Filed 10/3/16 P. v. Prieto CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068805
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10500245)
                   v.

PAUL RICHARD PRIETO,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Seymour I. Amster for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, for Plaintiff and Respondent.
                                                        -ooOoo-
       Paul Richard Prieto (defendant) stands convicted, following a jury trial, of armed
robbery of Manuel Uribe and Jesus Maria Moreno (Pen. Code,1 §§ 211, 12022.53,
subd. (b); counts 1 & 3, respectively), attempted armed robbery of Josue Raul Gutierrez
and Pedro Contreras (§§ 211, 664, 12022.53, subd. (b); counts 2 & 4, respectively), and
possession of a firearm by a felon (former § 12021, subd. (a)(1); count 5). Following a
bifurcated court trial, he was found to have suffered two prior serious felony convictions
(§ 667, subd. (a)(1)) that were also strikes (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), and to have served three prior prison terms (§ 667.5, subd. (b)). He was
sentenced to an aggregate term of 40 years plus 50 years to life in prison, and ordered to
pay various fees, fines, and assessments.
       We affirm. We hold: (1) Any error in allowing the jury to learn the facts of some
of defendant’s prior convictions was harmless; (2) The trial court did not err by giving
CALCRIM No. 225 instead of CALCRIM No. 224; and (3) The fact the firearm use
enhancements were found “proven” instead of “true” does not entitle defendant to have
them stricken.
                                            FACTS
                                              I
                                 PROSECUTION EVIDENCE
       On the night of June 8, 2010, Pedro Contreras, Jesus Moreno, Manuel Uribe, Josue
Gutierrez, Juan Trujillo, and a couple of Trujillo’s friends were at a barbecue at a home in
Parlier. They then decided to walk to a party at another friend’s house.
       As they were walking along Tuolumne Street, a silver Dodge Magnum drove
slowly past on the opposite side of the road.2 The driver looked at them, then made a


1      Further statutory references are to the Penal Code unless otherwise stated.
2     The car caught Trujillo’s attention because it surprisingly was the only vehicle
around and was not from Parlier.


                                              2.
U-turn at the intersection of Tuolumne and Madsen and came back toward them. The car
stopped right next to them, underneath a street light. The driver — whom Contreras,
Uribe, Moreno, and Trujillo identified at trial as defendant — then got out of the car. The
passenger remained in the car throughout the incident.3 At some point, either as he
exited the vehicle or as he started talking to the group, defendant pulled a small- to
medium-sized chrome semiautomatic pistol and pointed it at the group.
       Defendant casually walked up to Uribe, pushed him back with his right hand, and
told the group to empty their pockets and put whatever valuables they had on the ground.
Contreras was carrying a phone and his room key. He threw the phone in some bushes
and put the key on the sidewalk in front of him.4 Moreno had a wallet and a phone. He
threw his wallet behind himself and handed the phone to defendant, who had the gun
pointed at Moreno’s chest. Defendant then picked up the wallet. Gutierrez threw his
new cell phone in some bushes and put his keys on the ground. Trujillo had a phone and
a wallet, and put them on the ground like defendant ordered.
       Defendant went to each one in the group and made sure they had emptied out their
pockets. He then returned to Uribe and told him to take off his chain. Uribe said it was
not a chain, but rather his dog tags. Defendant pointed the gun at Uribe’s head and asked
him if he was “a mutt,” which Uribe believed had gang connotations. Uribe said no, he
was in the military. Uribe put his wallet and cell phone on the ground as defendant


3      Contreras had never seen either man before. He was not able to observe the race
of the passenger, but could tell he had long hair in a ponytail. Uribe had not seen
defendant before, and did not know if he knew the passenger, because he was unable to
see him very well. Gutierrez had not seen either man before. Moreno had not seen
defendant before that day. He recognized the passenger as someone named Damian,
whose nickname was “Gee,” with whom he had gone to school, however. Trujillo did
not know the passenger personally or know his name, but had known who he was since
high school and had seen in him Parlier. He had never before seen the driver. During the
incident, the passenger stayed in the car, drinking a beer and laughing.
4      The key was still there at the end of the incident.


                                             3.
directed, then defendant told him to take off his boots. Uribe asked if he was serious and
defendant said he was, so Uribe did as he was told.
        When defendant was finished, he told them all to turn around. All except Moreno
obeyed.5 Defendant picked up everyone’s belongings and left in the car. The group
turned back around and tried to get the car’s license plate number. Gutierrez was able to
get the first four letters and numbers. The group then went to Trujillo’s house, which was
about five minutes away, and used Gutierrez’s phone — which Gutierrez had retrieved
after the car left — to call the police.
        Parlier Police Officer Jimenez was dispatched at approximately 1:50 a.m. The
radio call included the information that a robbery had occurred 10 to 15 minutes earlier,
and descriptions of the suspect, the vehicle, and the firearm. Jimenez contacted subjects
who reported they had just been robbed, then broadcast an alert for the suspect vehicle,
along with a partial license plate number that one of the victims provided. He took
statements from those who were present, including several persons who testified at trial.
Contreras told him the person with the gun had a tattoo on the right side of his neck.6
        Around 3:00 a.m., Parlier Police Sergeant Wallace observed the vehicle parked in
a residential area about half a mile from where Jimenez contacted the victims, with two
individuals standing by the driver’s door and a third on the passenger side. One —
Manuel Felix — was trying to unlock the car with a hanger. The other individual by the
driver’s door was holding a light so Felix could see. They said they had locked their keys
in the car. The one on the passenger side matched the description of the armed robbery
suspect, including the tattoo on his neck and clothing, so Wallace drew his weapon and

5       Moreno remained facing defendant and the car, in order to be able to identify
them.
6       Uribe also saw a tattoo on the right side of defendant’s neck, although he did not
get a clear view of what it was. Gutierrez saw a tattoo on defendant’s neck, although he
could not recall which side. Trujillo saw a tattoo of what looked like an Asian letter on
defendant’s neck.


                                             4.
ordered the three to raise their hands and not move. While he was radioing for assistance,
the suspect — defendant — kept lowering his hands and going toward his waistband.
Wallace called him back to the rear of the vehicle in order to see his whole body, as
Wallace was concerned he had a weapon.7
       Jimenez and Officer Rodriguez arrived to assist, and the three individuals were
detained. When Wallace looked inside the Dodge Magnum, he saw a pair of boots on the
driver’s side backseat, an empty gun holster on the front passenger’s side floorboard, and
an identification card for Romel Damian Vasquez Medina, with whom Wallace and
Jimenez were familiar, and who was known as “Gee.” The identification card was on the
front passenger’s side of the Dodge.8
       Jimenez subsequently transported four of the victims to the location at which the
silver car had been found. Although the spotlight from Jimenez’s vehicle was trained on
defendant, the other two who had been detained were also illuminated. All those in
Jimenez’s car identified defendant as the person who took their belongings. These
identifications were made within about an hour and a half of when the robbery was
reported.
       Based on the positive identifications, defendant was taken into custody, placed in
the back of Jimenez’s patrol vehicle by himself, and transported to the police department.
As per departmental policy, Jimenez physically and visually checked the patrol vehicle
for contraband, weapons, or property left behind, before defendant was placed in the car.
Nothing of note was found in the vehicle or in defendant’s pockets. Defendant was
fingerprinted, then Jimenez transported him to the Fresno County Jail. During the drive,
Jimenez noticed defendant kicking the floorboard and underneath the seat. After

7      None was found.
8      Jimenez subsequently prepared a photographic lineup that included a picture of
Medina, but none of defendant. Moreno identified Medina’s photograph. Medina was
not the person with the gun.


                                            5.
removing defendant from the patrol vehicle, Jimenez found a credit card and a bank card
where defendant’s feet had been. One had Uribe’s name on it and the other bore
Moreno’s name.
                                             II
                                   DEFENSE EVIDENCE
       Defendant testified that Medina lived in Dinuba in June 2010. Defendant first met
him in May of that year, when defendant began dating Medina’s sister, with whom
Medina lived. Medina was about five feet 10 inches tall, with faded hair and bald on the
sides of his head. He had four dots tattooed on his left wrist and a small cobweb tattooed
on the left side of his neck. He also had lips tattooed on his neck, and XIV on the back of
his neck.9
       On June 8, 2010, defendant lived in Dinuba. He got off work at 3:00 p.m. that
day, then attended class at San Joaquin Valley College at 5:30 p.m. In April 2005,
defendant lost two fingers and part of a third on his right hand, when his hand was pulled
into a swather — a machine that cuts alfalfa — that he drove. Because he lost a lot of
mobility in his right arm, he was receiving job retraining.
       Defendant’s class was scheduled to last until approximately 10:15 p.m. He left at
about 8:30 or 8:45, however, because he received a text from Medina’s sister, saying she
was at a graduation party in Parlier and asking him to meet her there. Because defendant

9       In rebuttal, Jimenez testified that on November 25, 2013, he contacted Medina at
the Fresno County Jail and photographed Medina’s neck. Jimenez, who had had contact
with Medina aside from this case, estimated Medina was about six feet one to two inches
tall, and had not changed much in the past three years. His head was shaven, as it had
been the entire time Jimenez had known him. At no time had Jimenez known him to
have a faded hairstyle. Medina had no tattoos on the back of his head and neck, and none
on the right side of his neck as opposed to the collarbone. There were no tattoos visible
on the left side of his neck when he was wearing a T-shirt. He had a tattoo of lips below
the shirt line on the right chest, as well as other tattoos further down his chest. These
tattoos were consistent with how Jimenez recalled Medina’s appearance in the summer of
2010.


                                             6.
was not familiar with Parlier, she gave him directions. He found the residence, but lack
of parking meant he had to park one or two houses away.
       As defendant walked toward the house where the party was being held, he came
upon Medina and two individuals he did not know. They were standing outside about a
house away from where defendant was supposed to be. Medina asked for a ride so he
could buy more beer for the party. Although defendant agreed, he did so hesitantly,
because Medina was not the type of person with whom defendant normally associated.
They had different viewpoints on how they lived their lifestyles.
       Medina got into defendant’s silver Dodge Magnum and gave him directions to a
store that was three or four minutes away. As defendant was parking, he noticed Medina
was on the phone, texting. Medina went into the store and bought some beer. When he
came back out, defendant, who had left the car running, put it in reverse, but Medina
asked him to wait for someone. Defendant waited a few minutes, but no one showed up.
Meanwhile, Medina’s sister was “blowing up” defendant’s phone, wanting to know
where he was. Defendant told Medina he had to go.
       They left the store, with defendant still driving and Medina was still in the front
passenger seat. Medina gave defendant directions back to the party, but they took a new
route this time. As they were driving at a normal speed down what defendant learned
from testimony at trial was Tuolumne, Medina tapped defendant’s shoulder and pointed
with his thumb toward something off to defendant’s left. Defendant turned to look, and
saw four individuals he now knew to be Contreras, Gutierrez, Moreno, and Uribe.10
About 50 yards beyond the group, Medina told defendant to turn around. Defendant
made a U-turn and kept driving. When the group was close to the car, Medina tapped
defendant’s shoulder and motioned him to slow down.



10     According to defendant, only those four individuals were present.


                                             7.
       Defendant stopped the car about 15 feet in front of the group. He expected
Medina to roll down the window and say something to the individuals. Instead, Medina
got out of the car, walked up to the group, and began having a “pretty heated” discussion
with Uribe. When it appeared to defendant like the other three were ganging up on
Medina, who did not have a gun in his hands, defendant got out of the car. As he did so,
his cell phone, which had been on his lap, went flying. Defendant went to retrieve it and
examined it to make sure it was not scratched. He then walked to the front of the car, at
which time he realized Medina was pulling out a gun.11 Seeing it, defendant hesitated in
front of his car. The debate between Medina and Uribe still seemed heated, even with the
gun out, although defendant did not know what was being said. No one else had a gun.
       Defendant yelled for Medina. He saw Medina point the gun at the chest areas of
those in the group, and at eye level with respect to Uribe. Contreras and Moreno started
backing up, and defendant turned around and went back to the driver’s door. He yelled
for Medina again. By this time, Uribe was taking off his boots. Defendant got into the
driver’s seat and saw Medina walking back to the car with boots and the gun in his hand.
He saw something placed inside a boot, but did not know what it was.
       Medina got into the car, and defendant drove off. Medina gave him directions
back to the graduation party. It was defendant’s intention to drop Medina off there.
During the drive, defendant asked Medina to throw out the boots. Medina refused.
       When they arrived at the location of the party, Medina asked for a ride to a
friend’s house down the street, where another party was being held. Although defendant
had planned to pick up Medina’s sister and leave, he felt he did not have many options.
He put his keys in the car, then called Medina’s sister and asked if she could give



11     This was the first defendant knew Medina had a gun with him. Defendant realized
he probably should have driven off when he saw the gun, but everything happened in a
matter of 15 to 20 seconds.


                                             8.
defendant a ride. Defendant did not want to take Medina anywhere else that night.
Defendant planned to return later for the vehicle.
       Defendant meant to lock all the car doors but one, so Medina could not get in but
defendant could leave later in the car. The vehicle had automatic locks, however, and he
accidentally locked his keys in the vehicle. Without defendant telling him to, Medina
asked for help from two individuals at the party whom he knew. They produced a coat
hanger from the back of their pickup and proceeded to try to unlock the door. Medina
still had the gun in his pocket. Defendant never had possession of the gun.
       Sometime later, a police cruiser arrived. Defendant, who had been talking to
Medina’s sister, started walking toward it, because he thought the officer would believe
someone was trying to break into the car. Defendant was patted down “pretty good” and
his pockets were checked, then he was placed into Wallace’s car. He was subsequently
taken out and a spotlight was put on him. He was then put back into Wallace’s car, then
Jimenez returned, took him out of Wallace’s car, thoroughly patted him down again, and
put him in the back of Jimenez’s vehicle. Defendant did not see any sort of bank cards in
the backseat of the vehicle and had no such thing in his possession.
       Jimenez drove defendant to the Parlier Police Department. Defendant was in the
backseat. When they arrived, which was about 1:30 a.m., Jimenez “open[ed] the
backseat” and they had a conversation. Defendant was then searched, fingerprinted, and
booked. He was placed in a holding cell for four to five hours. Around 6:30 or
7:00 a.m., defendant was transported to the Fresno County Jail. Jimenez again drove.
Upon their arrival, Jimenez did not look into where defendant was seated in the vehicle or
locate anything. Defendant had nothing in his possession belonging to the people who
were robbed. He did not rob anyone on June 8, 2010.




                                             9.
                                      DISCUSSION

I.     ANY ERROR IN PERMITTING JURORS TO LEARN FACTS UNDERLYING
       DEFENDANT’S PRIOR CONVICTIONS WAS HARMLESS.

A.     Background
       The People moved, in limine, to be permitted to use defendant’s two prior robbery
convictions for impeachment purposes. Defendant represented he had three such
convictions, and he moved to exclude them pursuant to Evidence Code sections 352 and
1101, as well as for purposes of impeachment. Following argument, the court ruled the
convictions could be used for impeachment purposes, but were to be referred to as felony
theft convictions, without mention of any firearm involvement.
       Based on defense counsel’s request to have Medina’s criminal history admitted
into evidence, the People asked to be permitted to use evidence of defendant’s prior
convictions to prove identity, as well as common plan or scheme, pursuant to Evidence
Code section 1101, subdivision (b). The trial court reiterated its previous ruling, although
it did permit the People to use, for impeachment, a prior conviction for felon in
possession of a firearm and brandishing, as long as it was referred to as a felony weapons
offense. Defense counsel recognized that if defendant testified he could not have handled
a gun in 2010 due to his hand injury, the prosecutor might seek to use the latter
conviction in rebuttal. Counsel did not dispute the prosecutor’s statement that in such a
case, Evidence Code section 1101, subdivision (b) would not be implicated. The court
reserved ruling on that use of the conviction.
       Contreras subsequently testified the perpetrator was using his right hand when he
pointed the gun at Uribe’s head, and he had no difficulty holding the gun. Uribe testified
he saw the gun in the perpetrator’s right hand. He got a good look at the hand, but did
not notice anything unusual about it. Moreno testified the person was holding the gun in
his right hand. He could not recall if the person had any difficulty holding the gun, or if
there was anything unusual about the hand. Gutierrez testified he believed the perpetrator


                                            10.
was holding the gun in his right hand without difficulty. He did not notice anything
unusual about the hand holding the gun. The gun was “medium-sized, medium-small.”
Trujillo testified the person held the gun in his right hand. The gun was small, like a .22.
Trujillo did not get a good look at the man’s right hand, and did not notice anything
unusual about it.
       Defense counsel began his examination of defendant by eliciting defendant was
convicted of a firearm-related offense on January 18, 2006; a theft offense on June 22,
2006; and a theft offense on August 23, 2006. Counsel then had defendant show the jury
his right hand. Defendant explained he lost the fourth and fifth fingers, and a portion of
the middle finger, on his right hand in a work-related accident in April 2005. When
defense counsel asked him about the class he was attending on the night of the events in
this case and whether it was part of his rehabilitation from the injury, defendant
responded: “It was. I was granted some financial money to retrain me in another trade,
since I couldn’t — I lost a lot of mobility in my right arm. I couldn’t do things I could do
prior. I couldn’t find jobs that would allow me to do the job well, or I couldn’t get hired
by employers because I couldn’t do jobs, so I went to college to get retrained in
something that might only — that only takes one hand, or limited hand-training.”
       The prosecutor subsequently argued, outside the jury’s presence, that although
defendant was not specifically asked if he could hold a gun, his showing his hand to the
jury implied he could not. Accordingly, she requested that she be allowed to ask him, for
impeachment purposes, if his prior weapon offense involved him pleading to having a
gun and brandishing it, since the offense postdated his injury. Defense counsel opposed
the request, arguing he never asked if, and defendant never stated, defendant was not
capable of wielding a gun. Rather, the defense brought up the injury to the hand solely
for identification purposes, in light of the fact none of the victims noticed anything
unusual about the perpetrator’s right hand. The trial court found “problematic”
defendant’s having volunteered that he had difficulty with the use of his right hand since

                                             11.
the injury. The prosecutor also represented that one of defendant’s robbery convictions
involved defendant pulling a gun from his waistband, again after the date of his injury,
and so was further evidence he was capable of holding a gun.
       The court ruled the prosecutor could ask defendant questions concerning whether
the injury would impact his ability to manipulate a firearm, but could not go into the
details of the prior convictions. It noted, however, that much depended on how defendant
answered the questions, and it invited counsel to reraise the issue outside the jury’s
presence if counsel believed there was “some inaccuracy taking place.”
       The following took place during the prosecutor’s cross-examination of defendant:

             “Q You started off your testimony . . . with showing your right
       hand, Mr. Prieto. Are you right-handed?

              “A I was.

              “Q And in 2010, you were right-handed?

              “A No. I was right-handed up until the point I lost my fingers.

              “Q Is it your testimony, Mr. Prieto, that as of June 8th of 2010, your
       right hand was not your dominant hand? [¶] . . . [¶]

              “A Yeah. Yes.

              “Q Can you still write with your right hand?

              “A I can’t.

              “Q This injury was in 2005, right, April?

              “A It was.

              “Q After April of 2005, could you hold a gun with your right hand?

             “[DEFENSE COUNSEL]: Objection, relevance, beyond the scope
       and improper cross-examination.

              “THE COURT: Overruled. You can answer.

              “THE WITNESS: I can’t. I can’t make a fist with my right hand.


                                             12.
             “[PROSECUTOR]: Q I’m not asking if you can make a fist, sir.
       Can you hold a gun with your right hand?

              “A I cannot grip anything. No, I cannot hold a firearm with my
       right hand.”
       The prosecutor then asked to approach, and a sidebar discussion was held. This
ensued:

              “Q [by the prosecutor] Mr. Prieto, I want to be very clear on the
       dates. On June 8th of 2010, approximately five years after sustaining your
       work injury on your right hand, could you hold a firearm?

               “A It is medically impossible for me to hold a firearm. [¶] . . . [¶]

               “[PROSECUTOR]: Q Is that a no?

               “A I did not, no.

              “Q In fact, is it your testimony you are not capable of holding a
       firearm, correct?

              “A I haven’t actually tried. But I know I can’t. I can’t hold things
       in my right hand.”
       A further sidebar discussion was held at the court’s request. Over defense
counsel’s objection on the grounds stated earlier, the prosecutor was permitted to confirm
defendant stated it was medically impossible for him to hold a firearm on June 8, 2010,
and this impossibility arose at the time of the work injury to his hand, i.e., April 2005.
This ensued:

             “Q [by the prosecutor] And it’s your testimony that since that date,
       you would not be able to hold a firearm, is that —

              “A In my right hand. I would not be able to hold a firearm in my
       right hand. Or anything in that nature. A pitcher of water. These
       Kleenexes.

               “Q And up until 2005, April 2005, you were right-handed, correct?

               “A Yes.




                                             13.
       “Q How about holding a firearm in your left hand? Would that be
possible?

      “[DEFENSE COUNSEL]: Objection. Relevance, beyond the scope.

      “THE COURT: Overruled. You can answer, sir.

       “THE WITNESS: Sure, anybody with a left hand could hold a
firearm, I guess. [¶] . . . [¶]

      “Q Have you in fact held a firearm since April of 2005?

      “A With my left hand or with my right hand?

      “Q At all.

      “A Yes, I have.

       “Q And how quickly did you become able to hold a firearm with
your left hand after that injury?

       “A On — I tried going dove hunting with a family member and it
didn’t work out too well. Wouldn’t be able — I wouldn’t be able to grip —
I was not able to grip the rifle. So once I discharged it, it flew out of my
hand.

      “Q Let me be clear, Mr. Prieto, is it your testimony that you can or
you cannot hold a firearm with your left hand after April of 2005?

      “A I could. I guess I could hold a firearm in my left hand.

       “Q But you just testified that you were unsuccessful in doing so,
didn’t you?

      “[DEFENSE COUNSEL]: Objection, misstates testimony.

      “THE COURT: Overruled. You can answer, sir.

        “THE WITNESS: I said when I discharged it, I was not able to hold
it with my right hand, so it flew out.

       “[PROSECUTOR]: Q And I want to make sure, I’m not asking if
you can discharge a firearm, I’m asking if you can hold a firearm. Can you
hold a firearm in your left hand?

      “A Yes, sure.


                                    14.
       “Q Can you hold a firearm in your right hand as of June, 2010? Not
discharge, but hold. [¶] . . . [¶]

       “A No. I can’t hold a —

       “Q Isn’t it true, Mr. Prieto, that in 2005, you were convicted of a
felony weapons offense?

       “A Yes.

      “Q Let me be specific. That was a date of violation in September of
2005. So after the date of your hand injury.

       “A Yes.

       “Q And that weapons offense was a gun?

       “A Yes, it was.

       “Q And you were convicted of that, correct? Brandishing a
firearm?

       “A Yes, I pled guilty.

       “Q And you were convicted of being a prohibited person with a
firearm, correct? [¶] . . . [¶]

       “A I don’t remember that ever. But —

       “Q When you used a gun on September 30th of 2005 that resulted in
the conviction we have just spoken of, what hand were you holding the gun
in?

       “A It was a — would you like me to elaborate on the incident?

       “Q No. I would just like to know, left hand or right hand, sir?

       “A It was my left hand, resting on my right shoulder. Well, elbow.

       “Q In 2006, Mr. Prieto, you were convicted of a felony theft
offense, correct?

       “A Correct.

       “Q And that, again, would be after the date where you lost the two
fingers on your right hand?


                                     15.
              “A Yes.

              “Q And that, too, involved the use of a firearm, did it not?

              “A A BB gun.

             “Q And in what hand were you holding the BB gun that resulted in
       your 2006 conviction?

              “A Left.”
       Outside the presence of the jury, defense counsel objected that the entire line of
questioning was improper because it was beyond the scope of direct examination,
inasmuch as counsel never asked defendant if he was capable of using his right hand to
hold a gun, and defendant never testified in that regard on direct. Counsel reiterated that
he asked questions of defendant and the People’s witnesses about the perpetrator’s hand
for identification purposes only, it being the defense’s contention that if the victims were
robbed by a man with two missing fingers, they should have noticed. Defense counsel
asserted the prosecutor questioned defendant on his capabilities for the purpose of finding
an opening in which to present more information about defendant’s prior offenses.
       The court observed defense counsel objected on the grounds of relevance, beyond
the scope, and improper cross-examination. It found “clearly relevant” whether
defendant, who was accused of wielding a firearm in his right hand during the course of
the charged offenses, was capable of doing so. Accordingly, the relevance objection was
overruled. The court further found the questioning was not improper cross-examination
or beyond the scope of direct examination; defendant made an issue of his ability to use
his right hand effectively. Although the questioning of witnesses as to whether they saw
the gunman’s hand or anything unusual went to the issue of identity, defendant testified
he had lost a lot of mobility in his right arm and had to be retrained in something that
might only take one hand or limited-hand training. The court explained that during the
sidebar conferences, when the People first wanted to address the issue, the court wanted
to ensure defendant’s testimony was clear as to when any limitation first came into


                                            16.
existence. As a result, the prosecutor asked clarifying questions. In the court’s view,
defendant’s testimony was clear when the alleged disability came into effect, and the
People were allowed to explore it further.
       Jurors subsequently were instructed that if they found a witness had been
convicted of a felony, or had committed a crime or other misconduct, they could consider
that fact only in evaluating the credibility of the witness’s testimony, and such a
circumstance did not necessarily destroy or impair a witness’s credibility. The court did
not give CALCRIM No. 375, which would have instructed jurors concerning evidence of
uncharged offenses admitted pursuant to Evidence Code section 1101, subdivision (b). In
part, defense counsel argued to the jury that the witnesses focused their attention on the
car and the gun, and when they saw the hand of the man holding the gun, nobody noticed
anything wrong. Counsel argued this meant the gunman’s right hand was intact. Counsel
argued that regardless of what defendant could or could not do with his right hand, it was
inconceivable the victims would have failed to notice the injury to the right hand if the
robber had had such an injury. Counsel further argued that if defendant wielded a gun, he
did so with his left hand, as confirmed by Wallace’s testimony that when defendant saw
the police, he dropped his left hand toward his waistband. Defense counsel suggested the
witnesses attached defendant’s face to the physique of Medina, who was the man holding
the gun. The prosecutor responded by acknowledging the victims all said the gun was
held in the right hand. She argued, however, that they all described the gun as small to
medium. Defendant said it was large, like a .40-caliber, but the holster found in the car
was closer to the size needed for a .22. The prosecutor argued the fourth and fifth fingers
would not be needed to hold a .22-caliber gun. She also argued that a person looking
down the barrel of a gun would not be looking for the least necessary two fingers.




                                             17.
B.     Analysis
       Defendant contends the facts of his prior crimes should not have been presented to
the jury. He analyzes the issue under Evidence Code section 1101. That statute provides,
in pertinent part:

              “(a) Except as provided in this section . . . , evidence of a person’s
       character or a trait of his or her character (whether in the form of an
       opinion, evidence of reputation, or evidence of specific instances of his or
       her conduct) is inadmissible when offered to prove his or her conduct on a
       specified occasion.

              “(b) Nothing in this section prohibits the admission of evidence that
       a person committed a crime, civil wrong, or other act when relevant to
       prove some fact (such as motive, opportunity, intent, preparation, plan,
       knowledge, identity, [or] absence of mistake or accident . . . ) other than his
       or her disposition to commit such an act.

              “(c) Nothing in this section affects the admissibility of evidence
       offered to support or attack the credibility of a witness.”
       The evidence at issue in the present case was not introduced to show propensity or
for purposes specified in subdivision (b) of Evidence Code section 1101, but rather on the
question of defendant’s credibility and to rebut the implication he was incapable of
holding a firearm at the time of the charged offenses. Accordingly, the restrictions
contained in Evidence Code section 1101 are inapplicable, and analysis of defendant’s
claim is properly based on the objections he raised at trial: relevance, beyond the scope
of direct examination, and improper cross-examination. (See, e.g., People v. Dement
(2011) 53 Cal.4th 1, 35-36, overruled on another ground in People v. Rangel (2016) 62
Cal.4th 1192, 1216; People v. Kennedy (2005) 36 Cal.4th 595, 619-620, disapproved on
another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Millwee
(1998) 18 Cal.4th 96, 130-131; People v. Freeman (1994) 8 Cal.4th 450, 494; People v.
Stern (2003) 111 Cal.App.4th 283, 296.) So analyzed, we find no error.12

12   Even if we were to find the restrictions contained in Evidence Code section 1101
somehow applicable, we would conclude they were not contravened, given the provisions

                                             18.
       “To be relevant, evidence must have some ‘tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.’
[Citation.] This definition includes evidence ‘relevant to the credibility of a witness.’
[Citations.]” (People v. Contreras (2013) 58 Cal.4th 123, 152; see Evid. Code, §§ 210,
780.) “Unless precluded by statute, any evidence is admissible to attack the credibility of
a witness if it has a tendency in reason to disprove the truthfulness of the witness’s
testimony. [Citations.]” (People v. Hawthorne (2009) 46 Cal.4th 67, 99, overruled on
another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)
       “Evidence tending to contradict a witness’s testimony is relevant for purposes of
impeachment” (People v. Cunningham (2001) 25 Cal.4th 926, 1025), as is “the existence
or nonexistence of any fact testified to by the witness. [Citations.] As with all relevant
evidence, however, the trial court retains discretion to admit or exclude evidence offered
for impeachment. [Citations.] A trial court’s exercise of discretion in admitting or
excluding evidence is reviewable for abuse [citation] and will not be disturbed except on
a showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.) “Because the court’s discretion to admit or
exclude impeachment evidence ‘is as broad as necessary to deal with the great variety of
factual situations in which the issue arises’ [citation], a reviewing court ordinarily will




of subdivision (c) and the fact the categories listed in subdivision (b) are not exclusive.
(People v. Catlin (2001) 26 Cal.4th 81, 146.)
        We note that in his discussion of Evidence Code section 1101, defendant cites
People v. Stark (1992) formerly 8 Cal.App.4th 1605. Review was granted November 19,
1992, S028946, and dismissed as improvidently granted on May 12, 1994. The
California Supreme Court did not direct that the opinion remain published. Accordingly,
citation of the case violates California Rules of Court, rules 8.1105(e) and 8.1115, the
amendments to those rules effective July 1, 2016, not being applicable.


                                             19.
uphold the trial court’s exercise of discretion. [Citations.]” (People v. Clark (2011) 52
Cal.4th 856, 932.)
       A defendant who takes the witness stand puts his or her own credibility in issue
and is subject to impeachment in the same manner as any other witness. (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1139.) “A witness may be impeached with any prior
conduct involving moral turpitude whether or not it resulted in a felony conviction,
subject to the trial court’s exercise of discretion under Evidence Code section 352.
[Citations.]” (People v. Clark, supra, 52 Cal.4th at p. 931, fn. omitted.) Defendant does
not dispute that his prior convictions involved moral turpitude, nor could he reasonably
do so. (See People v. Robinson (2011) 199 Cal.App.4th 707, 713, 716 [conviction for
being felon in possession of firearm involves moral turpitude]; People v. Gray (2007) 158
Cal.App.4th 635, 641 [same re: conviction for robbery].)
       “Under California law, the right to cross-examine or impeach the credibility of a
witness concerning a felony conviction does not extend to the facts underlying the
offense. [Citations.]” (People v. Casares (2016) 62 Cal.4th 808, 830; accord, People v.
Heckathorne (1988) 202 Cal.App.3d 458, 462.)13 This rule does not apply, however,
where the defendant first seeks to mislead the jury or minimize the facts of the earlier




13      A question arises whether this remains an accurate statement of the law following
the addition of article I, section 28, subdivision (f)(2) — the “Right to Truth-in-
Evidence” provision — to the California Constitution. (See People v. Wheeler (1992) 4
Cal.4th 284, 288, 291, 295.) Both Casares and Heckathorne were decided after
enactment of that provision, but its effect apparently was not raised in either case.
“[C]ases are not authority for propositions not considered . . . .” (People v. Brown (2012)
54 Cal.4th 314, 330.) The California Supreme Court has acknowledged, but not decided,
the issue. (See People v. Watson (2008) 43 Cal.4th 652, 685-686; People v. Smith (2003)
30 Cal.4th 581, 633; see also People v. Ardoin (2011) 196 Cal.App.4th 102, 119-120.)
Absent some direction from our state’s highest court, and because our analysis in the
present case does not require us to resolve the matter, we will assume the law remains as
stated in Casares and Heckathorne.


                                            20.
conviction. (People v. Shea (1995) 39 Cal.App.4th 1257, 1267; People v. Heckathorne,
supra, 202 Cal.App.3d at p. 462.)
       However limited the intended purpose for which defense counsel had defendant
show the jury his hand, the trial court reasonably concluded this display, coupled with
defendant’s testimony about his limited mobility, rendered relevant and within the scope
of direct examination the prosecutor’s question whether defendant was capable of
holding a gun, and, based on defendant’s response it was medically impossible,
impeachment of him with relevant facts underlying two of his prior convictions. (See
People v. Visciotti (1992) 2 Cal.4th 1, 51-52; People v. Senior (1992) 3 Cal.App.4th 765,
778-779; People v. Heckathorne, supra, 202 Cal.App.3d at p. 463 [had defendant
asserted on direct examination that the incident concerning which he pled guilty was only
an accident, prosecutor’s questioning concerning underlying facts would have been
proper]; see also People v. Farley (2009) 46 Cal.4th 1053, 1109-1110.) “Although a
defendant cannot be compelled to be a witness against himself, if he takes the stand and
denies the evidence presented against him, the permissible scope of cross-examination is
‘ “very wide.” ’ [Citation.] A defendant cannot, by testifying to a state of things
inconsistent with the evidence presented by the prosecution, thereby limit cross-
examination to the precise facts concerning which he testifies. [Citation.] Rather, when
a defendant testifies, the prosecutor ‘may fully amplify his testimony by inquiring into
the facts and circumstances surrounding his assertions, or by introducing evidence
through cross-examination which explains or refutes his statements or the inferences
which may necessarily be drawn from them.’ [Citation.]” (People v. Hawthorne, supra,
46 Cal.4th at pp. 99-100.)
       Even if we were to conclude the evidence was wrongly admitted, we would find
the error harmless. Because the evidence was highly probative of disputed issues at trial
and did not go solely to defendant’s propensity or disposition, its admission did not
violate due process. (People v. Kelly (2007) 42 Cal.4th 763, 787; see People v. Albarran

                                            21.
(2007) 149 Cal.App.4th 214, 230-231; cf. McKinney v. Rees (9th Cir. 1993) 993 F.2d
1378, 1384.) Accordingly, any error was one of state law only, and subject to the
traditional test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Watson, supra,
43 Cal.4th at p. 686.) Under this test, “the erroneous admission of evidence . . .
constitute[s] reversible error only if a reasonable probability exists that the jury would
have reached a different result had [the] evidence been excluded. [Citations.]” (People
v. Whitson (1998) 17 Cal.4th 229, 251.)
       No such probability exists in the present case. The prosecutor herself limited
defendant’s testimony concerning the facts of his prior convictions, asking him only
whether they involved the use of a firearm and in which hand defendant held the weapon.
More importantly, defendant admitted he was present when the charged robberies and
attempted robberies took place. Under the circumstances, evidence identifying him as the
gunman was overwhelming despite the victims’ failure to notice anything unusual about
his right hand, particularly since two of the victims were familiar with Medina, who
defendant claimed was the perpetrator.

II.    THE TRIAL COURT DID NOT ERR BY INSTRUCTING WITH CALCRIM NO. 225
       INSTEAD OF CALCRIM NO. 224.

A.     Background
       Defendant requested the giving of CALCRIM No. 224 (Circumstantial Evidence:
Sufficiency of Evidence). The People requested that the trial court give both CALCRIM
No. 224 and CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State).
During the instructional conference, the court took the view CALCRIM No. 225 was
more appropriate than CALCRIM No. 224, because the state of the evidence was such
that the main issues were identity, then, if identity was established, intent. The identity
issue was based primarily on direct evidence, while intent was based substantially or
entirely on circumstantial evidence. Accordingly, the trial court subsequently told the
jury, pursuant to CALCRIM No. 225:


                                             22.
            “The People must prove not only that the defendant did the acts
      charged but also that he acted with a particular intent and/or mental state.
      The instruction for each crime and allegation explains the intent required.

            “An intent and/or mental state may be proved by circumstantial
      evidence.

             “Before you may rely on circumstantial evidence to conclude that a
      fact necessary to find the defendant guilty has been proved, you must be
      convinced that the People have proved each fact essential to that conclusion
      beyond a reasonable doubt.

              “Also, before you may rely on circumstantial evidence to conclude
      that the defendant had the required intent and/or mental state, you must be
      convinced that the only reasonable conclusion supported by the
      circumstantial evidence is that the defendant had the required intent and/or
      mental state. If you can draw two or more reasonable conclusions from the
      circumstantial evidence and one of those reasonable conclusions supports a
      finding that the defendant did have the required intent and/or mental state
      and another reasonable conclusion supports a finding that the defendant did
      not, you must conclude that the required intent and/or mental state was not
      proved by the circumstantial evidence. However, when considering
      circumstantial evidence, you must accept only reasonable conclusions and
      reject any that are unreasonable.”
      Defendant now contends the trial court should have given CALCRIM No. 224
instead. That instruction would have told jurors:

             “Before you may rely on circumstantial evidence to conclude that a
      fact necessary to find the defendant guilty has been proved, you must be
      convinced that the People have proved each fact essential to that conclusion
      beyond a reasonable doubt.

             “Also, before you may rely on circumstantial evidence to find the
      defendant guilty, you must be convinced that the only reasonable
      conclusion supported by the circumstantial evidence is that the defendant is
      guilty. If you can draw two or more reasonable conclusions from the
      circumstantial evidence, and one of those reasonable conclusions points to
      innocence and another to guilt, you must accept the one that points to
      innocence. However, when considering circumstantial evidence, you must
      accept only reasonable conclusions and reject any that are unreasonable.”




                                           23.
B.     Analysis
       “An instruction on the principles contained in [CALCRIM No. 224] ‘must be
given sua sponte when the prosecution substantially relies on circumstantial evidence to
prove guilt. [Citations.]’ [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 885;
accord, People v. Yrigoyen (1955) 45 Cal.2d 46, 49.)14 “The instruction . . . should not
be given where the evidence relied on is either direct or, if circumstantial, is not equally
consistent with a reasonable conclusion of innocence [citation]. The instruction should
not be given simply because the incriminating evidence is indirect, e.g., defendant’s
extrajudicial admissions, but is appropriate only when ‘guilt must be inferred from a
pattern of incriminating circumstances.’ [Citation.]” (People v. Heishman (1988) 45
Cal.3d 147, 167, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176,
1190; see People v. Wright (1990) 52 Cal.3d 367, 406, disapproved on another ground in
People v. Williams, supra, 49 Cal.4th at p. 459; People v. Wiley (1976) 18 Cal.3d 162,
174-176.)
       “The general instruction on sufficiency of circumstantial evidence [CALCRIM
No. 224] is a more inclusive instruction on sufficiency of circumstantial evidence than
the instruction on sufficiency of circumstantial evidence to prove specific intent or mental
state [CALCRIM No. 225], and the former is the proper instruction to give unless the
only element of the offense that rests substantially or entirely on circumstantial evidence
is that of specific intent or mental state. [Citations.]” (People v. Cole (2004) 33 Cal.4th
1158, 1222; accord, People v. Hughes (2002) 27 Cal.4th 287, 347.) However, “ ‘[i]t is
the general rule that a trial court is not required to instruct on the rules of law applicable
to circumstantial evidence where the alleged circumstantial evidence is incidental to, and
corroborative of, direct evidence. [Citations.]’ [Citation.] Moreover, ‘when the only

14      Cases discussing CALJIC No. 2.01 (sufficiency of circumstantial evidence —
generally) and CALJIC No. 2.02 (sufficiency of circumstantial evidence to prove specific
intent or mental state) are equally applicable to CALCRIM Nos. 224 and 225.


                                              24.
inference to be drawn from circumstantial evidence points to the existence of a requisite
mental state, a circumstantial evidence instruction need not be given sua sponte.’
[Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) “Indeed, where
circumstantial inference is not the primary means by which the prosecution seeks to
establish that the defendant engaged in criminal conduct, the instruction may confuse and
mislead, and thus should not be given. [Citations.]” (People v. Anderson (2001) 25
Cal.4th 543, 582.)
       Robbery requires the intent permanently to deprive the victim of his or her
property. (People v. Huggins (2006) 38 Cal.4th 175, 216.) Intent is almost never proved
by direct evidence but rather must be inferred from the act together with the surrounding
circumstances. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099; People v. Johnson
(1972) 28 Cal.App.3d 653, 657.) In the present case, by contrast, defendant’s identity as
the perpetrator of the charged offenses was based primarily on eyewitness identifications.
Circumstantial evidence, such as the holster in defendant’s vehicle and the bank cards
found in the police vehicle, was merely incidental to, and corroborative of, the direct
eyewitness evidence. As the trial court properly determined, CALCRIM No. 224 was not
required. (See, e.g., People v. McKinnon, supra, 52 Cal.4th at p. 676; People v.
Freeman, supra, 8 Cal.4th at p. 506; People v. Sassounian (1986) 182 Cal.App.3d 361,
407-408; cf. People v. Rogers, supra, 39 Cal.4th at p. 885.) The trial court did not err by
giving CALCRIM No. 225 instead.15



15     Defendant claims, without elaboration or citation of authority, that the failure to
give CALCRIM No. 224 violated his due process rights and his right to a fair trial.
Having found no error, we need not address the question of prejudice. We note,
however, that “[a] point not argued or supported by citation to authority is forfeited.
[Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 929.) We also note “the
federal Constitution does not require trial courts to instruct on the evaluation of
circumstantial evidence when, as here, the jury is properly instructed on the reasonable
doubt standard. [Citations.]” (People v. McKinnon, supra, 52 Cal.4th at p. 677.)


                                            25.
III.   DEFENDANT IS NOT ENTITLED TO HAVE THE FIREARM USE ENHANCEMENTS
       STRICKEN.

       Jurors were instructed, pursuant to CALCRIM No. 3146, that if they found
defendant guilty of the crimes charged in counts 1 through 4, they must then decide
whether the People “proved the additional allegation that the defendant personally used a
firearm during the commission of” each of those crimes. After being given the elements
of a section 12022.53, subdivision (b) enhancement, jurors were told: “The People have
the burden of proving each allegation beyond a reasonable doubt. If the People have not
met this burden, you must find that the allegation has not been proved.” The “guilty”
verdict form for each of the four counts included a blank space for the jury to find
“proven” or “not proven” “that, in the commission of the above offense, the defendant,
PAUL RICHARD PRIETO, personally used a firearm within the meaning of Penal Code
section 12022.53(b).” The signed and filed verdict forms show, as to each of the four
counts, “PROVEN” written where the form instructed “proven” or “not proven” was to
be inserted.
       Despite the fact he did not object to the verdict forms, defendant now contends the
enhancements must be stricken because the jury did not render true findings on the
firearm use allegations.16 He bases this solely on subdivision (j) of section 12022.53,
which provides: “For the penalties in this section to apply, the existence of any fact
required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and
either admitted by the defendant in open court or found to be true by the trier of fact.
When an enhancement specified in this section has been admitted or found to be true, the
court shall impose punishment for that enhancement pursuant to this section . . . .”
(Italics added.)

16      “An objection to jury verdict forms is generally deemed waived if not raised in the
trial court. [Citations.]” (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6, disapproved
on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; but see In re
Birdwell (1996) 50 Cal.App.4th 926, 930-931.)


                                             26.
       “ ‘ “ ‘A verdict is to be given a reasonable intendment and be construed in light of
the issues submitted to the jury and the instructions of the court.’ [Citations.]”
[Citations.] “The form of a verdict is immaterial provided the intention to convict of the
crime charged is unmistakably expressed. [Citation.]” [Citation.] “[T]echnical defects
in a verdict may be disregarded if the jury’s intent to convict of a specified offense within
the charges is unmistakably clear, and the accused’s substantial rights suffered no
prejudice. [Citations.]” [Citation.]’ [Citations.]” (People v. Jones (2014) 230
Cal.App.4th 373, 378-379; accord, People v. Paul (1998) 18 Cal.4th 698, 706-707.) “A
statutory requirement that the jury expressly find against a defendant on an issue is
satisfied if the intention to convict of the crime is unmistakably expressed. [Citation.]
‘The verdict is insufficient only “if it be susceptible of a different construction than that
of guilty of the crime charged.” ’ [Citation.]” (People v. Chevalier (1997) 60
Cal.App.4th 507, 514.) “Any error in grammar or the use of words when the language
clearly shows what is intended is wholly immaterial.” (People v. Dutro (1925) 75
Cal.App. 138, 144.) “The same rules apply to a finding on a sentence enhancement
allegation. [Citation.]” (People v. Chevalier, supra, 60 Cal.App.4th at p. 514.)
       Defendant’s jury was instructed on proof beyond a reasonable doubt and that when
told the People must prove something, it meant the People must prove it beyond a
reasonable doubt. Defendant fails to explain how, under these circumstances, there can
be any meaningful difference between a finding the enhancement allegation is “true” and
a finding it is “proven.” “[P]rove” is defined, inter alia, as “to establish the truth of (as by
argument or evidence).” (Webster’s 3d New Internat. Dict. (1986) p. 1826.) Thus, in
light of the instructions, finding an allegation “proven” is synonymous with finding it
“true.” (See People v. Buckley (1874) 49 Cal. 241, 242.)
       “Here, it is clear the jury intended to find each [firearm use enhancement
allegation] true. It made such findings to the best of its ability, with the verdict forms it



                                              27.
had been given.” (People v. Jones (1997) 58 Cal.App.4th 693, 711.) We decline to read
subdivision (j) of section 12022.53 in a manner that would exalt form over substance.
                                    DISPOSITION
      The judgment is affirmed.



                                                               _____________________
                                                                          DETJEN, J.
WE CONCUR:


 _____________________
 GOMES, Acting P.J.


 _____________________
 FRANSON, J.




                                           28.
