Opinion
F074400
10-29-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM THOMAS MERRITT, Defendant and Appellant.
Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16902445)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted William Thomas Merritt, defendant, of attempted murder and infliction of corporal injury upon the mother of his children after she was stabbed four times. (Pen. Code, §§ 187, subd. (a), 273.5, subd. (f)(1).) After a jury trial, defendant was convicted of both counts and the trial court sentenced him to 16 years' imprisonment.
On appeal, defendant argues: (1) the prosecutor committed misconduct and violated his right to a fair trial by questioning him about an alleged incident of domestic violence that was not expressly deemed admissible by the trial court; (2) the trial court's admission of evidence under section 1109 of the Evidence Code violated his rights to due process and a fair trial in violation of the Fourteenth Amendment; (3) the trial court's inclusion of CALCRIM No. 852, which instructs the jury regarding the use of evidence of uncharged domestic violence, violated his rights to due process and a fair trial in violation of the Fourteenth Amendment; (4) to the extent his counsel failed to preserve error as to issues (1), (2), or (3), he was afforded ineffective assistance; (5) the trial court abused its discretion by excluding evidence of the complainant's 2006 misdemeanor conviction for falsely identifying herself to a peace officer (Pen. Code, § 148.9); and (6) the cumulative effect of these errors resulted in a violation of his right to due process.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2016, Patricia L., defendant's then girlfriend and mother of his children, was stabbed four times. Following the incident, Patricia identified defendant as the perpetrator.
The People charged defendant with one count of attempted murder and one count of infliction of corporal injury upon a cohabitant, the mother of his children, that resulted in a traumatic condition with a prior domestic violence conviction. The People further asserted two enhancements as to each count based upon allegations of great bodily injury under circumstances of domestic violence (Pen. Code, § 12022.7, subd. (e)) and personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1).)
At trial, Patricia testified that on the night of the stabbing, she was standing outside of her apartment when defendant arrived with his friend Jesse Leon. Defendant and Leon appeared to be under the influence. Defendant was acting "very aggressive." He tried to talk to Patricia about their kids, but she refused to engage. Defendant then went inside the apartment, but Patricia did not follow. Instead, she turned and started walking away from the apartment when she felt defendant stab her repeatedly from behind. After defendant stabbed Patricia four times, she saw him run out of the gate holding a kitchen knife in his right hand. Patricia identified defendant as the assailant immediately following the offense to a 911 operator and the police.
Patricia's neighbor, Doris Williams, testified Patricia came to her apartment that night for about half an hour. When Patricia left, she asked Williams to stay in the door and watch her until she got inside her apartment. Williams saw Patricia walk to her door and then stop when defendant came to the door and unlocked it. Defendant went inside the house and a second man followed, but Patricia stayed outside. Williams saw defendant go back outside and tell Patricia to come in, but she refused. Defendant then "acted as if he was going to run up on [Patricia], you know, charge up on her or something, but he didn't, not at that time" and Patricia looked nervous. Williams saw the second man tell defendant to come inside the house and he was holding defendant's wrists, "trying to subdue him" and keep him from going after Patricia. Williams felt concerned for Patricia. Defendant was "upset" but he eventually went inside the house. Williams stepped away from the door and did not return. She did not witness anyone stab Patricia.
Officer J. Salinas testified he met with Patricia at the hospital on the night of the stabbing. According to Salinas, Patricia reported having been in a disturbance with defendant that evening. Patricia reported seeing defendant go inside the apartment and return holding a large kitchen knife. She walked away and was trying to avoid him when she was stabbed. Patricia told Salinas defendant was the person who stabbed her.
Patricia's roommate, Kenneth Gibson, testified Patricia called him multiple times on the night of the incident. He became concerned for her safety when she told him over the phone that defendant "opened the front door of [the] apartment[,] . . . he had a knife in his hands," and "that he was walking towards her." Gibson then headed back to the apartment where he found Patricia slumped over by the gate. She told him defendant had stabbed her.
Defendant testified on his own behalf and denied stabbing Patricia. He averred that on the night of the stabbing he and Patricia were outside of their apartment. He tried to talk to her about court proceedings related to their daughter, but Patricia refused, making him upset. According to defendant, he eventually walked away from the apartment and did not return until the next morning.
After the close of evidence, the jury convicted defendant of both counts and found the enhancement allegations true.
DISCUSSION
I. Alleged Prosecutorial Misconduct
Defendant argues that the prosecutor engaged in misconduct during trial by questioning him regarding a specific incident of alleged misconduct—namely, a past incident when he allegedly held a knife to Patricia's throat—in violation of the trial court's motion in limine ruling. Based on such alleged misconduct, defendant contends that his conviction for attempted murder (count two) should be reversed. In a related issue, defendant contends that if his challenge to the prosecutor's conduct is deemed waived, his counsel was ineffective for failing to preserve error as to this issue.
A. Procedural History
Before trial, the People filed a motion in limine requesting admission of evidence of defendant's previous felony domestic violence conviction pursuant to section 1109 of the Evidence Code. The conviction arose from an incident on April 28, 2013, when defendant "hit and kicked [Patricia] in the face," resulting in "a cut to the right side of her face." Patricia had to "go to the hospital" and "have 15 stitches." The People stated that presentation of such evidence "would be very limited about that prior incident" and likely only involve Patricia's testimony and "[w]orse case scenario it would involve the officer who took the report."
In evaluating the admissibility of evidence of this conviction, counsel and the court discussed Patricia's statement to law enforcement during the investigation of the 2013 offense in which she alleged that defendant had previously threatened her with a knife. The People stated that they did not intend to offer this statement as part of the circumstances of the 2013 conviction. The following related exchange took place:
"THE COURT: And there's no other either conduct or convictions under 1109 with any other complaining witness that you're seeking to introduce, it's just the one incident?
"[Prosecutor]: That is correct and—
"[Defense counsel]: Your Honor, in the 1109 incident she discusses—[Patricia] makes a statement about a prior instance where my client allegedly had a knife to her throat. She says she went to go on a 5150 hold, but issue that is kind of relevant, she says when she stresses out she flashes back or stresses out, doesn't remember what happened. She's so upset she always sees red and not people's faces.
"THE COURT: That's statements that the complaining witness makes to law enforcement during the investigation of the 2013 incident?
"[Defense counsel]: Yes.
"THE COURT: And so in that she's making reference to other acts of domestic violence including an allegation that a knife was held at her at some other time?
"[Defense counsel]: Yes.
"THE COURT: And Ms. Smith, do you believe that that is the evidence that you intend to offer as part of the circumstances of the 2013 incident?
"[Prosecutor]: No.
"THE COURT: So you're not—
"[Prosecutor]: That was an interview that was done numerous days later by a different detective and I am planning on just focusing on the
initial incident that occurred which was April 28th of 2013 and the statements made. Defense has the opportunity to question her to impeach her in any way he sees fit, but that is not part of the People's 1109 presentation.
"THE COURT: So Mr. Moore, for trial tactic purposes you may want to go beyond what the complaining witness may say in the People's case in chief as to the prior incident, assuming the court allows it, to either more fully explain this situation or to show perhaps inconsistencies which could relate to the credibility of the witness.
"[Defense counsel]: Yes, Your Honor.
"THE COURT: Assuming the court allows it and assuming you go beyond, it could have—it could also have a prejudicial effect to your client. It brings additional allegations that the People are not bringing in. So you'll, at your peril you may or may not present that. I'm not going to exclude it at this point if you're offering it, but it sounds like the People are not offering it, and at this point in time I'll further rule on this when I rule on the 1109, but my tentative ruling is if I'm allowing the 1109 evidence I'm going to exclude in the People's case in chief statements of other incidences other than the April 28th, 2013."
The trial court ultimately concluded evidence of the April 28, 2013 offense was "relevant and admissible," noting that "one specific incident only from April 28th, 2013" was admissible. The trial court held that "[i]t can be either conduct of the incident, in other words, the circumstances and/or the conviction" because neither was "unduly prejudicial." The court noted: "[s]imilarly should the defendant testify the court does find that he can be impeached with his prior conviction. Since it may come in under 1109 evidence the court is denying the defense request that the prior conviction of the defendant for impeachment purposes be sanitized." The trial court further held that such evidence would "be limited to the fact that [defendant] suffered a felony conviction, it was for Penal Code section 273.5(a), either referred to as domestic violence or corporal injury to a cohabitant or spouse, and the year of the conviction and the county of the conviction."
During trial, on cross-examination, the People asked defendant if he had been violent with Patricia in the past. He responded that he had been violent "[a] long time ago," in 2013. The People questioned him about the conduct that led to his 2013 conviction. Defendant testified that, on that occasion, he hit Patricia multiple times and she ended up in the hospital. Defendant, however, denied that he and Patricia had a history of violence in their relationship. He testified that he had only been violent with Patricia on the specific referenced occasion in 2013.
The People later probed:
"Q. Isn't it true that there was an incident between you and [Patricia] several weeks before the incident where she wound up in the hospital after you struck her that involved you putting a knife to her throat?
"A. No.
"Q. So that never happened?
"A. No.
"Q. You were accusing her of sleeping with some guy downtown?
"A. No."
Defendant's counsel did not object to this exchange.
B. Standard of Review and Applicable Law
" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill), overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) An exception is made if a timely objection or request for admonition would have been futile, or if an admonition would not have cured the harm caused by the misconduct. (Ibid.)
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44; see also People v. Mendoza (2007) 42 Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) "The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor." (Mendoza, at p. 700.) " 'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' " (People v. Tully (2012) 54 Cal.4th 952, 1010 (Tully).)
C. Analysis
Defendant concedes that his counsel did not object to the People's inquiry into whether he held a knife to Patricia's throat in the past. He contends, however, that an objection would have been futile because "[o]nce the jury heard the prosecutor insist he knew that appellant had committed this act, no admonition could erase it from their minds." Alternatively, defendant argues if this issue is deemed waived, his counsel was ineffective by failing to object and there was no reasonable justification for such failure. He argues that the impact of the People's questions was "highly prejudicial and the resulting trial was fundamentally unfair under the Fourteenth Amendment" because "[t]he prosecutor inserted into the jurors' minds the idea that [defendant] had previously held a knife to Patricia's throat," "a stereotypical and highly dramatic illustration of a threat to kill." He contends that "the jury would tend to believe the prosecutor's assertion and assume that [defendant] had made a threat to kill Patricia shortly before the charged incident, which rendered it highly probable the stabbing that occurred was his attempt to carry out the earlier dramatic threat."
Defendant forfeited this claim on appeal by failing to object below. (See Tully, supra, 54 Cal.4th at p. 1010; Hill, supra, 17 Cal.4th at p. 820.) In addition, he provides no basis for his contention that an objection would have been futile because no admonition could have erased the prosecutor's question from the jurors' minds.
However, even assuming this issue was adequately preserved and the prosecutor's actions amounted to prosecutorial misconduct, we conclude defendant did not suffer prejudice such that his trial was "fundamentally unfair" nor is it reasonably probable the trial outcome was affected. (See People v. Shazier (2014) 60 Cal.4th 109, 127 (Shazier) [federal Constitution is violated when prosecutor's behavior "infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process"; prosecutorial misconduct warrants reversal under state law "only if it is reasonably probable that the trial outcome was affected"]; People v. Holt (1984) 37 Cal.3d 436, 458 [prosecutorial misconduct warrants reversal where it is reasonably probable defendant would have obtained a more favorable result in the absence of the error].)
Here, the trial court instructed the jury that statements or questions by the attorneys are not evidence:
"Nothing the attorneys say is evidence. In their opening statements or closing arguments the attorneys discuss the case but their remarks are not evidence and their questions are not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they helped you to understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asked the question that suggested it was true."
Judge Hoff expressly admonished the jury that the prosecutor's questions—including those at issue here—were not evidence and not to make inferences based upon such questions. We presume that the jury followed these instructions. (See People v. Edwards (2013) 57 Cal.4th 658, 764 [presuming jury will follow instruction that statements of attorneys are not evidence]; People v. Bryden (1998) 63 Cal.App.4th 159, 184 ["Further, the court instructed the jury that questions and statements by the attorneys do not constitute evidence, and the jury is presumed to follow the court's instructions"].) And, as discussed, defendant has provided no basis to conclude that these admonishments did not cure any alleged misconduct.
Notably, defendant admitted that he was violent with Patricia in the past, leading to a conviction for felony domestic violence. And the prosecutor's alleged improper questions did not elicit incriminating responses by defendant. To the contrary, defendant denied he and Patricia had a history of violence in their relationship. Rather, he stated that he had only been violent with her on the one previous occasion that led to his 2013 conviction.
More importantly, the evidence against defendant was strong. Patricia identified him as the assailant at trial and immediately following the incident. She testified that she saw him running away holding a large knife right after the incident, and multiple witnesses testified that Patricia reported seeing defendant walk out of the apartment holding a knife right before she was stabbed. Patricia's accounts of the stabbing were consistent and she did not recant her accusation. Defendant himself conceded that he was at the scene on the night of the incident and that he was upset with Patricia in the moments leading up to the stabbing.
Accordingly, presuming that the jury followed the trial court's instructions and considering the strength of the People's evidence inculpating defendant, we cannot conclude that defendant's trial was "fundamentally unfair" such that he was denied due process of law or that he suffered prejudice such that it is reasonably probable the trial outcome was affected by any alleged prosecutorial misconduct. (See Shazier, supra, 60 Cal.4th at p. 127.) Because he cannot establish the requisite degree of prejudice, defendant's prosecutorial misconduct and related ineffective assistance of counsel claims fail as a matter of law. (See Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland) [where defendant fails to show prejudice, reviewing court may reject claim of ineffective assistance of counsel without reaching issue of deficient performance]; see also People v. Jacobs (2013) 220 Cal.App.4th 67, 75-76.)
We reject defendant's first issue.
II. Admissibility of 1109 Evidence
Defendant challenges the trial court's admission of evidence related to his 2013 domestic violence conviction under section 1109 of the Evidence Code.
All future statutory references are to the Evidence Code unless otherwise noted.
A. Standard of Review and Applicable Law
"The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (§ 1101.) But the Legislature has created exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence (§ 1109). The California Supreme Court has held that section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915-916 (Falsetta).) Moreover, the analysis in Falsetta has been used to uphold the constitutionality of section 1109. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 (Jennings); People v. Price (2004) 120 Cal.App.4th 224, 240-241.)
Section 1109 provides (subject to certain exceptions not applicable here) that in a criminal domestic violence action, evidence of the defendant's commission of other domestic violence is not inadmissible character evidence under section 1101 if such evidence is not inadmissible pursuant to section 352. (§ 1109.) Section 352 affords the trial court discretion to 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." (§ 352.) "[T]he court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)
B. Analysis
Defendant argues that admission of evidence of his 2013 domestic violence conviction violated his rights to due process and a fair trial in violation of the Fourteenth Amendment. He also contends that such evidence was more prejudicial than probative.
1. Section 1109 does not violate due process.
Assuming, arguendo, that defendant's constitutional challenges to the admission of evidence under section 1109 are not waived, California courts have consistently rejected similar challenges. Applying the California Supreme Court's reasoning in Falsetta, these courts have held that section 1109 comports with due process. (See e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 [statute satisfies due process]; Jennings, supra, 81 Cal.App.4th at pp. 1309-1313 [constitutionality of § 1109 under due process clauses of federal and state constitutions "has now been settled"]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420 [§ 1109 does not violate defendant's right to due process].)
Defendant relies upon the Ninth Circuit's opinion in McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (McKinney) in support of his due process challenge. In McKinney, the Ninth Circuit held that the admission of evidence of " 'other acts' " from which the jury could have drawn propensity inferences rendered the defendant's trial fundamentally unfair in violation of the due process clause. (McKinney, at pp. 1384-1385.)
Defendant's reliance upon McKinney is misplaced. McKinney was decided "before enactment of the federal rules allowing evidence of uncharged sexual assaults and child molestation and the enactment of section 1108" and section 1109. (People v. Holford (2012) 203 Cal.App.4th 155, 183, fn. 19.) Additionally, "[t]he application of McKinney's holding in the context of section 1108 evidence has been repeatedly rejected." (Ibid.) "The Ninth Circuit and other federal courts have long since upheld the constitutionality of the federal rules allowing sexual misconduct evidence to establish propensity to commit such crimes." (Ibid.)
For the same reasons, McKinney is inapposite to defendant's section 1109 challenge. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1333 ["sections 1108 and 1109 can properly be read together as complementary portions of the same statutory scheme"].) Accordingly, we conclude the trial court's admission of prior act evidence pursuant to section 1109 did not violate defendant's constitutional rights to due process where the court also considered its exclusion pursuant to section 352.
2. The 1109 evidence was not unduly prejudicial.
Defendant also states that the prejudicial effect of the evidence of his previous conviction outweighed its probative value. We disagree.
Like the charged offenses, defendant's previous felony conviction arose from domestic violence against Patricia. Thus, it was similar in nature to the matters at issue in this case and probative of defendant's propensity to engage in acts of domestic violence, particularly against Patricia. (See People v. Johnson (2010) 185 Cal.App.4th 520, 531-532 [" ' "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense" ' "].) The 2013 conviction was not remote in time, and the parties in fact stipulated to its admissibility. Under these circumstances, we cannot conclude the trial court abused its broad discretion in concluding that the probative value of defendant's previous conviction was not substantially outweighed by the danger of undue prejudice. (Id. at pp. 531-536 [concluding other acts of domestic violence admitted into evidence were not substantially more prejudicial than probative, in part because the acts; (1) had resulted in convictions; (2) were similar to charged crimes; (3) were not too remote, given that similarity; and (4) evidence of current crime was strong, lessening possibility that jury would be swayed by evidence of past acts.].)
We reject defendant's second issue.
III. CALCRIM No. 852
In his third issue, defendant challenges the language of CALCRIM No. 852 as violating his state and federal constitutional rights to due process and a fair trial.
A. Standard of Review and Applicable Law
When a criminal defendant contends an ambiguous or potentially misleading instruction violated his or her federal due process rights, an appellate court must review the instructions as a whole and determine " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72; see also People v. Smithey (1999) 20 Cal.4th 936, 963 ["If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction."].)
CALCRIM No. 852 instructs the jury that they can consider evidence of uncharged domestic violence in their disposition. (CALCRIM No. 852.) The California Supreme Court rejected constitutional challenges to a similar instruction, which permitted the jury to infer from evidence of prior sexual offenses that a defendant charged with a similar sexual offense had a disposition to commit and did commit the charged sexual offense. (People v. Reliford (2003) 29 Cal.4th 1007, 1011-1016 (Reliford).) The Reliford court concluded that the inferences authorized by the instruction to be drawn from the evidence of prior sexual offenses were reasonable. (Id. at pp. 1012-1013.) The instruction made clear that evidence of a prior offense was "not sufficient by itself to prove beyond a reasonable doubt that [defendant] committed the charged crime" and therefore it "could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct." (Id. at p. 1013.)
Later, similar constitutional challenges to CALJIC No. 2.50.02, an instruction substantially similar to CALCRIM No. 852, were rejected on the grounds set out in Reliford. (See People v. Pescador (2004) 119 Cal.App.4th 252, 261-262.) More recently, a due process challenge to CALCRIM No. 852 itself was rejected. (People v. Reyes (2008) 160 Cal.App.4th 246, 250-253 (Reyes).)
B. Analysis
Here, in accordance with CALCRIM No. 852, the trial court instructed the jury:
"The People have presented evidence that the defendant committed domestic violence that was not charged in this case, specifically the evidence that related to domestic violence of April 28th, 2013, under Penal Code Section 273.5(a).
[¶] ... [¶]
"You may consider this evidence only if the People have proved by the [sic] a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. Both the People and the defense have stipulated that the prior act of domestic violence occurred and that the defendant suffered a felony conviction for that act in 2013. You may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit the charge alleged in Count 1 of this case, corporal injury on a cohabitant, mother of his child. That conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of Count 1. The People must still prove each charge and allegation beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility as a witness."
Defendant concedes that, in Reliford, the California Supreme Court rejected constitutional challenges to a similar instruction. (Reliford, supra, 29 Cal.4th at pp. 1011-1016.) Like the instruction in Reliford, the given instruction clarified that evidence of the prior offense was not sufficient by itself to prove beyond a reasonable doubt that defendant committed the charged crime. Accordingly, applying the reasoning in Reliford, such language "could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct." (Id. at p. 1013.)
Defendant urges us to adopt the reasoning in Justice Kennard's concurrence and dissent in Reliford and reject the holding of Reyes, supra, 160 Cal.App.4th 246. Justice Kennard opined that the substantially similar instruction at issue in Reliford was potentially misleading. (Reliford, supra, 29 Cal 4th at pp. 1017-1018 (conc. & dis. opn. of Kennard, J.).) In that case, the challenged instruction stated: "if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime." (Id. at p. 1017.) Justice Kennard reasoned that such an instruction implied a jury could rely on a prior sexual offense as the sole basis for convicting the defendant of the sexual crime charged in that case, so long as the jury found the prior sexual offense allegations to be true under a standard of proof higher than a preponderance of the evidence. (Ibid.)
Notably, here, the challenged jury instruction does not include the language that Justice Kennard cited as misleading: "if you find by a preponderance of the evidence . . ., that is not sufficient by itself." In addition, as defendant acknowledges, we are bound by the majority opinion in Reliford. Because of the similarity between the jury instruction addressed by Reliford and the jury instruction given in this case, we conclude that instructing the jury with CALCRIM No. 852 did not violate defendant's rights to due process and a fair trial.
We reject defendant's third issue.
IV. Ineffective Assistance of Counsel
In his fourth issue, defendant asserts that if issues one, two, or three were not adequately preserved for appeal, his counsel provided ineffective assistance.
A. Standard of Review and Applicable Law
A defendant claiming ineffective assistance of counsel must satisfy Strickland's two-part test requiring a showing of counsel's deficient performance and prejudice. (Strickland, supra, 466 U.S. at p. 687.) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) The prejudice prong requires a defendant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
B. Analysis
Because we conclude as to the first three issues that there was either no error or resulting prejudice, defendant's ineffective assistance of counsel claim fails as a matter of law.
V. Admissibility of Patricia's 2006 Misdemeanor Conviction
In his fifth issue, defendant contends that the trial court abused its discretion in excluding evidence of Patricia's 2006 misdemeanor conviction for falsely identifying herself to a peace officer (Pen. Code, § 148.9).
A. Standard of Review and Applicable Law
We review for an abuse of discretion a trial court's decision to admit or exclude evidence of a witness's prior offenses for impeachment. (People v. Clark (2011) 52 Cal.4th 856, 931-932 (Clark).) Although all crimes of moral turpitude are relevant for purposes of impeachment, it has been held that a crime involving dishonesty is more probative of credibility than a crime involving violence. (People v. Burns (1987) 189 Cal.App.3d 734, 738 (Burns).) "In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony." (People v. Wheeler (1992) 4 Cal.4th 284, 296, superseded by statue on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460.) "Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present." (Ibid.) "Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at pp. 296-297.)
B. Analysis
Defendant contends that Patricia's conviction was not "remote when considering the level of dishonesty and bad character necessarily involved" and the trial court abused its discretion in excluding it. We disagree.
In evaluating the admissibility of a witness's previous conviction, a trial court considers the degree to which the prior offense reflects the witness's dishonesty, the age of the prior conviction, and the witness's record of criminal conduct in the interim. (Clark, supra, 52 Cal.4th at p. 931; Burns, supra, 189 Cal.App.3d at p. 738.) Here, after considering section 352, the trial court denied defendant's request for admission of evidence of Patricia's 2006 misdemeanor conviction. The trial court noted that while Patricia's misdemeanor offense "may have some moral turpitude value," it was "getting very remote in time" and its "probative value [was] minimal."
Though Patricia's conviction involved dishonesty, it was a misdemeanor and, at the time of trial, the conviction was 10 years old. There was no evidence that Patricia had engaged in any criminal activity since the offense. Under these circumstances, we cannot conclude the trial court abused its discretion in excluding such evidence. (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1554 [trial court acted within its discretion in excluding victim's 10-year-old murder adjudication on grounds of remoteness]; Burns, supra, 189 Cal.App.3d at p. 738 ["[t]here is no consensus among courts as to how remote a conviction must be before it is too remote"]; People v. Shoemaker (1982) 135 Cal.App.3d 442, 448, fn. 4 ["[a]t some point in time . . . evidence of the victim's character becomes too remote to have any probative value and thus becomes irrelevant"].)
We reject defendant's fifth issue.
VI. Cumulative Error
Defendant argues that the errors committed were cumulatively prejudicial and deprived him of a fair trial. We disagree.
"A [criminal] defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454.) Nevertheless, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Hill, supra, 17 Cal.4th at p. 844.)
In this case, there is no series of errors to cumulate. We found no constitutional violations, abuse of discretion by the trial court, or ineffective assistance of counsel. Similarly, we concluded that defendant cannot establish that any alleged prosecutorial misconduct resulted in reversible harm. Accordingly, defendant cannot demonstrate the cumulative effect of the alleged errors resulted in prejudice. (See In re Reno (2012) 55 Cal.4th 428, 483 ["As noted, claims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate"].)
We reject defendant's sixth issue.
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
DESANTOS, J.