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People v. Douangpanya

May 11, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BANSA DOUANGPANYA, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Delbert W. Oros, Judge. Affirmed. (Super. Ct. No. 08F01175).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

A jury found defendant Bansa Douangpanya guilty of assault with a deadly weapon. The court sentenced him to three years in state prison.

On appeal, defendant contends the trial court erred when it instructed the jury that his impeachment priors involved "moral turpitude" and defined that phrase as "a readiness to do evil." He also contends defense counsel's failure to object to the trial court's decision to instruct the jury regarding moral turpitude constituted ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A detailed discussion of the facts is not necessary to the resolution of the issues on appeal. Suffice it to say on the early morning of February 10, 2008, a fight broke out on the sidewalk in front of a bar and dance club in downtown Sacramento. In the midst of fisticuffs between several persons, defendant approached one of the participants, Gustavo Vieira, from behind a parked car, carrying a beer bottle in his hand. He raised the bottle and swung it at Vieira, hitting him in the head and breaking the bottle. Defendant immediately backed away and moved onto the street, where off duty police officer Joe Alioto (who was employed as a security guard) quickly intercepted him and placed him in handcuffs.

Defendant was charged with a single count of assault with a deadly weapon. The information alleged the offense was a serious felony within the meaning of Penal Code*fn2 section 1192.7, subdivision (c)(23), because defendant personally used a dangerous and deadly weapon, and further alleged that defendant committed the offense while on felony probation (§ 1203, subd.á(k)).

On the eve of trial, defendant's counsel made the following comment regarding the use of defendant's two prior convictions for impeachment purposes: "If my client were to testify, do you agree that both of these are felony convictions that involve moral turpitude? [¶] However, with regard to the second conviction, the [section] 245[, subdivision ](a)(1), I would be seeking -- or asking the Court to sanitize[*fn3] that since it is, in fact, the same offense that my client is currently charged with." The court, after conducting an analysis, concluded defendant's two priors -- one for receipt of stolen property (§á496, subd. (a)) and one for assault with a deadly weapon (§á245, subd. (a)(1)) -- were crimes of moral turpitude. Pursuant to defense counsel's request, the court "sanitized" both priors by identifying them generically as felony convictions, requiring that any inquiry made be, "Did you suffer a felony conviction in Sacramento County in the year 2003 and/or the year 2005?" The following colloquy occurred between the prosecutor, Aaron Miller, and the court:

"MR. MILLER: I would request that because the reason for their admission would be to reflect on the defendant's credibility and the jury's ability to determine if he's telling the truth, I would ask that the language include a reference to moral turpitude.

THE COURT: That's fine. No problem.

MR. MILLER: In other words, the felony involving moral turpitude.

THE COURT: so the inquiry would be, "Did you suffer a felony conviction of moral turpitude in Sacramento County in the year 2003, in the year 2005?"

The jury found defendant guilty of the charged offense. In a bifurcated proceeding, the court found the felony probation allegation true.*fn4 The court denied defendant's request to reduce the charge to a misdemeanor and sentenced him to the middle term of three years in ...


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