Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F0709
BUTZ, J.Defendant Wesley Phillips was found guilty by a jury of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and purchasing or receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). Thereafter, the jury found defendant had three prior prison terms and had been convicted previously of robbery. Sentenced to nine years in state prison, defendant appeals. He contends the trial court abused its discretion in denying his motion for new trial, which was based on the court’s in limine ruling that he could be impeached with his prior convictions. We shall affirm the judgment.
FACTUAL BACKGROUND
On August 13, 2006, Juvenal Gomez Olazaba (“Gomez”) parked his truck in the driveway of his neighbor’s home and left the ignition key under the front seat. Two hours later, he discovered his truck was missing. He reported the theft to the police and unsuccessfully searched the area for his truck.
Gomez resumed his search the following morning, driving around the neighborhood on a motorcycle. After a couple of hours, he spotted his truck being driven toward him near his son’s school. He followed the truck and identified defendant as the driver and as someone he had previously seen in the neighborhood.
When the truck approached a light, Gomez yelled for defendant to pull over. Defendant initially sped away, but later pulled the truck over. When Gomez got closer to the truck, defendant veered the truck toward Gomez and drove away. Gomez followed defendant, who eventually parked the truck. Defendant got out of the truck, handed Gomez the keys, and the two men began arguing.
Two security officers approached defendant and Gomez. Defendant falsely identified himself to the officers and did not stay at the scene as requested, but instead walked into a nearby methadone clinic. One of the officers contacted dispatch and was informed the truck had been stolen. When defendant returned to the scene, he was detained and provided his proper identity.
The passenger side window of the truck was broken, glass covered the seat and floorboard, and the radio was missing. Gomez also informed officers that numerous landscaping tools, the truck’s stereo, a portable radio, keys, and a digital camera were also missing from the truck.
DISCUSSION
At the commencement of trial, defendant filed an in limine motion seeking to exclude evidence of his prior convictions for impeachment purposes. Defendant had convictions for misdemeanor assault, robbery, vehicle theft, grand theft, and misdemeanor vehicle theft. The trial court denied his motion and defendant did not testify at trial.
Prior to sentencing, defendant moved for a new trial on the ground that the trial court’s in limine ruling had been erroneous. As part of the motion, defendant submitted a declaration stating that he had desired to testify but had declined based on the court’s in limine ruling. He also attested that he would have testified, among other things: that he had “borrowed the truck just two hours or so prior to [his] arrest”; (2) that “[t]he broken window . . . was as it was when [he] borrowed the truck [and] was broken, accidentally, by the person [he] borrowed the truck from;” and (3) that he “requested the officers on the scene to take [him] to where [he] borrowed the truck from, but they refused to do so . . . [and that the] place where [he] borrowed the truck from was only ten (10) blocks from the scene . . . .”
The trial court denied defendant’s motion for new trial, noting that it was “basically a reiteration” of the in limine motion, “with the additional factor that [defendant] did not testify and then the verdict was adverse to his interests.”
Defendant contends the trial court “abused its discretion by denying [his] new trial motion asserting error in denying his in limine motion to exclude priors for impeachment purposes.” We conclude this contention was not preserved for appeal.
Testimony by the defendant is a prerequisite to appellate review of the issue defendant now seeks to raise. (People v. Collins (1986) 42 Cal.3d 378, 383-388 (Collins).) Since defendant did not testify at trial, the ruling on his motion to exclude his prior convictions for impeachment purposes is not reviewable on appeal. (Ibid.)
As the California Supreme Court has explained, “The principles, and the resulting procedural rule, promulgated in [Collins, supra, ] 42 Cal.3d [at pp.] 383-388, govern the threshold question whether defendant’s claim has been preserved for review on appeal. In Collins, we determined that California courts are to follow the federal rule stated in Luce v. United States (1984) 469 U.S. 38 [83 L.Ed.2d 443] (Luce), which requires that if a defendant wishes to preserve for appeal an objection to a trial court’s in limine ruling permitting impeachment by a prior conviction, he or she must take the witness stand and actually suffer such impeachment. [Citation.] We found that the reasons given by the United States Supreme Court for the procedure it had mandated were sound and equally applicable to California practice: among other matters, the trial court, in order to balance the probative value of a conviction against its prejudicial effect, ‘“must know the precise nature of the defendant’s testimony, which is unknowable when . . . the defendant does not testify.”’ [Citation.] Additionally, when the trial court errs in ruling the conviction admissible, the reviewing court cannot intelligently weigh the prejudicial effect of that error unless the defendant has testified.” (People v. Sims (1993) 5 Cal.4th 405, 454-455.)
Defendant attempts to circumvent the Collins/Luce rule precluding him from challenging the trial court’s Evidence Code section 352 ruling because he did not testify at trial. He argues the reasons for the Collins/Luce rule are not present in this case, so the rule should not apply. We find his reasoning fallacious.
The primary reason for the rule is an appellate court is handicapped in reviewing the trial court’s evidentiary ruling outside a factual context. (Collins, supra, 42 Cal.3d at p. 384.) Since the trial court cannot weigh probative value vis-à-vis prejudice unless it knows the “precise nature” of the defendant’s testimony, which is “unknowable” when he does not testify, an appellate court cannot review that balancing process unless the record discloses the precise nature of that testimony. (Ibid.)
Defendant asserts that his offer of proof, given by sworn declaration, provided an adequate record for both the trial court, and this court, to make the necessary determinations. Not so. As stated in Collins, the Luce court “rejected the idea of substituting an offer of proof for the defendant’s testimony: ‘his trial testimony could, for any number of reasons, differ from the proffer.’” (Collins, supra, 42 Cal.3d at p. 384, quoting Luce, supra, 469 U.S. at p. 41, fn. 5 [83 L.Ed.2d at p. 447, fn. 5].) He was not subjected to cross-examination or impeachment; thus, defendant’s offer of proof, even via sworn declaration, is insufficient to avoid the Collins/Luce rule requiring that defendant actually testify and be impeached.
A second reason for the waiver rule is that any possible harm from the trial court’s in limine ruling is “‘wholly speculative,’” since the court has discretion to make a different ruling as the evidence unfolds at trial and the prosecution might not have used the priors for impeachment even if the defendant had testified. (Collins, supra, 42 Cal.3d at p. 384.) As explained by Luce, “The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer.” (Luce, supra, 469 U.S. at p. 41 [83 L.Ed.2d at p. 447].)
Defendant seeks to avoid this reason by emphasizing that he is not appealing the trial court’s Evidence Code section 352 ruling per se, but instead is challenging only the court’s denial of his new trial motion based on that ruling. He argues that the harm was, therefore, not speculative because the procedural posture made it possible to consider the “complete picture of the case.” No matter how defendant attempts to characterize his appeal, the bottom line is that he claims the trial court erred in ruling the prosecution could impeach him with his prior convictions if he testified at trial. That claim is speculative because that ruling may have changed for any number of reasons, such as defendant’s actual testimony, the prosecution’s decision not to impeach him, or the prosecution’s failure to lay a proper foundation for the impeachment evidence.
Another reason for the Collins/Luce rule is, if the trial court erred in admitting prior convictions, the appellate court cannot intelligently discern the prejudicial effect thereof if the defendant did not testify. (Collins, supra, 42 Cal.3d at p. 384.) Defendant seeks to circumvent this reason by arguing that, “[i]f the court abused its discretion by denying the motion, there is no harmless error analysis.” But, in reviewing an order denying a new trial, “we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.” (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.) “Prejudice is required: ‘[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.’” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) Absent defendant’s precise testimony and the prosecution’s impeachment evidence, any prejudicial effect of the trial court’s ruling remains speculative.
As stated by the United States Supreme Court in Luce, “Were in limine rulings under [Fed. Rules Evid., rule 609(a), 28 U.S.C.] reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term ‘harmless’ an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve [in limine ruling] claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to ‘plant’ reversible error in the event of conviction.” (Luce, supra, 469 U.S. at p. 42 [83 L.Ed.2d at p. 448].)
The Collins/Luce rule and reasoning are no less applicable when the appeal is from a postverdict motion for new trial based on the in limine ruling. By failing to testify, defendant did not preserve his claim for appeal.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., HULL, J.