Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA038679, Lisa M. Chung, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette and Pamela C. Hamanaka, Assistant Attorneys General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
I.
INTRODUCTION
Defendant and appellant Adolfo Quiroz was convicted by a jury of premeditated attempted murder (Pen. Code, §§ 664/187) and criminal threats (Pen. Code, § 422). The jury also found that the crimes were committed for the benefit of a criminal street gang (Pen. Code, § 186.22) and found several firearm enhancements true. Appellant was sentenced to prison for life with the possibility of parole, a consecutive term of 35 years to life, and a concurrent term.
Appellant contends: (1) the trial court prejudicially erred in excluding impeachment evidence; (2) the trial court prejudicially erred in permitting a witness to claim his Fifth Amendment right against self-incrimination as the witness previously had testified at the preliminary hearing; (3) the trial court prejudicially instructed with CALCRIM No. 3471; (4) the trial court prejudicially erred by omitting from the oral instructions portions of two instructions; (5) his counsel had a conflict of interest; (6) there was cumulative error; and (7) the trial court erred in imposing a consecutive 10-year sentence for the gang enhancement.
We correct a sentencing error. In all other respects, we affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts.
On October 1, 2004, a number of persons, including appellant, Haidee Salazar, Salazar’s husband Felix Garcia, and Richard Sorensen were at Salazar’s home when appellant shot Garcia. The shooting related to a financial dispute Salazar had with Sorensen.
1. Initial facts.
Salazar and Garcia were married in 1997 and separated in 2004. They eventually divorced in 2006. Garcia lived in Lancaster and occasionally visited his children, who resided with Salazar in Palmdale. Garcia used knives in his work at an air conditioning company when he cut duct tape and put holes in sheet metal. Garcia had been in the military in Iraq during which time he had learned to throw knives.
Months before October 2004, Salazar agreed to sublet a room to Sorensen. Sorensen paid $300 for the first month’s rent, but he was arrested before he could move into the room. After being released from custody, Sorensen called Salazar, demanded the return of his money, and made some escalating threats. Salazar refused to return the money.
Once, Sorensen stopped by Salazar’s home and demanded repayment of the money. Sorensen brandished a gun and threatened to shoot. Appellant and others were parked on the street and someone in the vehicle yelled “[t]his is Silverlake Gang.”
Sorensen was also known as Miclo. Appellant was also known as Kadafi or Downer.
2. The shooting.
On October 1, 2004, Garcia stopped by Salazar’s home. The two were outside when Salazar noticed that Sorensen, appellant, and other men were nearby. Garcia told Salazar to go into the house and call the police.
Sorensen and the others approached Garcia. Sorensen asked Garcia if he had any money. Appellant said, “[i]t’s our money. If you don’t pay up, there will be consequences.” Appellant lifted his shirt and displayed a gun. Sorensen, appellant, and the others circled Garcia who was standing near his truck. Sorensen swung at Garcia. Garcia grabbed two knives from his truck when he saw that Sorensen had grabbed a large stick or table leg. Garcia did not throw a knife at the assailants, but rather moved backward in a defensive position. Someone grabbed a hammer from Garcia’s truck. Sorensen and his cohorts advanced on Garcia. Sorensen attacked Garcia with a stick or a table leg, and his fists. Sorensen fell to the ground after he swung at Garcia. As Sorensen stood up, he yelled “shoot the mother fucker.” Garcia retreated. Appellant fired three times at Garcia, striking him twice. In return, Garcia threw his knives and then fell to the ground.
Salazar testified that Sorensen handed a gun to appellant. Garcia testified that appellant brandished the gun before he shot. Sorensen suggested appellant brought the gun to the scene.
Garcia was hospitalized, underwent two surgeries, and still has a swollen leg and a limp.
Expert gang testimony connected Sorensen, appellant, and others who were present that day, to the Silverlake gang. Evidence found at appellant’s home also connected him to a gang. Expert testimony proved that the shooting was done to bolster the gang’s reputation in the community.
Sorensen turned over the gun that was used in the shooting. It had been buried in the backyard of his home.
Sorensen gave testimony at his own plea hearing. The parties stipulated that this sworn testimony could be submitted in lieu of Sorensen’s live testimony at the trial against appellant.
3. The defense.
At trial, appellant testified in his own defense to the following. Appellant met Sorensen at a friend’s house. On October 1, 2004, appellant and Sorensen were at a barbeque. Appellant joined Sorensen when Sorensen said he was “going somewhere.” After appellant, Sorensen, and another person arrived at Salazar’s home, Sorensen handed appellant a gun. Garcia was leaning against his truck. Sorensen approached Garcia and asked for some money. A verbal confrontation ensued. Appellant suggested Garcia pay back the money that was owed. Garcia went to his truck and grabbed knives. Garcia tried to stare down appellant. When Garcia ran with the knives toward appellant and Sorensen, Sorensen picked up a chair leg in defense. As Sorensen and Garcia ran toward one another, Sorensen fell to the ground. Garcia was in a throwing position. Appellant thought he and Sorensen were both going to be stabbed. Appellant was scared when Garcia lifted his arms to throw a knife. At Sorensen’s direction, appellant fired at Garcia. However, appellant did not want to kill Garcia, so appellant aimed at Garcia’s legs. Appellant denied being a gang member.
B. Procedure.
Appellant was convicted by jury of premeditated attempted murder (Pen. Code, §§ 664/187, count I) and criminal threats (Pen. Code, § 422, count II). The jury found that the crimes were committed for the benefit of a criminal street gang (Pen. Code, § 186.22). Additionally, with regard to count I, the jury found the following firearm enhancements true: (1) appellant personally used a firearm (Pen. Code, § 12022.53, subd. (b)); (2) appellant personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)); and (3) appellant personally and intentionally discharged a handgun which proximately caused great bodily injury (Pen. Code, § 12022.53, subd. (d)). With regard to count II, criminal threats, the jury found that appellant personally used a firearm (Pen. Code, § 12022.5, subd. (a)).
On count I, appellant was sentenced to prison for life with the possibility of parole with a consecutive term of 35 years to life on the enhancements, and on count II, a concurrent term.
Appellant appealed from the judgment.
III.
DISCUSSION
A. The trial court did not prejudicially err in excluding impeachment evidence.
Prosecution witness Garcia had been convicted of violating Penal Code section 148, resisting or interfering with a police officer, a misdemeanor. During trial, defense counsel sought to impeach Garcia with the conviction. At the time, defense counsel stated he did not know if a violation of Penal Code section 148 was a crime of moral turpitude and the prosecutor stated it was not. The trial court denied defense counsel’s request to impeach Garcia with the misdemeanor conviction. Then, defense counsel asked the court if he could ask Garcia if he had “gotten in any trouble through violence... after he came back [from Iraq].” The court refused this request stating, “I think it’s another way of going to the same conduct.”
On appeal, appellant contends the trial court’s refusal to allow him to attack Garcia’s credibility with the misdemeanor conviction was prejudicial error. We are not persuaded by this contention.
Penal Code section 148, subdivision (a)(1) states in part: “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician,... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
“In People v. Castro (1985) 38 Cal.3d 301, the California Supreme Court held that despite Proposition 8’s Victims’ Bill of Rights amendment to the California Constitution (Cal. Const., art. I, § 28, subd. (f)), the due process clause of the Fourteenth Amendment demanded that a witness could be impeached with a felony conviction only if the conviction involved moral turpitude. (Castro, at pp. 313-314.) Castro ‘divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, etc.). The second group includes crimes that indicate a “ ‘general readiness to do evil,’ ” from which a readiness to lie can be inferred. [Citation.]’ [Citation.] As Castro explained, it is ‘easier to infer that a witness is lying if the felony of which he has been convicted involves dishonesty as a necessary element than when it merely indicates a “bad character” and “general readiness to do evil.” Nevertheless, it is undeniable that a witness’ moral depravity of any kind has some “tendency in reason” [citation] to shake one’s confidence in his honesty.... [¶] There is then some basis -- however tenuous -- for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known.’ (People v. Castro, supra, 38 Cal.3d at p. 315, fn. omitted.)” (People v. Rivera (2003) 107 Cal.App.4th 1374, 1379-1380, italics added.)
Moral turpitude has also been defined as “ ‘an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man’ ” (People v. Mansfield (1988) 200 Cal.App.3d 82, 87) and also defined as “ ‘conduct involving violence, menace, or threat.’ [Citations.]” (People v. Williams (1999) 72 Cal.App.4th 1460, 1464).
“Castro declined to list those offenses that did and did not involve moral turpitude. (People v. Castro, supra, 38 Cal.3d at p. 314.) Instead, it held that ‘a witness’ prior [felony] conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.’ (Id. at p. 317.) In other words, Castro prohibited the court from going ‘behind the conviction and tak[ing] evidence on or consider[ing] the facts and circumstances of the particular offense. Instead, the court must look to the statutory definition of the particular crime and only if the least adjudicated elements of the crime necessarily involve moral turpitude is the prior conviction admissible for impeachment purposes. [Citation.]’ [Citation.]” (People v. Rivera, supra, 107 Cal.App.4th at p. 1380.) “Whether a conviction involves [moral] turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions. [Citations.]” (People v. Collins (1986) 42 Cal.3d 378, 390.) The admissibility of a felony conviction to impeach is left to the trial court’s discretion. (People v. Maestas (2005) 132 Cal.App.4th 1552, 1556.)
Seven years after People v. Castro, supra, 38 Cal.3d 301 was decided, the Supreme Court in People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler) addressed whether a witness in a criminal proceeding could be impeached with a misdemeanor conviction. The court again examined the effect of Proposition 8, as well as the common law and evidentiary limitations on impeachment testimony. Wheeler explained why there was a difference between past felony convictions and past misdemeanor convictions for purposes of impeachment. As part of its discussion, the court stated, “[i]n 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.” (Id. at p. 296.)
Wheeler, supra, 4 Cal.4th at page 295 held “that if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence under [Proposition 8].” (Italics added.) In detailing the standard of admissibility, the court stated that “ ‘[m]isconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction.... [¶] Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.’ (Id. at pp. 295-296, fn. omitted.) Immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. (Id. at p. 297, fn. 7.) Admission of such prior misconduct evidence remains subject to the trial court’s discretion under Evidence Code section 352, which ‘empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ (Wheeler, at p. 296.) ‘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.’ [Citation.]” (People v. Rivera, supra, 107 Cal.App.4th at p. 1380; see also People v. Chatman (2006) 38 Cal.4th 344, 373 [trial court has discretion to admit evidence of misdemeanor to impeach].)
Thus, pursuant to People v. Castro, supra, 38 Cal.3d 301, the use of a felony conviction to impeach requires an examination of the least adjudicated elements of the crime. Whether a misdemeanor conviction can be used for impeachment, pursuant to Wheeler, supra, 4 Cal.4th 284, involves an examination of the conduct underlying the conviction. (People v. Rivera, supra, 107 Cal.App.4th at p. 1381, fn. 3; People v. Chatman, supra, 38 Cal.4th at p. 373.)
Garcia’s violation of Penal Code section 148, resisting or interfering with a police officer was a misdemeanor. Thus, we must examine the conduct underlying the conviction to determine if it could have been used as impeachment. However, we cannot do so because the record does not disclose the events that warranted Garcia’s conviction. The record also does not contain facts supporting defense counsel’s claim that the misdemeanor involved violence, and thus we cannot ascertain if the conduct underlying Garcia’s conviction had a bearing on his veracity.
Appellant suggests the least adjudicated elements test articulated in People v. Castro, supra, 38 Cal.3d 301, should apply. However, the Supreme Court has never applied this test to misdemeanor convictions. Rather, in Wheeler, supra, 4 Cal.4th 284, the court explained, in light of Proposition 8, the Evidence Code, and common law, that there were differences in how misdemeanor and felony convictions were analyzed for purposes of impeachment. Thus, we decline to apply the least adjudicated test here.
The lack of information about the events leading up to Garcia’s misdemeanor conviction also precludes us from evaluating the potential impact on the jury, had the conviction been used to impeach. (People v. Chatman, supra, 38 Cal.4th at p. 373.) Thus, assuming the trial court should have permitted defense counsel to impeach Garcia with the conviction, the record presents no basis from which we can conclude that excluding the evidence was an abuse of discretion. Nor can we ascertain the harmful effect from the exclusion.
The trial court’s ruling prohibiting the use of Garcia’s misdemeanor conviction does not warrant reversal.
B. The trial court did not err in permitting a witness to claim his Fifth Amendment right against self-incrimination.
Christopher Massoth, who had been identified as being present at the crime scene, testified at the preliminary hearing. When appellant called Massoth as a defense witness at trial, Massoth asserted his Fifth Amendment right not to testify, thereby rendering him unavailable. On appeal, appellant contends the trial court denied him a number of constitutional rights when it permitted Massoth to invoke his Fifth Amendment rights. This contention is not persuasive because “the failure of a witness to claim the [Fifth Amendment] privilege at a preliminary hearing does not prevent the witness from refusing to testify regarding the same incriminating material at the trial. [Citations.]” (People v. Williams (2008) 43 Cal.4th 584, 615.) Moreover, even had there been error, it was harmless beyond a reasonable doubt, as appellant could have introduced Massoth’s preliminary testimony at trial as prior testimony. (Evid. Code, §§ 240, 1290, 1291.)
C. The trial court did not prejudicially instruct with CALCRIM No. 3471 relating to mutual combat and initial aggressors.
The trial court instructed the jury with CALCRIM No. 3471 on the right to self-defense by a mutual combatant or initial aggressor as follows:
“A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if:
“1. He actually and in good faith tries to stop the fighting; AND
“2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; AND
“3. He gives his opponent a chance to stop fighting.
“If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.
“If you decide that the defendant or other person started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant or other person could not withdraw from the fight, then the defendant had the right to defend himself or other person with deadly force and was not required to try to stop fighting.” (Italics added.)
“Mutual combat” does not refer to the everyday meaning of the reciprocal exchange of fighting. (People v. Ross (2007) 155 Cal.App.4th 1033, 1044 (Ross).) Rather the mutual combat “doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight.” (Id. at p. 1036.) A mutual combat instruction is warranted where there is “evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose.” (Id. at p. 1047, italics omitted.) Appellant contends instructing with CALCRIM No. 3471 warrants reversal because there was no substantial evidence that he and Garcia were engaged in mutual combat by preexisting mutual intent.
However, CALCRIM No. 3471 applies when a person is engaged in mutual combat or is the initial aggressor. Here, there was evidence suggesting appellant was the initial aggressor because there was evidence that he and his accomplices were the first to engage in hostile combat, and Garcia armed himself with and used knives only in self-defense. Thus, the instruction was proper.
Appellant’s reliance on Ross, supra, 155 Cal.App.4th 1033 and People v. Quach (2004) 116 Cal.App.4th 294 is unavailing as these cases address the prior version of the instruction that only applied to mutual combatants. Also, the instruction analyzed in Ross and Quach did not include the last paragraph of CALCRIM No. 3471 addressing the lack of an opportunity to withdraw from the scene. Further, in Ross, there was no evidence to support a mutual combat instruction and also the trial court prejudicially erred in not clarifying the definition of “mutual combat” even though the jury had asked for such clarification.
To the extent appellant argues CALCRIM No. 3471 should not have discussed mutual combat, he has waived any claim of error. (Cf. People v. Carrington (2009) 47 Cal.4th 145, 189.)
Thus, the trial court did not err in instructing with CALCRIM No. 3471.
D. There was no prejudicial error when the trial court initially omitted portions of two instructions.
The trial court gave the jury a complete set of written instructions. This included CALCRIM No. 505 on self defense or defense of another. In orally instructing the jury, the trial court omitted self-defense. Also, when the trial court orally instructed on the lesser included offense of attempted voluntary manslaughter (CALCRIM No. 604), the court omitted imperfect self-defense. Appellant contends these omissions warrant reversal. We are not persuaded.
After these errors were made, the trial court immediately corrected itself. The court informed the jury that it was to consider self-defense (CALCRIM No. 505) regarding the attempted murder charge, and subsequently repeated a corrected instruction orally. Likewise, the court gave a corrected oral version of CALCRIM No. 604 informing the jury that imperfect self-defense reduced an attempted murder to attempted voluntary manslaughter. Thus, the errors were corrected and the fact that the trial court initially omitted portions of the two instructions when reading the instructions to the jury cannot be prejudicial. Further, the jury was given a complete set of written instructions, rendering any error harmless. (People v. Wallace (2008) 44 Cal.4th 1032, 1076; People v. Osband (1996) 13 Cal.4th 622, 687; compare with People v. Villanueva (2008) 169 Cal.App.4th 41, 49-53 [reversal required where court does not instruct on self-defense and imperfect self-defense]; People v. Elize (1999) 71 Cal.App.4th 605, 616 [reversal where trial court does not instruct on self-defense].)
E. Even if appellant’s trial counsel had a conflict of interest due to a prior representation of Sorensen, appellant has not demonstrated that this conflict adversely affected trial counsel’s representation of appellant.
According to court documents of which we have taken judicial notice, appellant’s trial counsel represented Sorensen in June 2005, months prior to Sorensen accepting a plea in October 2006 to attempted murder (Pen. Code, §§ 664/187) and personally using a firearm in the commission of a felony or an attempted felony. (Pen. Code, § 12022.5, subd. (a).) The record does not reflect that the trial court discussed with appellant any potential conflict his counsel may have had in light of this prior representation and the record does not reflect that appellant waived any conflict of interest.
Instead of calling Sorensen to the stand, the parties stipulated that statements Sorensen made during his plea hearing would be presented to the jury. When the testimony was read to the jury, the jury was only informed that on October 13, 2006, Sorensen had given the testimony. In this testimony, Sorensen stated that he “guessed” appellant had brought a gun to the crime scene. Sorensen further stated he had instructed appellant to shoot Garcia, and after the shooting, he saw appellant with a gun. However, Sorensen emphasized that his directive to shoot was given only because he was threatened by Garcia. Sorensen made the following statement at his plea hearing: “Q. So Felix Garcia was about 20 feet from you, and you thought he was going to stab you; is that right? [¶] A. Yes. [¶] Q. And at this point, you told [appellant] to shoot him; is that right? [¶] A. Yes. [¶]... [¶] Yes, because I slipped. I fell down. I was getting up, and he was trying to throw that knife at me.”
Assuming the trial court failed in its responsibility to discuss with appellant the possibility of a conflict of interest and failed to obtain appellant’s waiver of his right to conflict-free representation, appellant must show that an actual conflict of interest adversely affected his counsel’s performance to obtain a reversal. (People v. Bonin (1989) 47 Cal.3d 808, 834, 837-838.)
Appellant urges his trial counsel’s performance was affected because counsel “refrained from attacking Sorensen’s denial of the gun possession... [and] the conflict prevented defense counsel from making an issue of Sorensen’s involvement [and minimizing] Sorensen’s responsibility.” However, appellant admitted shooting Garcia. This admission turned the trial into one about appellant’s defenses in which appellant claimed he was defending himself and others. In this regard, Sorensen’s testimony was consistent with appellant’s as both testified that the gun was fired only because Garcia threatened them with knives. Whether appellant brought the gun to the scene (as suggested in Sorensen’s statement) or Sorensen brought the gun to the scene (as appellant testified) was a difference without great importance. The key to the case was whether or not the jury believed appellant when he testified that he responded to Garcia’s threats. It is clear from the verdict that the jury disbelieved appellant’s defenses, which were adequately presented by his trial counsel.
The purported conflict of interest does not warrant reversal.
In light of the fact that we have found no errors, we reject appellant’s argument that the cumulative effect of the errors was prejudicial.
F. The trial court erred in imposing a consecutive 10-year sentence for the gang enhancement.
The trial court sentenced appellant to an indeterminate term of a life sentence with a consecutive Penal Code section 12022.53, subdivision (d) term of 25 years to life on count I (premeditated attempted murder) and also imposed a consecutive 10-year term (Pen. Code, § 186.22) for the gang enhancement on this count. Appellant contends, and the People concede, that the trial court should not have sentenced him to a consecutive 10-year term for the gang enhancement.
When the statute for the underlying crime mandates a sentence of an indeterminate term (either a straight life term or a term of years to life) a trial court should not impose a determinate consecutive term for the gang enhancement on that count. Rather, the court should impose a term that the defendant shall not be eligible for parole for a minimum of 15 years. (People v. Lopez (2005) 34 Cal.4th 1002, 1004-1007.)
Thus, the Penal Code section 186.22 10-year determinate term must be stricken and replaced with a 15-year Penal Code section 186.22, subdivision (b)(5) minimum parole eligibility. (People v. Lopez, supra, 34 Cal.4th 1002; People v. Harper (2003) 109 Cal.App.4th 520, 527.)
IV.
DISPOSITION
The abstract of judgment is modified to reflect that appellant’s 10-year consecutive sentence on the gang enhancement (Pen. Code, § 186.22) on count I is stricken. A 15-year minimum parole eligibility requirement is imposed. (Pen. Code, § 186.22, subd. (b)(5).)
The clerk of the Superior Court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.