Filed 10/20/15 P. v. Davis 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F068923
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF41782)
                   v.

RODNEY HAWKINS DAVIS, JR.,                                                               OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.

         Anne V. Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                        INTRODUCTION
       Rodney Hawkins Davis, Jr., was convicted at the conclusion of a jury trial of
second degree commercial burglary (Pen. Code,1 § 459). One count of identity theft
(§ 530.5, subd. (a)) was dismissed prior to trial. The trial court denied defendant’s oral
and written motions for a new trial. The court suspended imposition of sentence and
placed defendant on felony probation for five years on various terms and conditions,
including that he spend eight months in county jail.
       On appeal, defendant contends the trial court deprived him of a fair trial by ruling
a nonhearsay statement of a third party was inadmissible. Defendant contends the trial
court also erred in not permitting him to impeach the victim with evidence the victim
offered defendant money to enter into a plea agreement. Defendant argues the trial court
erred in permitting him to be impeached with prior convictions without sanitizing them
and there was cumulative error.
       Defendant contends there was an error in the minute order granting him probation.
In a supplemental brief, defendant seeks relief from this court to modify his conviction
from a felony to a misdemeanor pursuant to Proposition 47 and section 1170.18. We
affirm the judgment with instructions for the trial court to clarify its ruling granting
defendant probation and without prejudice to defendant filing a motion with the trial
court to recall his sentence pursuant to section 1170.18.
                                              FACTS
People’s Case
       At 1:45 p.m. on July 20, 2013,2 defendant and a woman who identified herself as
Jessica Gomez or Gomes went to the Moccasin Point Marina at Lake Don Pedro to rent a
jet ski for two hours from reservations clerk Jerri Souza. Defendant paid $680 cash for a
two-hour rental. Neither defendant nor Gomez showed Souza any identification although

       1Further statutory references   are to the Penal Code unless otherwise indicated.
       2Unless   otherwise designated, all date references are to the year 2013.

                                                 2.
they both executed liability release forms. Defendant did not return the jet ski that
evening.
         Defendant returned around 8:30 a.m. the next morning. As a courtesy, Souza
switched the two-hour rental to a 24-hour rental. Defendant asked to have some of his
cash payment refunded so he could place the balance on his credit card. Souza could not
remember whether defendant identified the credit card as “a credit card” or “his credit
card.”
         Defendant handed Souza a credit card. Defendant and Gomez were not acting like
other customers who usually want to get over the paperwork and onto the lake. They
were being chatty, interacting with each other, and not in a hurry to finish the paperwork.
These interactions were unusual enough that Souza would have remembered them even
had an incident not happened. Also, defendant and Gomez made a point of stating they
were not a couple and were dating other people. The banter was distracting and made it
difficult for Souza to concentrate on the credit card transaction and move on. There were
other customers in the store. Souza asked them to let her concentrate.
         When Souza started to swipe the credit card, defendant and Gomez became very
quiet and looked worried. Prior to swiping the card, defendant and Gomez told her not to
swipe it because it had not been working. They told Souza she would have to manually
enter the numbers. After swiping the credit card, it came up with all X’s and no name.
Souza had never seen this before. After Souza entered the credit card numbers manually,
the display showed the final numbers 8052 and the defendant’s name. The charge on the
card was $494.60.
         Souza generated a new invoice that defendant signed. Defendant and Gomez
became chatty and interactive again. Souza never heard the name “Jay” mentioned in the
conversation between defendant and Gomez. About 3:30 p.m. that day, David Paravagna
called to explain that someone had used his credit card at the facility. Paravagna was
very upset and told Souza the amount of the transaction was $494.60. Paravagna gave


                                             3.
Souza the last four numbers of his credit card. They were identical to those on the card
used by defendant.
       Souza gave Paravagna the number to the sheriff’s department and she also
contacted rangers from the lake recreation agency. The rangers directed Souza to contact
the sheriff’s department. Deputy Timothy Wertz contacted Souza and she told him what
had happened and provided him with the paperwork from the transaction with defendant.
       Paravagna lived in Walnut Creek and had a prior conviction in 2002 for assault
and battery on a peace officer. On July 21, Paravagna was trying to make a purchase at
Safeway and his credit card was declined. Paravagna used a bank application, or app, on
his cell phone to check his credit card activity and discovered purchases had been made
in Moccasin Point in Tuolumne County, at Wal-Mart twice, at Rite Aid, and at Carl’s Jr.
Paravagna contacted Moccasin Point about the charge on his credit card because he lived
in Walnut Creek.
       The woman with whom Paravagna talked to sounded panicked when he asked her
about the charges on his credit card and at first shared no information. The woman called
back later and provided more information, including that the suspect had been arrested.
Paravagna provided her and law enforcement with the entire credit card number. A
sheriff’s deputy told Paravagna to get an affidavit of forgery from his bank.
       Paravagna had replaced the old card with a new one. He recalled the old card had
the last four numbers 8052 and the purchase from the jet ski vendor was $468 or $470.
After refreshing his recollection, Paravagna verified the amount was $494.50. No one
had Paravagna’s permission to use his credit card or to rent anything at Moccasin Point
on July 21. Paravagna did not know defendant, Jessica Gomez, or a Hispanic woman
named Jay. No one else had access to Paravagna’s credit card, which he kept in his
wallet. Paravagna had been to the marina in the past, but never used his credit card there.
       Tuolumne County Sheriff’s Deputies Timothy Wertz and Robert Speers, on boat
patrol on Don Pedro Lake on July 21, were dispatched to the Moccasin Point Marina that


                                            4.
afternoon. There, they contacted Souza who told them about the incident and described
defendant. The deputies soon found defendant. Wertz supervised the return of the jet ski
and Speers talked to defendant. Defendant provided deputies with a phone number that
was disconnected. Wertz recalled that defendant described his companion as his
girlfriend. Wertz talked to Souza and Paravagna and the credit card numbers they each
provided matched.
       Prior to questioning defendant, Speers read defendant his Miranda rights from a
department-issued card.3 Defendant waived his rights and talked to Speers. Defendant
said he had come to Tuolumne County with Erica and a woman he had been seeing for a
couple of weeks whom he variously referred to as Jay Degair, Jay Degairy, and Jay
Deguer. Defendant explained they had stopped at a store on the way to the lake and
bought ice with the credit card.
       After not bringing the jet ski back on time, defendant said he got a “sweet deal” on
an extended rental. Jay told defendant to get their cash back and place the rental fees on
the credit card. Defendant initially said his name was on the credit card. Defendant said
Jay took the credit card to do some shopping at Wal-Mart after he rented the jet ski.
Asked how Jay could go shopping with his credit card, defendant told Speers the card had
Jay’s name on it. Defendant then said he did not know what name was on the credit card
but he “just knew” the card belonged to Jay. When Speers asked defendant why he was
lying, defendant replied that some of what happened “was on him” because he signed the
receipt. Defendant admitted he was the one who rented the jet ski.
       A male and female came up to the marina after defendant was arrested and asked
for property off the jet ski. The female asked for keys from defendant. Speers did not
know the name of either person.




       3Miranda   v. Arizona (1966) 384 U.S. 436.

                                              5.
Defense Evidence
       Defendant testified he went camping on July 20 with Jessica Gomez and her
friends, Erica and Jay. Defendant had prior convictions for pimping and unlawful sex
with a minor in 2005. Gomez, Jay, and Erica purchased snacks at Wal-Mart on the way
to the lake, but defendant did not know how they paid for them. Defendant denied telling
investigators he paid for anything with Jay’s credit card.
       Defendant went with Gomez to rent the jet ski on July 20. Defendant brought
nearly $1,000 for the camping trip because he wanted to ride a jet ski. Defendant did not
have a credit or debit card. After losing track of time and not returning the jet ski on the
20th, the group decided to change the rental to 24 hours.
       The credit card used to change the rental agreement belonged to Jay, not
defendant. Defendant denied his name was on the card, although he admitted he never
looked at the card to see whose name was on it. Jay gave the card to Jessica Gomez at
the campsite, who later gave it to defendant when they changed the rental agreement.
Defendant believed he had permission to use the credit card. Gomez, not defendant, told
Souza the card would not work if swiped. Defendant did not know there was anything
wrong with the card until deputies told him the card was stolen.
       Defendant was unsure of Jay’s last name and denied he told anyone it was Deguer.
Defendant has a friend named Valorie Deguair, but she was not with the camping party.
Defendant never gave any officer a phone number, but Gomez did. Gomez and her
boyfriend were the two people who retrieved property from the jet ski. Defendant could
not explain why Gomez was not subpoenaed to testify at trial.
Rebuttal Evidence
       Souza testified that Jay’s name was not on the credit card used to pay for the jet
ski rental and defendant’s name was on the card. Souza would not have accepted the
credit card if it had Jay’s name on it. Speers testified that the woman who retrieved




                                             6.
property from the jet ski was Jessica Valdez according to her driver’s license. She did
not identify herself as Jessica Gomez.
                                       DISCUSSION
1.     Excluding Third Party Statement
       Defendant contends the trial court erred in excluding a statement from “Jay” to
defendant regarding Jay’s authority to use the credit card because the statement was not
hearsay and was relevant for an issue at trial. Although we find error in the trial court’s
ultimate ruling, we conclude it was harmless.
Pretrial Motion
       Defense counsel sought to introduce evidence a third person, Jay, had the credit
card and gave permission to defendant to use it to rent the jet ski. The prosecutor
objected to the statement that Jay gave defendant permission to use the card because she
was not under subpoena, it was hearsay offered for the truth of the matter, and there was
no hearsay exception. Defense counsel replied the statement was admissible because it
was proof of defendant’s state of mind when he used the card, even if the card did not
belong to Jay. According to defense counsel, Jay’s statement was admissible to show its
effect on the listener.
       After arguing other matters, the court returned to the admissibility of Jay’s
statement to defendant. Defense counsel explained defendant would testify Jay gave the
credit card to Jessica Gomez, and defendant used the card with Jay’s permission. The
prosecutor again objected this was hearsay with no applicable exception. The prosecutor
argued it did not fit within the state of mind exception under Evidence Code section 1250
because that exception goes to the state of mind of the declarant, not to the listener’s state
of mind. The prosecutor further objected to the trustworthiness of the statement.
Defense counsel insisted the statement was admissible to show its effect on the listener.
       The court noted Jay’s statement was not being offered for the truth of the matter
asserted and was relevant. Finding the statement outside the purview of hearsay and


                                              7.
admissible, the court held the declarant still had to be identifiable and asked defense
counsel if defendant would be able to identify the person who made the statement. The
only requirement the court imposed to admit the statement was the declarant’s name,
including the last name. The court stated it was concerned about the trustworthiness and
reliability of the statement and that defendant relied on it.
Trial Objections
       Defendant did not give Jay’s last name during his testimony. As defendant
testified concerning how the group decided to rent the jet ski, the prosecutor objected to
any part of defendant’s testimony relying on hearsay. The trial court ruled defendant
could describe how he rented the jet ski, but not to statements from others in the party.
Defendant proceeded to testify the card belonged to Jay.
       When asked how he came to use the card, the trial court sustained the prosecutor’s
hearsay objection and reminded defense counsel his ruling would stand until the court got
“more information.” Defendant testified he understood he was to use the card to pay for
the jet ski the next day, he believed he had permission to use the card, and Jay gave the
card to Jessica Gomez, who then gave the card to defendant.
Analysis
       During the in limine hearing, the trial court found the statement was not being
offered for the truth of the matter asserted, but to show defendant’s intent when he used
the credit card to rent the jet ski. The trial court’s ruling followed the principle that an
out-of-court statement can be admitted for the nonhearsay purpose of showing it imparted
information to the hearer, and the hearer, believing such information to be true, acted in
conformity with that belief. The nonhearsay purpose must also be relevant to an issue in
dispute. (People v. Montes (2014) 58 Cal.4th 809, 863.)
       The trial court’s concern, however, was with the trustworthiness of the statement,
and it required defendant to give the full name of the declarant to ensure the statement
was trustworthy. In so ruling, the trial court appeared to be following the requirement of


                                              8.
Evidence Code section 1252 holding that: “Evidence of a statement is inadmissible
under this article if the statement was made under circumstances such as to indicate its
lack of trustworthiness.” The article this section refers to is the one governing the use of
hearsay. (Evid. Code, § 1200 et seq.)
       Because the declarant Jay’s statement was nonhearsay, the hearsay section and
exceptions were not applicable, and the requirement of trustworthiness set forth in
Evidence Code section 1252 does not appear to be applicable to the trial court’s ruling.
We find no reason why defendant had to provide Jay’s entire name because the absence
of a last name goes not to the admissibility of the statement but to the weight the jury
should have accorded it.
       Any error in excluding Jay’s nonhearsay statement that she told defendant to use
the credit card, however, was harmless under the standards set forth in People v. Watson
(1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18. The evidence
against defendant was far stronger than he argues in his opening brief. The victim,
Paravagna, testified he discovered after his credit card had been denied during an
attempted purchase that the card had been used at the Moccasin Point Marina and several
other locations in Tuolumne County without his permission, and no one was authorized
to use his credit card. Souza testified she later received a telephone call on the day of the
credit card transaction from Paravagna who related to her the exact amount of the jet ski
rental purchase.
       Souza, the clerk at the marina, related a series of events that bring into question
defendant’s entire account. The card defendant handed to Souza had defendant’s name
on it, not the victim’s name or Jay’s name. It matched the identification defendant
provided. Souza explained that had defendant presented a card with another person’s
name, she would not have accepted it.
       Defendant and Gomez were very talkative prior to the credit card transaction, but
became quiet as Souza attempted to swipe the card. They told Souza not to swipe the


                                             9.
card because it would not work, though she swiped it anyway. After swiping the card,
Souza saw X’s show up where the credit card number and card holder’s name would
normally appear. She had never seen this happen before. Defendant and Gomez told
Souza to key in the number of the credit card. Defendant’s demeanor before and after
Souza swiped the credit card was highly suspicious, as was the entire transaction.
          Also, defendant testified his camping group decided to rent a jet ski and, more
importantly, that Jay handed the credit card to Gomez, who in turn handed it to defendant
prior to the credit card transaction. The most exculpatory evidence offered by defendant
and the gravamen of Jay’s actions was her act of handing off the credit card. The only
reasonable implication of this conduct was that the card belonged to Jay, not to Gomez or
defendant, and Jay had given them permission to use the card. The jury heard this key
evidence, although without the accompanying statement telling defendant to use the
credit card. We further note the substance of the challenged statement came into
evidence through the testimony of Deputy Speers who testified defendant told him Jay
directed him to get back the cash deposit and use the credit card for the extended jet ski
rental.
          Defendant testified Gomez, not defendant, told Souza the card would not work if
swiped. Defendant did not know there was anything wrong with the card until deputies
told him the card was stolen. Defendant inconsistently told Speers the credit card had his
name on it and later said it had Jay’s name on it. The jury was able to weigh the evidence
advanced by the People and defendant and evaluate its credibility. We conclude the
absence of the proffered testimony could not have changed the jury’s verdict.
2.        Victim’s Pretrial Encounter With Defendant
          Defendant contends the trial court abused its discretion, violating his Sixth
Amendment right to confrontation, when it excluded impeachment evidence regarding a
pretrial encounter between him and Paravagna in the courthouse hallway. We do not
agree.


                                               10.
Pretrial Hearing on Courthouse Encounter
       As the trial was about to commence with jury selection, Paravagna encountered
defendant in the hallway of the courthouse. Defense counsel brought a motion to
introduce details of the encounter to impeach Paravagna, and the trial court conducted an
in limine motion to determine the admissibility of the evidence.
       The trial court viewed a video of the conversation between Paravagna and
defendant without audio. The court noted the conversation took place over six minutes.
The video reflected that Paravagna “reached into his left pocket and displayed some
material” to defendant. A bailiff, Deputy Muriel Dutch, heard at least part of the
conversation. According to Dutch, Paravagna said something like: “‘Come on, Davis.
Let’s—make a plea. Let’s get out of here.’”
       As an offer of proof, defense counsel stated defendant would testify Paravagna
came over, asked if defendant was Davis, and defendant replied affirmatively. Paravagna
explained he was the one whose credit card was used, or that he was the victim.
Paravagna told defendant he did not want to testify and stated he was only there because
they would arrest him if he did not come. Paravagna told defendant he should take a
deal. Paravagna said: “‘What are you going to do for me? I’ll take the 5th on the
stand.’” Counsel explained that when Paravagna went through security, he took a large
wad of cash out of his pocket and then put it back into his pocket. Defense counsel
believed Paravagna threatened defendant to one of the officers who was going to testify
and was asked to leave until 11:00 a.m.
       While noting Paravagna’s absurd behavior made him look like an idiot, the court
asked defense counsel how Paravagna’s conduct would impeach his testimony that his
credit card was used without his permission. Defense counsel replied defendant would
testify the third party, Jay, gave defendant permission to use the card. The court was
unconvinced any of this information impeached Paravagna.




                                            11.
         Deputy Wertz testified he spoke with Paravagna about the incident. Paravagna
said he only told defendant to “just plead out, get rid of this” so he could go home. Wertz
told Paravagna they rarely ever apprehend the suspect for these types of crimes.
Paravagna told Wertz he did a good job and he was happy the person responsible got
caught.
         At the hearing, Valorie Deguair testified she was sitting in the courthouse hallway
when the conversation between Paravagna and the deputy occurred. She heard the
deputy mention he was the one who arrested defendant and Paravagna reply, “‘Good
job.’” The deputy told Paravagna he did not know why defendant was “trying to beat the
case.”
         Deguair said she heard the conversation between defendant and Paravagna.
Paravagna introduced himself to defendant as “‘the guy whose credit card number it
was’” and urged defendant to “‘take the deal.’” Paravagna told defendant he was
subpoenaed and had to be there. Paravagna asked defendant not to make him go onto the
witness stand. Paravagna told defendant his credit card was denied as he tried to
purchase diapers. Paravagna outlined the purchases made on his credit card and asked
defendant to settle the case so he did not have to take the stand. Paravagna asked
defendant what he had for Paravagna or what defendant could offer Paravagna.
         Deguair further explained Paravagna said, ““We could take this outside and handle
it, but I’m coming to you man to man, sitting right in front of you man to man.’”
Paravagna continued, “‘You need to just take the deal’” and “‘[w]hat do you have to offer
me?’” Defendant replied he had paid cash and was just trying to explain his case.
Paravagna replied, “‘That’s not enough.’” According to Deguair, Paravagna pulled out a
big wad of money from his pocket and showed it to defendant. Deputy Speers testified
he was not present during these encounters, which occurred in the morning. That
afternoon, Speers and Wertz saw Paravagna talking to a prosecution witness and told him
to stop talking to people involved with the case.


                                             12.
       Defense counsel argued the incident was directly relevant to Paravagna’s
credibility. The prosecutor conceded there was some relevance to Paravagna’s
credibility, but argued the evidence was more prejudicial than probative and should be
excluded pursuant to Evidence Code section 352.
       The trial court ruled the consumption of time to present the evidence outweighed
its relevance. The court did allow for the evidence to be admitted if Paravagna somehow
opened the door during his testimony.
Analysis
       The constitutional right to confrontation is guaranteed under both the United
States and California Constitutions. The primary reason an accused is entitled to confront
adverse witnesses is to permit cross-examination. (People v. Brown (2003) 31 Cal.4th
518, 538.) The right to cross-examine adverse witnesses includes the opportunity to
question them on matters reflecting on their credibility. Judges retain wide latitude to
impose reasonable limits on cross-examination. (People v. Frye (1998) 18 Cal.4th 894,
946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-842.) Confrontation rights
are not violated unless a defendant shows a prohibited cross-examination would have
produced a significantly different impression of the witness’s credibility. (People v.
Frye, supra, at p. 946; People v. Szadziewicz, supra, at p. 842.)
       A trial court has broad discretion under Evidence Code section 352 to exclude
evidence if its probative value is substantially outweighed by the probability its
admission will either necessitate undue consumption of time, or create a substantial
danger of undue prejudice, confusing the issues, or misleading the jury. The trial court
retains broad power to control the presentation of evidence to prevent criminal trials from
descending into nitpicking wars of attrition over collateral credibility issues. Rulings
under Evidence Code section 352 are evaluated on appeal using the abuse of discretion
standard. (People v. Riccardi (2012) 54 Cal.4th 758, 808-809.) Although Evidence Code


                                            13.
section 352 must yield to a defendant’s due process right to a fair trial and to present all
significant probative evidence to his or her defense, the exclusion of defense evidence on
a minor or subsidiary point does not interfere with that constitutional right. (People v.
Cunningham (2001) 25 Cal.4th 926, 999.)
       Here, the probative value of the excluded evidence was low because it did not
have any effect on Paravagna’s statements to Souza or investigators; these statements
were corroborated by Souza and investigators. Also, defendant’s case did not rest on
Paravagna’s credibility because defendant did not challenge the evidence establishing the
credit card belonged to Paravagna. Instead, while acknowledging the card did not belong
to him, defendant maintained the card was given to him by Jay.
       Paravagna’s statements to defendant and to Wertz during the courthouse hallway
encounters indicate he clearly did not want to testify at trial and he related this to
defendant. Paravagna was nervous on multiple occasions during his trial testimony.4
However, in his encounter with defendant, he never indicated the allegations were false
or exaggerated.
       A mini-trial on Paravagna’s encounter with defendant would have included
evidence from Deputies Dutch and Wertz, and Valorie Deguair that Paravagna did not
want to testify and Paravagna had urged defendant to accept a plea deal. Furthermore,
evidence relating to a prior offer to plead guilty or of a prior guilty plea that was
withdrawn is inadmissible in a criminal trial. (See Evid. Code, § 1153.) Evidence of the
full encounter could have further included statements from Paravagna to Wertz that he
did a good job in catching the culprit and Wertz’s statement to Paravagna that they rarely
catch perpetrators of credit card fraud. These statements would only have inculpated the
defendant, confused the issues, and misled the jury.



       4During his testimony, Paravagna talked quickly and apologized. He said, “I am a little
nervous being up here, so—it is not my cup of tea.” Later, the trial court asked Paravagna to
slow down and Paravagna again said he was “a little nervous being up on the stand.”

                                              14.
       According to defense counsel, defendant alone would have added to the facts that
Paravagna offered defendant money for Paravagna to plead the Fifth Amendment. The
statement that Paravagna would plead the Fifth Amendment makes no sense in the
context of these proceedings and would not impeach Paravagna because Paravagna was
not charged with any offense.
       The statement in defense counsel’s offer of proof that cash was offered to
defendant was corroborated by Deguair, but not by Dutch. After reviewing the video of
the encounter, which lasted about six minutes, the trial court stated that it looked as
though Paravagna was pulling “material” out of his pocket. We have viewed the video,
which is part of the record, and cannot conclusively determine what Paravagna did.
Paravagna is sitting on a bench seat across from defendant, who is also seated.
Paravagna is talking to defendant using animated hand and arm gestures. Toward the end
of the conversation, Paravagna stands up, places his left hand into his left pants pocket,
and briefly pulls something out of his pocket before placing it back and sitting down.
Even if we assume Paravagna displayed cash to defendant, this would not necessarily cast
Paravagna’s credibility in a negative light. There could be multiple innocent
explanations for Paravagna’s conduct. Taking the time for the jury to hear those
explanations, along with the time it would take to hear the negative connotations, would
ultimately do little to impeach Paravagna, lead to confusion over the issues, and
potentially mislead the jury.
       We agree with the trial court’s early assessment of Paravagna’s encounter with
defendant as absurd and casting Paravagna in a ridiculous light. Even though defendant
couches the excluded evidence as substantial proof that undermined Paravagna’s integrity
and credibility, the exclusion of evidence of Paravagna’s encounter with defendant,
which was carefully considered by the trial court, ultimately involved a subsidiary point.
Paravagna’s testimony established there was unauthorized use of his credit card. Most
other key elements of the prosecution’s case were established by other witnesses. The


                                             15.
trial court did not abuse its discretion in applying Evidence Code section 352 to foreclose
a mini-trial on a collateral matter that would have had the strong potential to confuse the
issues and mislead the jury.
       The parties cite People v. Ardoin (2011) 196 Cal.App.4th 102, 121-122. In
Ardoin, the trial court limited defense cross-examination of a prosecution witness who
had engaged in violent acts and deceit. There was already evidence the witness had prior
convictions and had other character flaws affecting her credibility. The excluded
impeachment evidence added little more to the witness’s profile. But the witness’s
testimony was corroborated on key points by other prosecution witnesses.
       The court in Ardoin found no error in the trial court’s application of Evidence
Code section 352. Here, too, the strongest impeachment evidence against Paravagna was
his prior felony conviction for assaulting a peace officer. This was presented to the jury.
Also, Paravagna’s testimony was corroborated by other prosecution witnesses. We apply
the holding in Ardoin to this case and find no error in the trial court’s application of
Evidence Code section 352.
       Furthermore, as discussed above concerning the alleged statement from Jay, the
prosecution had a strong case. We are convinced, beyond a reasonable doubt, the jury’s
verdict would have been the same had the challenged evidence been presented to the jury.
(People v. Brown (2003) 31 Cal.4th 518, 546.)
3.     Sanitizing Defendant’s Prior Convictions
       Defendant contends the trial court erred in failing to sanitize his prior convictions
in 2005 for unlawful intercourse with a minor under 16 years by a person 21 years or
older (§ 261.5, subd. (d)) and pimping (§ 266h, subd. (a)). Defendant argues the trial
court should have sanitized these convictions prior to them being presented to the jury.
Defendant argues the convictions were “relatively remote and … did not reflect directly
on [his] honesty.”




                                             16.
       Notably, although defendant made a motion to exclude his prior convictions, he
did not include a request to have them sanitized. Also, to reduce the element of surprise
to the jury, defense counsel asked defendant on direct examination if he had prior
convictions for the above offenses, and he replied affirmatively. Because defendant
introduced this testimony, he is subject to the doctrine of invited error. (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1138-1139.)
       Even if this issue was not subject to invited error, the trial court did not err in
denying defendant’s motion. The admissibility of past misconduct for impeachment
depends on whether it is relevant to moral turpitude. Trial courts have broad discretion to
admit or exclude convictions used for impeachment. In making a determination on the
admissibility of such evidence, courts should consider whether the prior conduct or
offenses reflect on a witness’s honesty or veracity, if it is near or remote in time, if it is
for the same or similar conduct as the charged offense, and the effect of its admission on
the defendant’s decision to testify. (People v. Edwards (2013) 57 Cal.4th 658, 721-722;
People v. Clark (2011) 52 Cal.4th 856, 931-932.) The impeaching offense may postdate
the charged offense. (People v. Edwards, supra, at p. 722.)
       Prior convictions for pimping, pandering, and burglary can be used against a
defendant to impeach his or her testimony in a prosecution for assault likely to cause
great bodily injury with a great bodily injury enhancement. Engaging in conduct
showing moral depravity, such as pimping, demonstrates a readiness to do evil and is
admissible under Evidence Code section 210. Pimping and pandering are crimes of
moral turpitude. (People v. Jaimez (1986) 184 Cal.App.3d 146, 148-150.) Unlawful
sexual intercourse with a minor has also been found to be a crime of moral turpitude.
(See People v. Fulcher (1987) 194 Cal.App.3d 749, 753.)
       The prior convictions were not for the same or similar conduct as the charged
offense and, as the People point out, there was little danger the jury would confuse the
issues or consider the prior offenses as a propensity by defendant to commit the instant


                                              17.
offense. The trial court instructed the jury pursuant to CALCRIM No. 303 that the prior
convictions could only be considered for assessing the credibility or believability of the
testimony and not for any other purpose. The instruction was not only directed to the
testimony of defendant, but to Paravagna as well.
       Convictions from 2005 were not too remote in time to be admissible. The prior
convictions were eight years prior to the current offense. Prior convictions as far back as
20 years before the current offense have been found to be not too remote where there is
other evidence the defendant has failed to lead a blameless life. (People v. Green (1995)
34 Cal.App.4th 165, 183; People v. Muldrow (1988) 202 Cal.App.3d 636, 648.)
According to the probation report, defendant was convicted of misdemeanor vandalism in
2011 and was still on probation for that offense when he committed the current crime.
The jury was not informed of this misdemeanor conviction or defendant’s probationary
status. Defendant had not led a blameless life since committing the prior offenses. Given
these facts, we do not find defendant’s prior convictions to be too remote to be relevant.
       Finally, defendant elected to testify at trial. The trial court’s ruling did not
negatively impact defendant’s decision. We reject defendant’s contentions that his prior
convictions were too remote in time and did not directly reflect on his honesty. The trial
court did not abuse its broad discretion to permit defendant’s impeachment with
unsanitized prior convictions. (People v. Clark, supra, 52 Cal.4th at p. 932.)
4.     Cumulative Error
       Defendant argues the cumulative effect of the alleged errors constituted a denial of
his right to due process. A series of errors during trial, though independently harmless,
may under some circumstances rise to the level of reversible and prejudicial error.
Where there are a few harmless errors, considered individually or collectively, the
doctrine of cumulative error does not apply. The defendant is entitled to a fair trial, not
to a perfect one. (People v. Cunningham, supra, 25 Cal.4th at p. 1009; People v. Box
(2000) 23 Cal.4th 1153, 1214, disapproved on another ground in People v. Martinez


                                              18.
(2010) 47 Cal.4th 911, 948, fn. 10.) The few errors occurring here were harmless,
whether considered individually or collectively. We reject defendant’s cumulative error
argument.
5.     Correction of Minute Order
       After the proposed terms and conditions of probation, the probation officer’s
report requested under a separate section entitled “PROBATION FEES” that defendant
pay $31.25 per month for probation supervision services. The minute order also has a
section entitled “PROBATION FEES.” This section, however, sets forth probation
supervision services in the amount of $30.75 per month. In granting defendant probation,
the court ordered defendant pay the probation fees set forth in the order granting
probation.
       Defendant contends the minute order of the sentencing hearing requires
modification to clearly state the costs of probation supervision are not a condition of
probation. Although the People argue otherwise, we agree with defendant.
       The costs of probation supervision may not be made a condition of probation.
(People v. Flores (2008) 169 Cal.App.4th 568, 578.) Here, the applicability of this fee as
a condition of probation is ambiguous in the trial court’s ruling, and the minute order
should be clarified to indicate payment of the fees is not itself a condition of probation.
6.     Proposition 47 Contention
       Defendant contends the provisions of Proposition 47 enacted by the people at the
November 4, 2014, General Election apply to his offense committed on July 21, 2013,
and convert his offense of second degree burglary into shoplifting since the larceny did
not exceed $950. The charge on Paravagna’s credit card was only $494.60. Because the
law created a retroactive procedure pursuant to section 1170.18, subdivision (a) to have a
felony reduced to a misdemeanor, unless the court determines defendant presents an
unreasonable risk of danger to public safety, defendant argues this court should order a
modification of his conviction to a misdemeanor.


                                             19.
       The People reply defendant is not entitled to automatic reclassification and
resentencing, but must file a petition for relief from the trial court pursuant to section
1170.18. We agree defendant is not entitled to automatic resentencing on direct appeal
and decline to retroactively apply Proposition 47 to his case on this appeal. (People v.
Delapena (2015) 238 Cal.App.4th 1414, 1425-1429; People v. Lopez (2015) 238
Cal.App.4th 177, 180-182; see People v. Yearwood (2013) 213 Cal.App.4th 161, 167-179
[defendant not entitled to retroactive application of changes to three strikes law on appeal
without first petitioning trial court].)
       We observe defendant’s current felony conviction, however, is not a serious or
violent felony as defined in sections 1192.7, subdivision (c), and 667.5, subdivision (c).
Our opinion is issued without prejudice to defendant to pursue any remedies he may have
before the trial court on remand to recall his sentence pursuant to section 1170.18.
                                           DISPOSITION
       The case is remanded for the trial court to clarify that payment of the probation
supervision fee is not a condition of defendant’s probation. The judgment is affirmed
without any prejudice to the rights defendant may have under section 1170.18 to petition
the trial court for a recall of his sentence and resentencing.

                                                           ___________________________
                                                                               PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P. J.


 ________________________________
KANE, J.




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