Filed 3/22/16
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                       DIVISION EIGHT



THE PEOPLE,                                        B263075

                       Plaintiff and Respondent,   (Los Angeles County
                                                    Super. Ct. No. BA420499)
                  v.

HENRY AGUILAR,

                       Defendant and Appellant.



        APPEAL from the judgment of the Superior Court of Los Angeles County.
Monica Bachner, Judge. Affirmed.

        Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.


        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.



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       A jury found defendant and appellant Henry Aguilar guilty of aggravated
kidnapping, rape in concert, oral copulation in concert, and robbery, and found firearm
and kidnapping allegations true as to each count. During the trial, evidence of
defendant’s prior felony conviction for carrying a concealed firearm in a vehicle was
admitted, over his objection, to impeach his credibility as a witness. Defendant’s sole
contention on appeal is that his prior conviction was not a crime of moral turpitude and
its admission was therefore unlawful and prejudicial.
       We hold that a felony conviction for carrying a concealed firearm in a vehicle in
violation of Penal Code section 25400, subdivision (a)(1) (hereafter section 25400(a)(1))1
is a crime of moral turpitude, and that defendant has not demonstrated the court erred in
admitting evidence of his prior conviction as impeachment. We therefore affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       We summarize only the testimony relevant to the narrow issue defendant raised in
this appeal.
       On July 4, 2012, Evelyn L.2 was at home celebrating the holiday with her
boyfriend and several neighbors. Their apartment was on 8th Street in Los Angeles.
Sometime close to 2:00 a.m., her boyfriend left to walk to the liquor store a couple of
blocks away. When he had not returned after almost an hour, Evelyn left the apartment
to look for him.



1        Defendant’s 2004 conviction was a violation of Penal Code former section 12025,
subdivision (a). Operative January 1, 2012, former section 12025, subdivision (a)(1) was
recodified, without substantive change, as section 25400, subdivision (a)(1). (Cal. Law
Revision Com. com., 51D Pt. 3 West’s Ann. Pen. Code (2012 ed.) foll. § 25400, p. 196;
see also § 16000 [“Deadly Weapons Recodification Act of 2010”]; Stats. 2010, ch. 711,
§ 6, and § 16015 [“If a previously existing provision is restated and continued in this part,
. . . a conviction under that previously existing provision shall, unless a contrary intent
appears, be treated as a prior conviction under the restatement and continuation of that
provision.”].) For clarity, we refer only to the current version of the statute.
2      We refer to Evelyn only by her first name to protect her privacy.


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       After she had walked no more than a block, Evelyn felt someone pull on her purse
which was hanging over her left shoulder. She tried to push back, but then felt a gun
being pressed up against her right ribcage. She went “weak” with fear. The person
grabbed her from behind and dragged her into the back of a van. The back seat had been
removed and she was thrown on the floor. In addition to the driver, and the man who had
pulled her inside, there was a third man in the van, sitting in the back. She tried to fight,
but the two men in the back punched her. They drove a short distance and stopped.
Evelyn was pushed out of the van and into an alley. The van had been parked at the
entrance of the alley, blocking the view from the street.
       The man with the gun told Evelyn to turn around. When she protested, he hit her
in the head with the gun. He then pushed her down completely “on all fours” and pulled
down her pants. He penetrated her vaginally. She screamed and tried to fight, but
someone kicked her in the side. The man with the gun told the second man to put his
penis in her mouth and he did so. Evelyn was not certain what the driver was doing. She
was violated both vaginally and anally more than once, causing her to defecate. Evelyn
quit fighting because she did not want to be shot. The three men then abruptly left
together.
       Evelyn pulled up her pants and ran out onto 8th Street. She ran down the middle
of the street toward a patrol car she could see parked near the on-ramp to the freeway.
       It was around 3:30 a.m., when Officer Fabio Ibarra, of the California Highway
Patrol, saw a woman running in his direction and shouting “hysterically.” He was outside
of his patrol car conducting a traffic stop near 8th Street and Garland and she ran up to
him, asking for help. She told him she had been raped by two Hispanic men. Officer
Ibarra called the Los Angeles Police Department (LAPD) to send a unit and also called
for an ambulance.
       Evelyn was taken to the hospital and examined by a nurse. She told the nurse she
had gone out to look for her boyfriend and was attacked on the sidewalk, pulled into a
car, and raped. She said the assailants had punched her and held a gun to her head. She
was “crying, but cooperative.” Evelyn had visible bruising to her legs, elbows and


                                              3
abdomen, as well as a black eye, bruising and swelling about her face. Various portions
of her body, including her face, hands, and genital area, were swabbed to collect samples
for DNA testing.
         LAPD Officer Alfredo Morales responded to the hospital and interviewed Evelyn.
She was crying, had visible injuries to her face, and appeared dirty, like she had been
“rolled around” on the ground. Officer Morales collected the evidence samples from the
nurse.
         Evelyn gave Officer Morales a physical description of her three attackers,
including the one with the gun, whom she later identified as defendant. She described the
nature of the assault and that it had taken place in an alley not far from her home. There
had been a red couch in the alley. From the way Evelyn described the scene of her
assault, Officer Morales believed he knew what alley she was talking about because of
his familiarity with the area. Officer Morales gave Evelyn a ride home, and they were
able to locate the crime scene on the way there. Officer Morales saw the red couch
Evelyn had mentioned, as well as one of her earrings lying on the ground, and feces
consistent with her description of the incident.
         Detective Edna Lopez was assigned to investigate the incident. Evelyn related the
nature of the incident and also told her that her purse was taken, which contained her new
cell phone, keys and various personal items. Evelyn gave Detective Lopez the number
and authorization to obtain records related to the use of her phone. The records showed
that in the days after the incident, there were calls and texts made to and from her stolen
phone to defendant’s then-girlfriend, Crystal Navarette.
         Defendant was charged by information with kidnapping (Pen. Code, § 209,
subd. (b)(1); count 1), forcible rape in concert (§ 264.1, subd. (a); count 2), oral
copulation in concert (§ 288a, subd. (d)(1); count 3), sodomy in concert (§ 286,
subd. (d)(1); count 4), and second degree robbery (§ 211; count 5). It was also alleged as
to each count that defendant was armed with a firearm (semi-automatic weapon) within
the meaning of section 12022, subdivision (a)(1), and as to counts 2 through 5 that
defendant kidnapped the victim in the commission of the offenses (§§ 207, 209, 209.5).


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       The jury trial proceeded in July 2014. Evelyn, Officer Ibarra, Officer Morales,
Detective Lopez and the emergency room nurse testified to the above facts. The results
of the DNA testing were presented to the jury. Defendant’s DNA was found in the swabs
taken from Evelyn’s left jaw, the inside of her mouth, and both of her hands. Evelyn’s
boyfriend was excluded as a contributor from all of the samples.
       During a conference outside the presence of the jury, the court discussed with
counsel the prosecution’s request to use as impeachment defendant’s 2004 felony
conviction for carrying a concealed firearm in a vehicle. The prosecution argued it was
appropriate impeachment because it reflected a readiness to do evil. The defense argued
it was not a crime of moral turpitude, the prior conviction was remote in time having
occurred when defendant was only 21 years old, defendant had not suffered any other
convictions since that time, and the admission would be unduly prejudicial because it was
too similar to the charged incident which included the firearm allegations. The court
granted the prosecution’s request to use the prior conviction as impeachment. The court
reasoned that concealment of a firearm in a vehicle was a crime of moral turpitude,
defendant’s conviction was not too remote, and the charged incident involved far more
serious facts, so there was little likelihood of undue prejudice by admitting evidence of
the prior conviction.
       Defendant testified in his own defense. He said that on July 4, 2012, he celebrated
the holiday at a park with his family. They returned to his mother’s home on South
Union Avenue around 9:30 p.m. At the time, he was living with his mother. Shortly
thereafter, defendant went out by himself “barhopping.” He walked to a local bar
because he does not drive or own a car. Around midnight, while standing outside a bar
smoking a cigarette, he ran into Evelyn. He did not know her, but she seemed upset and
he asked if she was alright. Evelyn said she had a fight with her boyfriend and asked if
he would buy her a drink. He said yes and they went inside and had a drink together.
       Evelyn then told defendant she was not feeling well and he offered to call her a
taxi. She said they could just walk home and he agreed to walk with her. During the
walk, Evelyn asked defendant if he had any money and if he was interested in her


                                             5
“services.” Defendant said he realized then she was a prostitute and told her yes, but they
could not go into his mother’s apartment because his mother would not approve.
Defendant said she seemed agitated by that, but they went into a parking lot near his
mother’s apartment instead. He said they engaged in consensual acts only, with Evelyn
performing oral sex on him. He denied any other sexual acts, explaining that he was
unable to maintain an erection because he was too drunk. Defendant denied raping or
forcing Evelyn to do anything and denied there was any van, weapon, or anyone else
involved. Defendant admitted that in 2004 he suffered a felony conviction for carrying a
concealed firearm in a car.
       On cross-examination, defendant conceded he and Evelyn may have attempted
vaginal intercourse as well but were not able to do so because of his inability to maintain
an erection. He said he left Evelyn around 1:00 or 1:30 a.m. and went home to his
mother’s apartment and fell asleep. When he woke up the next morning he realized he
had Evelyn’s cell phone. He said she had been carrying the phone in her cleavage and it
kept falling out as they tried to have sex, and at some point he believed he picked it up
and put it in his pocket and forgot to give it back to her. Defendant said he did not try to
return the phone to her because he had given her money for oral sex, which had not been
satisfactory, so he decided to just keep the phone. Defendant initially denied making the
texts documented in the records pertaining to Evelyn’s phone even though the texts were
exchanged with his then-girlfriend, Ms. Navarette. Defendant eventually admitted he
was using the stolen phone and sent a couple of the texts.
       Defendant’s pretrial recorded interview with the investigating detectives was
played for the jury. In the interview, defendant repeatedly denied any knowledge of any
incident on the Fourth of July in 2012. He said he had been at the park with his kids and
Ms. Navarette to watch fireworks. He denied being anywhere near 8th Street and
Valencia, or with other males in a van. After he put his kids to bed that night, he hung
out with his girlfriend and did not go out again for the rest of the evening. Defendant
admitted he had had sex with a lot of women, but he denied raping anyone.



                                              6
        Later in the interview, defendant said he recalled going to some bars one night in
July 2012, but it was definitely not the Fourth of July. He had drinks and danced with a
forty-something Hispanic woman who bartended at the club. After having a few drinks,
they walked back towards his mother’s apartment, but did not go inside. They fooled
around in a parking lot instead. The woman performed oral sex on him and he ejaculated.
They also may have done it “doggie style.” It was consensual and there were no other
people involved. Defendant never referred to the woman as a prostitute.
        When asked about the inconsistencies between his interview and his trial
testimony, defendant said he just did not remember clearly everything that happened.
        Defendant was also asked on cross-examination about a recorded phone call he
made from jail to his mother. In the call, defendant’s mother said that she recalled he had
been out in the street with his friends lighting fireworks on July 4, 2012. Defendant
responded by saying “[L]isten. We are going to say that we went to the – went to the
park, okay? That’s better. Look, listen, tell that to Crystal, quote, we went to Elysian
park, end quote. Okay.” Defendant denied he was trying to correct his mother or tell her
how to testify, only that he was trying to get her to remember what they had actually
done.
        The jury found defendant guilty as charged, except for count 4 (sodomy in
concert) on which they acquitted. Defendant was sentenced to state prison as follows: a
term of 25 years to life on count 2, plus one year for the firearm allegation; a consecutive
term of 25 years to life on count 3, plus one year for the firearm allegation, and a
consecutive midterm of 3 years on count 5, plus one year for the firearm allegation. The
court imposed and stayed a life term plus one year on count 1.
        This appeal followed.
                                      DISCUSSION
        In People v. Castro (1985) 38 Cal.3d 301, 317 (Castro), the Supreme Court held
that “a witness’ prior conviction should only be admissible for impeachment if the least
adjudicated elements of the conviction necessarily involve moral turpitude.” Defendant
contends the court prejudicially erred by admitting, as impeachment, his 2004 conviction


                                              7
for carrying a concealed weapon in a vehicle because the offense is not one of moral
turpitude. Respondent argues the Supreme Court concluded in People v. Robinson
(2005) 37 Cal.4th 592 (Robinson) that a misdemeanor conviction for carrying a
concealed weapon on one’s person is a crime of moral turpitude. Therefore, respondent
contends the trial court correctly found that carrying a concealed firearm in a vehicle is
also such a crime. Neither party has cited a case holding that a violation of section
25400(a)(1) for carrying a concealed weapon in a vehicle is a crime of moral turpitude.
       Whether a particular conviction involves moral turpitude is a question of law for
the court to resolve. (People v. Collins (1986) 42 Cal.3d 378, 390.) In making that
determination, courts follow the “ ‘least adjudicated elements’ test” set forth in Castro.
“The ‘least adjudicated elements’ test means that ‘from the elements of the offense alone-
-without regard to the facts of the particular violation--one can reasonably infer the
presence of moral turpitude.’ [Citations.]” (People v. Feaster (2002) 102 Cal.App.4th
1084, 1091 (Feaster).) “Crimes involve moral turpitude when they reveal dishonesty, a
‘ “general readiness to do evil,” ’ ” (People v. Gabriel (2012) 206 Cal.App.4th 450, 456),
or “moral laxity of some kind.” (People v. Garrett (1987) 195 Cal.App.3d 795, 798
(Garrett).)
       Section 25400(a)(1) makes it a crime for one to carry “concealed within any
vehicle that is under the person’s control or direction any pistol, revolver, or other firearm
capable of being concealed upon the person.” Conviction under the statute requires proof
that the “defendant carried within a vehicle a firearm capable of being concealed on the
person,” the “defendant knew the firearm was in the vehicle,” the “firearm was
substantially concealed,” and the “vehicle was under the defendant’s control or
direction.” (See CALCRIM No. 2521.)
       Defendant maintains that a violation of the statute is a passive crime and that
moral turpitude cannot necessarily be inferred from the “least adjudicated elements”
because there is no affirmative act required which evinces a readiness to do evil. We
disagree with defendant’s characterization of the offense. Section 25400(a)(1) is part of
The Dangerous Weapons Control Law. (See generally Pen. Code, § 23500 et seq.) It is


                                              8
well established that crimes involving firearms pose a recognized risk of violence. (See,
e.g., People v. Nelums (1982) 31 Cal.3d 355, 359-360 [even “passive display” of an
inoperable firearm may “stimulate resistance” and carries increased risks of harm thus
justifying enhanced punishment].) Because of the risk of violence inherent with the
possession and use of firearms, statutes imposing prohibitions on firearms have long been
upheld as a legitimate exercise of the state’s regulatory authority. (See, e.g., District of
Columbia v. Heller (2008) 554 U.S. 570, 626-628, 636 (Heller) [acknowledging
constitutional validity of prohibitions on firearms including the carrying of concealed
weapons, and distinguishing such uses from the traditionally lawful purpose of “self-
defense within the home”]; People v. Yarbrough (2008) 169 Cal.App.4th 303, 313-314
(Yarbrough) [rejecting constitutional challenge to former Pen. Code, § 12025, subd. (a)];
People v. Ellison (2011) 196 Cal.App.4th 1342, 1346-1347 [same].)
       Numerous crimes involving firearms have been held to involve moral turpitude.
(See, e.g., Garrett, supra, 195 Cal.App.3d at pp. 799-800 [conspiracy to possess
unregistered firearms in violation of federal statute]; Feaster, supra, 102 Cal.App.4th at
pp. 1092-1093 [negligent discharge of firearm under Pen. Code, § 246.3, which could
result in injury or death]; People v. Rivera (2003) 107 Cal.App.4th 1374, 1378-1382
[misdemeanor possession of deadly weapon with intent to assault].)
       We are not persuaded by defendant’s argument that the act of intentionally
carrying a concealed firearm in a vehicle, hidden from the view of others, but capable of
ready use, fails to connote moral turpitude. “[C]arrying a firearm concealed on the
person or in a vehicle . . . is not in the nature of a common use of a gun for lawful
purposes which the court declared to be protected by the Second Amendment in Heller.
[Citation.] Unlike possession of a gun for protection within a residence, carrying a
concealed firearm presents a recognized ‘threat to public order,’ and is ‘ “prohibited as a
means of preventing physical harm to persons other than the offender.” [Citation.]’
[Citation.]” (Yarbrough, supra, 169 Cal.App.4th at pp. 313-314.) “[A] person who
carries a concealed firearm in a vehicle, in an unlocked case which permits him
immediate access to the firearm but impedes others from detecting its presence, poses an


                                              9
‘imminent threat to public safety . . . .’ [Citation.]” (People v. Hodges (1999) 70
Cal.App.4th 1348, 1357.)3
       Simply because a violation of section 25400(a)(1) does not require either an intent
to injure, or the brandishing or discharging of the weapon, does not mean the crime fails
to connote moral turpitude. Indeed, several courts have concluded that the possession of
a firearm may evince moral turpitude. In Robinson, supra, 37 Cal.4th 592, the Supreme
Court addressed the defense contention that the trial court had wrongly excluded prior
misdemeanor convictions for carrying a concealed handgun on one’s person as against
two prosecution witnesses. The Supreme Court affirmed the trial court’s exercise of
discretion to exclude the prior convictions on the grounds the probative value was
outweighed by prejudice, but in so concluding, the court expressed its agreement that
“the misdemeanor convictions suffered by [the two witnesses] reflected a crime of moral
turpitude.” (Id. at p. 626; see also People v. Robinson (2011) 199 Cal.App.4th 707, 714-
715 [possession of firearm by felon]; People v. Littrel (1986) 185 Cal.App.3d 699, 702-
703 [same]; People v. Gabriel, supra, 206 Cal.App.4th at pp. 456-458 [possession of
assault weapon].)
       Defendant argues the crime of carrying a concealed firearm on one’s person is
qualitatively different because it presupposes intentionally arming oneself, an act which
evinces a readiness to do evil. Defendant contends that, in contrast, a violation of section
25400(a)(1) does not require proof that the defendant was the one who concealed the
firearm in the vehicle, or any other affirmative act. This argument fails because a
violation of section 25400(a)(1) requires proof that the defendant knowingly and
intentionally carried a firearm concealed in a vehicle under his control. (People v. Jurado
(1972) 25 Cal.App.3d 1027, 1030 [“under the various statutes making criminal the
possession of a weapon, knowledge of the presence and character of the object is an

3      The statutory scheme enumerates various exemptions for the lawful transport of a
firearm in a vehicle, including, for example, within a locked container (Pen. Code,
§ 25610), to and from a licensed target range (§ 25540), or by a licensed hunter or
fisherman while engaged in hunting or fishing (§ 25640).


                                             10
element of the offense”].) A defendant who intentionally carries a concealed firearm in a
vehicle “which permits him immediate access to the firearm but impedes others from
detecting its presence, poses an ‘imminent threat to public safety.’ [Citation.]” (People
v. Hodges, supra, 70 Cal.App.4th at p. 1357.) In our view, such conduct evinces moral
turpitude in the same way as personally arming oneself.
       Defendant’s reliance on People v. Arzate (2003) 114 Cal.App.4th 390 is also
unavailing. The court in Arzate was not asked to consider whether a violation of section
25400(a)(1) was a crime of moral turpitude. Rather, the court was asked to decide
whether a conviction for carrying a concealed firearm in a vehicle supported a firearm
use enhancement pursuant to Penal Code section 12022.5. Arzate rejected the
defendant’s argument that the “act of concealing a handgun is synonymous with its use.”
(Arzate, at p. 399.) Given the separate context of Arzate, we do not find it instructive on
the issue presented here.
       In sum, we hold that the crime of carrying a concealed firearm in a vehicle in
violation of section 25400(a)(1) is a crime of moral turpitude which may be used as
impeachment.
       The admission of the prior conviction nonetheless remained subject to the trial
court’s broad discretion “under [Evidence Code] section 352.” (Castro, supra, 38 Cal.3d
at p. 317.) “A trial court’s ruling to admit or exclude evidence offered for impeachment
is reviewed for abuse of discretion and will be upheld unless 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. Ledesma (2006) 39 Cal.4th 641,
705.) We find no such abuse.
       The court balanced relevant factors in assessing the admissibility of the prior
conviction. The court found that the prior conviction which occurred just eight years
before the charged offenses was not too remote. The court also found that prejudice did
not outweigh the probative value because the charged offenses were much more serious
and not substantially similar, such that the jury was not likely to be unfairly influenced by
the prior conviction. Defendant argues the admission caused significant prejudice


                                             11
because the case was essentially a “he said-she said” credibility contest. It is precisely
for that reason that the court correctly found that defendant’s prior conviction of a crime
of moral turpitude was highly relevant. The court instructed the jury with CALCRIM
No. 316 which provides, in relevant part, that “[i]f you find that a witness has been
convicted of a felony, you may consider that fact only in evaluating the credibility of the
witness’s testimony. The fact of a conviction does not necessarily destroy or impair a
witness’s credibility. It is up to you do decide the weight of that fact and whether that
fact makes the witness less believable.” Defendant has not demonstrated that the
admission of his prior conviction resulted in a “miscarriage of justice.” (People v.
Ledesma, supra, 39 Cal.4th at p. 705.)
                                      DISPOSITION
       The judgment of conviction is affirmed.


                                                  GRIMES, J.
       WE CONCUR:
                            BIGELOW, P. J.




                            RUBIN, J.




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