Filed 12/31/15 P. v. Lugo CA2/1

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION ONE


THE PEOPLE,                                                          B257897
                 Plaintiff and Respondent,                           (Los Angeles County
            v.                                                       Super. Ct. No. LA071580)

EDWIN LUGO,

                 Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Larry
Martin Herscovitz, Judge. Affirmed with directions.

         Donna L. Harris, 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, Stephanie A. Miyoshi and David
A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
       Edwin Lugo appeals from the judgment of conviction for two counts of first
degree murder. He claims that the trial court violated his federal Sixth Amendment right
to confront witnesses, his due process right to present a defense, and his state law right
to impeach witnesses when it precluded him from cross-examining a prosecution witness
about the witness’s misdemeanor conduct. Lugo also complains that the sentencing
minute order does not correctly reflect the oral pronouncement of the sentence. As we
shall explain, only Lugo’s claim with respect to the minute order has merit. Accordingly,
we affirm the judgment and direct the trial court to correct the minute order.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Jamie Polino, Mario Martinez, Juan Romero and Lugo worked on construction
projects for MC Construction in the San Fernando Valley. Romero, who Lugo had
known for years, had gotten Lugo the job with the construction company which was
owned by Mauricio Cruz.
       A.     The Crimes
       At approximately 11:00 p.m., on June 2, 2012, Los Angeles police officers
discovered the dead bodies of Jaime Polino and Mario Martinez in a Panorama City
apartment. The men had been shot in the head at close range that day apparently between
4:30 p.m. and 5:30 p.m. Police also found guns, ammunition, street gang paraphilia,
cocaine and indicia of narcotics sales inside the ransacked apartment.
       Detectives interviewed residents of the apartment complex. A neighbor, Irma
Lopez, reported that on June 2, between 10:30 a.m. and 11:00 a.m., an unidentified
woman mistakenly opened the front door of her apartment. Ms. Lopez observed the
woman, and a man, later identified as Lugo, walk to the victims’ apartment, knock on the
door and then enter. Approximately an hour later the apartment manager saw the victims
and Lugo, and an unidentified man and woman, inside the apartment.
       Ms. Lopez also told police that at sometime between 4:30 p.m. and 5:30 p.m. on
June 2, she was in the apartment directly below the victims’ apartment when she heard a
loud bang and then the sound of something heavy falling to the floor inside the victims’


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apartment. Another neighbor reported that at approximately 5:30 p.m., he saw Lugo
and a woman leaving the victims’ apartment and drive away in Polino’s car.
       Video surveillance film obtained from a CVS store in Los Angeles showed that
at approximately 9:30 p.m. on June 2, 2012, Lugo drove Polino’s car in the store’s
parking lot. Lugo’s fingerprints were on a CVS receipt found in the car. The DNA from
a beer can found in the victim’s apartment connected Lugo to the crime scene.
       B.     Romero’s Statements to Police
       Six weeks after the murders, police arrested Lugo’s friend Romero for possession
of a firearm. Romero, a known gang member and a felon, told officers that he had some
information about the murders of Polino and Martinez. Detectives questioned Romero
three times over the course of several hours.1
       During the first interview, Romero claimed that he had left his gang but obtained
the gun in his possession only for the protection of his wife and daughter. At first,
Romero said that he acquired the gun from someone who lived in the “projects,” but later
said Mauricio Cruz had given him the gun. Romero also told investigators that the
victims stole appliances from construction sites and resold them. Romero admitted he
had been involved in those activities.
       Romero told one of the investigators he believed that another employee of
MC Construction, Joel Alvaro was involved in the murders because Alvaro (who was
related to one of the victims), had left town immediately after the crimes; he thought that
Alvaro had set-up the victims. Romero also reported that he had heard that the killings
were gang-related and connected to the victims’ drug dealings. Romero said he had
spoken to Lugo about the murders and that Lugo denied any involvement in the crimes.
       During the second interview, Romero stated that he spoke with Lugo after the
murders and Lugo told him that “something happened.” In the third interview, Romero
said that Lugo attempted to explain Lugo’s involvement in the shooting, but Romero
stopped him because Romero feared he would be killed for introducing Lugo to Mauricio

1
        The interviews were recorded and the recordings were played for the jury during
the trial.

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Cruz. Although Romero at first maintained that Lugo had not confessed to the murders,
he eventually changed his story. He stated that Lugo had admitted that he was inside the
victims’ apartment but Lugo claimed that the woman told him that the victims were going
to kill him. According to Romero, Lugo said “it was me or them.” Romero explained
that Lugo said “it happened” and “they’re dead,” and that “they had a gun at his head.”
       C.     Trial Proceedings
       Lugo was arrested and charged with two counts of first degree murder (Pen. Code,
§ 187, subd. (a)). The information further alleged that Lugo personally and intentionally
used a firearm which caused great bodily injury and death (Pen. Code, § 12022.53,
subds. (b), (c) & (d)), and the special circumstance of multiple murders.
       Prior to the preliminary hearing the prosecution provided Lugo’s counsel with a
list of Romero’s prior convictions, which included: 2003 and 2012 felony convictions for
possession of a firearm by a felon; 2005 misdemeanor convictions for domestic violence
and criminal threats; and a 2000 misdemeanor conviction for vandalism. Several months
later, on the first day of trial, Lugo’s counsel sought an order allowing him to impeach
Romero with his prior convictions. The court indicated that it would allow counsel to
impeach Romero with his 2012 felony conviction for possession of a firearm by a felon.
When Lugo asked whether he could also impeach Romero with his three misdemeanor
convictions, the following exchange occurred:
                “The Court: Well, I mean, we’re going to be talking to the
       witness—because it’s not the impeachment. It’s the conduct for the
       misdemeanor offenses. Then we’re going to have to ask, ‘Mr. Romero,
       is it true you battered your wife or girlfriend or threatened her in 2005?’
       Let’s assume he says, ‘No.’ Where do you go from there?

              [Lugo’s Counsel]: I’d have to bring in the police officer.

              The Court: No, you wouldn’t bring in the police officer. The
       victim. . . . Do you have the victim under subpoena? Do you even have the
       police reports on it?




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               [Lugo’s Counsel]: I don’t because the prosecution did not provide
       and I did not ask. I still have time to do those things. I can always attempt
       to do those things. They are misdemeanors. So I understand what the court
       is saying, but—

               The Court: What I’m saying is, it will, in my opinion, cause an
       undue consumption of time to get into an argument about ten-year-old
       misdemeanor conduct between Mr. Romero and his girlfriend[/]cohabitant
       of ten years ago, with witnesses who may or may not be available other
       than Mr. Romero, who’s going to be testifying, especially considering the
       fact that he’s going to be impeached with a very recent felony of being in
       possession of a firearm, where, then, the jury will know that he has at least
       two felonies, one that made him ineligible and one that makes him guilty.
       I’m going to exercise my discretion and keep out the misdemeanor conduct
       from 2004 and 2005.

              [Lugo’s Counsel]: All three of them that I just requested?

              The Court: Yes, since they’re hearing about two felonies and
       they’re of much more recent origin.”

       Shortly thereafter Lugo’s counsel asked to put on the record that she had discussed
with Lugo if he would be “willing to waive time” to allow counsel to locate the witnesses
to the misdemeanor conduct. Counsel indicated that Lugo was unwilling to do so, to
which the court remarked: “[E]ven if the witness were available, it would be having the
jury to determine whether or not a battery took place in 2005 that could then reflect on
Mr. Romero in 2014; so that seems to be a lot of litigation for a very small issue,
especially in light of his other impeachment.”
       During trial Romero testified that he had suffered felony convictions in 2003
and 2012 for possession of a firearm by a felon. He admitted that he served four years in
federal prison and had been involved in a street gang since he was a teenager. Romero
left the gang and his former gang had given the “green light[]” for him to be killed. He
further testified that he abused drugs in the past and was under the influence of LSD and
PCP when he gave his statement to the police about the murders. At various points
during his testimony, Romero recanted the statements he made to the police; he said he
felt pressured by the detectives and therefore lied to them. Romero denied that Lugo had


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confessed to the murders and stated that he was merely passing along rumors he had
heard on the street. At other points during his testimony Romero claimed he could not
remember his police interview, did not know the truth and could not remember his
testimony from the preliminary hearing. He explained that he was currently taking
medication for anxiety which caused memory lapses.
       The jury convicted Lugo of the two counts of first degree murder and found the
enhancements and special circumstance true. The court imposed consecutive terms of
life without the possibility of parole together with 25 years to life for the gun
enhancement for each count. Lugo timely appealed.
                                        DISCUSSION

I.     The Trial Court Did Not Err When it Denied Lugo’s Request to Impeach Romero
       With His Prior Misdemeanor Conduct.
       Lugo asserts the trial court violated his federal Sixth Amendment right to
confront witnesses, his due process right to present a defense, and his state law right to
cross-examine witnesses when it denied his request to impeach Romero’s testimony with
his prior misdemeanor conduct.
       A.      Constitutional Claim
       The Sixth Amendment’s Confrontation Clause guarantees the right of an
accused in a criminal prosecution to confront the witnesses against him. (Delaware v.
Van Arsdall (1986) 475 U.S. 673, 678.) As the Court stated in Davis v. Alaska (1974)
415 U.S. 308, 315, “[c]onfrontation means more than being allowed to confront the
witness physically.” The Court recognized that “the cross-examiner is not only permitted
to delve into the witness’[s] story to test the witness’[s] perceptions and memory, but
[also] . . . allowed to impeach, i.e., discredit, the witness.” (Id. at p. 316, italics omitted;
accord People v. Quartermain (1997) 16 Cal.4th 600, 623 [recognizing the right of
confrontation under the Sixth Amendment “includes the right to cross-examine adverse
witnesses on matters reflecting on their credibility”].)




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       “However, not every restriction on a defendant’s desired method of
cross-examination is a constitutional violation.” (People v. Chatman (2006) 38 Cal.4th
344, 372.) “[T]he Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S.
15, 20.) A trial court, therefore, has discretion to limit or exclude impeachment evidence
when the evidence is repetitive, prejudicial, marginally relevant, time consuming, or is
likely to confuse the issues. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679; People
v. King (2010) 183 Cal.App.4th 1281, 1316.)
       In addition, the trial court’s discretionary exclusion of impeachment evidence
does not violate the Sixth Amendment unless the prohibited cross-examination might
reasonably have produced “a significantly different impression” of the witness’s
credibility. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Greenberger
(1997) 58 Cal.App.4th 298, 350 [“The determination whether a defendant has been
denied the right of confrontation is focused on the individual witness. The standard for
determining if a [C]onfrontation [C]lause violation has occurred is whether a reasonable
jury might have received a significantly different impression of the witness’s credibility
had the defendant been permitted to pursue his proposed line of cross-examination”].)
The burden rests on the defendant to make this showing. (People v. Williams (1997)
16 Cal.4th 153, 207.)
       Preliminarily, the Attorney General argues that Lugo forfeited the claim by failing
to raise it in the trial court. Because Lugo has not cited to the appellate record, nor does
he claim, that he asserted a federal constitutional objection to the court’s ruling, he has
forfeited the claim. (See Evid. Code, § 353; People v. Redd (2010) 48 Cal.4th 691, 730
& fn. 19; People v. Thornton (2007) 41 Cal.4th 391, 427; see also Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305, 314 [holding the right to confrontation may be
forfeited].) In any case, the claim lacks merit.
       As the trial court observed, the misdemeanor conduct from 2004 and 2005 was
relatively old, compared to his 2012 felony conviction. Further, although Lugo’s counsel


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was aware of Romero’s prior misdemeanor convictions before the preliminary hearing,
she had not developed the evidence to prove the conduct in time for trial. Thus, if
Romero had denied that he committed the misdemeanor conduct, the trial would
have had to be delayed for counsel to obtain further proof. (See People v. Wheeler
(1992) 4 Cal.4th 284, 297, fn. 7, 300 & fn. 14 [holding impeaching conduct must be
proven by direct evidence of the acts committed, i.e., a witness could admit the conduct
or witnesses could be called to describe the conduct], superseded by statute on another
point in People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460; cf. People v. Clark
(2011) 52 Cal.4th 856, 931 [under Evid. Code, § 788, a witness may be impeached with
the record of judgment establishing a felony conviction].)
       Furthermore, Lugo has not demonstrated that the prohibited cross-examination
about Romero’s prior misdemeanors would have produced a significantly different
impression of his credibility. The jury heard that Romero suffered two felony
convictions for gun possession, spent four years in federal prison, had been an active
and violent gang member, abused drugs and engaged in criminal activities with his
co-workers. He admittedly lied to the police about where he obtained his gun and misled
authorities about the murders during his police interviews. Romero also conceded he
was impaired during the police interviews; he could not recall his statements to police.
He repeatedly gave vague and inconsistent versions of Lugo’s purported confession;
and Romero’s testimony at the preliminary hearing and at trial was riddled with
contradictions. At trial he claimed that he was heavily medicated. Lugo’s trial counsel
thoroughly cross-examined Romero regarding all of these matters. Romero’s
inconsistent testimony and prior statements about the murders coupled with his demeanor
and criminal background provided Lugo with ample material to discredit Romero. The
evidence of Romero’s misdemeanor conduct was not likely to have produced a different
impression of Romero’s credibility, let alone, a significantly different impression. The
trial court’s exercise of discretion to exclude it did not violate the Sixth Amendment.
(People v. Hillhouse (2002) 27 Cal.4th 469, 494.) Therefore, even if Lugo had preserved
his constitutional claim for appeal it would fail.


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       B.      State Law Claim
       Appellant does not challenge that under California law, a witness may be
impeached with evidence of conduct that involves moral turpitude, including conduct that
results in a misdemeanor conviction, but may not be impeached with evidence of the
misdemeanor conviction itself. (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296
& 299; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1522.) The parties
also agree, as do we, that proof of the conduct underlying Romero’s misdemeanor
convictions—corporal injury on a spouse or cohabitant (Pen. Code, § 273.5), criminal
threats (Pen. Code, § 422), and vandalism (Pen. Code, § 594) is relevant to show
moral turpitude for the purposes of impeachment. (E.g., People v. Rodriguez (1992)
5 Cal.App.4th 1398, 1402 [violation of Penal Code section 273.5 connotes readiness to
do evil, and thus, impeachment with evidence of [the facts of the] crime is proper];
People v. Thornton (1992) 3 Cal.App.4th 419, 424 [“section 422 is a crime of moral
turpitude,” for the purposes of impeaching a witness]; see People v. Campbell (1994)
23 Cal.App.4th 1488, 1493 [concluding misdemeanor vandalism is a crime of moral
turpitude].)
       Notwithstanding relevance, the “trial court may restrict defense cross-examination
of an adverse witness on the grounds stated in Evidence Code section 352.” (People v.
Whisenhunt (2008) 44 Cal.4th 174, 207; accord, People v. Clark, supra, 52 Cal.4th
at p. 931.) Under Evidence Code section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by concerns
of undue prejudice, confusion or consumption of time. (See Evid. Code, § 352.)
       The court’s decision to exclude the misdemeanor conduct in this case complied
with Evidence Code section 352. The evidence would add only minimally, if at all, to
the impeachment of Romero but would have required an undue consumption of time
because the evidence of each crime would have had to be presented through witnesses
to the events. Lugo, however, asserts that, at the very least, the trial court should have
permitted him to inquire directly of Romero about the conduct. He argues that if Romero
admitted the acts, then he would not have needed other witnesses or evidence, and the


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trial would not have been unduly delayed. Although, an admission by Romero would
have resolved the need for additional proof, the court also ruled that even if the evidence
was readily available, it would exercise its discretion to exclude it because the evidence
lacked sufficient probative value, being both remote and adding little, if anything, to
further discredit the witness. We agree. The probative value of this proffered evidence
was, at most, minimal given the discrediting testimony from the witness himself. The
trial court, therefore, did not abuse its discretion by excluding the evidence of the
misdemeanor conduct.
       Regardless, any error was harmless. The evidence against Lugo was strong.
Eyewitnesses placed Lugo at the scene of the crimes before, during and after the murders.
DNA evidence placed him inside the victims’ apartment and the victim’s vehicle. In
view of this evidence, absent the alleged error—the exclusion of Romero’s misdemeanor
conduct—it is not reasonably probable that Lugo would have received a more favorable
result. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II.    The Trial Court Must Amend the Minute Order to Reflect the Oral Sentence.
       At the sentencing hearing, the trial court ordered Lugo to pay a criminal
conviction assessment of $60 under Government Code section 70373, reflecting that
the jury convicted Lugo of two felonies. The abstract of judgment properly reflects the
imposition of the assessment, but the July 25, 2015 minute order from the sentencing
hearing reflects a criminal conviction assessment of $70. Lugo argues, and the Attorney
General concedes, and we agree, that the minute order must be corrected to conform to
the oral sentence. (See People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [errors in
minute order are subject to correction where they deviate from oral pronouncement of the
judgment].)




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                                    DISPOSITION
      The judgment is affirmed. The trial court is directed to correct the July 25, 2014
minute order to reflect a total criminal conviction assessment of $60 under Government
Code section 70373.
      NOT TO BE PUBLISHED.




                                                       ROTHSCHILD, P. J.
We concur:




             JOHNSON, J.




             LUI, J.




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