IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
August 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELBERT BROWN, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 101437)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Brown
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this case arising out of the burglary of a home in West Sacramento, defendant Elbert Brown's attorney did not seek to exclude evidence of some of defendant's prior convictions and did not request a limiting instruction when the prosecutor used those convictions for impeachment. On appeal, defendant contends these choices by his attorney amounted to ineffective assistance of counsel, and he seeks reversal of his convictions for burglary and conspiracy to commit burglary. Defendant also contends the court miscalculated his presentence credits. We agree defendant is entitled to one additional day of credit, but conclude there was no ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with first degree burglary with an enhancement because another person was in the residence, conspiracy to commit a felony, and misdemeanor resisting or obstructing a police officer. The information also alleged five enhancements based on defendant's prior prison terms.
At the outset of trial, defense counsel made a motion in limine acknowledging that it would be realistic for some of defendant's prior convictions to be admitted for impeachment purposes. The motion requested this evidence be restricted to crimes of moral turpitude occurring within the previous 10 years. In response to this motion, the trial court ruled defendant's misdemeanor convictions and drug convictions from the early and mid-90's would be excluded and that the prosecutor would be allowed to impeach defendant only with felonies committed between 2000 and 2008 if he chose to testify. Four of defendant's five felony convictions between 2000 and 2008 were for burglary; the fifth was for felony petty theft with a prior.
During the trial, defendant testified that he did not commit the crime and had only told a companion to throw a flower pot through the victim's window. On direct examination, he testified that he had at one time been on probation for burglary, but not residential burglary. During cross-examination, defendant admitted he had been convicted five times, in 2000, 2002, 2004, 2007, and 2008. The prosecutor elicited that four of these convictions were for burglary. Defendant's trial counsel did not seek a limiting instruction after this testimony.
The jury found defendant guilty on all counts. The jury also found the allegation to be true that someone other than defendant or an accomplice was present in the residence at the time of the burglary. After the jury trial, defendant admitted the enhancement allegations based on prior prison terms. The trial court sentenced him to an aggregate prison term of 11 years.
Defendant contends trial counsel's failure to seek the exclusion of his prior convictions amounted to ineffective assistance of counsel. He argues that under the analysis set out in People v. Beagle (1972) 6 Cal.3d 441 and People v. Castro (1985) 38 Cal.3d 301, his prior felony convictions would have been excluded. Alternatively, defendant asserts trial counsel was ineffective because his attorney did not request a limiting instruction when the prosecution elicited evidence of defendant's prior convictions to impeach his credibility. Defendant also contends the trial court miscalculated his presentence credits and he is entitled to one extra day of actual custody credit, bringing him to 158 aggregate days of presentence credit.
As we will explain, we find no merit in defendant's argument that his trial counsel was ineffective or that his prior convictions would have been excluded on counsel's motion. We also reject the argument that his attorney was ineffective in failing to request a limiting instruction. We will, however, remand with directions to the trial court to prepare an amended abstract of judgment reflecting one additional day of presentence credit.
Ineffective Assistance Of Counsel
"'Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.]' . . . [¶] '"Construed in light of its purpose, the right entitles the defendant not to some bare assistance, but rather effective assistance."' [Citations.] . . . '"In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown where there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"'" (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1447.) "In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny." (People v. Ledesma (1987) 43 Cal.3d 171, 216.)
Evidence Of Defendant's Prior Convictions Would Not Have Been Excluded
Defendant contends that had his trial counsel objected to or made a motion to exclude use of his prior burglary convictions for impeachment purposes those prior convictions would have been excluded, meaning defendant's trial counsel was ineffective in failing to do so. We disagree.
"As a general rule, failure to object to specific items of evidence 'involves tactical decisions on counsel's part and seldom establishes counsel's incompetence.'" (People v. Johnson (1993) 6 Cal.4th 1, 35.) Additionally, "[i]t is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court." (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) To determine if defendant's trial counsel was ineffective then, we must examine whether defendant's prior burglary convictions would have been excluded if trial counsel had objected to or moved to exclude the evidence.
"Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment. Together, they provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value is outweighed by risk of undue prejudice." (People v. Muldrow (1988) 202 Cal.App.3d 636, 644, fn. omitted.) In exercising this discretion, the trial court is guided by four considerations discussed by our Supreme Court in People v. Beagle, supra, 6 Cal.3d at page 453: "(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." (People v. Muldrow, supra, 202 Cal.App.3d at p. 644.) The factors described in Beagle are not "rigid standards to govern that which in each instance must depend on the sound exercise of judicial discretion." (People v. Beagle, supra, 6 Cal.3d at p. 453.) We examine each factor of the Beagle framework in turn.
1. Relevance Of Prior Convictions On Defendant's
In People v. Castro, supra, 38 Cal.3d at page 301 our Supreme Court held that prior convictions involving moral turpitude were "prima facie admissible, subject to the exercise of trial court discretion." (Id. at p. 316.) Defendant does not dispute that his prior burglary convictions were crimes of moral turpitude. Additionally, "California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of defendant's credibility." (People v. Mendoza, supra, 78 Cal.App.4th at p. 925.) Therefore, defendant's prior burglary convictions were probative on the issue of his credibility and this factor favored the admission of these priors. This is particularly true, where, as here, defendant's line of defense was an outright denial of guilt, i.e., his defense placed his credibility directly at issue. (Ibid.)
2. Remoteness Of The Prior Convictions
The remoteness factor also favored the admission of defendant's prior burglary convictions. The trial court addressed the remoteness concern before trial by ruling that only felonies that occurred between 2000 and 2008 could be used to impeach defendant if he took the stand. Defendant's prior burglary convictions fell within that category.
3. Similarity Of The Prior Convictions To The Charged
Beagle held that, "'[a]s a general guide, those convictions which are for the same crime should be admitted sparingly.'" (People v. Beagle, supra, 6 Cal.3d at p. 453.) Subsequent cases have noted the flexibility in the Beagle framework: "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.'" (People v. Green (1995) 34 Cal.App.4th 165, 183.) Because no defendant is entitled to a "false aura of veracity" (Beagle, at p. 453), if there are no other available priors with which to impeach defendant "the prosecutor must either offer the identical prior or forego the impeachment altogether" (People v. Foreman (1985) 174 Cal.App.3d 175, 182).
Here, defendant's prior convictions used for impeachment were the same as one of the charged offenses: burglary. That being said, we do not agree with defendant's contention that the court should have precluded impeachment with the prior burglary convictions because the prosecution had five felony petty theft with a prior convictions at its disposal to impeach defendant. According to the report of the Yolo County probation officer, four of those convictions were misdemeanors and occurred before 2000, the two caveats the trial court placed on impeachment evidence to be offered by the prosecution. Essentially, then, defendant is contending that, despite the trial court's pretrial ruling, the prosecution should have been limited to impeaching defendant with his remote misdemeanor convictions, rather than using his more recent felony convictions. Obviously, however, the strength of the impeachment would not have been the same. It also bears noting that defendant himself testified that the prior burglary conviction for which he had been on probation was not for residential burglary, the specific crime at issue in this case, which illustrated that the charged offense was not entirely identical to the prior convictions.
Even if this similarity factor might have favored exclusion of the prior burglary convictions, because the Beagle factors are a flexible standard, exclusion was by no means compelled. There is undoubtedly some degree of identity between defendant's prior burglary convictions used for impeachment and one of the charged offenses. Nevertheless, we cannot say it would have been an abuse of discretion for the trial court to have permitted the use of the prior burglary convictions for impeachment if defense counsel had objected based on their similarity to the charged burglary.
On balance, we conclude the Beagle factors would have favored admission of defendant's prior burglary convictions if defense counsel had made a motion to exclude those priors. Consequently, defense counsel cannot be found ineffective for failing to make a motion that ultimately would have been futile. Given the weight of the Beagle factors toward admission, defense counsel made a reasonable tactical choice in seeking to exclude as many prior convictions as he could, leaving only felony convictions from 2000 to 2008 available to the prosecutor for impeachment.
Defense Counsel's Choice To Not Seek A Limiting Instruction Was Reasonable
"'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." [Citation.] Defendant's burden is difficult to carry on direct appeal . . . . "'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.'"'" (People v. Sanchez, supra, 58 Cal.App.4th at pp. 1447-1448.) "'Matters involving trial tactics are matters "as to which we will not ordinarily exercise judicial hindsight . . . ." [Citation.] "In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel . . . ."'" (People v. Frierson (1979) 25 Cal.3d 142, 158.)
The choice not to request a limiting instruction is a matter of trial tactics that the record on direct appeal does not reveal as unreasonable. Defense counsel may have decided it was tactically unwise to draw further attention to defendant's prior burglary convictions by means of a limiting instruction. (People v. Hinton (2006) 37 Cal.4th 839, 878; People v. Johnson (1993) 6 Cal.4th 1, 50.) Because the record on appeal does not affirmatively disclose that trial counsel had no rational tactical purpose for failing to request a limiting instruction regarding defendant's prior burglary convictions, we cannot find trial counsel ineffective.
Defendant's Presentence Credits
The abstract of judgment filed on July 29, 2010, reflects that defendant was granted 157 days of presentence credit. This
reflected 137 days of actual credit and 20 days of conduct credit. Defendant contends that because he was arrested on March 14, 2010, and sentenced 138 days later, he is actually entitled to 158 days of presentence credits. We agree with defendant's contentions.
"In all felony and misdemeanor convictions, . . . when the defendant has been in custody, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, . . ." (Pen. Code, § 2900.5, subd. (a).) The sentencing court is obligated to "determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section." (Pen. Code, § 2900.5, subd. (d).) "Since section 2900.5 speaks in terms of 'days' instead of 'hours,' it is presumed the Legislature intended to treat any partial day as a whole day." (People v. Smith (1989) 211 Cal.App.3d 523, 526.)
The Yolo County probation officer's report indicates that defendant was arrested on March 14, 2010. No matter how late on March 14 he was arrested, because defendant was arrested and in custody on March 14 and sentenced on July 29, he is entitled to 138 days of actual credit, bringing his total presentence credit to 158 days.
The judgment is modified to give defendant credit for an additional day of presentence custody, for a total of 158 days. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy thereof to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: BUTZ , J. MAURO , J.
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