Filed 9/7/16 P. v. Mays CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141844
v.
MARTELL MAYS,                                                        (Contra Costa County
                                                                     Super. Ct. No. 1311125)
         Defendant and Appellant.


         A jury found defendant Martell Mays guilty of second degree robbery and assault
with a firearm, both with an enhancement for personal use of a firearm. He appeals,
asserting two claims of ineffective assistance of counsel, one claim of abuse of discretion
relating to the use of his prior convictions for impeachment purposes, and one claim of
instructional error. Defendant’s arguments all lack merit, and we affirm.
                                            EVIDENCE AT TRIAL
         Around 5:30 p.m. on April 30, 2013, Raymond Gonzales was standing outside a
laundry room at the Belmont Apartments, an apartment complex in Pittsburg where he
lived. He was talking to one of his neighbors, Pablo Nieves, who lived in one of the
apartments near the laundry room. As they stood there, Gonzales saw defendant walk
back and forth past them at least three times. Defendant gave Gonzales “mean” and
hostile looks that made him uncomfortable. Defendant was wearing a black hood over
his head, which made Gonzales suspicious because it was warm outside. Gonzales got a
good look at defendant’s face as he stared at him.




                                                             1
       The fourth time defendant walked by, he approached Gonzales. When he was
about two feet away, he pulled out a gun, pointed it at Gonzales’s face, and demanded his
wallet. Gonzales, who could see defendant’s eyes as he stood in front of him with the
gun, was in shock and did not react right away. Before he could take out his wallet,
defendant hit him with the gun in his temple and the back of his head. Gonzales fell to
the ground, and defendant again demanded his wallet. Gonzales attempted to retrieve it
from his back pocket, but before he could get it out, defendant reached over, grabbed it,
and fled.
       Although Gonzales did not recognize defendant at the time of the robbery, he later
realized he had seen him three days earlier, again at the apartment complex when
Gonzales was doing laundry and defendant asked him if he had any change.
       At trial, Gonzales recounted that when he spoke with a police officer shortly after
the robbery, he described the assailant as a Black man about six feet tall, 160 pounds with
short hair. He testified that because the assailant was wearing a hood, it was hard to see
his hair, but Gonzales “kind of figured he had short hair because it wasn’t puffed up or
nothing.” On cross-examination, he did not remember whether the assailant had any
facial hair, although he had testified at defendant’s preliminary hearing that the assailant
had a thin mustache and goatee.1
       Gonzales did not tell the police that the assailant had walked back and forth nearby
and looked at him in a mean way. At trial, he explained that was because he was not in a
position to talk, given all the emergency responders who were tending to him and were
telling him he needed to go to the hospital.
       Police officers later returned to Gonzales’s apartment and showed him a photo
lineup. Gonzales was unable to identify the assailant, explaining at trial that he “wasn’t
sure” because he was “not too good picking out pictures.” And at the time he was shown
the photo lineup, he was suffering nosebleeds, a buzz in his ears, and headaches. At trial,
Gonzales was shown a photo lineup similar to the one the police showed him after the


       1
           At the preliminary hearing, defendant in fact had a thin mustache and goatee.

                                               2
robbery, and he agreed that the photograph of defendant looked similar to how defendant
looked in court that day and that he had been unable to identify defendant from that
photo.
         When Gonzales testified at defendant’s preliminary hearing, he identified
defendant as the man who had robbed and assaulted him. Gonzales explained at trial that
he had been able to identify defendant in person but not the photo lineup because it made
a difference looking at a live person rather than a photograph. He denied at trial that he
identified defendant at the preliminary hearing because he was the only Black man in the
room, confirming he identified defendant as the assailant because he was confident he
was the man who robbed him. He also explained that when he was originally shown the
photo lineup, he was “kind of nervous” and still in shock from the robbery and assault.
Gonzales acknowledged on cross-examination that when he testified at the preliminary
hearing, he believed the police had found the person who had committed the robbery, that
they had the right person in court that day.
         Gonzales acknowledged at trial that when he was interviewed by the police, he did
not tell them that he had seen defendant three days earlier when he had asked for change.
He explained that it was not until he saw defendant in court at the preliminary hearing
that he remembered he had seen him three days before the assault. When asked why he
did not mention at the preliminary hearing that he had seen defendant three days before
the robbery, Gonzales answered, “Well, . . . I just didn’t think it was important.”
         Gonzales also testified on cross-examination that he had “just seen [defendant]
around the apartments” on occasion. He testified at the preliminary hearing, however,
that he did not remember if he had seen defendant walking around the apartment
complex. And he did not know if he testified at the preliminary hearing that he had never
talked to defendant except at the time of the robbery.
         At trial, Gonzales looked closely at defendant and was confident he was the
assailant. He did not want the wrong person convicted, and he would have said if it was
not defendant. He denied that he may have gotten the man who asked him for change
confused with the man who robbed him.


                                               3
       Pablo Nieves also testified at trial. According to Nieves, on the day of the robbery
he and Gonzales were talking outside the laundry room at the Belmont Apartments.
Nieves was about five feet away from his apartment door; the front door was open and
the security gate was closed. As the two were talking, defendant, who was wearing a
dark sweatshirt with the hood on his head, walked past them three or four times. Nieves
did not notice him stare at them or look at them hostilely. The next time defendant
passed by, however, he aggressively walked up to them and pulled out a gun from
underneath his sweatshirt. Nieves froze in shock, and the next thing he knew, defendant
put the gun up to Gonzales’s head and told him not to move. He also told Nieves not to
move. Defendant said to Gonzales, “Give me your fucking wallet,” and then grabbed the
wallet out of Gonzales’s pocket. There was a brief scuffle when Gonzales grabbed the
gun from his head, but defendant overpowered Gonzales and struck him in the head with
the gun.
       Nieves quickly turned around and ran into his apartment. As he was running, he
saw a piece of the gun break off and land near his door. He went into his apartment and
told his “wife” 2 there was a man outside with a gun and to call the police. He grabbed
their children and ran to the back bedroom, while his wife went over to the door to see
what was going on.
       Nieves was interviewed by Pittsburg Police Officer Gabriel Palma a few minutes
after the robbery. He described the assailant as an African American man wearing a dark
blue hooded sweatshirt and light blue shorts, between 30 and 40 years old, over six feet
tall, with short hair. He told the officer he had seen the man around the apartment
complex.
       At trial, Nieves denied he told Officer Palma that defendant turned to him and
said, “I don’t have a problem with you, so get the fuck out of here” and that Nieves then
walked slowly toward the inside of his apartment. Nieves also denied he told the officer




       2
           Sayra Callejas described Nieves as her fiancé.

                                              4
that he heard defendant demand Gonzales’s wallet as he was slowly walking towards his
apartment.
       The morning after the robbery, Nieves and Callejas went to the Pittsburg Police
Department to view a photo lineup. According to Nieves, he and his wife were in a room
together, and Nieves spoke to Officer Palma while his wife spoke to another officer.
Officer Palma first showed the lineup card to Nieves, who identified a photograph of
defendant as the assailant, circling defendant’s photo and putting his signature above the
circle. When asked at trial how sure he was when he viewed the photo lineup that
defendant was the assailant, Nieves testified, “Oh, I know for sure it was him.”
       According to Nieves, Officer Palma then showed Callejas the photo lineup. He
could not hear what she was saying or whether she identified anyone. Despite this, he
testified, “She did her part. She’s like, Yeah, that’s him right there. She circled her part,
her initials, too, so we both did it at the same time.” He and his wife talked about the fact
that they identified the same photo.
       Nieves testified that he had seen defendant before walking around the apartment
complex, but he did not know him. He estimated he had seen him 12 times in the two to
three months before the incident. When defendant walked up to them, Nieves
“recognized him real good” from having seen him around.
       Nieves also testified that seeing defendant in court that day, he was certain he was
the assailant.
       Callejas testified that she was at home in the kitchen when Nieves ran in and said,
“Hey, there’s a guy in front with a gun.” She closed the door, looked through the
peephole in the door, and saw Gonzales on the ground and a man holding a gun.
Gonzales put his hands up as if to say “calm down,” and reached into his pocket to
retrieve his wallet. He gave it to the man, who then fled. She opened the door to check
on Gonzales, grabbed something for his bleeding head wound, and called the police. She
did not see the assailant strike Gonzales, but when she went outside to check on him, he
told her he had hit him.



                                              5
       Callejas testified that the assailant was wearing a black sweater with a hood
covering his face. He was Black, but she was unable to see his face or hair because of the
hood. He was “pretty tall,” at least six feet. She was unable to estimate his age because
she had not seen his face, and she could not say how much he weighed, although she
described him as “a pretty heavy guy,” “a pretty solid man,” “a big guy.” At trial, she did
not remember telling the police that the assailant may have been 25 to 30 years old, that
he might have weighed 200 pounds, or that he was wearing black shorts.
       According to Callejas, the day following the incident, she and Nieves went to the
police station, where an officer led them to a room to look at a photo lineup. Callejas was
shown the pictures, but she told the officer she could not identify the assailant since she
never saw his face. He then showed the pictures to Nieves, and she saw him point to a
picture of who he believed to be the assailant. The officer then circled that photo.
       Pittsburg Police Officer Juan Simental was the first officer to arrive at the Belmont
Apartments in response to a call regarding the robbery. According to Officer Simental’s
trial testimony, he found Gonzales, who was upset and in shock about what had
happened, bleeding from cuts on the bridge of his nose and above his left eye. About 10
minutes after assessing Gonzales, Officer Simental took a statement from him. Gonzales
said he was talking to Nieves, and the assailant walked by at least once and looked at
him. The man then walked up to him, pulled out a gun, pointed it at his chest, and
demanded his wallet. When Gonzales was on the ground, he was reaching for his wallet,
but the assailant reached down and pulled it out of Gonzales’s pocket. Gonzales did not
mention that he had grabbed the gun and struggled with the assailant over it.
       Gonzales had described his attacker as a Black male, approximately six feet tall,
230 pounds, wearing a black hooded sweatshirt and shorts, with short hair and no facial
hair. Gonzales told the officer he did not know the man and had never seen him before.
       Either the day of or the day after the robbery, Officer Simental spoke to Pittsburg
Police Officer Richard Hosier, who told him he had seen defendant at the apartment
complex the morning of the robbery wearing clothing similar to that described by
Gonzales. Based on that, defendant was identified as a suspect, and Officer Simental


                                              6
included his photograph in a photo lineup he prepared for Gonzales. According to the
officer, the lineup was computer-generated and included five other subjects who were
similar to defendant in facial features, race, height, weight, and facial hair. He was
satisfied the photos were reasonable and appropriate subjects for a comparison lineup.
When shown the photo lineup, Gonzales was unable to identify his assailant, stating that
he could not positively identify anybody.
       Officer Simental testified that he read Gonzales the standard admonishment
concerning photo lineups, had him sign the admonishment form, attached it to the lineup
card, and logged the form and lineup card into evidence at the Pittsburg Police
Department. At the time he first took the stand, he believed the records were still in
evidence. In looking at the photo lineup Officer Palma showed Nieves, Officer Simental
did not think it was the same photo lineup he showed Gonzales. He thought, however,
they both included the same photograph of defendant.
       Officer Simental was later recalled to the stand. He testified that during a break,
he had returned to the police department to look for the photo lineup card he had shown
Gonzales. It had not been recorded on the evidence log for that case, there was no
indication he had placed the lineup card into evidence, and he was unable to find it. He
believed he had not in fact placed it into evidence despite a notation in his report that he
did, and further believed that he did not save the witness admonishment form signed by
Gonzales. He admitted he should have placed the lineup card into evidence.
       Officer Palma testified that he arrived at the apartment a few minutes after
receiving the call about the robbery. Officer Simental was already there, tending to
Gonzales, so he turned his attention to Nieves and his wife. As Nieves described it to
Officer Palma, he and Gonzales were talking when defendant walked up, removed a
black semiautomatic firearm from his waistband, and pointed it at Nieves, telling him, “I
don’t have a problem with you, so get the fuck out of here.” Defendant then pointed the
gun at Gonzales. Nieves walked slowly toward the front door of his apartment, which
was about 15 feet away. Before he went into his apartment, he heard defendant demand
Gonzales’s wallet and strike him with the gun. He did not mention that Gonzales


                                              7
grabbed the gun, that there was any scuffle, or that he saw a piece come off the gun.
Nieves told Officer Palma that the assailant was someone he had seen around the
apartment complex and he would recognize him if he saw him again.
       Officer Palma then spoke with Callejas. She told the officer that Nieves came into
the apartment and they closed the door, and through the peephole she saw the assailant
take Gonzales’s wallet. She did not get a good look at the assailant’s face because she
saw him from the side, but she said he was wearing a black hooded sweatshirt with the
hood pulled over his head.
       Officer Palma later asked Nieves and Callejas to come to the station to view a
photo lineup. He read them the lineup admonishment together, and then showed Nieves
the lineup card while Callejas was waiting outside. Nieves made an identification,
circling defendant’s picture on the card and saying he was absolutely certain it was him.
He then left the room and Callejas came in. Officer Palma did not show Callejas the
photo card on which Nieves had written, nor did Nieves have an opportunity to tell her he
had made an identification. Callejas was unable to make an identification, telling Officer
Palma she did not get a good look at the assailant’s face.
       Officer Palma could not say if Officer Simental had used the same photo lineup.
He did not keep the lineup card he showed Callejas because it was the same as the one he
showed Nieves and she did not make an identification.
       Officer Hosier testified that on the day of the robbery, he was assigned to the
Pittsburg Police Department’s municipal code enforcement division and, as a result, had
frequent contact with the Belmont Apartments. That day, the manager of the complex
contacted him about a man who was coming onto the property and causing problems.
Officer Hosier went to the complex, where he saw the man—defendant—from a distance
wearing dark clothing. Mid-afternoon that same day, he encountered defendant, who was
wearing a black hooded sweatshirt and black shorts, standing in front of the laundry
room. The officer was familiar with defendant from prior contacts, and he knew that
defendant’s girlfriend and the mother of his child was a tenant in one of the apartments.



                                             8
       The following day, Officer Hosier encountered Officer Palma in the report writing
room. Officer Palma mentioned the robbery and the description of the assailant. When
Officer Hosier heard the size of the assailant, he immediately suspected defendant, whom
the officer described as “a good size man. He’s over six feet and over 200-something
pounds and he stands out.” That description did not fit anyone else he had come into
contact with at the apartment complex, and he told Officer Palma about his suspicion.
       Defendant testified on his own behalf. He testified that in April 2013, he was
living at the Belmont Apartments, where he shared a room in an apartment with his wife
and daughter. When asked what he was doing on April 30, defendant testified that he did
not remember, although he thought he was probably at the apartment with his family. He
then testified that he encountered Officer Hosier that morning, claiming, “He tried to get
me to stay away from where I stay at with my wife and kids. And I just wouldn’t leave
the premises because he was harassing me for no reason because earlier in April . . . he
was arresting officer for my probation violation and he was harassing me.” When asked
to explain how he knew he had encountered Officer Hosier if he did not remember where
he had been that day, defendant explained that Officer Hosier had testified that they
spoke that day so defendant was “going by his testimony.”
       Defendant denied that he committed the robbery and that he even owned a firearm.
He recognized Gonzales from having seen him walking his dogs around the Belmont
Apartments a couple of times every week over the year defendant had lived there, but the
only conversation he ever had with Gonzales was about a month before the robbery when
he was at the Belmont store and asked Gonzales for some change to buy a cigarette. He
recognized Callejas from having seen her around the complex, but he did not know
Nieves.
       Defendant did not recall what he was wearing on April 30, but he denied he was
wearing a black hooded sweatshirt and black shorts, testifying, “I don’t even own a pair
of shorts or a hooded sweater. I try to make a fashion statement when I dress.”
According to defendant, Officer Hosier was lying when he testified that he saw defendant



                                             9
wearing a black hooded sweatshirt and shorts that day, and the officer, Gonzales, and
Nieves were all wrong in identifying him as the culprit.
       On cross-examination, defendant admitted the following prior convictions: petty
theft in 2008, two counts of felony theft in October 2009, two counts of second degree
burglary in February 2011 (unspecified as to whether they were felonies or
misdemeanors), felony burglary in September 2011, and felony grand theft from a person
in March 2012.
                             PROCEDURAL BACKGROUND
       Defendant was charged with second degree robbery (Pen. Code, § 211/212.53) and
assault with a firearm (§ 245, subd. (a)(2)), both counts also alleging that he personally
used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). It was also alleged that he
was ineligible for probation (§ 1203.3) or jail (§ 1170, subds. (f), (h)(3)(A)).
       Following a jury trial, defendant was found guilty of both counts together with the
commensurate weapons use allegations. He was sentenced to 13 years in state prison.
       Defendant timely appealed.
                                       DISCUSSION
       A. Defendant Has Not Shown that His Trial Counsel was Ineffective for
          Failing to Seek Sanctions for the Loss of the Photographic Lineup Shown
          to Gonzales
       Defendant’s first argument asserts a claim for ineffective assistance of counsel
pertaining to the apparent loss of the photo lineup that Officer Simental showed Gonzales
the day after the robbery. As defendant explains it, “Contrary to the initial testimony of
Officer Simental, the lineup that he produced and showed to Gonzales mysteriously
disappeared despite the fact the officer had written in his report that it had been lodged
into evidence. Given the fact that Gonzales could not identify his assailant from that
lineup, which included a recent photograph of [defendant], the loss of that lineup
constituted either the loss or destruction of evidence which the officer readily admitted
might have been exculpatory. Although defense counsel argued that the loss of this

       3
           All statutory references are to the Penal Code except where otherwise noted.

                                              10
evidence called into question the identification of [defendant] by the witnesses, in that at
least initially, Gonzales has been unable to identify his assailant, counsel made no effort
to sanction the prosecution for the loss of this evidence. Nor did she even request jury
instructions requesting that the jury draw adverse inferences from the loss of this
evidence. Both would have been appropriate remedies in this case. By failing to do so,
trial counsel was ineffective and that ineffectiveness was prejudicial to [defendant’s]
claim of being misidentified.” This argument lacks merit.
       In People v. Mackey (2015) 233 Cal.App.4th 32, 119, we recently summarized the
well-established standard for a successful ineffective assistance of counsel claim: “A
defendant claiming ineffective assistance of counsel must demonstrate both deficient
performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668,
687, 691–692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216–218.) On the
first prong he must show that ‘counsel’s representation fell below an objective standard
of reasonableness . . . [¶] . . . under prevailing professional norms.’ (Strickland, supra, at
p. 688.) And under the second, he must show that in the absence of the error it is
reasonably probable that a result more favorable to him would have been obtained. A
reasonable probability is ‘a probability sufficient to undermine confidence in the
outcome.’ (Id. at p. 694.)” Where defendant fails to show prejudice, we may reject a
claim of ineffective assistance of counsel without reaching the issue of deficient
performance. (Id. at p. 697.) We need not reach the issue of deficient performance
because defendant has failed to show that he was prejudiced by the loss of the photo
lineup card.
       Officer Simental described the process by which photos are selected for a lineup
and testified that the card he showed Gonzales would have contained the most recent
photo of defendant accessible to the police department. After that, defense counsel and
Officer Simental engaged in this exchange:
       “MS. GRAY: Was Mr. Mays’ photo in your lineup appropriate for him as to age?
       “OFFICER SIMENTAL: I believe so, yes.



                                              11
       “MS. GRAY: You didn’t use a picture of him, for example, when he was 12 and
had braces on?
       “OFFICER SIMENTAL: Correct.
       “MS. GRAY: It’s a picture that looks reasonably similar to what you expected
him to look like in April of 2013?
       “OFFICER SIMENTAL: Yes.”
       Officer Simental also testified that he believed he used the same photo that Officer
Palma used in the photo lineup shown to Nieves and Callejas. The jury was thus told that
the photo of defendant in the lineup was recent picture that looked like defendant at the
time of the robbery, and a copy of that photo was introduced into evidence via Officer
Palma’s lineup card. And Gonzales testified that when he was shown the photo lineup
containing a photograph of defendant, he was unable to identify defendant as his
assailant. We fail to see the significance of the photo lineup card itself in light of this
evidence.
       Further, defendant has not demonstrated that sanctions would likely have been
granted. The court in People v. Zamora (1980) 28 Cal.3d 88, identified the factors that
guide the trial court’s exercise of its “discretion in determining the appropriate sanction
that should be imposed because of the destruction of discoverable records and evidence.”
(Id. at p. 99.) The court explained:
       “First, ‘the imposition and mode of sanctions depends upon the particular
circumstances attending such loss or destruction.’ [Citation.] Thus lawful and proper
destruction requires no sanction [citations]; illegal and malicious suppression of evidence
may result in dismissal [citations].
       “Second, the sanction depends on the materiality of the evidence suppressed. In
Hitch [People v. Hitch (1974) 12 Cal.3d 641], for example, we noted that bad faith
destruction of evidence which might conclusively demonstrate innocence could require
dismissal. [Citation.] Suppression of evidence which might impeach a witness for bias,
however, may result in a new trial instead of a dismissal [citation]; suppression of
evidence immaterial to the charge invokes no sanction [citation].


                                              12
       “Finally, the courts must consider the impact of the sanction upon future cases and
future police conduct. If a sanction is to deter suppression of records and evidence, it
must contain a punitive element; it must outweigh the benefit that the prosecution gains
from the suppression. At the same time the court must bear in mind the public interest in
law enforcement, and the harm which may be inflicted by a sanction which prevents the
trial and conviction of possibly guilty future defendants.” (Zamora, supra, 28 Cal.3d at
p. 100.)
       Applying these criteria here, we can only conclude that the trial court would not
have granted a defense request for sanctions. The lost evidence was largely immaterial
given the testimony of Officer Simental, Gonzales, and Nieves. And nothing suggested
its loss was intentional. Quite simply, this was not the “crucial” evidence defendant
makes it out to be.
       Lastly, defendant makes this prejudice argument: “[H]ad [defendant] been
afforded effective assistance of counsel, and the jury instructed, for example, at the very
least, that it should assume that Gonzales’ identification at the preliminary hearing and at
trial should be distrusted in that he could not identify [defendant] from a lineup which
accurately depicted his current appearance, and, further, that that failure suggested that
Nieves’ identification could have been erroneous as well, there was a significant
likelihood that a more favorable verdict may have been rendered by the jury.” We fail to
see how the absence of the lineup card shown to Gonzales had any bearing on the
reliability of Nieves’s identification of defendant in the photo lineup the day after the
robbery and in person at trial.
       B. The Trial Court Did Not Abuse Its Discretion by the Manner in Which It
          Permitted the Prosecutor to Impeach Defendant with Prior Convictions
       1. Background
       In a pretrial motion in limine, the prosecutor sought to introduce evidence of
defendant’s “felonious offenses and/or crimes of moral turpitude” for impeachment
purposes. Specifically, she identified the following convictions:
(1) 11/24/08—misdemeanor petty theft (§ 484/488); (2) 10/22/09—felony theft


                                             13
(§ 484/666); (3) 10/22/09—felony theft (§ 484/666); (4) 2/16/11—misdemeanor second
degree burglary (§ 459/460, subd. (b)); (5) 2/16/11—felony second degree burglary
(§ 459/460, subd. (b)); (6) 2/16/11—felony obstructing or resisting a peace officer (§ 69);
(7) 9/27/11—felony second degree burglary (§ 459/460, subd. (b)); and
(8) 3/28/12—felony grand theft from a person (§ 487, subd. (c)).
         Defendant opposed the motion, his counsel arguing that such impeachment would
impair defendant’s “ability to receive a fair trial by introducing evidence of bad
character.” Alternatively, she argued that under Evidence Code section 352, the court
should limit the number of convictions the prosecutor could use and preclude discussion
of the underlying facts. Counsel was “particularly concerned” with defendant’s February
2011 conviction for obstructing or resisting a peace officer, which she considered “quite
inflammatory,” and his March 2012 conviction for grand theft from a person. With
respect to the latter, counsel stated, “[I]f it’s limited to simply a reference to that felony
title, I don’t have a problem with it. If the People intend to highlight the similarities to
robbery, then I would object under 352 that it starts to serve a secondary purpose of
showing character for the similar offense and I would have problem with that.”
         The prosecutor responded that defendant’s grand theft from a person conviction
was the result of plea negotiations in what started as a robbery prosecution, adding, “If
the facts of that case become relevant based on how the defendant testifies, then I would
be asking the Court to permit the People to introduce more information in regards to
that.”
         The court ruled:
         “I tend to agree that [section] 69 is somewhat inflammatory; and under Evidence
Code section 352, I will grant the defense motion to exclude reference to it.
         “But with regard to the others, I think that the fact of the conviction, the title of the
offense is sufficient, unless the People have good reason to go into the facts of the March
28th offense and that it’s raised outside the presence of the jury, and they get the go
ahead, they’re not to discuss anything about the facts of the case or that it was originally
charged as a [robbery].”


                                                14
       In response to a request by defense counsel to exclude the misdemeanor
convictions under Evidence Code section 352, the court ruled, “I’m not going to exclude
it. I don’t think that the time frame is so remote, it goes back—if the whole point to
permitting this is moral turpitude, the length of time is significant for the jury to make
that assessment and, therefore, going back to 2008 seems appropriate for a 2013 offense,
so that’s four-and-a-half years from the first conviction to the offense date.”
       Against that background, when defendant testified at trial, the prosecutor
conducted the following cross-examination:
       “MS. TAKHAR-DHILLON [the prosecutor]: Isn’t it true that you make a living
by stealing from people?
       “MS. GRAY [counsel for defendant]: Objection, your Honor. Improper
character.
       “THE COURT: Sustained.
       “MS. TAKHAR-DHILLON: Have you ever stolen anything from anyone?
       “DEFENDANT: Stole . . . like, have I . . .
       “MS. GRAY: Objection. Vague.
       “THE COURT: Overruled.
       “MS. TAKHAR-DHILLON: You can answer.
       “DEFENDANT: Have I ever stole something from anybody?
       “MS. TAKHAR-DHILLON: Um-hum.
       “DEFENDANT: Yes, I have.
       “MS. TAKHAR-DHILLON: When?
       “MS. GRAY: Objection. Vague. Irrelevant.
       “THE COURT: Overruled.
       “MS. TAKHAR-DHILLON: You can answer.
       “DEFENDANT: Well, I never stole. I stole from a store before, some security
guard tried to snatch something and I ran out the door. I snatched [it] away so it got
charged as a grand theft person.



                                             15
       “MS. TAKHAR-DHILLON: Isn’t it true that in November of 2008, you were
convicted of petty theft?
       “DEFENDANT: Yeah, I steal from stores.
       “MS. TAKHAR-DHILLON: Isn’t it also true that in October of 2009, you were
convicted for felony theft?
       “DEFENDANT: Petty with a prior, bumped up.
       “MS. TAKHAR-DHILLON: As a felony, correct?
       “DEFENDANT: Yeah.
       “MS. TAKHAR-DHILLON: And in that same month, you also suffered another
felony conviction for theft, correct?
       “DEFENDANT: For theft or petty theft? Which one?”
       “MS. TAKHAR-DHILLON: Felony theft.
       “DEFENDANT: For—yeah, I stole from the store.
       “MS. TAKHAR-DHILLON: And on February 16th of 2011, you were convicted
of second degree burglary, correct?
       “DEFENDANT: Stole from the store, again, bumped up.
       “MS. TAKHAR-DHILLON: And on that same day, you were convicted of a
second second degree burglary, correct?
       “DEFENDANT: I stole from a store.
       “MS. TAKHAR-DHILLON: On September 27th of 2011, you were also
convicted of a felony second degree robbery, correct?
       “MS. GRAY: Objection, your Honor—
       “THE COURT: Burglary.
       “MS. GRAY: —assumes facts not in evidence.
       “THE COURT: Sustained. Rephrase. You need to rephrase it.
       “MS. TAKHAR-DHILLON: I understand. [¶] . . . [¶]
       “On—in September of 2011, were you also convicted of a felony—
       “DEFENDANT: Stole—
       “MS. TAKHAR-DHILLON: —degree burglary?


                                           16
       “DEFENDANT: Stoled [sic] out of the store.
       “MS. TAKHAR-DHILLON: And most recently, in March of 2012, you pled out
to a felony grand theft from a person, correct?
       “DEFENDANT: Stole from a store.
       “MS. TAKHAR-DHILLON: Is that correct, though, isn’t that what you pled out
to?
       “DEFENDANT: Yes.”
       2. Analysis
       Defendant contends that in permitting the above exchange, the trial court abused
its discretion, in the following four ways: (1) it improperly permitted the use of
defendant’s misdemeanor convictions for impeachment; (2) the prosecutor “exceeded the
limitations placed by the trial court, by characterizing [defendant] as a thief”; (3) she
failed to characterize one of the convictions as a misdemeanor rather than a felony; and
(4) she improperly suggested defendant had a conviction for second degree robbery.
There was no error.
       As to the first concern, we do not agree that the trial court abused its discretion in
allowing the prosecutor to impeach defendant with his misdemeanor convictions. The
credibility of a witness, including a criminal defendant who testifies at trial, may be
impeached not only with felony convictions (Evid. Code, § 788) but, subject to the trial
court’s exercise of discretion, with any acts of moral turpitude that might amount to
conduct which resulted in a misdemeanor conviction. (People v. Wheeler (1992)
4 Cal.4th 284, 295–296.) The witness cannot be impeached with the fact of a
misdemeanor conviction per se, but only of the underlying conduct. (People v. Chatman
(2006) 38 Cal.4th 344, 373 [“Misdemeanor convictions . . . are not admissible for
impeachment, although evidence of the underlying conduct may be admissible subject to
the court’s exercise of discretion.”]; accord, People v. Cadogan (2009) 173 Cal.App.4th
1502, 1514.) Here, the court’s ruling made clear that it permitted introduction of the facts
underlying defendant’s misdemeanors as they reflected his moral turpitude. In the



                                              17
court’s words, “the whole point to permitting this is moral turpitude.” There was no
error.
         Defendant’s next objection—that the prosecutor exceeded the limitations set by
the court when she attempted to portray defendant as a thief—similarly lacks merit. The
prosecutor’s first question to defendant was, “Isn’t it true that you make a living by
stealing from people?” Defense counsel objected on the ground that this was improper
character evidence, and the court sustained the objection. There can thus be no argument
here that the court erred in this regard. The prosecutor then proceeded to ask defendant,
“Have you ever stolen anything from anyone?” Defendant’s counsel objected on
vagueness grounds, which the trial court overruled. Having failed to object that this
constituted prosecutorial misconduct (or error (People v. Hill (1998) 17 Cal.4th 800,
823)) or that it again was improper character evidence, defendant forfeited that argument
on appeal. (People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Green (1980)
27 Cal.3d 1, 27.) Further, he cites no authority for his proposition that it was
inappropriate for the prosecutor to ask, in the context of impeachment, if defendant had
ever stolen anything. This question and defendant’s answer (“Yes, I have.”) were
followed by defendant’s admission that he had seven convictions for theft-related
offenses. We do not understand how the prosecutor’s question was improper.
         Defendant’s third complaint is that the prosecutor erred in failing to classify one of
his second degree burglary convictions as a misdemeanor. In addition to a conviction for
petty theft and three theft-related felonies, defendant also admitted three second degree
burglary convictions. As to two of these, however, the prosecutor did not specify
whether they were misdemeanors or felonies. Defense counsel did not object to this,
however, which again forfeited this complaint. And we do not understand how, in the
absence of an objection by counsel, this could have constituted an abuse of discretion by
the trial court.
         Lastly, defendant asserts the following: “Finally, in what was either an act of
gross negligence or an intentional act, the prosecutor asked [defendant] whether he had
ever been convicted of ‘second degree robbery’ in September 2011, even though the


                                               18
prosecutor’s own motion clearly showed that it was a burglary for which [defendant] was
actually convicted.” Defendant overstates what transpired, which was this:
      “MS. TAKHAR-DHILLON: And on February 16th of 2011, you were convicted
of second degree burglary, correct?
      “DEFENDANT: Stole from the store, again, bumped up.
      “MS. TAKHAR-DHILLON: And on that same day, you were convicted of a
second second degree burglary, correct?
      “DEFENDANT: I stole from a store.
      “MS. TAKHAR-DHILLON: On September 27th of 2011, you were also
convicted of a felony second degree robbery, correct?
      “MS. GRAY: Objection, your Honor—
      “THE COURT: Burglary.
      “MS. GRAY: —assumes facts not in evidence.
      “THE COURT: Sustained. Rephrase. You need to rephrase it.
      “MS. TAKHAR-DHILLON: I understand.
      “On—
      “MS. GRAY: I ask the question be stricken.
      “THE COURT: There is no answer.
      “MS. GRAY: All right. Thank you.
      “THE COURT: Go ahead.
      “MS. TAKHAR-DHILLON: On—in September of 2011, were you also
convicted of a felony—
      “DEFENDANT: Stole—
      “MS. TAKHAR-DHILLON: —degree burglary?
      “DEFENDANT: Stoled [sic] out of the store.”
      As can be seen, the nefarious intent defendant attributes to the prosecutor is
misplaced. This was an inadvertent slipup to which defense counsel immediately
objected, which objection the court sustained, with the prosecutor then promptly
correcting her mistake. Nothing more.


                                            19
       But even if we agreed with defendant’s claim that the trial court committed error
in the manner in which it allowed the prosecutor to impeach him, we would still not
reverse on this ground. This is so because even assuming these errors, defendant has not
demonstrated prejudice. There were still five theft-related felonies that the prosecutor
could use to impeach defendant’s credibility,4 and there were two eyewitnesses who
identified him as the assailant.
       C. Defendant’s Counsel Was Not Ineffective in Failing to Seek Modification
          of CALCRIM No. 315
       Defendant’s third claimed error again asserts ineffective assistance of counsel, this
time for his counsel’s failure to seek modification of CALCRIM No. 315, the instruction
on eyewitness identification. The instruction tells the jury that in evaluating
identification testimony, it should consider a number of factors (in this case, 14 different
factors, including how certain the witness was when he or she made an identification).
Defendant cites “numerous scientific studies” in claimed support of his argument that
“the certainty with which an eyewitness makes a purported identification of a suspect is
unrelated to the accuracy of such an identification and can no longer be considered a
reliable indication such a consideration [sic].” Based on this, defendant posits that
CALCRIM No. 315 “improperly bolstered the testimony of witness Nieves who
professed certainty in his identification of appellant, despite the problematic nature of the
other evidence . . . .” As such, he concludes, his counsel’s failure to seek modification of
the instruction constituted ineffective assistance. We disagree.
       As noted above, for a successful ineffective assistance of counsel claim, defendant
must first show that his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness under prevailing professional norms. (Strickland,
       4
        Defendant claims there may only have been four, arguing that the court
“apparently never clarified whether [defendant] suffered one or two convictions for
burglary on February 16, 2011 in Docket 4-166417-6. It certainly seems unlikely, and no
proof provided in support of the prosecutor’s pleading, that [defendant] was convicted of
both a misdemeanor burglary and a felony burglary in the same action and on the same
date.” Defendant himself confirmed that it was two separate convictions, when he
admitted the convictions during cross-examination.


                                             20
supra, 466 U.S. at p. 688.) Counsel’s failure to make a motion that would have been
futile cannot constitute deficient performance. (People v. Lewis (1990) 50 Cal.3d 262,
289 [“Counsel may not be criticized for failing to bring a motion that would have been
futile.”].) That was the case here, as a request to modify CALCRIM No. 315 would have
been unsuccessful.
       In People v. Wright (1988) 45 Cal.3d 1126, 1141 (Wright), the California Supreme
Court expressly approved a version of CALJIC No. 2.92 (the predecessor to CALCRIM
No. 315) that told the jury to consider the degree of certainty in assessing the reliability
of eyewitness identification evidence. “We hold that a proper instruction on eyewitness
identification factors should focus the jury’s attention on facts relevant to its
determination of the existence of reasonable doubt regarding identification, by listing, in
a neutral manner, the relevant factors supported by the evidence. [¶] The instruction
should not take a position as to the impact of each of the psychological factors listed.”
(Wright, supra, 45 Cal.3d at p. 1141.) Further, “the listing of factors to be considered by
the jury will sufficiently bring to the jury’s attention the appropriate factors, and . . . an
explanation of the effects of those factors is best left to argument by counsel,
cross-examination of the eyewitnesses, and expert testimony where appropriate.” (Id. at
p. 1143.)
       The California Supreme Court also upheld CALJIC No. 2.92 in People v. Johnson
(1992) 3 Cal.4th 1183, 1230–1232. When Johnson was issued, CALJIC No. 2.92
included among the factors the jury should consider in evaluating eyewitness
identification testimony “ ‘[t]he extent to which the witness was either certain or
uncertain of the identification.’ ” (Johnson, at pp. 1230–1231, fn. 12.) Johnson rejected
the defendant’s contention that the trial court erred in instructing the jury that the extent
to which the witness was either certain or uncertain of the identification was a factor to
consider in assessing eyewitness identification testimony. (Id. at pp. 1231–1232.)
       The certainty factor in CALCRIM No. 315 is indistinguishable in substance from
that set forth in CALJIC No. 2.92 and approved in Wright and Johnson. And
notwithstanding defendant’s extensive reference to scientific studies concerning the lack


                                               21
of correlation between certainty and accuracy in an eyewitness identification, we are
bound by California Supreme Court precedent. (See Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
       Furthermore, other cases issued after Wright and Johnson have rejected the
argument defendant makes in this appeal. (People v. Sullivan (2007) 151 Cal.App.4th
524, 561–562; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302–1303.) Sullivan
stated: “As in Gaglione, we therefore ‘reject defendant’s arguments and find no error in
CALJIC No. 2.92’ as given with reference to degree of certainty as a factor in assessing
the reliability of eyewitness identification testimony.” (Sullivan, at p. 562.) We believe
the holdings in those cases regarding the witness certainty factor in CALJIC No. 2.92
should likewise be applied to the trial court’s instruction with CALCRIM No. 315 in this
case. CALCRIM No. 315 does not require a jury to consider a witness’s certainty or
uncertainty. It does not make any correlation between the witness’s level of certainty and
accuracy of his or her identification. It does not imply witnesses are more believable if
they are certain of their identifications. We thus conclude that a request by defendant’s
trial counsel to modify CALCRIM No. 315 would have been denied and counsel was
thus not deficient in requesting a modification. Defendant’s ineffective assistance of
counsel claim fails accordingly.
       D. The Trial Court Did Not Err in Failing to Instruct the Jury on Grand
          Theft of the Person as a Lesser Included Charge of Robbery
       In his final argument, defendant contends that the trial court had a sua sponte duty
to instruct on grand theft from a person as a lesser included offense of robbery. We
conduct an independent review of this claimed instructional error (People v. Licas (2007)
41 Cal.4th 362, 366; People v. Waidla (2000) 22 Cal.4th 690, 733, 737), and we conclude
it lacks merit.
       Robbery is “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211; CALCRIM No. 1600.) Grand theft from a person exists when the
property is taken from the victim but without the use of force or fear. (§ 487; CALCRIM


                                            22
No. 1801.) Grand theft from a person is a lesser included offense of the crime of robbery.
(People v. Webster (1991) 54 Cal.3d 411, 443.) The trial court has a sua sponte duty to
instruct on a lesser included offense where there is substantial evidence that the lesser
crime was committed. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410–1411.)
       Defendant claims that “the question of whether [defendant] had used the element
of fear to achieve his goals was susceptible to two interpretations.” He goes on to explain
this curious theory: “Witness Nieves had testified that the assailant approached and
without a word reached into Gonzales [sic] pocket. While this testimony was
contradicted by Gonzales who stated that the robber first demanded his property, his
testimony was impeached in various ways. The jury may well have believed Nieves’s
version over Gonzales’.” Nonsense. Defendant completely ignores Nieves’s testimony,
consistent with that of Gonzales, that when defendant approached Gonzales, he pulled out
a gun and pointed it at Gonzales’s face, eventually striking him with it. No possible
interpretation of the evidence presented could support a conclusion that defendant did not
use fear to achieve his goals. In the absence of substantial evidence to support a grand
theft of a person finding, there was no instructional error.
                                      DISPOSITION
       The judgment of conviction is affirmed.




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                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A141844; P. v. Mays




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