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The People v. Kevin Shawn Voage

November 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN SHAWN VOAGE, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF111588)

The opinion of the court was delivered by: Mauro , J.

P.

v.

Voage 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kevin Shawn Voage of receiving stolen property. The trial court found true the allegations that he had prior strike convictions and had served five prior prison terms. The trial court sentenced defendant to 25 years to life in prison, plus five years for the enhancements.

Defendant contends (1) the prosecution should not have been allowed to impeach defendant with six prior felony convictions; (2) the trial court abused its discretion in denying defendant's motion for mistrial based on the prosecution's failure to disclose new evidence; (3) the prosecutor committed misconduct during closing argument; (4) the trial court abused its discretion in refusing to dismiss the prior strike allegations; and (5) on these facts, the life sentence for receiving stolen property constitutes cruel and unusual punishment.

We conclude (1) the trial court did not abuse its discretion in admitting evidence of defendant's prior convictions for impeachment; (2) defendant has not established that the prosecutor's failure to disclose new evidence resulted in prejudice, because the trial court brought the failure to the jury's attention, allowed defendant to recall witnesses and argue the issue to the jury, and instructed the jury with a modified version of CALCRIM No. 306 [untimely disclosure of evidence]; (3) the prosecutor made a fair comment on the evidence and the record does not support defendant's claim of prosecutorial misconduct; (4) the trial court exercised, and did not abuse, its discretion in denying defendant's motion to dismiss the prior strike allegations; and (5) given defendant's current felony conviction, his three prior strikes, and his 29-year recidivist history of criminal conduct, his life sentence is not cruel and/or unusual.

We will affirm the judgment.

BACKGROUND

Kabriella Brandt lived in a two-bedroom house at 2241 West Capitol Avenue in Yolo County. Three cottages were located behind Brandt's house. In March 2011, defendant lived alone in one of the cottages (unit one), about 20 feet from Brandt's house.

For two to three weeks in March 2011, while Brandt was in the hospital and then at a skilled nursing facility, Brandt's long-time friend Bruce Stuart took care of Brandt's four-year-old granddaughter Anna and lived in Brandt's house. During that time, Stuart's job required him to leave town. Before he left, Stuart told defendant that Stuart would be out of town for 10 to 12 days. Stuart locked the doors, closed the windows to Brandt's house, and left town with Anna.

When Stuart returned, he noticed four or five individuals, including defendant, standing outside unit one. The door to the laundry room of Brandt's house was unlocked and had fresh pry marks. The interior of Brandt's house was ransacked.

After walking through Brandt's house, Stuart went to unit one to speak with defendant. The people who Stuart saw with defendant had left. Stuart told defendant that Brandt's house had been burglarized and asked if defendant saw anything. Defendant said he did not. Stuart called the police.

West Sacramento Community Service Officer Ryan Fong was dispatched to Brandt's house. Officer Fong testified that Stuart told him several individuals were standing in the driveway when Stuart arrived at the property, the individuals fled in different directions, and Stuart saw someone enter unit one but no one answered when Stuart knocked on the door to unit one.

While waiting outside Brandt's house for Officer Fong to complete his work, Stuart saw defendant come out of unit one with a clear plastic bag and leave the bag on top of a garbage can next to unit one. Defendant then walked across West Capitol Avenue. Stuart recognized the shower curtain from Brandt's house in the plastic bag defendant left on the garbage can. At trial, Stuart and Brandt identified other items contained in the plastic bag as items taken from Brandt's house. Stuart reported what he saw to Officer Fong. Officer Fong requested assistance from police officers.

West Sacramento Police Officer Brian Schmidt responded to Officer Fong's call for assistance. According to Officer Schmidt, Stuart said he saw defendant place a clear plastic bag containing property taken from Brandt's house on a garbage can, and defendant told Stuart, "if this is your stuff, I have more of it." Stuart then pointed Officer Schmidt to where defendant had gone across West Capitol Avenue.

Officer Schmidt located defendant on West Capitol Avenue across from Brandt's house. Officer Schmidt asked defendant "what's going on?" Defendant responded that he saw several individuals pulling property out of Brandt's house, putting the property on the driveway, and taking property across West Capitol Avenue to a trailer park. Defendant could not tell Officer Schmidt when he saw the unknown individuals take property out of Brandt's house. But defendant told Officer Schmidt he had Brandt's entertainment center in his garage. Defendant then voluntarily returned to unit one with Officer Schmidt, unlocked his garage, and showed Officer Schmidt the entertainment center. Stuart identified the entertainment center as Brandt's.

Defendant also let Officer Schmidt into unit one. Inside the unit, Stuart identified various items belonging to Brandt, including a stereo, two desk chairs, a desk lamp, a DVD player, and two bags containing prescription medication bottles bearing Brandt's name.

Defendant was placed under arrest. After advising defendant of his Miranda*fn1 rights, Officer Schmidt asked defendant to identify the contents of the clear plastic bag that defendant had placed on the garbage can outside unit one. Defendant admitted that the clear plastic bag contained a shower curtain and food items belonging to Brandt. Defendant said he told Stuart, "if any of that stuff is yours, I have more of it."

Police found many additional items in unit one that had been taken from Brandt's house. A clock from Brant's house was plugged in at unit one. Law enforcement officials also located, in a garbage can by unit one, various items identified as taken from Brandt's house, including a photograph of Anna and a computer keyboard.

Officer Fong collected six latent fingerprints from Brandt's house. Defendant was excluded as a person who left the fingerprints.

Defendant testified at trial. He said he saw, through the window of unit one, several people taking things from the driveway of Brandt's house to a location across the street. Defendant told the people to leave. There was almost an entire houseful of things on the driveway. Defendant did not return the items to Brandt's house because no one had been home for three weeks and he did not believe the property would be safe at Brandt's house. Instead he used two empty garbage cans to move the items into unit one and may have left some of the things in the garbage cans. He left a computer keyboard in the garbage can because there was a big crack in it. (A crime scene investigator subsequently testified that the computer keyboard found in defendant's garbage can was undamaged.) Defendant testified that he plugged in the stereo and clock taken from Brandt's house to see if they worked because they were wet or damaged. He attached his speakers to Brandt's stereo to see if his speakers worked.

Defendant testified that he thought the items belonged to Anna's mother, Laura Glover, and he intended to return them to her. He saw Stuart at the property later that day. Defendant set a bag of things on a garbage can and told Stuart, "if this bag -- the stuff in this bag is yours, I have the rest of it in my house." Defendant tried to return the items to Stuart, but Stuart became very angry and agitated toward defendant. Because Stuart was becoming more and more upset when defendant tried to talk to him, defendant told Stuart to call the police and defendant walked across the street. Defendant did not call the police because he had a number of prior felony convictions and did not trust the police. But when Officer Schmidt spoke with him, defendant told Officer Schmidt what he saw and what happened. Defendant told Officer Schmidt he had property from Brandt's house and tried to return the property to Stuart, but Stuart became angry with defendant.

A jury convicted defendant of receiving stolen property. (Pen. Code, § 496, subd. (a).)*fn2 In a bifurcated proceeding, the trial court found true the allegations that defendant had been convicted of two or more serious and/or violent felonies and had served five prior prison terms. The trial court denied defendant's motion to dismiss the prior strike allegations and sentenced defendant to 25 years to life in prison under the three strikes law (§§ 667, 1170.12), plus a determinate term of five years in prison for the section 667.5, subdivision (b) enhancements.

DISCUSSION

I

Prior to trial, defendant made a motion in limine to exclude reference to his prior convictions if he chose to testify. Defendant had 10 prior felony convictions. The trial court granted defendant's motion in part, ruling that if defendant chose to testify, the prosecution could impeach him with six prior felony convictions involving moral turpitude: a February 1, 2006 conviction for criminal threats (§ 422), a February 1, 2006 conviction for sexual battery (§ 243.4, subd. (a)), a May 8, 2000 conviction for using a minor in the sale of marijuana (Health & Saf. Code, § 11361, subd. (a)), a December 1994 conviction for nonviolent escape from jail (§ 4532, subd. (b)), a November 15, 1993 conviction for automobile theft (Veh. Code, § 10851, subd. (a)), and a November 15, 1993 conviction for evading a peace officer (Veh. Code, § 2800.2). In so ruling, the trial court considered defendant's proposal to exclude felony convictions that occurred before 2001. It also considered whether defendant led a crime-free life after 2001 and whether the priors were so cumulative that the jury would decide the case based solely on defendant's criminal history.

Defendant contends that even if his 2006 convictions for criminal threats and sexual battery were properly admitted,*fn3 the trial court nonetheless abused its discretion in permitting impeachment evidence of his prior convictions for using a minor in the sale of marijuana, automobile theft, evading a peace officer, and nonviolent escape from jail. We disagree.

Article I, section 28, subdivision (f) of the California Constitution authorizes the use for impeachment of any prior felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty, subject to the trial court's discretion under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 306.) A witness's prior felony conviction is admissible for impeachment if the least adjudicated elements of that felony offense necessarily involve moral turpitude. (Id. at pp. 316-317.) "Moral turpitude" has been defined as a " 'readiness to do evil,' " "moral depravity" and "moral laxity." (Id. at pp. 314-316.) The rationale for felony impeachment is that a felony conviction which may be supposed to show a general readiness to do evil supports an inference of a readiness to lie. (Id. at pp. 314-315.)

In determining whether to admit a prior felony conviction for impeachment, a trial court should consider the four factors described in People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle). (People v. Green (1995) 34 Cal.App.4th 165, 182.) The Beagle factors include (1) whether the prior conviction reflects adversely on the witness's honesty or veracity; (2) the nearness or remoteness in time of the 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 witness does not testify out of fear of being prejudiced because of impeachment by prior convictions. (Ibid.)

A trial court's exercise of discretion to admit a prior conviction for impeachment will not be disturbed unless it exceeds the bounds of reason, all of the circumstances being considered. (People v. Green, supra, 34 Cal.App.4th at pp. 182-183.)

A

Defendant contends the trial court erred in admitting his May 8, 2000 conviction for using a minor in the sale of marijuana (Health & Saf. Code, § 11361, subd. (a)). He contends this is so because the crime of possession of a controlled substance does not necessarily evince moral turpitude.*fn4 But defendant was convicted of using a minor in the sale of marijuana, not mere possession. Defendant does not point to anything in the record to contradict this fact.

Defendant also asserts that a violation of Health and Safety Code section 11361, subdivision (a) does not necessarily involve moral turpitude merely because it involves a child. This contention is forfeited because defendant did not raise it below. (People v. Marks (2003) 31 Cal.4th 197, 228 [specific grounds for objecting to admission of prior convictions for impeachment were forfeited because they were not raised at trial]; People v. Maxey (1985) 172 Cal.App.3d 661, 667-669.) In any event, regardless of the involvement of a minor, a violation of Health and Safety Code section 11361, subdivision (a) involves moral turpitude because it shows an intent to corrupt others. (People v. Harris (2005) 37 Cal.4th 310, 337 [possession of narcotics for sale and opening or maintaining a place for the purpose of unlawfully selling, giving away or using specified controlled substances or narcotic drugs evince moral ...


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