicle Code section 2800.1.
The main distinction between the two offenses is that the felony violation requires that “the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.” (Veh. Code, § 2800.2, subd. (a).) The weight to be given the “willful and wanton disregard” element of the felony, however, is diminished in light of the Supreme Court’s more recent holding that felony violation of Vehicle Code section 2800.2 is not, in the abstract, an “inherently dangerous” felony for purposes of second-degree felony murder. (People v. Howard (2005) 34 Cal.4th 1129, 1137-1139.) A felony conviction may result from committing three traffic point violations (Veh. Code, § 2800.2, subd. (b)), which could involve conduct not inherently dangerous to human life, such as driving on a suspended license or failing to signal for a turn for 100 feet before turning. (34 Cal.4th at pp. 1137-1138.) Thus, defendant’s attempt to distinguish the felony from the misdemeanor offense on the basis that the felony offense is far more dangerous than the misdemeanor falls short of convincing us that the moral culpability involved in the two crimes is grossly disparate.
Even the misdemeanor offense requires “intent to evade” and willful flight or other attempts to elude a pursuing peace officer’s motor vehicle. The crime occurs only if the pursuing officer’s car is “distinctively marked,” is “exhibiting at least one lighted red lamp,” is “sounding a siren as may be reasonably necessary,” and is operated by a uniformed peace officer. (Veh. Code, § 2800.1, subd. (a).) Dewey likened the crime to seeking to evade criminal prosecution by leaving the scene of an accident, which was held to be a crime of moral turpitude in People v. Bautista (1990) 217 Cal.App.3d 1, 7. (Dewey, supra, 42 Cal.App.4th at p. 222.)
Though, as defendant points out, Bautista involved leaving the scene of a hit-and-run accident with injuries, we nevertheless believe trying to outrun a pursuing police car demonstrates an effort to avoid criminal responsibility that is sufficient to reflect poorly on the offender’s credibility. A willingness to evade apprehension and punishment for whatever may have occasioned the police chase indicates a refusal to take responsibility for one’s actions, which in turn signals a corresponding willingness to avoid punishment by testifying falsely in court. Thus, where the witness (such as defendant here) potentially has a motive to lie to avoid punishment, a prior attempt to avoid punishment by evading a pursuing peace officer is highly relevant. In such a case, the intent to avoid capture and punishment, together with the blatant contempt for lawful authority, demonstrates a sufficient degree of moral culpability to make the prior conviction relevant for impeachment. (Cf. People v. Lang, supra, 49 Cal.3d at p. 1010 [escape from prison without force is a crime of moral turpitude in part because it involves “deceit, breach of trust, or stealth”]; People v. Maestas, supra, 132 Cal.App.4th at p. 1556 [willful failure to appear in court is a crime of moral turpitude because it is “at heart a crime of deceit”]; People v. Lee (1991) 229 Cal.App.3d 1504, 1508-1509 [failure of prisoner to return to custody on time when temporarily released for work or education is a crime of moral turpitude]; People v. Waldecker (1987) 195 Cal.App.3d 1152, 1158 [even a nonviolent escape from prison shows the defendant “may be equally motivated and prepared to violate a testimonial oath in order to escape conviction”].)
D. Appellant’s Due Process Claim
Defendant argues that the use of his prior convictions for impeachment violated his due process rights, citing Castro, supra, 38 Cal.3d at p. 313. On its due process analysis, however, Castro was called into doubt in Wheeler itself, which recognized that Castro’s federal due process rationale for exclusion of felonies not involving moral turpitude was undermined by subsequent United States Supreme Court authority. (People v. Wheeler, supra, 4 Cal.4th at p. 296, fn. 6.) Wheeler reaffirmed the Castro rule requiring that a prior conviction evince moral turpitude before it may be admitted, but did so on the basis of California’s “ ‘tendency in reason’ ” standard of relevance (§§ 210, 780), rather than on the due process clause. (Ibid.) “Thus, notions of federal due process no longer support the Castro decision, if they ever did.” (People v. Ballard (1993) 13 Cal.App.4th 687, 693.) Nor was the trial rendered fundamentally unfair by admission of the prior convictions. (See Romano v. Oklahoma (1994) 512 U.S. 1, 12-13.)
E. Prejudice
The correct standard of prejudice is the standard for errors of state law under People v. Watson (1956) 46 Cal.2d 818, 836, the same standard actually employed in Castro, supra, 38 Cal.3d at p. 319. (See also, People v. Rollo (1977) 20 Cal.3d 109, 121; People v. Betts (1980) 110 Cal.App.3d 225, 231.) Although we find no error in the trial court’s ruling—and that any possible error was forfeited by failure to assert it in the trial court—we also conclude that any error in the admission of the evidence was harmless.
Defendant cites College Hospital v. Superior Court (1994) 8 Cal.4th 704, 715, for its clarification that the Watson standard’s requirement of a “ ‘reasonable probability’ ” that the error affected the verdict “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” This case does not affect our conclusion that there was no prejudice in this case.
Insofar as defendant attempted to assert a self-defense argument, it was destined to fail. While Asman may have thrown the first punches during the initial altercation, he had clearly withdrawn from any combat. The second confrontation was renewed when the white car was driven back to the spot where Asman was pumping gas. Even if Asman threw the first punch in the second bout (which was disputed), he was soon knocked unconscious, and yet the attack continued. The jury was correctly instructed that in such circumstances, the right of self-defense ends.
Defendant’s story was essentially that Smith was the only occupant of the white car who was responsible for the serious injuries inflicted on Asman. Although defendant admitted engaging in fisticuffs with Asman, he never acknowledged kicking him or using metal knuckles. The two neutral witnesses, White and Field, both testified that two assailants were involved in kicking Asman. Field and Kevin both testified that a third occupant of the white car also assisted in bringing Asman to the ground or in holding him down while the other two kicked and/or beat him.
Given the consistent testimony that more than one person from the white car participated in the assault, defendant’s testimony that Smith alone engaged in the kicking incident was contradicted by every other witness. In addition, the assault was captured on video surveillance, which allowed the jurors to judge for themselves whether more than one assailant was involved. Finally, the serious injuries inflicted on Asman, which left him hospitalized for five days and off work for a month, considered in light of the fact that defendant and Smith were not injured at all, substantiates the testimony that the injuries were inflicted in a two-on-one (or three-on-one) attack—not in the manner described by defendant.
It is true that the district attorney reminded the jury of the defendant’s prior convictions in his closing argument and pointed out that no other witnesses had been impeached with prior convictions. However, his references were not inflammatory, repetitive, or prolonged. Based on the strength of the evidence overall, we find no reasonable probability that a verdict more favorable to the defendant would have been rendered, even if he had not been impeached with his two prior misdemeanor convictions. (People v. Watson, supra, 46 Cal.2d 818, 836.)
I. Failure to Give Unanimity Instruction Sua Sponte
Appellant’s next contention is that the trial court should have given a unanimity instruction sua sponte on the great bodily injury enhancement, and perhaps on the battery with serious bodily injury charge as well, because Asman’s injuries could have been inflicted in one of two discrete ways: either by kicking or by use of the metal knuckles. (See People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
The Attorney General responds that, at most, the jury could have divided or been uncertain as to the exact way the defendant inflicted the injuries, but still found defendant guilty of a single discrete great bodily injury enhancement. He also argues that the injuries inflicted on Asman were part of a continuous course of conduct, and therefore a unanimity instruction was not required. We agree with the Attorney General.
The rule requiring jury unanimity is applied somewhat differently when a defendant claims he is entitled to a unanimity instruction on a great bodily injury enhancement. As observed in People v. Robbins (1989) 209 Cal.App.3d 261 (Robbins) when reaching a verdict on such an enhancement “the jurors are to look at the nature and extent of the injury sustained and decide whether it rises to a level they consider significant or substantial. [¶] This is a different kind of analysis than that contemplated by CALJIC No. 17.01. Here, the jury is not called upon to engage in fact finding per se; there is no danger the jury will convict a defendant of a crime based on two different factual scenarios, neither of which is believed by all twelve jurors. Instead, the jury performs a measuring function, deciding whether the victim suffered that quantum of injury legally defined as great bodily injury. To make this determination, the entire course of conduct and its overall result—not each act and individual injury—must be examined.” (Id. at p. 265, italics added.) Indeed, as Robbins noted, some jurors may view one injury as rising to the level of great bodily injury, while others may view different injuries as meriting the enhancement. (Ibid.) Viewed in this light, it was unnecessary, on the facts of this case, to give a unanimity instruction in relation to the great bodily injury enhancement.
In Russo, supra, the Supreme Court discussed the rationale for requiring a unanimity instruction. There, only one conspiracy was charged but several different acts were alleged in its furtherance. At issue was whether the jury must agree on the specific overt act that was committed. Russo determined that juror unanimity was not required in that circumstance, and that no instruction need be given: “ ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ ” (25 Cal.4th at p. 1132.)
Russo distinguished between the necessity for juror unanimity as to “discrete crimes” and the lack of necessity where there is only the possibility of juror disagreement as to the precise “theory” of a single offense. “The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1134-1135.)
This case falls into the second category. There is no question that Asman sustained great bodily injury, and the jury had no reasonable doubt that the defendant was personally responsible for inflicting it. At most it can be said that the jurors may have disagreed about the exact manner in which the injury was inflicted. But this is simply a “theory of the case,” not two discrete events in which injuries were inflicted as to which the jury would need to come to unanimous agreement before a great bodily injury finding would be justified.
People v. Muniz (1989) 213 Cal.App.3d 1508, is instructive. This was a forcible oral copulation case with a great bodily injury enhancement, where the defendant claimed that a unanimity instruction was required to force the jury to determine whether he inflicted the great bodily injury when the victim fell during a struggle with him, or alternatively, when he beat her after the fall. (Id. at p. 1517.) The Fourth District concluded that a unanimity instruction was not required because the evidence was not such that the jurors could otherwise disagree which act he committed and yet convict him of the crime charged, and because both possible sources of injury occurred during a continuous course of conduct. (Id. at pp. 1518-1519.)
The continuous course of conduct exception applies when the acts are “so closely connected that they form part of one and the same transaction, and thus one offense.” (People v. Thompson (1984) 160 Cal.App.3d 220, 224; People v. Mota (1981) 115 Cal.App.3d 227, 231-234.) This is especially true when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
The kicking and use of metal knuckles occurred as part of an ongoing assault, and defendant presented the same defense to both: that he was not involved in either form of assault while Asman was on the ground, and that Smith alone was responsible for Asman’s serious injuries. The attack that caused Asman’s injuries lasted at most two to five minutes. Three witnesses (Asman, White and Field) all testified that the attackers kicked Asman while he was on the ground. Indeed, defendant himself testified that Asman was kicked, although he denied being the person who kicked him. The judge at sentencing also noted that the kicking is visible on the surveillance video.
On the other hand, Kevin alone testified that defendant used metal knuckles to beat his father. He did not mention kicking in his testimony, but he also did not testify specifically that the defendant had not kicked his father. The jury asked for a readback of Kevin’s entire testimony, suggesting that it paid particular attention to it or had specific questions about it. Thereafter, the jury acquitted defendant of possession of the metal knuckles. These factors tend to shed more doubt on whether metal knuckles were employed.
Thus, it is reasonably possible that some jurors believed defendant inflicted the great bodily injury by kicking Asman, and some may have believed he inflicted the injury by kicking and beating him with metal knuckles, but we see no reasonable possibility that any jurors believed defendant’s attack on Asman involved the use of metal knuckles but not kicking. The trial court was not required to give a unanimity instruction either with respect to the felony battery count or the great bodily injury enhancement.
More fundamentally, we agree with Robbins, supra, that there simply is no requirement that the jury unanimously agree on which blow produced which injury and which injury or combination of injuries warranted the true finding on the enhancement allegation. It is enough that the jury unanimously agreed that through a continuous course of conduct involving kicking and/or the use of metal knuckles, the defendant inflicted on Asman injuries serious enough to be deemed “great bodily injury.”
When the crime involves a group assault, a great bodily injury finding is appropriate “if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others.” (People v. Modiri (2006) 39 Cal.4th 481, 497.) The jury was instructed that it could find the great bodily injury enhancement true if the prosecution proved: (1) that “two or more people, acting at the same time, assaulted Thomas Asman and inflicted great bodily injury on him”; (2) “the defendant personally used physical force on Thomas Asman during the group assault”; and (3) “[t]he amount or type of physical force the defendant used on Thomas Asman was enough that it alone could have caused Thomas Asman to suffer great bodily injury.” (See CALCRIM No. 3160.)
This pattern instruction was actually more stringent than is required in a group assault case in that it required the jury to find that defendant’s use of force “alone could have caused” the great bodily injury. The Supreme Court in Modiri, supra, rejected the notion that such a strict tracing of injury causation was required, noting that under such a view “ ‘[o]nly those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished. The more severe the beating, the more difficult would be the tracing of culpability.’ ” (39 Cal.4th at p. 497.) Rather, Modiri adopted the view that a personal infliction finding is appropriate “where the physical force the defendant and other persons applied to the victim at the same time combined to cause great bodily harm.” (Id. at p. 496.) Given the group beating context, the jury was properly instructed, and there was no need for a unanimity instruction to determine the precise role defendant played in inflicting the injuries upon Asman.
In light of the evidence, even assuming that a unanimity instruction should have been given, we see no reasonable possibility of prejudice, even if the federal standard for constitutional error were applied. (Chapman v. California (1967) 386 U.S. 18; see People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [noting split of authority as to applicable standard of prejudice, but adopting the Chapman standard].)
II Dual Conviction as a Violation of Double Jeopardy
Finally, defendant contends that his felony battery conviction must be vacated because, when considered with the great bodily injury finding on the aggravated assault, the two convictions constitute “the same offense.” He contends this violates not only People v. Pearson (1986) 42 Cal.3d 351, 355, prohibiting multiple convictions based on necessarily included offenses, but also double jeopardy principles. (U.S. Const., 5th Amend.; Cal. Const. art. I, § 15; see also, § 1023.) He further argues that the possibility that both counts of conviction may be used as strike offenses in the future prohibits the dual conviction. Defendant’s contention fails.
People v. Sloan (2007) 42 Cal.4th 110 is dispositive. Defendant Sloanwas convicted of corporal injury of a spouse, aggravated assault, battery with serious bodily injury, and dissuading a witness, with enhancements for personal infliction of great bodily injury on the first two counts (Pen. Code, § 12022.7, subd. (e)), and a personal infliction of great bodily injury finding on the battery, making it a serious felony under Penal Code section 1192.7, subdivision (c)(8). (Id. at pp. 114-115.) He contended that, considering the enhancements, both the aggravated assault and the battery were essentially lesser included offenses of corporal injury of a cohabitant. (Id. at p. 115.)
The Supreme Court rejected the argument that enhancement allegations should be considered when applying the judicially created rule prohibiting multiple convictions for lesser included offenses. (Sloan, supra, 42 Cal.4th at pp. 117-119.) “In deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (Id. at p. 118.) Using that approach, an aggravated assault (Pen. Code, § 245, subd. (a)(1)) is not a lesser included offense of felony battery (Pen. Code, § 243, subd. (d)). (In re Ronnie N. (1985) 174 Cal.App.3d 731, 735.)
Sloan further argued, like defendant here, that even if he was not subjected to multiple punishment in the current sentencing, the multiple findings of great bodily injury would qualify all three convictions as strikes, thereby raising the specter of multiple punishment under the three strikes law in the event he were to be convicted of a felony in the future. Sloan argued that this presented both double jeopardy problems and a potential violation of Penal Code sections 654. (Sloan, supra, 42 Cal.4th at pp. 120-122.) The Court held that the double jeopardy clause is not implicated because any future conviction and sentencing were speculative. (Id. at p. 121.) The Supreme Court likewise refused to address the issue under Penal Code section 654 until “it is factually and squarely presented” in an appropriate case. (Ibid.)
Defendant’s argument is further undercut by the fact that his conviction under Penal Code section 243, subdivision (d), does not qualify per se as a serious felony prior under Penal Code section 1192.7. (People v. Bueno (2006) 143 Cal.App.4th 1503, 1508.) Hence, the potential for multiple future punishment under the three strikes law is entirely speculative.
Defendant admits that the Supreme Court in Sloan rejected all of his arguments here. He nevertheless argues that “Sloan is not final,” since it was remanded to the Third District, and following a decision on remand consistent with the Supreme Court’s opinion in Sloan, remained pending on a petition for review at the time the opening brief was filed.
However, on May 14, 2008, the petition for review was denied (S162538). (People v. Sloan (2008) 2008 Cal. LEXIS 5958.) A petition for writ of certiorari was denied by the United States Supreme Court on November 3, 2008 (No. 08-6182). (Sloan v. California (2008) ___ U.S. ___, 129 S.Ct. 506.) Hence, all subsequent petitions in Sloan have been rejected, and the Supreme Court’s decision is binding on this Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.