The opinion of the court was delivered by: Cantil-sakauye ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...