Opinion
D075032
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSIE PERDOMO, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF37500) APPEAL from a judgment of the Superior Court of Imperial County, Marco Nunez, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Josie Perdomo of felony cruelty to an animal (Pen. Code, § 597, subd. (b)), arising from her failure to properly care for her dog, which ultimately died from a massive, long-term tick infestation. The court suspended imposition of sentence and granted Perdomo formal probation on various terms and conditions.
All further statutory references are to the Penal Code unless otherwise specified.
Perdomo appeals contending the court committed prejudicial error by allowing her impeachment with a prior felony conviction for grand theft, which had been reduced to a misdemeanor. Our review of the record persuades us any error in admitting the fact of the felony conviction is harmless. Accordingly, we will affirm the judgment.
STATEMENT OF FACTS
Perdomo does not challenge the sufficiency of the evidence to support her conviction, nor does she challenge its admissibility save for the admission of the prior conviction. The statement of facts in the respondent's brief is an accurate summary of the testimony, about which there is no dispute. We will incorporate the summary here for convenience. We will omit the headings which appear in the respondent's brief as they are somewhat argumentative.
On August 25, 2016, Perdomo brought her dog, a Boxer named Sergeant, into the Imperial County Humane Society. She filled out forms to relinquish Sergeant, explaining he was "infested with ticks."
Devon A., the executive director of the Humane Society, went to Perdomo's vehicle and found Sergeant in the back seat on top of a towel and a black trash bag. Sergeant was skinny and "heavily invested with ticks." The ticks were inside his ears and rectum, and all over his face, neck, back, shoulders, chest, armpits, scrotum, tail, legs, and paws. They were so engorged with blood that they were the size of small grapes. Their size indicated they had been feeding on Sergeant for a while. It was only when Sergeant blinked and took a shallow breath that Devon realized he was still alive.
Sergeant's gums were white rather than pink, indicating he was severely anemic due to the ticks feeding off him for so long. When Devon asked Perdomo how Sergeant had gotten like this, she claimed she was a nurse and worked long hours so she was not able to get the ticks under control.
At trial, Perdomo testified that she was an "admitting rep" for El Centro Regional Medical Center and worked Monday through Friday from 8:00 a.m. to 4:30 p.m. She denied telling Devon that she was a nurse or that she worked long hours.
Devon carried Sergeant into a sink and gave him a flea and tick dip to prevent them from sucking any more blood out of Sergeant. He had to put a towel under Sergeant's head because Sergeant could not lift his head by himself. Because Sergeant needed immediate medical attention, Devon then drove Sergeant in his personal vehicle to the El Centro Animal Clinic.
Dr. Robert W., the veterinarian who treated Sergeant at the clinic, estimated there were between 1,000 and 2,000 ticks on Sergeant. Based upon the different life cycles of the ticks, there could have been an infestation on him for more than two months.
Two of Dr. W.'s technicians began plucking the ticks off Sergeant one-by-one for about two hours. In that time, they were only able to pull off about half the ticks. Dr. W. explained that each time you pull a tick off a dog, it takes some of the dog's skin off as well. Dr. W. found few, if any, wounds that would suggest someone had removed any ticks before Sergeant came into the clinic.
Dr. W. believed that Sergeant was paralyzed from his neck down as a result of the tick infestation. However, even with paralysis, Sergeant would have been able to feel pain and discomfort. Sergeant died the same night he was brought into the clinic. Dr. W. opined that if Sergeant had been brought in sooner, he could have been saved.
Dr. W. performed a necropsy on Sergeant and determined that he died as a result of anemia caused by the tick infestation, suffocation caused by tick paralysis, and starvation. The only food in Sergeant's system was the food they had introduced to him at the hospital and five pieces of onion, which can be toxic for dogs. It looked like he had not eaten in a couple days.
After Sergeant died, El Centro Animal Control Officer Shanda A. called Perdomo on the phone. Perdomo told her that she knew the ticks on Sergeant were bad and blamed his condition on her husband.
Devon, Animal Control Officer Shanda A., and Dr. W. all testified that Sergeant had one of the worst cases of tick infestation they had ever seen.
Tick infestations on animals are both preventable and treatable. Animals can be treated with sprays, dips, shampoos, flea and tick drops, chewables, and injections, some of which can be bought over-the-counter and some of which must be bought from a veterinarian. The majority of these types of treatments are relatively affordable. For instance, a shampoo from Walmart costs anywhere from $3 to $5. You can also have your home and yard sprayed by an exterminator on a monthly basis to get rid of ticks.
Perdomo testified that she had Sergeant for eight years. In June 2016, she noticed he had ticks. Her son, a family friend, and her brother would remove the ticks, but Sergeant would get more each day. Perdomo claimed she called the Humane Society, the Sheriff's Department, and a friend for help, without success. She also claimed she sprayed her yard with a pesticide in June, July, and August of 2016, used a powder called Sundust in the backyard to kill the ticks on two occasions, bathed Sergeant with a tick shampoo three or four times, used a topical ointment between Sergeant's shoulder blades, and provided him with a special collar. Again, she had no success.
According to Perdomo, she drove over the border into Mexicali in her own car and took Sergeant to a veterinarian on July 14, 2016. The veterinarian gave Sergeant a flea and tick dip, some tablets, and an injection to treat the ticks. She returned to the United States that same day. Because the medicine did not work, she drove herself back to the veterinarian in Mexicali two weeks later, in the beginning of August. The veterinarian told her to let the medication "take its course." According to Perdomo, she drove back to the United States that same day. She then took Sergeant to a dog grooming place called Salcidos, where they did yet another tick and flea dip.
On August 16, 2016, Perdomo got injured when a big can of tomato sauce fell on her toe and fractured it. Because of that injury, she was not able to work, walk, or even stand. All she could do for the next 10 to 12 days was lie down inside her house. She did not leave the house during that time period. Because she was not able to care for Sergeant from August 16 through August 25, 2016, she asked her son to do so. Perdomo claimed that August 25, 2016 (the day she brought Sergeant into the Humane Society) was the first day she saw Sergeant since her injury on August 16, 2016.
Luis Urquidez, an Intelligence Research Specialist assigned to the Department of Homeland Security, reviewed the database containing records of everyone crossing the border from Mexico into the United States. The records are obtained by scanning people's license plates as the cross the border or by scanning the documentation they use to enter the country.
Urquidez testified that there were no records of Perdomo crossing the border from Mexico into the United States on July 14, 2016 or two weeks later, during the end of July or early August 2016, as she claimed. She did, however, cross the border on August 21, 2016, when she claimed she had not left her house because of her toe injury. The record for that date establishes that her documents were scanned in person and the documentation was not from a license plate reader.
Perdomo contends that Urquidez's search query was limited to records of people who presented their documentation in person, and did not include records of scanned license plate numbers. That is simply untrue. Urquidez did not testify that he limited his search query in that manner. He testified he searched the database that contained records of people who crossed the border into the United States in cars (via a scan of their license plate) and those who personally presented documentation.
DISCUSSION
The outcome of the trial in this case turned on credibility. If the jury believed Perdomo's testimony, she would not be guilty of any wrongdoing. She testified to continuous diligent efforts to treat her dog for tick infestation. All of her efforts were unsuccessful. On the other hand, the animal care experts testified that the dog had the worst tick infestation they had ever seen and that it had obviously continued for over two months. They testified tick infestations are easily, and economically treatable. The essence of the prosecution's case was that no treatment had occurred, and the horrible condition of the dog when first seen by Humane Society workers could not have existed if the animal was treated as Perdomo claimed.
Thus, Perdomo argues the court not only erred in permitting evidence that she had incurred a felony conviction, but that she was unduly prejudiced in this credibility battle.
A. Legal Principles
A witness, including a defendant can be impeached with evidence of a prior felony offense involving "moral turpitude." (Evid. Code, § 788; People v. Edwards (2013) 57 Cal.4th 658, 723-724.) In People v. Wheeler (1992) 4 Cal.4th 284 at page 295, the court explained that while a person cannot be impeached with the fact of a misdemeanor conviction, the person may be impeached by introduction of the facts of the misdemeanor conduct that amounts to moral turpitude.
Section 17, subdivision (b) provides that where a court reduces a felony conviction to a misdemeanor, the conviction becomes a misdemeanor for all purposes.
Given the record before us, we assume the court erred in admitting the fact of the prior conviction and proceed directly to prejudice. Here the parties agree the standard for harmless error we must apply is the Watson standard (People v. Watson (1956) 46 Cal.2d 818 (Watson)). Under that standard we must determine if there is a reasonable probability that a different outcome would have happened in the absence of the claimed error.
B. Analysis
Assuming the court should not have allowed impeachment with the prior felony conviction, we find any error to be harmless. We deal first with the prior conviction. Even if the felony conviction was not admissible, the facts of the grand theft would have been admissible under People v. Wheeler, supra, 4 Cal.4th at page 295. Further, Perdomo explained to the jury that her conviction was reduced to a misdemeanor and dismissed. The potential harm then is the word "felony" since the jurors were aware Perdomo received a reduction in the offense and expungement. And the fact of committing the theft would have been admitted in any event.
The weight of the evidence against Perdomo is significant. There is no dispute the dog suffered grievously from the failure to treat him. The dog's condition was the worst the animal care professionals had ever seen. The dog died within a few hours of his delivery to the clinic despite heroic efforts to save him. On this record it is not conceivable that Perdomo could have engaged in the treatments she claimed she used. Moreover, the jury could find she lied to Humane Society staff by claiming she could not seek care for the dog because she was a nurse and worked long hours. She was not a nurse and did not work long hours.
In sum, we do not believe the admission of the prior felony conviction, as explained in this record, caused Perdomo any prejudice. We do not find any reasonable likelihood that there would have been a different outcome in the absence of the error.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.