Filed 12/22/14 P. v. John CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B250803

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA395535)
         v.

JAMES DAVID JOHN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Rand S. Rubin, Judge. Affirmed.


         Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, James William Bilderback II and Alene M. Games, Deputy Attorneys General,
for Plaintiff and Respondent.


                  ___________________________________________________
       A jury convicted James David John of first degree burglary. (Pen. Code, § 459.)
He was sentenced to a term of 40 years to life. He contends that the trial court erred by
authorizing the use of a rape conviction for impeachment, which dissuaded him from
testifying at trial. John cannot raise the impeachment issue on appeal because he did not
testify. In any event, the evidence of John’s guilt is overwhelming, and there is no
reasonable probability his testimony would have secured a favorable outcome.
                                         FACTS
       Zal Batmanglij was using his home computer at 1:00 a.m. on March 23, 2012. He
heard footsteps above him, on the second floor of the house where he lives alone.
Batmanglij quietly left the house and ran to a neighbor, Ofer Moses, telling Moses that he
thought there was an intruder.
       The two men walked to a point where they had a clear view of Batmanglij’s house.
They saw a man’s face appear in the upstairs sliding glass door. Batmanglij described the
face as “very pale” and “ominous” looking. Frightened, he called 911 to summon help.
During the 911 call, Batmanglij watched his house and did not see anyone leave it.
       At trial, Moses identified the face he saw in the window as defendant John. Moses
testified that defendant stood at the window for 20 to 30 seconds, and what he saw was
“unmistakable.” Moses witnessed several LAPD officers approaching Batmanglij’s
house on foot. Moses saw defendant leave the house as the police arrived.
       Police Officer Jonathan Pacheco and a partner shined their flashlights on a
Caucasian male carrying two paper bags, just outside a door to the victim’s house.
Pacheco identified the man as defendant. When ordered to stop, defendant looked in the
direction of the police and immediately ran through a gate, toward the rear of the
property, dropping the bags as the officers chased him. Pacheco lost sight of defendant
but could hear him climbing over fences. More officers arrived. Pacheco found
defendant hiding under a pile of leaves and bushes in a nearby yard. It was the same
person that Pacheco had just seen at the victim’s house.
       The police showed defendant to the eyewitnesses. Moses confidently identified
defendant as the person whose face he saw at the window. Batmanglij was unable to

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identify defendant. Batmanglij testified that police showed him an “older dude
resembling Nick Nolte,” whereas he told an investigator that the person he saw in the
window of his house had “a young face.”
       The intruder entered by opening a kitchen window and prying back the screen.
After police took defendant into custody, Batmanglij entered his home and saw that his
kitchen cabinets were open, though he had left them closed. Outside of the house,
Batmanglij saw a shopping bag on the ground near the kitchen widow, with his personal
belongings scattered around it—three video cameras, an Apple laptop computer, a bottle
of olive oil, a bottle of liquor from his bar, and a humidor for cigars.
       Defendant’s investigator examined Batmanglij’s home and its surroundings, and
testified that the nearest streetlights are 150 and 171 feet away. Also, Batmanglij’s home
has tinted windows. Defendant did not testify.
                               PROCEDURAL HISTORY
       Defendant was charged with first degree burglary of an inhabited dwelling, with a
person present, a serious felony. The information alleged that defendant has felony
convictions.1 He was found competent to stand trial. Defendant’s first trial ended in
deadlock (11 to 1 in favor of conviction); mistrial was declared on March 19, 2013.
       A second trial began in May 2013. For several days, defendant refused to attend
court proceedings. When he finally did attend court, he was disruptive. The jury found
defendant guilty of first degree burglary. Defendant admitted the prior convictions. He
was sentenced to a total of 40 years to life. He appeals the judgment.
                                       DISCUSSION
       The only issue is whether the trial court abused its discretion by authorizing the
use of a 1987 rape conviction for impeachment. During defendant’s first trial, the court
ruled that three 1987 burglary convictions could be used to impeach defendant, plus the


1      The prior convictions are burglary (April 1984); two counts of burglary (June
1984); grand theft, rape, and three counts of burglary (May 1987); and making criminal
threats (February 2002). Defendant stipulated to the “strike” priors.


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2002 conviction for making criminal threats, but it excluded defendant’s 1987 rape
conviction as being “highly prejudicial.” Defendant testified and blamed a fellow
transient for entering Batmanglij’s home. Defendant claimed that he neither went inside
nor acted as a lookout, but stayed outside the house, smoking methamphetamine.
       At the outset of defendant’s second trial, the trial court ruled that the rape and the
criminal threat convictions could be used to impeach defendant because they both “go to
dishonesty or readiness to do evil. I think they’re relevant.” The court excluded the three
1984 burglary convictions and sanitized the 1987 burglary convictions as felonies of
moral turpitude. Defense counsel objected that the word “rape” has an “understandable,
prejudicial impact” that would affect defendant’s willingness to testify, even if the court
used a limiting instruction.
       Defendant renewed his objection at the close of the prosecution’s case, stating that
the three 1987 burglaries and the criminal threat conviction are ample impeachment, but
the 1987 rape is “a little bit over the top.” The court replied, “[T]here are another three
burglaries that I am not allowing in. The whole idea behind using priors to impeach is
either dishonesty, theft, or perjury-type offense, or readiness to do evil. Sometimes the
most heinous crimes are also the most telling regarding honesty and factors to consider
regarding impeachment.” The court noted that although there is a gap between
defendant’s crimes, he spent a considerable portion of that time behind bars.
       When defense counsel called defendant to the stand, defendant objected. He
stated that the court was being “prejudicial on my prior . . . the sexual assault case, 1987.”
When the court declined to change its ruling, defendant announced, “[Y]ou violated my
constitutional right to a fair trial. For the record, I’m not testifying.”
       “It is well established that the denial of a motion to exclude impeachment
evidence is not reviewable on appeal if the defendant subsequently declines to testify.”
(People v. Ledesma (2006) 39 Cal.4th 641, 731.) This rule, derived from Luce v. United
States (1984) 469 U.S. 38, 43, has three bases. First, a reviewing court cannot rule on
evidentiary questions without the factual context provided by the defendant’s precise
testimony. Second, any possible harm from an in limine ruling is wholly speculative,

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because the trial court could make a different ruling as the evidence unfolds, and the
prosecution might not use the prior conviction to impeach the defendant. Third, a
reviewing court cannot weigh the prejudicial effect of the error if the defendant did not
testify and was not impeached or cross-examined: requiring the defendant to testify
permits a determination whether any erroneous impeachment was harmless error, and
discourages defendants from planting a claim of reversible error in the event of a
conviction. (People v. Collins (1986) 42 Cal.3d 378, 384-385.)
       The rationale stated in Luce and Collins applies here. Although the record
includes defendant’s testimony from his first trial, he may have testified differently in his
second trial; or the prosecution may not have used the rape conviction to impeach; or the
error may have been harmless, when weighing the prosecution’s evidence against
defendant’s testimony. Defendant is asserting “the right to testify without being
impeached by prior felony convictions. . . . [¶] No witness, however, has the right to
give testimony immune from such challenge,” and the use of felony convictions to
impeach does not infringe the right to testify. (People v. Collins, supra, 42 Cal.3d at p.
387; Ohler v. United States (2000) 529 U.S. 753, 759-760.) Defendant did not preserve a
challenge to the court’s ruling on impeachment because he did not “take the witness stand
and actually suffer such impeachment.” (People v. Sims (1993) 5 Cal.4th 405, 454.)
       Even if the argument could be considered on appeal, there would still be no
grounds for reversal. The trial courts “have broad discretion to admit or exclude prior
convictions for impeachment purposes.” (People v. Collins, supra, 42 Cal.3d at p. 389.)
A felony used for impeachment is relevant if it shows moral turpitude, to cast doubt on
witness veracity. (People v. Castro (1985) 38 Cal.3d 301, 314-317.) “[R]ape is a crime
involving moral turpitude.” (People v. Mazza (1985) 175 Cal.App.3d 836, 844.) Thus,
the court had discretion to admit defendant’s rape conviction. Sanitizing the conviction
to refer to it merely as a “felony” rather than a “rape” would defeat the purpose of casting
doubt on defendant’s veracity. Although the rape conviction was 26 years old, defendant
spent the better part of his life in prison for his numerous convictions, and has
persistently engaged in criminality.

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       Improperly admitting impeachment evidence is not reversible error unless its
exclusion is likely to have given defendant a more favorable outcome. (People v. Castro,
supra, 38 Cal.3d at pp. 318-319.) The evidence of defendant’s guilt is overwhelming.
Eyewitness Ofer Moses positively identified defendant, first at the window of the
victim’s home, then in a field showup, and then at trial. He was certain that defendant
was the person he saw in Batmanglij’s house, and no one left the premises until Moses
saw defendant run away as police approached. Officer Pacheco’s flashlight revealed
defendant outside of the victim’s house, carrying paper bags. Defendant immediately
fled when the police ordered him to stop. He was found hiding under leaves and bushes
in a nearby yard.
       The direct evidence would have been bolstered if defendant had testified and been
impeached by his prior burglary convictions, even without the rape conviction. If he
testified, the prosecutor planned to confront him with spontaneous statements he made to
arresting officers that “In my younger days I jumped a lot of fences, I outran a lot of
cops.” There is no reasonable probability that defendant would have achieved a more
favorable outcome by testifying. (People v. Watson (1956) 46 Cal.2d 818, 836.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       CHAVEZ, J.


       HOFFSTADT, J.




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