IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 2, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN PAUL YOUNG, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Cantil-sakauye ,j.
P. v. Young CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant John Paul Young of financial elder abuse and the trial court found he had served a prior prison term. (Pen. Code, §§ 368, subd. (d), 667.5, subd. (b).) The trial court sentenced defendant to prison for five years, and defendant timely appealed.
On appeal, defendant contends the trial court abused its discretion by permitting the People to impeach him with a prior conviction for financial elder abuse, the same offense charged in the present case. He also contends he is entitled to additional presentence custody credit. We conclude the trial court properly admitted the prior conviction for impeachment, but agree defendant is entitled to additional credit. We shall modify the judgment to award additional credit, and affirm.
A bank manager testified the victim had called her bank with instructions to honor a check made payable to cash, in the amount of $600. Defendant cashed the check on December 5, 2008. Because of the victim's poor health and her need for assistance, this was not an unusual event: Defendant, as well as others, had cashed such checks on the victim's account in the past.
The victim testified defendant helped her with her banking and provided in-home care for her. She could not return to her home from a nursing facility until her gas was turned on, and because she owed the gas company about $585, she gave defendant the $600 check to pay the gas company that same day, noting on the bottom of the check that it was to pay the propane bill. She planned to make it payable to the gas company, but defendant insisted she had to make it payable to cash. When she learned the company had not received the check that day, a Friday, she contacted the ombudsman the following Monday.
Charles Collins was a volunteer ombudsman who assisted nursing home residents. He met with the victim and discussed her complaint--that defendant was supposed to have paid her propane bill, but the gas company reported it had not received any payment. In response, Mr. Collins contacted the gas company and was told the bill had not been paid. He then repeatedly tried to contact defendant, but his calls were never returned. Eventually, after about two weeks, defendant told him he had not had time to cash the check and pay the gas company. At one point, defendant said he had a receipt showing he had paid the company, but he did not appear at a scheduled meeting to produce it.
After the People rested, and outside the jury's presence, the parties discussed defendant's testimony. The prosecutor presented a certified copy of defendant's felony convictions in 2000 for financial elder abuse (Pen. Code, § 368, subd. (d)) and check forgery (Pen. Code, § 470, subd. (d)), which led to a prison sentence. Defense counsel conceded both felonies reflected moral turpitude, but argued only the forgery conviction should be used for impeachment because of the similarity between the elder abuse conviction and the present allegation; in the alternative, counsel argued the elder abuse conviction should be redacted to minimize its prejudicial effect. In reply, the prosecutor noted that defendant had "multiple theft convictions" extending back to 1984, but only two of defendant's more recent convictions were being offered for impeachment: "So I think we're even limiting what we're requesting in view of [defendant's] long history of theft-related convictions." The prosecutor listed those other convictions, including a 1984 Penal Code section "476 charge for which probation was given and ultimately terminated in '85[,]" a vehicle theft in 1985, multiple parole violations based on theft-related conduct, and a petty theft with a prior conviction in 1996. After the convictions in 2000 that were proffered for impeachment, defendant had an escape conviction and five parole violations. Defense counsel objected to the court's consideration of defendant's parole violations.
The trial court ruled the priors were relevant to honesty, were not remote given defendant's subsequent conduct, and the fact one was for the charged crime did not mean it would be unduly prejudicial; therefore, both were admitted.
Defendant testified he had been providing support services for 13 years, began helping the victim in this case in September 2008, and then she briefly went into the nursing home in October 2008. Defendant was not being paid by the victim's third-party payor, although he was tending to the victim's dogs and performing other services for her, and the victim chose to pay him directly. Defendant admitted that he had felony convictions in 2000 for forgery and "theft of a dependent adult." On cross-examination, defendant testified the victim never asked him to pay her gas bill, although the check had the notation "propane gas bill" on it. He testified his felonies were for forging a check and "financial elder abuse."
The trial court gave an instruction on evaluating a witness's testimony that included consideration of whether the witness has "been convicted of a felony."
The jury convicted defendant as charged. Defendant waived his right to a jury trial on the prior prison term allegation, and the court found it true.
The court imposed the upper term of four years in state prison, plus an additional one year for the prior prison term allegation.
Defendant timely filed this appeal.
I. Impeachment Evidence
Defendant concedes his forgery conviction was admissible to impeach him, but contends the trial court abused its discretion by allowing the prosecution to impeach him with the financial elder abuse conviction, because that was the identical offense charged in the present case. We disagree.
"In determining whether to admit the prior convictions, '[t]he trial court should consider . . . : (1) whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. [Citation.]' . .
"'A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.'" (People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green).)
We see no abuse of discretion. Defendant conceded at trial and concedes on appeal that both prior convictions reflected moral turpitude. Introducing them was not time consuming. The convictions from 2000 were not remote, particularly given defendant's intervening escape conviction. (See People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 ["Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior"].) Defendant does not argue that the admission of either prior had any impact on his decision to testify.
The fact that defendant was on trial for financial elder abuse, and had committed that crime before, did not mandate exclusion of the prior conviction. "Prior convictions for the identical offense are not automatically excluded. 'The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.'" (Green, supra, 34 Cal.App.4th at p. 183; see People v. Castro (1986) 186 Cal.App.3d 1211, 1216.)
Defendant contends the prior financial elder abuse conviction "easily created the highly inflammatory inference that appellant had, during his 13 years as a health care worker, preyed on his vulnerable clientele, as he had [the current victim] and the identified victim of the 2000 offense." The Attorney General correctly points out that the victim in the 2000 offense was not identified and there was no evidence that the prior victim had been a client of defendant's. A financial elder abuse offense, while both blameworthy and reflective of moral turpitude, does not carry an inherently inflammatory odor, such as a violent sexual assault or other heinous offense.
The trial court understood its discretion and exercised it on the record, concluding that admission of the financial elder abuse conviction was not prejudicial. Given that conviction's clear relevance to credibility, and the fact it was not an inherently inflammatory crime, we cannot say the trial court abused its discretion.
Nor, contrary to defendant's contention, was this case close. The People's case was strong: the victim clearly testified defendant was supposed to use the check to pay the propane bill, as noted on the check itself; and the ombudsman testified defendant did not return his calls and falsely claimed to have a receipt for the gas bill. Defendant's testimony lacked any ring of truth. In particular, when confronted with the fact that the victim's check bore a notation that it was for "propane," defendant explained that the victim often made such notations on checks. Given defendant's implausible story, as well as the concededly proper impeachment with the prior check forgery conviction, it is not reasonably probable that exclusion of the prior financial elder abuse conviction would have made any difference in defendant's case. (See People v. Gurule (2002) 28 Cal.4th 557, 608-609 [applying state law standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836].)
II. Custody Credits
Defendant served 183 actual days of presentence custody and the court awarded him an additional 90 days of conduct credits. The trial court later denied defendant's motion to modify the conduct credit award in accordance with the more generous formula recently enacted. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
Pursuant to this court's miscellaneous order No. 2010-002, we deem defendant to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [similar].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, former subds. (b)(2), (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].)
Further, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Stats. 2010, ch. 426, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the prior formula when the defendant served an odd number of days in presentence custody. We conclude this new formula also applies retroactively. Defendant, having served 183 days of actual custody, is entitled to 183 days of conduct credit under the new formula. We modify the judgment to award defendant 183 days of conduct credits, in addition to his 183 days of actual presentence credits.
The judgment is affirmed as modified. The trial court is directed to prepare and forward a new abstract of judgment to the Department of Corrections and Rehabilitation.
HULL , Acting P.J. BUTZ ,J.
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