PEOPLE v. MOREAU

No. C082263.

THE PEOPLE, Plaintiff and Respondent, v. PAUL LEE MOREAU, Defendant and Appellant.

Court of Appeals of California, Third District, El Dorado.


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

BLEASE, Acting P. J.

Convicted by a jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 and also found by the jury to have inflicted great bodily injury (§ 12022.7, subd, (a)) and to have suffered a prior strike and two prior prison terms (§§ 667, subds. (b)-(i), 667.5, subd. (b)), defendant Paul Lee Moreau contends: (1) the trial court abused its discretion under Evidence Code section 352 by allowing the People to impeach defendant with a prior conviction for "the exact same crime" he was charged with in this case, (2) in the alternative, defendant suffered ineffective assistance of counsel because trial counsel did not request that the prior conviction be sanitized, and (3) trial counsel was also ineffective in failing to object to the $2,400 fine imposed pursuant to section 1202.4, subdivision (b), which defendant lacked the ability to pay. We shall affirm the judgment, but remand the matter for correction of the abstract of judgment as described in part IV of the discussion, post.

FACTUAL AND PROCEDURAL BACKGROUND

On the date of the offense, Roger L., the victim, lived in rented premises on an 11-acre ranch in El Dorado County owned by his brother Brian L., who lived on the ranch in a separate residence. Defendant and his wife rented another residence on the ranch.

The property included barns, a workshop, and other outbuildings. Roger L. helped take care of the horses on the site; he and his brother also worked on-site for the family art restoration business.

When doing chores, Roger L. used a cheap work knife with a four-inch blade, which he clipped onto his belt. He carried it almost every day.2

Defendant grew marijuana commercially outside his residence. On or around April 28, 2015, Roger L. took five or six cuttings from defendant's crop for his personal use and put them in grow pots beside his own residence, believing defendant had given him permission to do so. His belief was mistaken. When defendant discovered what had happened, he banged on Roger L.'s window around 9:00 p.m. and accused him of theft. Roger L. did not respond or go outside. Defendant grabbed some of the cuttings and walked away.

The next morning, Roger L. walked over to defendant's residence to apologize, intending to stop there on his way to the barns. Defendant and his wife came outside, yelling at him from their porch. Roger L. remained on the ground at the bottom of the stairs leading up to the porch. He tried to tell defendant he was not there to fight, then turned around.

Defendant, who had come down the stairs, grabbed Roger L. from behind by the shoulders, spun him back around, and faced him with one fist raised in the air. When Roger L. lifted an arm to block the expected punch, defendant struck him with a metal club or barbell, disabling his arm.3

After being struck, Roger L. realized he was carrying his knife and pulled it out to defend himself, while telling defendant to stay away.4 Defendant kept swinging his club and threatening to kill Roger L.; defendant's wife also swung a weight at Roger L. and urged defendant to kill him. Roger L. backed away, making parrying motions, until he was able to retreat to his residence, where he called 911.

When Brian L. returned to the ranch, he found defendant and defendant's wife chaining off part of the property. He then met Roger, whose arm was severely injured. After Roger spoke to a sheriff's deputy at the ranch, the brothers went into town to get treatment for Roger's injury.

When defendant was arrested he had no apparent injuries. About 10 feet from his residence, a dumbbell was found on a washing machine. Roger L.'s knife was found inside his residence, where he had said it would be.

Testifying on his own behalf, defendant admitted that he had been convicted in 2007 of possession of marijuana for sale and assault by means of force likely to cause great bodily injury.

According to defendant, Roger L. took 21 cuttings from defendant's marijuana crop without permission. Defendant contacted him, told him not to take anything without permission, picked some of the cuttings up, said they were his, and took them back to his residence.

The next morning, according to defendant, Roger L. banged on the side of defendant's residence. When defendant came out, Roger L. said he wanted to apologize, but then screamed, "Don't touch me," turned and fumbled under his jacket, pulled out a knife, and lunged with it at defendant (who had stepped behind a chair for cover).5 Defendant picked up a dumbbell and took a step toward Roger L., who squared off and lunged forward with the knife. Defendant tried to strike at Roger L.'s hand with the dumbbell to protect himself; the third time Roger L. lunged forward, defendant struck him on the wrist. As Roger L. headed back to his residence, defendant put the dumbbell down on a washing machine. Roger L. yelled that he was calling 911; defendant yelled back that he was calling Roger L.'s brother.

A recording of Deputy Horn's interview with defendant was admitted into evidence. The jury also received redacted versions of Roger L.'s 911 call and his statement at a prior court hearing.

DISCUSSION

I

Defendant contends the trial court abused its discretion in allowing the prosecutor to impeach defendant with a prior conviction for "the exact same crime" he was charged with. According to defendant, because the prejudicial effect of this evidence outweighed its probative value, its admission rendered the trial fundamentally unfair and deprived defendant of due process. We are not persuaded.

Background

The People moved in limine to impeach defendant with five prior felony convictions if he testified: a drug sale conviction from 1989, a drug transportation conviction from 1992, a kidnapping conviction from 1994, a drug possession for sale conviction from 2007, and an "assault with a deadly weapon" conviction from 2007. Defendant opposed impeachment with any of his prior convictions.

At a hearing on in limine motions, the trial court indicated that it was inclined to admit the 2007 convictions, which were for crimes of moral turpitude, but to exclude the others as too remote. Defense counsel asserted that the facts of the assault conviction were not substantially similar to those alleged here, which would render its use prejudicial under Evidence Code section 352 and the Beagle test (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), superseded by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209).

The trial court ruled as to the assault conviction: "[T]he court will note that the . . . Section 245 [subdivision] (a)(1) conviction from 2007 does cause the Court to more carefully look at it, because the charge is identical to the charge in Count 1 of the Information that pertains to this case. [¶] The fact they're identical does not automatically eliminate it, in and of itself, but it does cause the Court to carefully consider [Evidence Code] Section 352 to ensure that the use of this impeachment conviction is not more prejudicial than probative. [¶] I would submit to anyone who is reviewing this that I've carefully considered [Evidence Code] Section 352. I find the prior conviction probative. I find it to be prejudicial also, but I do not find the prejudicial effect to substantially outweigh the probative value. [¶] I will also note that [defendant]'s record is bad. He's got these three convictions, which I've excluded, as well as the [Vehicle Code section] 2800.2, which the jury is not going to hear about. To exclude everything but the [Health and Safety Code section] 11359 conviction for impeachment purposes would be to grossly mislead the jury, and I'm not going to do that. [¶] I'm not going to permit the jury to hear about five convictions, but I am going to permit them to hear about two so they're not misled as to the criminality and the impeachability of the [d]efendant."

When the prior convictions were introduced, the trial court immediately instructed the jury, at defense counsel's request, that it could use this evidence only to assess defendant's credibility. No facts about the nature of defendant's offenses were mentioned.

Analysis

The trial court may bar the use of prior felony convictions to impeach a testifying defendant if their probative value is outweighed by the risk of potential prejudice. (Evid. Code, § 352; People v. Muldrow (1988) 202 Cal.App.3d 636, 644 (Muldrow), citing Beagle, supra, 6 Cal.3d at p. 453.) The factors the court should weigh include: "(1) [w]hether 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." (Muldrow, at p. 644, citing Beagle, at p. 453.) However, "these factors need not be rigidly followed." (Muldrow, at p. 644.)

A testifying defendant is not entitled to a false aura of veracity. (Beagle, supra, 6 Cal.3d at p. 453.) A felony evincing moral turpitude reflects adversely on a defendant's honesty or veracity. (People v. Castro (1985) 38 Cal.3d 301, 315-316 (Castro).)

An appellate court reviews a trial court's rulings under Evidence Code section 352 for abuse of discretion, and will reverse only if the court "`"exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]'" (People v. Merriman (2014) 60 Cal.4th 1, 74.)

Defendant does not dispute that felony assault by means likely to inflict great bodily injury is a crime evincing moral turpitude. (People v. Elwell (1988) 206 Cal.App.3d 171, 177.) Nor does he contend that his 2007 conviction for this offense was too remote. He argues only that its admission was prejudicial because it amounted to "the identical [offense] with which [defendant] was charged at trial." This contention fails.

As defendant acknowledges, "[p]rior 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.' [Citation.]" (People v. Green (1995) 34 Cal.App.4th 165, 183.)

Defendant cites Beagle, supra, 6 Cal.3d at page 453, for the proposition that "`those convictions which are for the same crime should be admitted sparingly.'" That proposition, which Beagle sets out in dictum as part of a quotation from a 1967 federal appellate decision,6 is in some tension with the current California rule that even "the admission of multiple identical prior convictions for impeachment is not precluded as a matter of law [citation]." (People v. Green, supra, 34 Cal.App.4th at p. 183.) In any event, however, the Beagle dictum does not bar the admission of a single conviction for the same crime to impeach a testifying defendant. (People v. Dillingham (1986) 186 Cal.App.3d 688, 695.)

The only authority defendant cites that directly supports his contention is People v. Thomas (1981) 119 Cal.App.3d 960 (Thomas), where the appellate court reversed a conviction on the grounds that the defendant was prejudiced by impeachment with a prior conviction of the offense presently charged against him (robbery). (Id. at pp. 963-966 (maj. opn. of Miller, J.).)7 Thomas is factually distinguishable, and to some extent it is no longer good law.

First, the appellate court in Thomas disapproved of the trial court's justification for admitting the defendant's prior conviction (to offset the fact that a prosecution witness's prior convictions had been introduced). (Thomas, supra, 119 Cal.App.3d at p. 966.) The trial court here did not abuse its discretion in that way. It admitted the evidence only after considering Evidence Code section 352 and the Beagle test.

Second, the defendant in Thomas did not testify (Thomas, supra, 119 Cal.App.3d at p. 963), and the appellate court found that the absence of his testimony could have been prejudicial in itself (id. at pp. 965-966). Since defendant in our case testified, that possible source of prejudice did not exist.

Lastly, the Thomas court found, in reliance on People v. Fries (1979) 24 Cal.3d 222, at page 229 (Fries), that the defendant's prior robbery conviction was "only marginally relevant to . . . credibility and thus entitled to somewhat less weight." (Thomas, supra, 119 Cal.App.3d at p. 964.) However, since the enactment of article I, section 28, subdivision (f) of the California Constitution, the distinction drawn by Fries no longer states the law: all felonies involving moral turpitude, whether or not they directly evince dishonesty, are admissible for impeachment without any restriction other than that of Evidence Code section 352. (Castro, supra, 38 Cal.3d at pp. 315-316 & fns. 10 & 11; see also id. at pp. 307-312 [Proposition 8 intended to "reject the rigid, black letter rules of exclusion which we had grafted onto the code by the [People v.] Antick [(1975) 15 Cal.3d 79] line of decisions [including Fries].")

For all of the above reasons, Thomas does not assist defendant.

We conclude that defendant has failed to show any abuse of discretion in the trial court's decision to admit his prior felony assault conviction for impeachment. Therefore, we need not consider defendant's argument that the improper admission of this evidence was prejudicial. We note, however, that his assertion that the jury could not have followed the court's limiting instruction is mistaken as a matter of law. (People v. Holt (1997) 15 Cal.4th 619, 662.)

II

Defendant contends in the alternative that his trial counsel was ineffective for failing to request that the prior conviction be sanitized. Since we have found the admission of the "unsanitized" conviction was proper and did not cause prejudice, we reject this contention. In any event, the record does not support defendant's claim.

Where the record does not show the reason for the conduct alleged to constitute ineffective assistance of counsel, an appellate court will reject the claim unless there could not have been a good reason for counsel's conduct. (People v. Maury (2003) 30 Cal.4th 342, 389.) Here, counsel might have decided not to request sanitization of the prior assault conviction because it would have been an awkward remedy to apply under the circumstances of this case, and counsel could reasonably have surmised that the trial court would not grant it.

The trial court has discretion to sanitize prior convictions admitted for impeachment by allowing them to be referred to only as prior felonies. (People v. Sandoval (1992) 4 Cal.4th 155, 178; People v. Ballard (1993) 13 Cal.App.4th 687, 691-695.) Here, however, defendant was impeachable by convictions for two prior felonies, and since he was not presently charged with drug possession for sale, his prior conviction of that offense could not have been sanitized. Sanitizing only one of the priors might have distracted the jury by inviting speculation about the nature of the sanitized offense, and defendant cites no authority approving sanitization on similar facts. Counsel was not ineffective for failing to request sanitization under these circumstances.

III

Defendant also contends trial counsel was ineffective for failing to object to the $2,400 fine imposed by the trial court under section 1202.4, subdivision (b). We disagree.

The probation report recommended a restitution fine of $2,400 pursuant to section 1202.4, subdivision (b). Trial counsel did not object to this amount, and the trial court imposed it. However, the court reduced the recommended cost of the probation report ($1,095) to $109.50 after counsel objected that defendant could not pay the recommended amount. Therefore, defendant concludes, a similar objection to the amount of the restitution fine would necessarily have succeeded. Defendant's conclusion does not follow from his premise.

As to the restitution fine, the defendant has the burden of proving he cannot pay any amount above the statutory minimum. (§ 1202.4, subd. (d).) Defendant does not cite any evidence that he could not do so. His alleged present inability to pay is not dispositive, since the trial court could also consider his future earning capacity. (§ 1202.4, subd. (d).) Defendant's bare assertion that he has no future earning capacity because he is incarcerated is contrary to law. (See People v. Gamache (2010) 48 Cal.4th 347, 409 ["bare fact of [the defendant's] impending incarceration," absent other evidence, did not show inability to pay restitution fine].)

The probation report cost, on the other hand, is governed by section 1203.1b, which requires the trial court to hold a hearing (unless waived) to determine the defendant's ability to pay. (§ 1203.1b, subd. (b).) In making that determination, the trial court must consider the defendant's "[p]resent financial position," his "[r]easonably discernible future financial position," the "[l]ikelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing," and "[a]ny other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." (§ 1203.1b, subd. (e)(1)-(4).) The court may not look beyond one year from the date of the hearing to determine the defendant's "reasonably discernible future financial position." (§ 1203.1b, subd. (e)(2).)

As defendant points out, the trial court greatly reduced the sum assessed for the probation report cost after holding the statutorily required hearing. But because the factors involved in determining a defendant's ability to pay under section 1203.1b are so different from those the court must consider under section 1202.4, subdivision (b), the court's determination as to the former has no bearing on the latter. Therefore, the court's order as to the probation cost does nothing to show that an objection to defendant's ability to pay the restitution fine would have succeeded. Defendant's claim of ineffective assistance fails.

IV

The parties agree that the abstract of judgment requires correction because it erroneously describes defendant's offense as "[a]ssault w[ith] force likely to produce [great bodily injury]," rather than as assault with a deadly weapon. We shall remand with directions that the trial court prepare a corrected abstract correctly describing the offense and forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

DISPOSITION

Defendant's conviction and sentence are affirmed. The matter is remanded to the trial court for correction of the abstract of judgment, as described in part IV of the Discussion.

Hull, J., and Butz, J., concurs.

FootNotes


1. Undesignated statutory references are to the Penal Code.
2. Roger L. also made custom knives as a hobby. Unlike his work knife, they had exotic wood handles and leather sheaths. He kept them in a box in his storage room.
3. When treated later that day, Roger L.'s injury turned out to be a "fairly severe fracture" of the left wrist.
4. Roger L. told El Dorado County Sheriff's Deputy Richard Horn later that day that he pulled the knife out before defendant hit him with the club. He told the same story to a defense investigator.
5. Defendant claimed the knife was not the one produced in evidence, but one with a longer blade.
6. In Beagle, our high court found that the defendant's prior conviction, which was for an offense not the same as or similar to any offense charged at trial, was properly admitted. (Beagle, supra, 6 Cal.3d at pp. 447, 451, 454.)
7. A dissenting justice would have found the admission of this evidence harmless under People v. Watson (1956) 46 Cal.2d 818. (Thomas, supra, 119 Cal.App.3d at pp. 966-969 (dis. opn. of Rouse, J.).)

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