Filed 3/13/14 P. v. Valenzuela CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


THE PEOPLE,                                                            B246961

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. BA 382006)
         v.

MIGUEL VALENZUELA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Melissa N. Widdifield, Judge. Affirmed.


         Linda Acaldo, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and
Respondent.


                                                      ******
       Appellant Miguel Valenzuela challenges his conviction for second degree
robbery and assault with a deadly weapon. We affirm.
                              PROCEDURAL HISTORY
       Appellant was convicted by a jury of one count of second degree robbery (Pen.
Code, § 211)1 and one count of assault with a deadly weapon (§ 245, subd. (a)(1)).
The jury also found true a special allegation that, for the robbery count, appellant
personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) It was
further alleged appellant had suffered three prior convictions pursuant to the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), as well as three prior
convictions under section 667, subdivision (a)(1) and three prior prison terms under
section 667.5, subdivision (b). Appellant waived his right to a jury trial on the prior
convictions and prison terms and admitted they were true. He was sentenced to 41
years to life in prison for the robbery count, consisting of 25 years to life under the
Three Strikes law, plus 15 years under section 667, subdivision (a)(1) (five years for
each prior conviction), and one year under section 12022, subdivision (b)(1). The
court stayed appellant’s sentence on the assault with a deadly weapon count. (§ 654.)
Appellant timely appealed.
                              STATEMENT OF FACTS
       On March 10, 2011, at around 5:20 a.m., victim Jose Lino was walking toward
a train station in the area of 20th Street and San Pedro Street when a man later
identified as appellant grabbed him by the collar, told him not to run, and demanded
his money and valuables. Lino said he did not have anything, and appellant continued
to demand his valuables several more times. Appellant had his hand in his pocket and
told Lino he was going to stab him. Because Lino believed appellant had a knife and
would hurt him, he gave appellant all the cash he had, which was $3.
       Appearing angry, appellant demanded Lino’s cell phone several times, and Lino
repeatedly refused to give it to him. Appellant then pulled out a red Swiss Army-style

1      All further statutory references are to the Penal Code unless otherwise noted.


                                             2
pocketknife, pointed it toward Lino’s left side between his stomach and chest, and
continued to demand Lino’s phone. Not wanting to get hurt, Lino gave appellant his
“iPhone,” and appellant walked away toward 21st Street, telling Lino not to call the
police or appellant would kill him. The confrontation lasted two or three minutes and
Lino got a good look at appellant’s face. At the time appellant was wearing a black
sweater with a hoody, a cap, and denim jeans, and was using a cane.
       Lino ran to a nearby 7-Eleven store, but when the store clerks refused to let him
use the phone, he flagged down uniformed Los Angeles Police Department Officers
Thomas Sherwood and Javier Quinones, who were patrolling the area in a black and
white police car. By this time, three to five minutes had passed since the robbery.
Lino told them he had been robbed at knifepoint and described the perpetrator as
having “a hoody and he was Hispanic, and he was in his late forties, early fifties. With
a cane. With a cap on.” Lino got into the patrol car and directed the officers toward
the direction he had seen appellant heading.
       On 22nd Street, Officer Sherwood saw a man outside a residence matching the
description given by Lino, and when the man saw the police car, he quickly “ducked
into the house.” The officers parked, approached the residence with guns drawn at
their sides, and knocked on the door, which was ajar. Officer Quinones saw someone
inside and ordered that person out, who was an older Hispanic male who had difficulty
walking; he was followed out by appellant, a female individual, and a younger male
eventually not considered a suspect. The officers handcuffed appellant and the older
man and had them stand next to the police car. Still in the police car, Lino was read an
in-field admonishment, and he immediately identified appellant as the person who
robbed him.
       Appellant waived his Miranda2 rights and told Officer Quinones the cell phone
was in the house under the bathroom sink and the knife was under a sofa cushion in
the living room. Officer Sherwood searched the residence and found the phone and

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


                                           3
the knife in the locations described by appellant and Lino positively identified both
items.
         Appellant testified and denied robbing Lino. At the time of the robbery he had
been “up all night partying” and doing heroin with two other men at the house on 22nd
Street, a drug house where “people come and party.” In the early morning hours of
March 10, 2011, he went to a donut shop in the San Pedro area; at the time he was
wearing white tennis shoes, black jeans, and a blue long sleeve shirt. As he was
walking back to the house, “this guy” came up to him on a bike and asked if he would
like to buy a phone. The man was a “Mexican guy,” with a white mustache and
“[k]ind of thin.” Appellant bought the phone for $10 and the man “took off on his
bike” toward San Pedro Street. Appellant knew the phone was stolen and explained
that “anybody in their right mind is going to buy a phone for ten bucks if they can
make a dollar off of it.” Appellant took the phone back to the house and hid it because
he did not want to walk around with a stolen phone.
         The officers arrived at the house a few minutes after appellant returned.
Appellant stood in the doorway looking out and smoking a cigarette when he saw the
officers coming; he did not run. With guns drawn, officers flashed a light on appellant
and told him to come outside, but appellant went into the house and told the “guy that
stays there” the police were outside. That individual “got all excited and got up and
came out to the door,” and the officers took him outside. The officers took another
man outside, and appellant finally emerged. The officer handcuffed the first man and
appellant. According to appellant, the officers “started playing this patticake, from me
to the other guy, from me to the other guy,” and finally Officer Quinones said, “fuck
it,” and put appellant in the police car. Appellant did not see Lino at all.
         In response to questioning from the officers, appellant denied knowing anything
about a robbery, but he told them where to find the phone and how he had bought it.
He never said anything about a knife and knew nothing about it.
         Appellant admitted he had two prior felony convictions for robbery, one in
1990 and one in 1999.

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       Officer Sherwood testified appellant told him at the scene he had “just bought
[the phone] off a cholo on San Pedro.” He did not believe appellant because only 10
minutes had elapsed between when Lino told police he was robbed and when officers
arrived at the house where appellant was arrested.
                                    DISCUSSION
1. Cross-examination on Prior Convictions
       Appellant asserts interrelated claims for prosecutorial misconduct and
evidentiary error during his cross-examination on his 1990 and 1999 robbery
convictions. As alleged in the amended information, appellant had three prior felony
convictions: (1) a 1984 conviction for robbery and kidnapping (§§ 207, 211); (2) a
1990 conviction for robbery (§ 211); and (3) a 1999 conviction for robbery (§ 211).
Prior to trial, defense counsel moved to exclude these prior convictions because they
were unduly prejudicial and at least the 1984 and 1990 convictions were too remote in
time. The prosecutor countered they were not too remote because appellant had been
in prison for most of the time since his 1984 conviction and the prior convictions were
“mirror image[s]” of the current allegations. The court excluded the 1984 conviction,
but found the 1990 and 1999 convictions admissible. For those convictions, the court
found them more probative than prejudicial because appellant had not remained free
from custody for “substantially all of the period in between the convictions.” Upon
request from defense counsel, the court clarified those convictions could be used as
“impeachment for moral turpitude” if appellant testified and that the prosecutor could
“elicit that he’s been convicted of a robbery. And that involves force or fear.”3
Defense counsel objected, arguing the jury should only be told the convictions were
for “robbery” and the jury did not “need to know the elements. They’re going to be



3      The court initially stated the 1990 and 1999 convictions would be admitted for
“all purposes,” but ultimately their admission was limited to impeachment. The jury
was also instructed that it may only consider prior felony convictions in evaluating a
witness’s credibility.


                                            5
getting them from their case. But I believe it should just be a robbery.” The court did
not further rule on the issue at that time.
        During trial, defense counsel again raised the issue outside the presence of the
jury:
        “[Defense counsel]: I was going to ask the court to consider the factors
regarding the prior convictions coming in, and asking the court to have it come in as
crimes of moral turpitude, and not robbery with force or fear, because of the [Evidence
Code section] 352.[4] Way more prejudicial than probative. [¶] And back during the
[Evidence Code section] 1101(b)[5] evidence, stating that he has two felony
convictions, we can go through the years, for crimes of moral turpitude. Which is used
for impeachment. Otherwise it’s way too prejudicial and it’s sounding more like
propensity evidence versus impeachment with moral turpitudinous conduct.
        “The court: Counsel, I actually had been thinking about this issue quite a lot on
my own. I can tell you this. I certainly don’t have a problem saying have you been
convicted of a moral turpitude crime. The prosecutor can certainly elicit that
[appellant] was convicted of robbery and I frankly wanted to let her use the phrase
armed robbery. [¶] But I was reconsidering letting [the prosecutor] use the phrase
force or fear. I think that is perhaps overly prejudicial under 403 and the Beadle[6]


4     Evidence Code section 352 states, “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”
5       Evidence Code section 1101, subdivision (a) generally prohibits evidence of a
person’s character to prove conduct on a specified occasion, but subdivision (b) allows
admission of that evidence to prove some other fact such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident. As
noted ante, appellant’s prior convictions were admitted for impeachment, not for any
reason listed in Evidence Code section 1101, subdivision (b).
6     The court was likely referring to People v. Beagle (1972) 6 Cal.3d 441, 453,
which set forth factors to consider in assessing admission of a defendant’s prior
convictions for impeachment purposes. (See People v. Clark (2011) 52 Cal.4th 856,

                                              6
factors. So I think that is how I would modify my ruling. And frankly I was going to
raise that on my own completely independently of [defense counsel].
         “[The prosecutor]: So robbery?
         “The court: Yes.
         “[Defense counsel]: Just robbery in 1990 and robbery in -- ’99 and ’90.
         “The court: Yes. I would limit it to robbery and the dates.
         “[The prosecutor]: And Your Honor, in light of the court limiting the People, I
would just reiterate that I think that his 1984 conviction, while remote, in light of the
amount of time and his failure to stay free from custody, that doesn’t make it remote. I
think that it is relevant, and I think it is more probative than prejudicial.
         “The court: I will reconsider it. I hadn’t thought about it. I had only thought
about the force and fear issue. I will think about that overnight and let you know
tomorrow. All right. Thank you.”
         The next day the prosecutor began cross-examining appellant by asking him,
“[Y]ou were convicted of armed robbery in 1990; correct?” He responded, “I was
convicted of robbery.” Defense counsel objected, and the court sustained the
objection. The parties approached the bench and had the following discussion with the
court:
         “[The prosecutor]: The court’s previous ruling was that I could elicit armed
robbery but I could not say taking property by force or fear.
         “The court: However, asking about armed robbery--
         “[The prosecutor]: The court actually stated that. That I could even go that far.
         “The court: I have absolutely no recollection of that. I’ve got to tell you that. I
don’t remember that ever coming up.




931 (Clark).) The court’s reference to “403” may have been an inadvertent allusion to
Federal Rules of Evidence (28 U.S.C.), rule 403, the federal counterpart to Evidence
Code section 352.


                                              7
       “[Defense counsel]: That implies armed robbery is with a gun or something
like that. I don’t have any reports. It’s a conviction for a robbery, 211. As far as I
know, there is no indication that there was any type of gun, any type of weapon.
       “The court: Okay. I have to tell you, I do not recall saying that at all. But I’m
rethinking that and saying that I didn’t think it was appropriate.”
       The prosecutor returned to questioning appellant. At the time, defense counsel
did not ask the court to strike the prosecutor’s question or give a curative instruction to
the jury.
       The prosecutor proceeded to impeach appellant with his prior convictions
without using the word “armed.” After appellant admitted the 1990 and 1999
convictions for robbery, the prosecutor asked him, “But you had nothing to do with
this robbery?” He responded, “No, ma’am.”
       When the defense rested, defense counsel asked for a curative instruction
regarding the prosecutor’s “armed” robbery question, which the court denied:
       “[Defense counsel]: We were requesting a special instruction regarding the
question posed by the prosecutor concerning whether or not my client was convicted
of armed robbery. I believe that was prejudicial. It was sustained. It was out there.
[¶] It had already been ruled upon. And I believe it’s very prejudicial, because it
would imply an armed robbery, basically, with a weapon, and we don’t have anything
in front of us indicating that that was the situation. [¶] According to his rap sheet,
both the 1990 and 1999 were both 211’s. I don’t see anything additional. Like in
1984. I believe there should be an instruction to cure it. Since the jury has heard it
and it may imply that it might have been true that there was an armed robbery
conviction.
       “The court: The court had indicated, first of all, it sustained with the
defendant’s objection with respect to the word robbery. In addition, the court is not
aware actually of what any of the facts are with respect to the 1999 and 1990
robberies. And the court doesn’t want to be in a position of instructing the jury with
respect to factually inaccurate matters. [¶] I don’t believe, to the extent that the jury

                                             8
heard it at all, I -- the court doesn’t believe that it is so prejudicial that the court should
raise the issue separately. And the court declines to do so. [¶] In fact, frankly, I think
that it will have just the opposite effect that counsel wants.”
       While not giving a specific curative instruction for the “armed” robbery
question, the court instructed the jury, “Nothing that the attorneys say is evidence. In
their opening statements and closing arguments, the attorneys discuss the case, but
their remarks are not evidence. Their questions are not evidence. Only the witnesses’
answers are evidence. The attorneys’ questions are significant only if they helped you
to understand the witnesses’ answers. Do not assume that something is true just
because one of the attorneys asked a question that suggested it was true. [¶] During
the trial, the attorneys may have objected to questions or moved to strike answers
given by the witnesses. I ruled on the objections according to the law. If I sustained
an objection, you must ignore the question. If the witness was not permitted to
answer, do not guess what the answer might have been or why I ruled as I did. If I
ordered testimony stricken from the record you must disregard it and must not
consider that testimony for any purpose.” The court also instructed the jury on the
factors in evaluating witness credibility and that felony convictions could only be used
to evaluate a witness’s credibility.
       Appellant does not dispute his 1990 and 1999 robbery convictions were
generally admissible for impeachment purposes because they involved crimes of moral
turpitude. (Evid. Code, § 788; Clark, supra, 52 Cal.4th at p. 932.) Nor does appellant
challenge the trial court’s balancing of the factors under Evidence Code section 352 in
admitting the convictions. (Clark, supra, at p. 931 [“When determining whether to
admit a prior conviction for impeachment purposes, the court should consider, among
other factors, whether it reflects on the witness’s honesty or veracity, whether it is near
or remote in time, whether it is for the same or similar conduct as the charged offense,
and what effect its admission would have on the defendant’s decision to testify.”].)
       Instead, appellant claims his federal constitutional rights to due process and a
fair and impartial jury were violated because (1) the trial court improperly failed to

                                               9
strike the prosecutor’s “armed” robbery question and admonish the jury to ignore it
after it sustained defense counsel’s objection; (2) the prosecutor committed
misconduct by using the word “armed” in questioning appellant; and (3) the prosecutor
committed misconduct when, after impeaching appellant with his prior convictions,
she asked, “But you had nothing to do with this robbery?” We reject these
contentions.
       “Because the court’s discretion to admit or exclude impeachment evidence ‘is
as broad as necessary to deal with the great variety of factual situations in which the
issue arises’ [citation], a reviewing court ordinarily will uphold the trial court’s
exercise of discretion [citations].” (Clark, supra, 52 Cal.4th at p. 932.) The
introduction of a prior felony conviction for impeachment is “restricted to the name or
type of crime and the date and place of conviction.” (People v. Allen (1986) 42 Cal.3d
1222, 1270.) “The scope of inquiry when a criminal defendant is impeached with
evidence of a prior felony conviction does not extend to the facts of the underlying
offense.” (People v. Heckathorne (1988) 202 Cal.App.3d 458, 462.)
       Here, the trial court acted within its discretion in sustaining defense counsel’s
objection to the “armed” robbery question without also striking the question and
admonishing the jury. At the time the trial court sustained the objection to the
prosecutor’s question, defense counsel did not ask the trial court to strike the question
or admonish the jury, which could have cured any remaining harm after the objection
was sustained. (See People v. Stanley (2006) 39 Cal.4th 913, 952 [“Although defense
counsel lodged objections to these remarks, he failed to further request admonitions
that could have cured any harm, thereby waiving the claim on appeal.”].) By the time
defense counsel did ask for a curative instruction at the close of appellant’s case, the
trial court was reasonably concerned a curative instruction would have risked
highlighting the question instead of minimizing it. Also, the trial court reasonably
believed any prejudice had been reduced by sustaining the objection at the time of the
questioning and that the lack of evidence on the prior convictions may have led to



                                            10
instructing the jury with inaccurate facts.7 Any lingering prejudice was further
ameliorated by the trial court’s instruction on witness credibility, as well as the
instruction that the attorneys’ questions were not evidence and the jury must disregard
any questions for which an objection was sustained, which we presume the jury
followed. (People v. Hinton (2006) 37 Cal.4th 839, 864 (Hinton).)
       Appellant’s prosecutorial misconduct claims fare no better. “‘A prosecutor’s
misconduct violates the Fourteenth Amendment to the United States Constitution
when it “infects the trial with such unfairness as to make the conviction a denial of due
process.” [Citations.] In other words, the misconduct must be “of sufficient
significance to result in the denial of the defendant’s right to a fair trial.” [Citation.]
A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.”
[Citations.]’ [Citations.]” (Clark, supra, 52 Cal.4th at p. 960.) The prosecutor’s two
questions were not so egregious as to result in a denial of due process, so the question
is whether the prosecutor violated state law by using “‘“deceptive or reprehensible
methods to attempt to persuade . . . the jury.”’” (Ibid.)
       The prosecutor did not commit misconduct in asking whether appellant’s 1990
conviction was for “armed” robbery in light of the ambiguous ruling by the court on
the issue. In the discussion of this issue before appellant’s cross-examination, the trial
court stated, “I frankly wanted to let [the prosecutor] use the phrase armed robbery.”
The parties and the court then focused on the phrase “force or fear,” which the court
excluded. The prosecutor asked, “So robbery?” The court responded, “Yes.” Defense
counsel asked, “Just robbery in 1990 and robbery in -- ’99 and ’90.” The court


7     The prosecutor claimed she had the police reports for appellant’s prior
convictions, which “read like a mirror image of the current offense,” but those reports
were not admitted into evidence. In appellant’s probation report included in the record
on appeal, there was no indication the 1990 and 1999 prior convictions were for
“armed” robbery.


                                             11
responded, “Yes. I would limit it to robbery and the dates.” While it is likely the trial
court intended to limit the questioning to “robbery and the dates,” that was by no
means clear, especially given the court’s earlier suggestion it would also let the
prosecutor use the phrase “armed” robbery. The prosecutor explained at sidebar
during trial she interpreted the court’s ruling to allow her to use the phrase “armed”
robbery. Under these circumstances, we cannot say the prosecutor committed
misconduct.
       By not objecting or asking for an admonition, appellant forfeited his claim of
misconduct based on the prosecutor’s question, “But you had nothing to do with this
robbery?” (Clark, supra, 52 Cal.4th at p. 960.) Even on the merits, the question was
not improper. The prosecutor properly used the prior convictions to cast doubt on
appellant’s credibility in denying he was involved in the instant robbery. (Hinton,
supra, 37 Cal.4th at p. 870.) Any possibility the jury might have interpreted the
prosecutor’s question as suggesting appellant had a propensity to commit robbery was
ameliorated by the court’s jury instruction limiting evidence of felony convictions to
impeachment. (Clark, supra, at p. 934 [finding instructions sufficiently set forth the
limited purpose of impeachment evidence, including prior felony convictions].)
       Finally, even if the trial court erred and the prosecutor committed misconduct,
any errors were harmless under both Chapman v. California (1967) 386 U.S. 18, 24
(harmless beyond a reasonable doubt) and People v. Watson (1956) 46 Cal.2d 818, 836
(reasonable probability of a more favorable outcome). The evidence appellant
committed the current robbery was overwhelming. Within minutes after the robbery,
officers located appellant and Lino immediately identified him. Officers then
recovered Lino’s cell phone and the knife in the locations identified by appellant
inside the house where appellant was arrested. The jury was entitled to reject
appellant’s defense that he bought the phone “off a cholo on San Pedro,” given only 15
minutes had elapsed between the robbery and the officers’ arrival at the house where
he was arrested.



                                           12
2. Pitchess Claim
       Prior to trial, appellant moved pursuant to Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess), for discovery of documents relating to complaints against
Officers Sherwood and Quinones for “violation of rights; fabrication of charges and/or
evidence and/or reasonable suspicion or probable cause; execution of illegal searches
or seizures; false arrests; perjury; dishonesty; writing of false police reports; planting
of evidence; writing of false or misleading internal reports including but not limited to:
false overtime or medical reports; or any moral turpitude misconduct . . . .” (See Evid.
Code, §§ 1043-1045.) The trial court granted the motion limited to records of
dishonesty and reviewed the officers’ personnel records in camera with the custodian
of records present. The court found no discoverable information.
       We have independently reviewed the in camera Pitchess proceedings, including
the sealed reporter’s transcript of the review of the personnel records. We conclude
the trial court properly evaluated the materials and reasonably exercised its discretion
in refusing to disclose any information. (People v. Myles (2012) 53 Cal.4th 1181,
1209; People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
                                     DISPOSITION
       The judgment is affirmed.




                                                   FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.



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