IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 8, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SIMON MARCUS GONZALES, DEFENDANT AND APPELLANT
APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge.
The opinion of the court was delivered by: Hollenhorst J.
P. v. Gonzales CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant and appellant Simon Marcus Gonzales was charged with one count of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1), count 1), one count of sexual penetration by a foreign object of a person under the age of 18 years (Pen. Code, § 289, subd. (h), count 2), and two counts of forcible rape (Pen. Code, § 261, subd. (a)(2), counts 3 & 4). A jury convicted him of count 2 and two counts of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (b)), the lesser included offense of counts 3 and 4. The jury deadlocked on count 1, and the trial court declared a mistrial as to that charge. Count 1 was subsequently dismissed on the People's motion. The trial court placed defendant on probation for a period of five years, including 270 days in county jail.
Defendant's sole contention on appeal is that the trial court abused its discretion in permitting the prosecution to impeach him with evidence that he previously committed a petty theft. We affirm.
The victim testified at trial that she was 15 years old in 2007. In July 2007, she took a class at a driving school and met defendant. After the class was over, she "found him on My Space," and they started communicating. Defendant told her he was turning 18 in August 2007, and she told him she was 15. They then started talking on the phone. The victim told him she was a virgin and wanted to remain so until she was married. Defendant said he respected that. They went on their first date at the beginning of August 2007 and became a couple. On defendant's birthday, August 21, they met each other at the movie theater in the afternoon. There were only two other people in the theater, and defendant decided that he and the victim should sit in the far back corner of the theater. During the movie, defendant started kissing her. The victim had her legs crossed, and defendant put his hand down inside her pants. She tried to keep defendant's hand away by keeping her legs crossed and by trying to take his hand and moving it. However, defendant was much stronger than her. He unbuttoned her pants and put his fingers into her vagina. The victim told him it was hurting, and he told her to uncross her legs. He eventually took his hand out of her pants, so she got up and went to the bathroom. She noticed a small blood stain on her underwear. After the movie, the victim was upset. Defendant asked her what was wrong, and then apologized. She told him it could not happen again.
About one month later, defendant and the victim went to see another movie. They left the movie early and went to the apartment where the victim lived with her mother. They went up on the roof of the building. They were lying on a blanket, looking at the stars, when defendant got on top of the victim and unbuttoned her pants. She told him, "'No. Stop it.'" However, he continued and pulled her pants down past her knees. She was struggling and kicking to keep him off her, but he pinned her down with his hands and body. He placed his penis in her vagina. The victim repeatedly told him to stop, and she started crying. When defendant finished, he got up and left as she laid there. The victim eventually got up and went back to her apartment. When she went to the bathroom, she found blood on her clothes. She did not tell her mother what happened, but instead tried to "pretend it didn't happen." Sometime after the rooftop incident, defendant apologized to the victim on the phone.
One afternoon in late October 2007, defendant came over to the victim's apartment to watch a movie. They started to watch, but then decided to go get something to eat. The victim went to her room to change her clothes, and her mother left to go to the store. The victim was in her closet looking for something to wear, when defendant came up from behind her and threw her on the bed. He again pulled her pants down, despite her resistance. He pinned her legs and told her to "grow up" and relax. He put his penis inside her vagina, even though she kept trying to get him to stop. After he was finished, he got off her and went to the bathroom. The victim was shaken up and crying. She noticed that her legs, inner thighs, and genital area were covered in blood. Defendant left the apartment. When her mother returned, the victim did not tell her what happened, but said she had just had her period. The victim testified that she never planned on telling anyone what happened. She was ashamed of herself and of being with someone who could do such things to her.
The victim continued to talk to defendant, but, in early November 2007, she broke up with him. At the end of the school year, the victim told one of her teachers that she had been raped. The teacher eventually convinced the victim to speak with the school resources officer, Deputy Williams. Deputy Williams subsequently had the victim make a pretext phone call to defendant, which was recorded. An audiotape of the call was played for the jury at trial. During the call, the victim talked to defendant about what had happened between them, and she asked him if he thought she wanted to have sex. He said, "I think--No--I mean no, I was just pushing the limit." When she asked him why he did it, if he did not think she wanted to, and he said, "I have no idea. I guess, I pushed and pushed and pushed until it happened." Defendant also said, "I know I kept going when you said 'no.' I knew that." "I just kept going just 'cause I wanted to."
Defendant testified on his own behalf. He said that he and the victim were boyfriend and girlfriend, and that the first time they had sex was on August 4, 2007. He said they went to the rooftop of the victim's apartment building, started kissing, and ended up making love. He testified that he never heard the victim complain or say no, and that he was not aware that she did not want to have sex.
Defendant then testified that on August 18, 2007, he went to the victim's apartment to celebrate his 18th birthday with her. The victim's mother made a pizza for him and baked a cake while he was there. Then he and the victim went into the victim's room. They were in her closet kissing, and he touched her vagina. He testified that the victim then took his fingers and inserted them into her vagina for a couple of seconds. They went downstairs to the apartment garage and started kissing. They both took off their own clothes, and then the victim asked him to stop. He stopped kissing her, told her he loved her, and started again. She said "no" again. He stopped again and talked to her, then started kissing her. After that, he did not hear the word "no" again, and they proceeded to have sex. Defendant testified that during the phone conversation that was taped, he was talking about this encounter in the garage. He also testified that on August 21, his actual birthday, he was working at a snack bar and was not with the victim.
On cross-examination, the prosecutor asked defendant if it was true that on May 1, 2008, he was caught shoplifting. Defendant said yes. He said he was cited by the store loss prevention person, and eventually admitted that he had committed the theft. The prosecutor went on to question defendant about his interview that he previously had with Deputy Williams. Defendant admitted that he told Deputy Williams a different date range of when he met the victim and dated her. He had told Deputy Williams that he met the victim at the driving school in June 2007 and started dating her that month, and in that same month, he and the victim went to the rooftop of the victim's apartment and had sex. However, on cross-examination, defendant said that none of that was true, and that he had not even met the victim in June. He then admitted that he told Deputy Williams that on his birthday, on August 21, 2007, he went to the victim's apartment to celebrate with her. However, he was wrong about being there on August 21. He admitted that now he was saying he went there on a different date to celebrate his birthday. The prosecutor kept confronting him about inconsistencies between what he told Deputy Williams and his testimony at trial. Defendant said he was confused about all the dates when he talked to Deputy Williams and, at the time of that interview, he answered the questions to the best of his recollection.
Deputy Williams testified that she interviewed defendant on December 1, 2008. He admitted to her that he fondled the victim's vagina when they went to see a movie in late June, but he denied actually putting his fingers into her vagina. Defendant told Deputy Williams about the occasion when he and the victim had sex in the garage. He initially told Deputy Williams it was consensual. However, when she told him that she was listening in when the victim made the pretext phone call, he changed his story and said he heard the victim say, "no." He admitted that the victim did not want to have sex, but he said he talked her into it. Defendant told her that on August 21, 2007, he went to the victim's apartment for his birthday. He admitted that he was with the victim in the closet, and he placed his fingers inside her vagina.
The Trial Court Properly Admitted Evidence That Defendant Previously Committed a Theft
Defendant claims that the trial court abused its discretion when it allowed the prosecution to impeach him with the evidence that he committed a misdemeanor theft. We find no abuse of discretion.
A. Proceedings Below
Before defendant testified, defense counsel made a motion to exclude the evidence of the shoplifting incident. Defense counsel argued that defendant was charged with a misdemeanor, but ended up entering a plea to an infraction. Counsel claimed that because defendant admitted the theft to store personnel and the police, apologized, and entered a plea to an infraction, such actions "kind of lessen[ed] the impact on his credibility." Thus, counsel urged that the evidence should be prohibited under Evidence Code section 352.
The prosecutor argued that, under People v. Wheeler (1992) 4 Cal.4th 284, 295-296, a witness can be impeached with misdemeanor conduct involving moral turpitude. The prosecutor further asserted that since defendant was going to be taking the stand and presenting his version of the facts as true, as opposed to the victim's version, the People would use the evidence of his theft to call his credibility into question. The prosecutor assumed that defendant would admit the offense, which was very recent; therefore, the questioning would not take much time. Defense counsel conceded that the prosecutor's statement of the law was correct. The trial court agreed. It then stated that it had an obligation under Evidence Code section 352 to analyze whether the prejudicial effect of the evidence outweighed its probative value. The trial court recognized that the credibility of the victim and defendant was at issue, found this evidence relevant to the issue of credibility, and allowed the evidence in.
B. Standard of Review
"The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court's rulings on the admissibility of evidence. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).)
C. There Was No Abuse of Discretion
"In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing." (Harris, supra, 37 Cal.4th at p. 337.) "Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352. [Citation.]" (Ibid.) "Moral turpitude offenses 'include crimes in which dishonesty is an element (i.e., fraud, perjury, etc.).' [Citation.]" (People v. Cadogan (2009) 173 Cal.App.4th 1502, 1514.) Petty theft has been held to be a crime of moral turpitude for impeachment purposes. (People v. Waldecker (1987) 195 Cal.App.3d 1152, 1156.) Here, the trial court was well within its discretion in determining under Evidence Code section 352 that the evidence of defendant's prior misconduct was admissible. The trial court correctly noted that the defense in this case was going to be based significantly on the position that the victim had "fabricated at least one of the incidents." Since the defense would attack the victim's credibility, the credibility of defendant would also be put at issue. Defendant's past offense involved moral turpitude; it was thus admissible to impeach defendant. Moreover, we note that the petty theft was a recent offense, and that the current and impeaching offenses were completely different in nature. (People v. Green (1995) 34 Cal.App.4th 165, 183.) Therefore, there was no chance that the jury would convict him of the current offense, based on the past offense. The trial court properly determined that the probative value of the impeachment evidence outweighed any potential prejudice.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
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