Filed 4/6/16 P. v. Bradford CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063003

v.                                                                       (Super.Ct.No. FVA1301037)

KENNETH FRANK BRADFORD,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash,

Judge. Affirmed.

         Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and

Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted defendant and appellant Kenneth Frank Bradford of assault with

a deadly weapon (Pen. Code, § 245, subd. (a)(1)), namely, a motor vehicle. The trial
                                                             1
court sentenced defendant to three years of formal probation, ordered him to serve 270

days in county jail, revoked his driver’s license, and imposed various fees and fines.

       At trial, defendant had proposed to impeach the testimony of the victim with

evidence “consisting of percipient witness statements” that she had, on two occasions in

October 2007, fraudulently obtained store credit from a retail store. These incidents

resulted in a single misdemeanor conviction for the victim, which was expunged in

October 2011. Defendant contends on appeal that the trial court erred by excluding this

evidence pursuant to Evidence Code1 section 352. We find no error, and affirm the

judgment.

                    I. FACTS AND PROCEDURAL BACKGROUND

       Defendant and victim were involved in a motor vehicle crash on January 22, 2013,

while driving on the freeway through the City of Chino. Defendant was alone, driving a

vehicle for his employer, a car rental company; the victim was driving her two children,

six and three years old, home from school. The two vehicles collided, causing

defendant’s vehicle to swerve into the center divider and then flip over several times back

across several lanes of traffic, while the victim’s vehicle crashed into and then scraped

along parallel to the center divider.

       At trial, the prosecution presented evidence that the crash occurred as a result of

road rage on the part of defendant, which culminated in an attempt to force victim’s

vehicle into hitting the center divider. This evidence included the testimony of the victim


       1   Further undesignated statutory references are to the Evidence Code.

                                             2
herself, a motorist who witnessed the accident, the California Highway Patrol (CHP)

officer who first responded to the scene, and a second CHP officer who conducted an

investigation, as well as recordings of two 911 calls by the victim, one immediately

before, and one immediately following the accident.

       The defense called an accident reconstruction expert and several character

witnesses. Defendant also testified in his own behalf, asserting that he had thought the

victim might have hit his vehicle during the course of an unsafe lane change, and that he

followed her for several miles to try to get her to pull over. According to defendant, he

was travelling in an adjacent lane, trying to get next to the victim’s vehicle to

communicate his intentions, when the victim suddenly slowed, and then appeared to be

making a lane change, when he felt an impact.

       Prior to trial, defendant brought a motion in limine to introduce impeachment

evidence against the victim. This proffered evidence was “percipient witness statements”

regarding two incidents in October 2007, in which the victim fraudulently obtained

property from a retailer. The victim entered the store and took items from the shelves to

the register, claiming to be making a return, and that she had lost her receipt. On one

occasion, she received about $400 in store credit; on the other, about $700. Although the

victim was charged with burglary, she eventually pleaded guilty to one misdemeanor

count of disturbing the peace, in violation of Penal Code section 415. She paid

restitution, and the conviction was expunged in September 2011. Applying Evidence

Code section 352, the trial court denied defendant’s motion.



                                              3
       Defendant’s trial was conducted over several days in October and November

2014. The jury returned its verdict on November 3, 2014. The trial court imposed

sentence on February 6, 2015.

                                    II. DISCUSSION

       Defendant contends the trial court abused its discretion by excluding, pursuant to

section 352, evidence of the conduct that gave rise to the victim’s 2007 misdemeanor

conviction. We find no abuse of discretion.

       Section 352 permits the exclusion of relevant evidence where “its probative value

is substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.” (§ 352.) “Misdemeanor convictions themselves are

not admissible for impeachment, although evidence of the underlying conduct may be

admissible subject to the court’s exercise of discretion [under section 352].” (People v.

Chatman (2006) 38 Cal.4th 344, 373, citing People v. Wheeler (1992) 4 Cal.4th 284, 297-

300 (Wheeler).) In exercising its discretion in circumstances where the witness subject to

impeachment is not the defendant, prominent factors the court may consider include

“whether the conviction (1) reflects on honesty and (2) is near in time.” (People v. Clair

(1992) 2 Cal. 4th 629, 654.) Where the prior conduct occurred “‘long before and has

been followed by a legally blameless life, [it] should generally be excluded on the ground

of remoteness.’” (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), abrogated on

other grounds by People v. Diaz (2015) 60 Cal.4th 1176.)



                                              4
       “We review a challenge to a trial court’s choice to admit or exclude evidence

under section 352 for abuse of discretion.” (People v. Branch (2001) 91 Cal.App.4th

274, 282.) The court’s discretion in this context is “‘“broad,”’” and will be upheld unless

the court exercised its discretion “‘in an arbitrary, capricious, or patently absurd manner

that resulted in a manifest miscarriage of justice.’” (People v. Celis (2006) 141

Cal.App.4th 466, 476.)

       We find nothing arbitrary, capricious, or absurd about the trial court’s decision to

exclude the proffered impeachment evidence. The witness’s conduct does reflect on

honesty; fraudulently obtaining store credit is self-evidently dishonest conduct.

Nevertheless, the victim was convicted only of a misdemeanor charge of disturbing the

peace, and a misdemeanor “is a less forceful indicator of immoral character or dishonesty

than is a felony.” (Wheeler, supra, 4 Cal.4th at p. 296.) Moreover, the conduct at issue

occurred seven years before the trial, the victim paid restitution, and the victim’s

conviction was expunged. The trial court reasonably determined that the remoteness of

the offense, and the victim’s subsequent “‘legally blameless life’” (Beagle, supra, 6

Cal.3d at p. 453) outweighed any probative value the evidence might have had on the

issue of the victim’s honesty.

       In arguing for the contrary conclusion, defendant cites to a number of cases

involving conduct equally remote in time, in which the court permitted the impeachment

evidence to be presented to the jury. Defendant also emphasizes the importance of

questions of honesty to the jury’s determination of which account of the accident to

believe. Defendant’s arguments, however, at most show that the factors at issue could

                                              5
reasonably have been given different weight by a different court, not that the trial court’s

ruling exceeded the bounds of reason. As such, the trial court’s ruling fell within its

broad discretion in applying section 352.

                                      III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       MCKINSTER
                                 J.

       MILLER
                                 J.




                                             6
