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The People v. Elbert Brown

August 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

DISCUSSION

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 ...


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