Opinion
B217983
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. NEAL MCCASKILL, Defendant and Appellant.
Jeff Dominic Price for Defendant and Appeallant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063135)
APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed.
Jeff Dominic Price for Defendant and Appeallant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Neal McCaskill appeals from the judgment entered after his conviction by a jury of one count each of continuous sexual abuse (Pen. Code, § 288.5, subd. (a)), forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)) and forcible rape (Pen. Code, § 261, subd. (a)(2)). McCaskill contends the trial court violated his constitutional rights by limiting his cross-examination of his accuser, admitting sexual propensity evidence under Evidence Code section 1108 (including evidence of his two prior misdemeanor convictions) and preventing voir dire regarding his prior convictions. We affirm.
McCaskill was sentenced to an aggregate state prison term of 24 years.
Statutory references are to the Evidence Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crimes
In December 2007 Victoria P. (Tori), then 15 years old, confided to her mother, Carrie G., that she had been repeatedly sexually molested by McCaskill, a family friend. According to Tori, the abuse occurred on occasions when Carrie and McCaskill's wife Alice, who were long time friends, had gone shopping together, leaving Tori alone with McCaskill. McCaskill had first touched Tori inappropriately in 2003 when she was 11 years old. On that occasion, while swimming together in the pool, McCaskill had fondled Tori through her bathing suit. Tori said nothing about the incident.
In August 2003 Tori's family moved to Las Vegas. They frequently returned to Los Angeles and often visited the McCaskills. Again, Tori was left in McCaskill's care while Carrie and Alice were out of the house. McCaskill continued to molest Tori on these occasions, usually when they were in the pool or the hot tub. Tori testified McCaskill typically placed his hand in the bottom of her bathing suit and massaged her or placed her hand in his bathing suit, making her hold his penis. On one occasion McCaskill placed his penis in Tori's bikini bottoms. On other occasions, including one episode when McCaskill came to Las Vegas for a convention, McCaskill had Tori sit in his lap and fondled her while she practiced driving his truck or downloaded songs on the computer. McCaskill told Tori the molestations were something they should keep to themselves.
On June 11, 2007 Carrie again left Tori with McCaskill for the day. McCaskill drove Tori to an electronics store, where he bought her a magazine and a DVD. They returned to the McCaskills' home and went swimming. After Tori put on her bathing suit, McCaskill rubbed tanning lotion on her legs. They began dancing, and McCaskill put his hands on Tori's hips and sat her on an ottoman. He pushed her shoulders back, lowered her bikini bottoms and orally copulated her. After about 10 minutes, McCaskill left the room. When he returned he was naked except for a condom. He then sat Tori on his lap and sexually penetrated her. During the entire episode, Tori did not fight or protest.
When Tori's mother returned to the McCaskills' home, McCaskill and Tori were eating pizza and watching a movie on television. Although Carrie noticed her daughter was "hyper and agitated," she did not suspect any wrongdoing.
2. The Investigation
Tori revealed the abuse to her mother in December 2007 when confronted about her failing grades. Tori told her mother she had been afraid to reveal the abuse because McCaskill, who was a firefighter, was widely respected and considered a hero and father figure by Tori. Tori feared no one would believe her if she disclosed the abuse.
After Tori told Carrie about McCaskill's abuse, she and Carrie reported the crimes, first to the Las Vegas Police Department and then to the Los Angeles Police Department. At the request of an investigating officer, Tori called McCaskill and told him she had plans to visit but would not come "if the things that happened before happen again." McCaskill asked what she was talking about; and Tori answered, "Like when I went swimming at your house." After a pause McCaskill stated he was having problems with his phone and hung up. Tori called back, and a similar conversation ensued. When McCaskill again asked what she was talking about, Tori said, "like what happened when you came out here for the convention." McCaskill again stated he had problems with his phone and hung up. He did not answer a third call.
3. The Evidence of Prior Sexual Abuse
Fifteen days before trial the People moved under sections 1101 and 1108 to admit evidence McCaskill had molested a young girl (Christi B., McCaskill's niece) in Kern County during the 1980's and had been convicted of a sexual offense. The motion specifically sought to introduce evidence of both McCaskill's sexual abuse of Christi and the misdemeanor conviction based on his guilty plea that resulted from that conduct. The defense did not oppose the motion, and it was granted by the court.
On the first day of trial the prosecutor advised the court she had just learned the Kern County charge had been dismissed, refiled in Los Angeles County and then resolved with a negotiated plea in November 1988 in a case that also involved another victim, Naomi M. In that proceeding McCaskill pleaded guilty to two misdemeanor counts of annoying or molesting a child in violation of Penal Code section 647.6. The defense objected to the renewed motion on the grounds it was untimely and McCaskill had been granted a certificate of rehabilitation under Penal Code section 4852.13 et seq. in September 2005. McCaskill also argued under People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler) evidence of a misdemeanor conviction, as opposed to evidence of the underlying conduct itself, is inadmissible hearsay. The trial court rejected the argument the motion was untimely. After briefly researching the effect of the certificate of rehabilitation on the admissibility of the propensity evidence, the trial court tentatively granted the motion but reserved ruling "subject to argument tomorrow." The court then commenced voir dire.
After argument the next morning, the court affirmed its tentative ruling on the prior conduct and also concluded evidence of the prior convictions was admissible. In response to the prosecutor's admission the file relating to those convictions had not been located, the court suggested the parties not raise the prior conviction issue in voir dire in case the prosecutor was unable to lay the requisite foundation. Neither party mentioned the prior convictions during voir dire.
Christi testified McCaskill had begun molesting her in the 1980's when she was in grade school. He fondled her, put his hand in her pants, made her touch his penis and rubbed his penis on her. McCaskill told Christi no one would believe her if she told anyone because he was a fireman.
Naomi, whose mother had been a close friend of McCaskill's then-wife in the 1980's, also testified McCaskill had sexually abused her, beginning when she was six or seven years old. Naomi testified that McCaskill used to play a "game" with her in which he threw her in the air and then pushed his groin into her when he caught her. He also asked her to watch him shower and, when she refused, left the bathroom door open, exposing himself to her. On one occasion he came out of the shower naked, grabbed her by the shoulders and rubbed his erect penis on her back. On another occasion, after pulling her panties down touching her vagina, McCaskill put his fingers in his mouth and told Naomi she tasted good. He also told her he loved her and wanted to marry her. Naomi testified the abuse traumatized her throughout her teenage years and broke apart her family.
4. The Defense Theory
McCaskill, who had been a City of Los Angeles firefighter for many years, sought to impeach Tori and her mother, arguing their testimony was inconsistent and had been fabricated. As Carrie acknowledged, she had been disabled by a brain lesion and was using anti-seizure medication that affected her memory. She also admitted she had previously suffered from alcohol, cocaine and methamphetamine addiction and had spent a year in a residential treatment facility beginning in June 2001. She had been sober since that time. During the period of her drug use, she had occasionally left Tori with friends, some of whom also used drugs. McCaskill's counsel cross-examined Carrie extensively regarding the timing of visits and her recollection of particular details. The defense also suggested Carrie was motivated by the prospect of a monetary settlement from McCaskill.
McCaskill similarly challenged Tori about her recollection of dates, events and details. Moreover, Tori, who had been a good student before the family moved to Las Vegas, developed academic problems in middle school. She began skipping school, smoking marijuana, drinking alcohol and cutting herself. As defense counsel elicited on cross-examination, Tori made her accusations against McCaskill only when her mother confronted her about failing grades.
Defense counsel also pointed out various discrepancies between Tori's account of the abuse at trial and her statements to law enforcement officers. The trial court, however, sustained the People's objections under Evidence Code section 352 to certain questions by defense counsel related to Tori's online postings about the abuse and her mother's purported threat to send Tori to a "gay detox" camp.
McCaskill did not testify in his own defense. His wife, Alice, testified Carrie and Tori had visited on only a few occasions and nothing inappropriate had ever happened. She specifically disputed their account of the afternoon of June 11, 2007. She testified she was aware of her husband's previous convictions but believed those charges were fabricated during McCaskill's acrimonious divorce from his first wife. McCaskill called several witnesses, including his neighbors and a co-worker, who testified that they had never seen McCaskill engage in inappropriate conduct and that the charges were not consistent with his excellent character.
CONTENTIONS
McCaskill contends the trial court improperly limited his cross-examination of Tori in violation of his Sixth Amendment rights; the People's motion to allow propensity evidence under section 1108 was untimely; and the court erred in granting the motion in light of his receipt of a certificate of rehabilitation under Penal Code section 4852.13 et seq. McCaskill also contends the trial court improperly admitted evidence of his prior misdemeanor convictions and prevented him from conducting voir dire of the jury on the subject of those convictions, thus depriving him of a fair trial.
DISCUSSION
1. The Trial Court Did Not Improperly Circumscribe the Defense's Cross-examination of the Victim
The right to confrontation and cross-examination "'is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal,'" and deprivation of an accused's right to cross-examine the witnesses against him is a denial of due process. (People v. Brown (2003) 31 Cal.4th 518, 538; accord, People v. Ardoin (2011) 196 Cal.App.4th 102, 118.) "The constitutional right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-842; accord, Ardoin, at p. 118.) "As the high court has explained, cross-examination is required in order 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" (People v. Smith (2007) 40 Cal.4th 483, 513.) State evidentiary rules "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense." (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
However, "'not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.'" (People v. Harris (2008) 43 Cal.4th 1269, 1292; accord, People v. Ardoin, supra, 196 Cal.App.4th at p. 119; People v. Singleton (2010) 182 Cal.App.4th 1, 18; see People v. King (2010) 183 Cal.App.4th 1281, 1314-1315 ["'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish'"].) The "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." (People v. Hovarter (2008) 44 Cal.4th 983, 1010; see Ardoin, at p. 119 ["'[e]xclusion of impeaching evidence on collateral matters [with] only slight probative value on the issue of veracity does not infringe on the defendant's right of confrontation'"]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 89 L.Ed.2d 674].) "In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623.) "'"Thus, unless the defendant can show that prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [Van Arsdall, at p. 680], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment."'" (People v. Hamilton (2009) 45 Cal.4th 863, 942-943; see Quartermain, at pp. 623-624; King, at pp. 1314-1315.)
Section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
McCaskill fails to demonstrate the trial court's limitation of his counsel's cross-examination of Tori resulted in a significantly different impression of her credibility. The defense had already effectively shown inconsistencies in Tori's statements, and it was an issue for the jury to decide whether those inconsistencies materially affected her credibility. The trial court permitted defense counsel to explore some of Tori's postings online but, when counsel's attempts to frame cogent questions exposing any significant new contradictions faltered, the court sustained the People's objections. From our review of the record, it is difficult to identify any inferences from the attempted inquiries that had not already been covered in other questioning. As the court recognized, the tangential musings of a teenage girl in postings on the Internet were not apt to reveal probative evidence yet were likely to unduly prejudice the jury or raise questions that might unnecessarily prolong the trial. (See People v. Smith, supra, 40 Cal.4th at pp. 512-513 ["'[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.'"].) The court also recognized that any inquiry of Tori about Carrie's speculative motives to send her to a "gay detox" camp were substantially more prejudicial than probative. There was no abuse of discretion.
2. The Trial Court Did Not Err in Admitting the 1988 Propensity Evidence
a. The standard of admissibility under section 1108
"Evidence Code section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant's propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352." (People v. Lewis (2009) 46 Cal.4th 1255, 1286; see also People v. Walker (2006) 139 Cal.App.4th 782, 796-797.) "By removing the restriction on character evidence in section 1101, section 1108 now 'permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose' [citation], subject only to the prejudicial effect versus probative value weighing process required by section 352." (People v. Britt (2002) 104 Cal.App.4th 500, 505.) The prior and charged offenses are considered sufficiently similar if they are both sexual offenses enumerated in section 1108, subdivision (d)(1)(A) through (F). (People v. Frazier (2001) 89 Cal.App.4th 30, 41.)
Section 1108, subdivision (a), provides, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
To be admissible under section 1108, "the probative value of the evidence of uncharged crimes 'must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Walker, supra, 139 Cal.App.4th at p. 796; see § 352.) "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.)
b. The court did not err in finding the motion had been timely filed
Penal Code section 1054.1 requires the prosecuting attorney to disclose to the defense "[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged." (Pen. Code, § 1054.1, subd. (c).) When the People seek to present evidence of a defendant's commission of other acts of sexual offense, they are statutorily required to "disclose" that evidence to the defendant under Penal Code section 1054.7. (§ 1108, subd. (b).) The disclosure of such evidence must be made "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (Pen. Code, § 1054.7.) "If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (Ibid.) The purpose of section 1108's disclosure requirement is to protect the defendant from unfair surprise and provide adequate time for preparation of a defense. (People v. Soto (1998) 64 Cal.App.4th 966, 980.)
When the People initially brought the section 1108 motion only 15 days before trial (instead of the required 30 days), the defense chose not to object. The motion was granted, and the issue of the timeliness of the motion was forfeited. (See People v. Williams (2008) 43 Cal.4th 584, 620 ["'"questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"'"]; see generally § 353, subd. (a) ["[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless [¶] . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"].)
On the first day of trial, immediately after the prosecutor discovered the Kern County case (the charge concerning Christi) had been dismissed and refiled in Los Angeles in conjunction with the case involving Naomi, she promptly advised the court of that fact. The court accepted the prosecutor's explanation for the delay in providing the information. McCaskill offers no basis to disturb that finding. Moreover, the information did not come as a surprise to the defense team; McCaskill's attorney had also represented him in his 2005 petition for a certificate of rehabilitation and was well aware the Kern County charges had been consolidated with the Los Angeles County case. (See People v. Thomas (1992) 2 Cal.4th 489, 514.) In light of the defense's lack of surprise, the Los Angeles charges involving Christi and Naomi were properly considered within the ambit of the original, unopposed motion under section 1108; there was no abuse of discretion by the trial court. (See, e.g., People v. Panah (2005) 35 Cal.4th 395, 459-460 [nothing in record suggested unreasonable delay in acquisition of pathologist report prepared on eve of testimony after reexamining microscopic slides at prosecutor's request].)
c. McCaskill's certificate of rehabilitation did not preclude admission of the section 1108 evidence
The certificate of rehabilitation procedure available under Penal Code section 4852.01 et seq., provides an alternative means of applying for a pardon from the Governor. (People v. Ansell (2001) 25 Cal.4th 868, 871, 874.) "With certain exceptions . . . , the certificate of rehabilitation procedure is available to convicted felons who have successfully completed their sentences, and who have undergone an additional and sustained 'period of rehabilitation' in California. [Citations.] During the period of rehabilitation, the person must display good moral character, and must behave in an honest, industrious, and law-abiding manner. (§ 4852.05; see § 4852.06.)" (Ansell, at p. 875.)
A certificate of rehabilitation serves two purposes: "First, it has the effect of 'recommending that the Governor grant a full pardon to the petitioner.' (§ 4852.13(a).) Second, the certificate of rehabilitation constitutes 'an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 8 of Article V of the Constitution, the Governor shall not grant a pardon to any person twice convicted of [a] felony, except upon the written recommendation of a majority of the judges of the Supreme Court.' (§ 4852.16.) [¶] Whether a certificate of rehabilitation and automatic application for a pardon issues under section 4852.01 et seq., or whether a pardon is sought by direct application under section 4800 et seq., certain civil rights and privileges are restored if the Governor acts favorably on the request." (People v. Ansell, supra, 25 Cal.4th at p. 876, fn. omitted.)
McCaskill does not contend the trial court erred in its analysis of the factors relevant to admissibility under section 1108 but argues that, when a defendant obtains a certificate of rehabilitation the prior convictions are, in effect, expunged from the record and may not be utilized for impeachment purposes under section 1108. Without any analysis McCaskill relies entirely on section 788, which provides, "For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: [¶] (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted. [¶] (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. [¶] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense. [¶] (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c)."
Although McCaskill claims section 788, subdivisions (b) and (c), each prevent the introduction of the propensity evidence here, he has failed to establish the threshold condition for the application of either section. As a preliminary matter, section 788 appears to apply solely to evidence of McCaskill's prior convictions and would not prevent introduction of propensity evidence relating to the underlying conduct. Moreover, under section 788, subdivision (b), McCaskill was required to show that, in addition to the certificate of rehabilitation, which functions as an automatic application to the Governor for a pardon, the pardon was in fact received. There is no evidence in this record that McCaskill received a pardon from the Governor following receipt of the certificate of rehabilitation.
As of 1996, in addition to acting as a pardon application, a certificate of rehabilitation serves to relieve a defendant convicted of certain sex offenses from the duty to register as a sex offender. (Pen. Code, § 290.5.) At oral argument counsel for McCaskill suggested he sought the certificate of rehabilitation to extinguish his obligation to register.
Section 788, subdivision (c), is equally unavailable to McCaskill. Although the record reflects the accusatory pleading against McCaskill was dismissed pursuant to Penal Code section 1203.4, as required, "this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense." We see no way to construe that provision—and McCaskill has offered none—other than to permit the admission of evidence under section 1108 for the crimes charged in this case. Indeed, the conduct alleged in this case mirrors in substantial part the conduct underlying McCaskill's prior convictions.
Notwithstanding McCaskill's reliance on section 788 in his opening brief, he took the position at oral argument section 788 applies strictly to felony convictions and not misdemeanors. If so, there is no corollary statute to section 788 precluding admission of misdemeanor convictions when a certificate of rehabilitation has been obtained.
Accordingly, the certificate of rehabilitation proffered by McCaskill did not preclude admission under section 1108 of either evidence related to McCaskill's prior sexual assaults on Christi and Naomi or his ensuing misdemeanor convictions for that conduct.
d. The trial court did not commit Wheeler error in admitting evidence of McCaskill's prior misdemeanor convictions
In Wheeler, supra, 4 Cal.4th 284 the Supreme Court held evidence of past misdemeanor conduct bearing on a witness's veracity—if it involves moral turpitude and thereby suggests a willingness to lie—was admissible in a criminal proceeding for impeachment purposes subject to the trial court's discretion. (Id. at p. 295.) However, the Wheeler Court also held that evidence of a misdemeanor conviction, rather than evidence of the underlying conduct itself, is inadmissible hearsay when offered for the truth of the charge. (Id. at pp. 298-299; accord, People v. Chatman (2006) 38 Cal.4th 344, 373 ["[m]isdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion"].) In his reply brief McCaskill objects the trial court's admission of the evidence of his prior convictions constituted error under Wheeler.
Here the conviction, and the conduct underlying it, were introduced under section 1108, which was not addressed by Wheeler. For the reasons discussed below, it is admissible for either purpose here.
Failure to raise an issue in the opening brief ordinarily forfeits that issue on appeal. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12 [declining to address issue not properly raised in appellant's opening brief]; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 ["[c]ourts will ordinarily treat the appellant's failure to raise an issue in his or her opening brief as a waiver of that challenge"]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466 [issues not properly raised in appellant's brief are deemed forfeited or abandoned]; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 ["an appellant's failure to discuss an issue in its opening brief forfeits the issue on appeal"].) Even assuming the issue was not forfeited, however, it is without merit. Wheeler itself noted the Legislature was not precluded from creating a hearsay exception that would allow the use of misdemeanor convictions for impeachment in criminal trials. (Wheeler, supra, 4 Cal.4th at p. 300, fn. 14.) The Legislature did so in 1996 when it enacted section 452.5. (See Stats. 1996, ch. 642, § 3, pp. 3620-3621; People v. Martinez (2000) 22 Cal.4th 106, 118.) Section 452.5, subdivision (b), provides, "An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission . . . of a criminal offense . . . ." The Supreme Court has described section 452.5, subdivision (b), as allowing the admission of records of a criminal conviction to prove the commission of a criminal offense. (People v. Lee (2011) 51 Cal.4th 620, 650, citing People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1462.) Construing this section, the Duran court found its language unambiguous and held "section 452.5 states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense." (Duran, at p. 1461; accord, People v. Wesson (2006) 138 Cal.App.4th 959, 968 [allowing introduction of documentary evidence of prior conviction as propensity evidence under § 1108].)
Here, the People were unable to locate the original misdemeanor file but proffered proof of the prior convictions through comparison of fingerprint records. Shortly thereafter, the parties stipulated to the fact of the prior convictions.
Accordingly, under section 452.5, there was no Wheeler error.
3. The Trial Court Did Not Violate McCaskill's Due Process Rights During Voir Dire
"The right to voir dire the jury is not constitutional, but is a means to achieve the end of an impartial jury." (People v. Ramos (2004) 34 Cal.4th 494, 512.) As long as the essential elements of a jury trial are preserved, including impartiality, the Legislature may impose reasonable regulations or conditions on the right to a jury trial. (Id. at p. 513.)
The court is required to conduct the initial voir dire of prospective jurors in criminal cases. (Code Civ. Proc., § 223.) Upon completion of this preliminary examination, "counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors. The court may, in the exercise of its discretion, limit the oral and direct questioning of prospective jurors by counsel. The court may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party, which can then be allocated among the prospective jurors by counsel. . . ." (Ibid.) "The trial court has discretion to limit voir dire, and the court abuses that discretion, warranting reversal of a conviction on appeal, only when its decision falls outside the bounds of reason [citation] resulting in a 'miscarriage of justice.'" (People v. Navarette (2003) 30 Cal.4th 458, 486.)
McCaskill contends the trial court's delay in ruling on the admissibility of the propensity evidence under section 1108 prevented him from conducting voir dire to assess potential prejudice against McCaskill based on his prior convictions. He relies on the decision in People v. Chapman (1993) 15 Cal.App.4th 136, in which the Court of Appeal reversed the defendant's conviction because the trial court effectively eliminated any opportunity to conduct voir dire on the question whether jurors could "be fair and impartial if they learned [the defendant] was a convicted felon." (Id. at pp. 140-141.) The Court of Appeal explained, "[i]t is well recognized that there may be members of a jury panel who feel that because a defendant has a criminal record it is more likely that he or she is guilty of the offense charged." (Id. at pp. 142-143.) The defendant, therefore, was entitled to an opportunity to inquire about prejudice or bias related to his prior conviction. (Ibid.)
McCaskill's reliance on Chapman is misplaced. Unlike the defendant in Chapman, McCaskill was not denied an opportunity to conduct voir dire on the issue of his prior convictions. To the contrary, when the court opened voir dire to the parties it directed the prosecutor not to raise the issue, but did not prohibit McCaskill's counsel from addressing it. Rather, the court simply advised defense counsel against questioning potential jurors about McCaskill's prior convictions — "If the defense goes into it, it's at your own peril" — because of the possibility the People would not be able to lay an adequate foundation for those convictions, and they would not be before the jury at all. Defense counsel did not object to the trial court's caution and, indeed, adopted it. Thus, the record does not support the assertion the trial court prevented counsel from asking jurors question about their attitudes toward defendants who had suffered prior convictions.
Chapman's applicability here is questionable in any event. Unlike the defendant in Chapman, McCaskill was previously convicted of sex crimes. As discussed, evidence of prior sex crimes is accorded special treatment under section 1108 in a subsequent prosecution for additional sex crimes and, in particular, may be considered as propensity evidence. (See, e.g., People v. Britt, supra, 104 Cal.App.4th at pp. 505-506 [under § 1108 jury may consider evidence of prior sex crimes "'for any relevant purpose' [citation], subject only to the prejudicial effect versus probative value weighing process required by section 352"].)
In sum, the trial court did not improperly circumscribe voir dire on the question of bias toward defendants with prior convictions.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.