Filed 2/2/16 P. v. Guerrero CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068331
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13903683)
                   v.

JORGE GUERRERO,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
         J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Detjen, J. and Franson, J.
       A jury convicted appellant Jorge Guerrero of attempted voluntary manslaughter
(Pen. Code, §§ 664, 192, subd. (a)),1 a lesser included offense of the attempted willful,
premeditated murder offense charged in count 1, and assault with a deadly weapon
(count 2/§ 245, subd. (a)(1)). The jury also found true a great bodily injury enhancement
in each count (§ 12022.7, subd. (a)). On November 4, 2013, the court sentenced
Guerrero to a six-year prison term.
       On appeal, Guerrero contends the court abused its discretion when it limited the
number of prior convictions the defense could use to impeach the victim. We affirm.
                                         FACTS
       The prosecution presented its case primarily through the testimony of Shane
Schlievert, the victim of Guerrero’s offenses. Schlievert testified that in August 2011, he
moved into a house on Arthur Street in Fresno with his girlfriend Jennifer Fierro and their
two daughters. In October 2011, Guerrero and his brother Mike Guerrero (Mike) moved
into the house next door. Their friend, “Hek,” was at their house all the time.
       In early June 2012, while Guerrero was in the process of moving out of his house,
Schlievert and Guerrero agreed to trade Schlievert’s decorative carousel for Guerrero’s
two security cameras. Schlievert gave Guerrero the carousel that same day. Guerrero
gave Schlievert permission to enter his house to get the cameras and told him the door
would be open. A few days later, Schlievert went to Guerrero’s house in the evening but
found no one home and the front door locked. Schlievert entered the house through an
unlocked rear sliding glass door, unmounted the cameras, and took them home.
       The next morning, Hek showed up at Schlievert’s front door with a screwdriver in
his right hand, tucked into the long-sleeved shirt he was wearing. Hek told Schlievert
Guerrero wanted to talk with him. Schlievert replied that he was busy and would see
Guerrero later.

1      Unless otherwise indicated, all further statutory references are to the Penal Code.


                                             2
       At 4:00 p.m. or 5:00 p.m., Schlievert was in his yard selling a car to a man, when
Mike walked up to him in an aggressive manner and said something about the cameras.
Schlievert asked Mike if Schlievert could talk to Guerrero about it. Mike whistled and
Guerrero and Hek came out from behind a woodpile and quickly walked up to Schlievert.
Schlievert asked Guerrero what was going on and why he was rushing him. Guerrero
replied, “Deal’s off. [Expletive] the deal.” Schlievert asked Guerrero if they could talk
about it later and Guerrero responded, “No, we’re settling this now.”
       Schlievert asked the trio to hold on a second and he went in the house, gave Fierro
the money he received from selling the car, and asked her to call 911. Although
Schlievert believed things were going to get worse, he went back outside and locked the
door behind him because he was concerned for his family’s safety. Guerrero told Mike to
go into Schlievert’s house and get the cameras. Mike used a shovel that was on the front
porch to break the glass on Schlievert’s front door. However, after cutting his arm
reaching inside, Mike kicked the door in. Schlievert then rushed Guerrero and Hek in an
attempt to get them to call Mike to help them.
       While Mike was in the house, Schlievert exchanged insults with Guerrero and
Hek, who was armed with a screwdriver. Guerrero and Hek also alternated between
moving toward Schlievert and backing away when Schlievert moved toward them. As he
advanced toward Schlievert, Hek swung his arm out around to his right with the tip of the
screwdriver in a forward position as if to stab Schlievert. Guerrero was not armed at that
point and advanced on Schlievert with his fists up, attempting to strike him. When Hek
came close to stabbing him in the back, Schlievert drew a utility knife he kept on his belt
in a sheath, grabbed Hek’s shirt, and pushed him against a washer that was in the front
yard.2 He then put the knife up to Hek’s neck and told him to stop before letting him go.

2      Schlievert was a mechanic who worked on cars at his house. He testified that he
used the knife to clean head gaskets. The knife was approximately five inches long, with
the blade and the handle each approximately 2.5 inches long.


                                             3
Mike eventually came back outside, gave the shovel to Guerrero, and grabbed a wooden
stick, approximately four feet long, from Schlievert’s porch; Hek grabbed a large rock
from the ground. All three men rushed Schlievert, who then used his knife primarily to
block attacks from them because he could not get close enough to strike them with it.
Guerrero swung the shovel at Schlievert and hit him up to six times on the wrist and
twice on the head. Meanwhile, Hek tried to stab Schlievert with the screwdriver or hit
him with the rock, as Mike swung the stick at Schlievert or tried to poke him with it.
       Schlievert eventually threw away the knife because the blade got bent. When
Mike again jabbed him with the stick, Schlievert grabbed it, causing them both to fall on
to the street. Mike rolled over Schlievert, and Hek hit Schlievert in the left temple with
the rock while Schlievert’s head was against the asphalt. Hek then stabbed Schlievert on
the left side and “scramble[ed] [his] guts with the screwdriver,” as Guerrero struck
Schlievert multiple times with a shovel on his head, forcing his head against the asphalt,
and Mike, who was now standing, kicked him. After Guerrero hit Schlievert on the head
with the edge of the shovel, which caused him to start bleeding, Guerrero, Mike, and Hek
went inside Guerrero’s house. However, they soon came back out, placed the shovel, the
screwdriver, and the stick used in the attack in the trunk of Guerrero’s car and drove off
in a hurry, leaving Schlievert lying on the street, bleeding.
       Schlievert was eventually taken to a hospital where an incision was made in his
face to “bleed it out” because the left side had swollen to the size of a softball. He also
received 11 staples and seven stiches to repair his head where it was split open by the
blow from the shovel, and four staples to close the wound caused by Hek stabbing him
with the screwdriver. Additionally, Schlievert required three different surgeries to stop
internal bleeding, and the blow with the rock left him with two soft spots on his head.




                                              4
                                         DISCUSSION
Background
          Prior to trial, the prosecutor filed a motion in limine seeking to impeach Guerrero
with his 2009 felony assault with a deadly weapon adjudication (§ 245, subd. (a)(1)) in
juvenile court. The prosecutor also sought to prohibit the defense from referring to
Schlievert’s 2004, 2006, and 2012 misdemeanor convictions for spousal battery (§ 243,
subd. (e)(1)). The moving papers stated that Schlievert also had a 2006 conviction for
infliction of corporal injury on a spouse (§ 273.5).
          On September 4, 2013, at a hearing on the in limine motions, the court found that
Guerrero’s assault adjudication, Schlievert’s 2012 spousal battery convictions and his
2006 conviction for infliction of corporal injury on a spouse were crimes of moral
turpitude, and that they were recent enough to be probative on the issue of credibility. It
also found that Schlievert’s 2012 spousal battery conviction was probative on the issue of
Fierro’s credibility because she was the victim of the underlying offense, that Guerrero’s
assault adjudication was probative on the issue whether he acted in self-defense, and that
Schlievert’s convictions were probative on the issue whether he was the aggressor.
However, in weighing the probative value of admitting these convictions against their
prejudicial effect (Evid. Code, § 352),3 the court tentatively ruled that only Schlievert’s
2012 spousal battery conviction and Guerrero’s 2009 assault adjudication “would be
admissible not subject to any limitation.” In announcing its tentative ruling, the court
stated:

                  “So my initial impression … is that they’re going to be admissible
          for all purposes, at least the 245(a)(1) adjudication … and at least the 2012,


3     Evidence Code section 352 provides: “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
          243(e)(1) … for Mr. Schlievert. Whether I let in the 2006 case or not, calls
          into question whether it starts to become a situation where jurors would be
          so convinced that he’s this brute at home that they would simply not listen
          … and would just assume he’s the aggressor.”
          Later during the hearing, when defense counsel asked the court if it was
considering admitting Schlievert’s 2006 spousal battery conviction, the court
acknowledged it was and stated:

                 “So we have three fairly recent convictions and because of that I’d
          be inclined to allow in two, but again, I don’t want either witness to be so
          disabled by their conviction or adjudication history that they just have no
          chance to be believed, but I also don’t think that either witness should come
          here and testify under some cloak or some false [aura] of veracity.”
          Still later during the hearing, defense counsel advised the court that he had been
provided information that in 2006, Schlievert was convicted of both spousal battery and
infliction of corporal injury on a spouse, and in 2009, Schlievert was convicted of
misdemeanor vandalism (§ 594, subd. (a)), and failure to appear (§ 1320, subd. (b)). He
also argued at length that all of Schlievert’s convictions should be admitted for all
purposes. After agreeing that failure to appear was a crime of moral turpitude, the court
stated:

                 “Well, I think what I’ll do then because I was aware that he had
          these three battery-related convictions but I wasn’t altogether clear on all
          history. I’ll just get a printout from my clerk of all his past … criminal
          adjudication history, and I’ll consider that because that is a valid argument.
          You know, if there’s just no law abiding conduct at all between
          convictions, then … case law says those are very recent in time, they are
          highly probative, they are more probative because of that and that would be
          a reason to let in at least those two that I discussed.

                 “I seriously doubt that I’m going to do more than two even if I do
          find that there’s a relative uninterrupted stream of misconduct starting from
          2004 because just like I [said], I wouldn’t do that to the defendant and I’m
          not going to do it to a complaining witness just to completely disable the
          witness. I mean jurors for whatever reason, we think one 243, three 243’s
          who cares but to the jurors it matters and so I think it’s likely then that we’ll
          end up with the two [convictions] and I’ll get the record on that 2006 case


                                                 6
       because the People have down here that it’s 273.5, you have a 243(e)(1),
       it’s not likely it would be both unless there were two separate incidents. If
       there were … we want to know that, too. [¶] So, I’ll get those records. I’ll
       take a look [at] those and I’ll give you that input before the final ruling
       tomorrow.…”
       The following day, the court prefaced its final ruling by stating that it had
reviewed Schlievert’s criminal history and had done more research on the admissibility of
prior convictions.4 It then ruled the defense could impeach Schlievert with his 2006 and
2012 spousal battery convictions, that if Guerrero testified, the People could impeach him
with his assault adjudication, and that if the defense offered Schlievert’s convictions to
show his propensity for violence, the prosecutor could introduce evidence of Guerrero’s
assault conviction to prove his “character trait for violence.”
       During the trial, defense counsel impeached Schlievert with his 2006 and 2012
spousal battery convictions.
Analysis
       Guerrero contends the court abused its discretion in limiting him to using only two
misdemeanor convictions to impeach Schlievert because: (1) the court sought to “treat
the evaluation” of Schlievert’s impeachment priors “in the same light” as Guerrero’s
impeachment prior; (2) it allowed the defense to impeach Schlievert with only two
convictions because of a fear that the “impeachment might actually work”; and (3) the
trial court’s ruling violated article I, section 28, subdivision (f) of the California
Constitution, which prohibits the exclusion of relevant evidence at trial.5 We will




4      The court, however, did not clarify whether Schlievert was convicted in 2006 of
both spousal battery and infliction of corporal injury on a spouse.
5      Guerrero does not challenge the court’s ruling with respect to admitting
Schlievert’s misdemeanor convictions to show his propensity for violence. Therefore, we
analyze the trial court’s ruling only with respect to admitting these convictions to
impeach Schlievert’s credibility.


                                               7
reject these contentions.6

               “‘[I]f past criminal conduct amounting to a misdemeanor has some
       logical bearing upon the veracity of a witness in a criminal proceeding, that
       conduct is admissible, subject to trial court discretion....’ [Citation.]
       ‘When the witness subject to impeachment is not the defendant, those
       factors [guiding the court’s discretion] prominently include whether the
       conviction (1) reflects on honesty and (2) is near in time.’ [Citation.]
       However, ‘the latitude [Evidence Code] section 352 allows for exclusion of
       impeachment evidence in individual cases is broad. The statute empowers
       courts to prevent criminal trials from degenerating into nitpicking wars of
       attrition over collateral credibility issues.’ [Citation.] “‘[C]ourts may and
       should consider with particular care whether the admission of such
       evidence might involve undue time, confusion, or prejudice which
       outweighs its probative value.”’” (People v. Leonard (2014)
       228 Cal.App.4th 465, 497.)

              “Review of a trial court decision pursuant to Evidence Code section
       352 is subject to abuse of discretion analysis. [Citations.] ‘The weighing
       process under [this] section … depends upon the trial court’s consideration
       of the unique facts and issues of each case, rather than upon mechanically
       automatic rules.’” (People v. Greenberger (1997) 58 Cal.App.4th 298,
       352.)

             “We will disturb the trial court’s exercise of discretion under
       Evidence Code section 352 only if the trial court’s decision exceeds the
       bounds of reason.” (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.)

               “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].” (People v.
       Clark (2011) 52 Cal.4th 856, 932.)
       The court initially found that Schlievert’s 2012 spousal battery conviction, and his
alleged 2006 conviction for infliction of corporal injury on a spouse, were probative on
the issue of Schlievert’s credibility. Later in the hearing, the court found that the
prejudicial effect of allowing the defense to impeach Schlievert with all three of his

6      Since the parties do not contend that any of Schlievert’s misdemeanor convictions
did not involve moral turpitude, we assume, without deciding, that they do.


                                              8
misdemeanor convictions involving “domestic violence” outweighed the probative value
of doing so, because it might cause the jury to assume Schlievert was the aggressor and
not listen to his testimony. Thus, the court tentatively ruled that the defense could
impeach Schlievert with only his 2006 and 2012 misdemeanor spousal battery
convictions. Later during the hearing, defense counsel advised the court that in 2009
Schlievert had a misdemeanor vandalism conviction and a misdemeanor failure to appear
conviction and that he might have an additional spousal battery conviction. After
listening to defense counsel argue at length that he should be allowed to impeach
Schlievert with all his prior convictions, the court agreed failure to appear was a crime of
moral turpitude. Nevertheless, it tentatively ruled that Schlievert could be impeached
with only his 2006 and 2012 convictions for spousal battery.
       The following day, after having reviewed Schlievert’s criminal record and having
done further legal research, the court affirmed its tentative ruling that it would allow
Schlievert to be impeached with two spousal battery convictions. Thus, the record shows
that in ruling that the defense could impeach Schlievert with only two of his prior
convictions, the court engaged in a careful weighing of the probative value of admitting
Schlievert’s prior convictions against their prejudicial effect.

               “The California Supreme Court has divided crimes of moral
       turpitude into two groups. [Citation.] The first group includes crimes in
       which dishonesty is an element (i.e., fraud, perjury, etc.). The second
       group includes crimes that indicate a ‘“general readiness to do evil,”’ from
       which a readiness to lie can be inferred. [Citation.] Crimes in the latter
       group are acts of ‘baseness, vileness or depravity in the private and social
       duties which a man owes to his fellowmen, or to society in general,
       contrary to the accepted and customary rule of right and duty between man
       and man.’ [Citation.] ‘Although the inference is not as compelling in the
       latter case, “it is undeniable that a witness’s moral depravity of any kind
       has some ‘tendency in reason’ [citation] to shake one’s confidence in his
       honesty.”’” (People v. Chavez (2000) 84 Cal.App.4th 25, 28-29.)




                                              9
       “In general, a misdemeanor—or any other conduct not amounting to a
       felony—is a less forceful indicator of immoral character or dishonesty than
       is a felony.” (People v. Wheeler (1992) 4 Cal.4th 284, 296 (Wheeler).)
       The admission of two of Schlievert’s prior convictions ensured that Schlievert did
not testify with a false aura of veracity. Further, Schlievert’s prior convictions were all
misdemeanors that did not involve dishonesty, and generally a misdemeanor “is a less
forceful indicator of immoral character or dishonesty.” (Wheeler, supra, 4 Cal.4th at
p. 296.) This buttressed the court’s concern that the jury might be unduly influenced by
the number of convictions, and not fairly assess Schlievert’s credibility. Thus, the record
supports the court’s decision to allow Schlievert to be impeached with only two of these
convictions.
       In People v. Carr (1973) 32 Cal.App.3d 700 (Carr), this court held:

              “The latitude of a trial judge to exclude prior felony convictions for
       impeachment purposes is, and rightly should be, greater as to defendants
       than for other witnesses; there is always a danger that if the jurors learn that
       the defendant suffered a prior felony conviction they will convict him
       merely because they believe that he is an evil person.” (Carr, supra, 32
       Cal.App.3d at p. 704.)
       In discussing the admissibility of Schlievert’s prior convictions for impeachment
purposes, the court initially stated it did not want either witness to be “so disabled by
their conviction or adjudication history that they [had] no chance to be believed.” Later
in the hearing, the court stated it was probably not going to allow Schlievert to be
impeached with more than two prior convictions, because it would not do that to the
defendant, and that it was not going to do that to “a complaining witness just to disable
the witness.”
       Guerrero cites the quote from Carr and the comments noted in the preceding
paragraph to contend the court erred in treating Schlievert and Guerrero the same with
respect to admitting prior convictions for impeachment purposes. According to Guerrero,




                                             10
the court should have “made rulings that gave Mr. Schlievert less latitude in excluding
his prior convictions of moral turpitude for impeachment.” We disagree.
       We interpret the court’s comments cited above as merely a reflection of the
weighing process the court undertook in determining whether the probative value of
admitting Schlievert’s prior convictions for impeachment purposes was outweighed by
their prejudicial effect, which it was required to do pursuant to Evidence Code section
352. The court’s statements that it did not want to “disable” Schlievert reflect no more
than the court’s concern that the prejudicial effect of admitting Schlievert’s prior
convictions for impeachment purposes did not outweigh their probative value.
       Further, the issue before the court in Carr was whether the court erred in not
allowing the defense to impeach a witness with a prior murder conviction. (Carr, supra,
32 Cal.App.3d at pp. 702-703.) Thus, the quote from Carr, which was not directly
related to the resolution of this issue, was dicta and not binding on this court. (People v.
Valencia (2011) 201 Cal.App.4th 922, 929.) In any event, the quoted portion of Carr is
inapposite because Guerrero does not challenge the court’s decision to allow the
prosecutor to impeach him with his assault adjudication. Additionally, it does not follow
from the court’s desire not to “disable” Schlievert’s or Guerrero’s testimonies that it did
not exercise greater latitude in deciding whether to exclude Guerrero’s prior adjudication
than it did in deciding whether to exclude Schlievert’s prior convictions. Accordingly,
we reject Guerrero’s contention that the court erred in the manner in which it evaluated
which convictions could be used to impeach Schlievert.
       Nor is there any merit to Guerrero’s contention that the court erred in limiting the
number of convictions Schlievert could be impeached with because it did so out of
“a fear that the impeachment might actually work.” Guerrero also bases this contention
on the court’s statement that it did not want Schlievert to be “so disabled” by his
conviction history that he had no chance to be believed. However, as discussed above,
this statement merely reflects the weighing process the court was required to engage in,

                                             11
and the court’s concern that the prejudicial effect of admitting Schlievert’s prior
convictions did not outweigh their probative value.
       Finally, we reject Guerrero’s contention that the exclusion of some of Schlievert’s
misdemeanor convictions violated the mandate of article I, section 28, subdivision (f) of
the California Constitution, that prior convictions should be admitted without limitation
for impeachment purposes.
       “Section 28, subdivision (f) was added to the California Constitution in June 1982
with the passage of the Proposition 8 initiative. Under its terms, ‘[any] prior felony
conviction ... shall subsequently be used without limitation for purposes of
impeachment….’” (People v. Castro (1985) 38 Cal.3d 301, 327 (Castro).) However, in
Castro, the Supreme Court held that “trial courts retain their discretion under Evidence
Code section 352 to exclude evidence of prior felony convictions when their probative
value is [substantially] outweighed by the risk of undue prejudice.” (Id. at p. 323.)
Further, since the court engaged in the requisite weighing process prior to ruling that only
two of Schlievert’s misdemeanor convictions could be used to impeach him, the ruling
did not contravene article I, section 28, subdivision (f) of the California Constitution.
Thus, we conclude that the court did not abuse its discretion when it allowed Schlievert to
be impeached with only two of his prior misdemeanor convictions.
       Moreover, reversal is not required unless it is reasonably probable that a result
more favorable to Guerrero would have occurred if the court had admitted all of
Schlievert’s misdemeanor convictions. (Castro, supra, 38 Cal.3d at p. 319.)
       As previously discussed, Schlievert’s prior convictions were less likely to
undermine his credibility because they were all misdemeanor convictions, none of them
involved dishonesty, and, in any event, he was impeached with two of these convictions.
Further, the defense also impeached Schlievert during cross-examination by getting him
to admit that he did not tell the deputy who interviewed him about anything that
happened prior to the commencement of the actual physical altercation or that Mike used

                                             12
a shovel to gain entry into Schlievert’s house. The defense also impeached Schlievert
through the testimony of the same deputy who testified that Schlievert did not disclose to
him many details that he testified to, including that Schlievert was armed with and used a
knife during the assault. The deputy also testified, contrary to Schlievert’s testimony,
that Schlievert told him the physical confrontation began after Mike came out of
Schlievert’s house. Further, the defense did not provide any affirmative evidence and the
jury could view the hasty flight from the scene by Guerrero, Mike and Hek as exhibiting
a consciousness of guilt. (CALCRIM No. 372.) Moreover, the serious injuries
Schlievert received were more consistent with him having been attacked by Guerrero,
Mike and Hek than with Schlievert having attacked them. Thus, we conclude it is not
reasonably probable Guerrero would have received a more favorable result even if the
court had allowed Schlievert to be impeached with more than two misdemeanor
convictions.


                                     DISPOSITION
       The judgment is affirmed.




                                            13
