Filed 3/3/15 P. v. Arevalo CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059854

v.                                                                       (Super.Ct.No. FVA701999)

JAIME AREVALO,                                                           OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed with directions.

         David P. Lampkin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland, Robin Urbanski and Teresa Torreblanca, Deputy Attorneys General,

for Plaintiff and Respondent.




                                                             1
       A jury convicted defendant and appellant Jaime Arevalo of the second degree

murder of Adrian Rivas (count 1; § 187, subd. (a)),1 the premeditated and deliberate

attempted murder of Gerardo Pizarro (count 2; §§ 664, 187, subd. (a)), and assault with a

semiautomatic firearm upon Michael Thirkill (count 5; § 245, sub. (b)).2 The jury

additionally found true allegations defendant had personally used a firearm in counts 1, 2,

and 5 (§ 12022.53, subds. (b) & (e)(1)); personally and intentionally discharged a

handgun in his commission of the offenses in counts 1, 2, and 5 (§ 12022.5, subds. (a) &

(d)); and personally and intentionally discharged a handgun causing death and great

bodily injury in his commission, respectively, of the offenses in counts 1 and 2

(§ 12022.53, subds. (d) & (e)(1)). The court sentenced defendant to an aggregate term of

10 years 4 months incarceration plus an indeterminate term of 65 years to life.

       On appeal, defendant contends the court committed prejudicial error in permitting

the prosecution to impeach defendant and his uncle with one of their prior misdemeanor

convictions. Defendant additionally argues clerical errors in the abstract of judgment and

sentencing minute order must be corrected. The People concede the latter issue. We

shall direct the superior court to correct the abstracts of judgment and conviction and

sentencing minute orders. In all other respects, the judgment is affirmed.




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

       2 The jury found defendant not guilty of the alternatively pled counts 3 and 4,
respectively, assault with a semiautomatic firearm upon Pizarro and the attempted
premeditated and deliberate murder of Thirkill.


                                              2
                                 FACTUAL HISTORY

       Raul Martinez, who sometimes went by the nickname “Racoo,” testified that on

November 12, 2005, he arrived at a house party hosted by Rivas’s cousin, across the

street from Eisenhower High School (Eisenhower) in Rialto at around 5:00 or 6:00 p.m.

Somewhere between 80 and 500 people attended. Martinez was in the backyard when

someone told him people were arguing in the front. He went to the front of the house to

see what was happening. Rivas was speaking with several people in the street. Martinez

recognized defendant’s voice.

       Martinez had attended Eisenhower with defendant for a short period of time. He

also attended Eisenhower with defendant’s brother. At the time of the shooting, Martinez

had known defendant for a year or two. Defendant was Martinez’s friend.

       Defendant pulled out a small black handgun and began shooting. He fired five or

six shots. Rivas was hit by gunshot in the head. Two other people were also shot. Rivas

fell to the ground.

       Martinez told a responding police officer, Lamont Quarker, Martinez saw

defendant run from the scene after the shooting. That evening, Martinez picked

defendant out of a photographic lineup. In 2007, Martinez again picked defendant out of

a photographic lineup. Martinez identified defendant in court.

       Adrian Badial testified he was at his cousin’s house in front of Eisenhower for a

party on November 12, 2005, when Rivas was murdered. Three to four people, including

Rivas and Thirkill, were shot. Badial knew defendant, but did not see him at the party




                                            3
and did not witness the shooting. However, Badial told Detective James Mills that Badial

had seen defendant running from the scene of the shooting.

       On an occasion prior to the shooting in 2005, defendant had shown up at Badial’s

mother’s house. Defendant pounded on the door exclaiming that he wanted his gun back.

Rivas was also present. They did not know anything regarding defendant’s gun. Badial

and Rivas beat defendant.

       Thirkill testified he was at the party the night the shooting took place. Four men

were monitoring the gate to ensure only invited guests were admitted. When Thirkill left

the party to walk a friend to his car, the four individuals who were previously monitoring

the gate were surrounding someone in the middle of the street. They were talking to the

individual as if they were going to fight with him. They were telling the lone individual

to leave. One of them swung what appeared to be a bottle; the surrounded individual

started shooting a handgun.

       Thirkill ran and ducked behind a vehicle. He heard about seven gunshots coming

from the middle of the street and saw muzzle flashes. Thirkill felt a burning sensation

and discovered he had been shot in the buttocks. He dug the bullet out and dropped it on

the ground.

       The man in the street that had been holding the bottle had been shot in the head.

He fell backward to the ground where he lay with blood flowing out of his head. Thirkill

saw another person shot in the stomach. Thirkill was later treated by paramedics, but

chose not to go to the hospital. In May 2010, Thirkill identified defendant as the shooter

from a photographic lineup.


                                             4
          Pizarro’s preliminary hearing testimony was read into the record because he had

died by the time of the trial. He had testified that he was at a party in Rialto where he

received a grazing bullet wound to his leg while standing in the driveway. Pizarro was

taken to the hospital where he spent eight hours.

          Quarker testified he was dispatched to the residence at around 11:00 p.m. in

response to a reported fight. When he arrived, he saw people kneeling around a person

lying on the ground, with a large pool of blood around his head; it appeared the man had

been shot in the head. The victim appeared to still be breathing so Quarker called the

paramedics.3 Quarker asked what had happened; he was told that Rivas had been shot.

          Four or five other officers responded to Quarker’s call for backup. The

paramedics arrived, treated Rivas, and took him to the hospital.

          Quarker spoke with Badial, who told Quarker he saw defendant arguing with

another man in the middle of the street in front of the house. Rivas was attempting to

stop defendant from fighting with the other individual. Badial said he then heard several

gunshots, ducked down, and saw defendant running away.

          Sergeant Joshua Lindsay also spoke with Badial, who said defendant was at the

party and was one of the men arguing. Rivas stepped between defendant and another

arguing party. The shooting then occurred. Badial did not see the shooter; however, he

saw defendant running away afterward. Badial identified defendant from a photographic

lineup.

          3
         Though Quarker did not testify this victim was Rivas, it is apparent from the
record as a whole that he was.


                                               5
       Badial was able to provide Quarker with directions to defendant’s address. It was

with that information that other officers were able to provide Quarker with the

photographic lineup containing defendant’s picture, from which Martinez, Badial, and

Thirkill identified defendant.

       Quarker spoke with Martinez, who said he witnessed an argument in the street

between Pizarro and defendant. Martinez said defendant pulled out a dark handgun and

fired five or six rounds toward Pizarro.

       Mills was assigned to investigate and process the scene of the shooting. He found

six spent, nine-millimeter shell casings. Mills also discovered two bullet strikes to two

vehicles parked on the curbside. Thirkill came up to Mills and informed him Thirkill had

been shot in the buttocks. Thirkill described the shooter. Mills was with Lindsay when

Lindsay spoke with Badial; Badial identified defendant as being at the party.

       An emergency room physician testified that on November 13, 2005, he treated

Pizarro for a gunshot wound to Pizarro’s right leg. The injuries “were significant and

potentially disastrous.” Pizarro was released the same day.

       Rivas died on November 15. A retired medical examiner performed the autopsy

on Rivas’ body. He testified Rivas had sustained three gunshot wounds. The cause of

Rivas’ death was multiple gunshot wounds.

       Mills interviewed Martinez on December 6 and 9, 2007, at the Adelanto Jail.

Martinez informed Mills that Martinez witnessed an argument between Rivas and

defendant, in which Rivas was telling defendant that defendant could not attend the party.




                                             6
Defendant looked angry and did not appear intoxicated. Mills confirmed that defendant

had attended Eisenhower with Martinez, albeit, only for three days.

       Fidel Gutierrez testified he knew defendant in 2005 and considered him a friend.

In January 2008, he received phone calls from defendant while defendant was in jail.

The calls were recorded, burned to a CD, and provided to the People. The People played

a recording of one of the calls to the jury.

       In the call, defendant tells Gutierrez to inform “Racoo,” “You fucked up homie.

But, we ain’t trippin yet. What you got to do is testify in court and say that you lied.

That you just wanted to get out of jail so you said it was him, you know.” “And then just

be like, if you don’t do that then after that, you know what I’m saying, then you and your

whole fam bams is gonna . . . get murked. Then that Fool, he, he’s a little bitch dog,

he’ll, he’ll do what you tell him.” “[E]ither he pays or you know what I’m sayin’? He

knows what the consequences . . . .” Gutierrez interrupted, “He pays or he lays.” To

which defendant replied, “Exactly.” Gutierrez testified he recognized his own and

defendant’s voices from the recordings.

       Defendant’s uncle, Leo Carrillo, testified that in July 2005, defendant came to live

with him in Tijuana, Mexico. Defendant lived with him for somewhere between 11 and

18 months. In November 2005, in the middle of the week, around defendant’s birthday

on the tenth, defendant went out with his friends to celebrate. On November 12, 2005,

the family celebrated defendant’s birthday in Tijuana from noon until midnight.




                                               7
       Defendant’s grandmother testified defendant lived with Carrillo in Tijuana

beginning in the spring of 2005 until March 2006. The family celebrated defendant’s

birthday on November 12, 2005, in Tijuana, from the afternoon until midnight.

       Defendant testified he began living with Carrillo in Tijuana around June 2005 for

about a year. Defendant was living with Carrillo on defendant’s birthday in November

2005. The family came down to celebrate on November 12, 2005.

       Defendant testified he was in Tijuana on the night of the shooting. He was not at

the party. Defendant did not shoot or kill anyone. He never fought with Badial or Rivas.

       Defendant did not know Badial, Rivas, Martinez, Thirkill, or Pizarro. Defendant

only attended Eisenhower for one day. When defendant referred to “Racoo,” he meant to

give two black eyes to the person who had inculpated him; “Racoo” did not refer to any

specific individual known to him other than the person who was lying to the police about

defendant having been the shooter. Defendant also testified Martinez and “Racoo” were

the same person, but that he was not referring to Martinez when he mentioned “Racoo” in

his recorded conversation. Defendant testified that getting “murked” meant “pure

danger,” but is not a threat to kill anyone.

                                       DISCUSSION

   A. Impeachment with Misdemeanor Convictions.

       Defendant contends the court prejudicially erred in allowing the People to

impeach both defendant and Carrillo with one of their prior misdemeanor convictions.

We disagree.




                                               8
       Defendant filed a pretrial brief seeking to exclude the use of defendant’s prior

convictions to impeach his testimony. The court noted, “Now we have, again, just so we

can kind of clear up some things, in terms of motions to exclude priors, that would be

only litigated assuming your defendant intends to take the witness stand, so we can go

over that prior . . . as to any type of prior convictions.” The court added, “My

understanding under Wheeler and other case authority is that the conduct can come in but

only if, obviously, the People have witnesses to establish that conduct and it has to

involve moral turpitude, obviously. So that would be a—sometimes it’s a very difficult

bridge to cross when you don’t have the actual witnesses to that actual misconduct.”

       In the middle of trial, the People proposed impeaching Carrillo’s testimony with

an April 1, 1996, misdemeanor conviction for theft of personal property; a March 31,

1997, misdemeanor conviction for theft; and a March 25, 1999, felony conviction for

petty theft with a prior. Defense counsel conceded the felony conviction could be

adduced, but objected to “misdemeanors coming in unless—even if [the prosecutor] was

preparing to bring in witnesses, I think it would take undue time to prove up the facts of

the misdemeanor thefts.”

       The court responded, “That’s not required any longer. In terms of a misdemeanor

versus felony, in terms of the prior convictions, the actual conduct does not have to come

in any more to substantiate the misconduct on a misdemeanor. It’s treated exactly like a

felony conviction, I think, under the Wheeler decision, and I believe there’s a specific

Evidence Code section dealing with that, so that’s a non issue at this time.” The court

determined that the crimes were not too remote in time and established “a pattern and


                                             9
history of theft-related offenses from 1996 [through] 1999, which, obviously, is very

relevant to the credibility of a witness in terms of the fact that they were all theft-related,

then I would be inclined to allow all these convictions to come in.”

       Defense counsel objected based on the length of time since the convictions. The

court asked if Carrillo had been law abiding since his last release from prison. The

People responded he had an arrest on March 12, 2012, for driving under the influence,

but there was no conviction and no indication whether the arrest was for a misdemeanor

or felony. The court stated, “Well, I’m going to take it under submission. I’ll do a little

more research. I know that the courts have a greater latitude in terms of prior convictions

being used for impeachment purposes . . . .” The court also took the issue of the

remoteness of the convictions under submission.

       After further trial testimony, the court stated, “My tentative indicated ruling is that

I am going to allow your witness to be impeached with the prior convictions involving

moral turpitude, even though they occurred, I believe, in 1996 [through] 1999.” “One of

the most important factors is to consider whether or not the convictions reflect honesty.

And, again, since these are theft-related convictions that strictly are reflecting on honesty

and veracity, I’m going to allow . . . the witness to be impeached with those prior

convictions. And that would be Les Carrillo for the record.”

       During Carrillo’s testimony, the People impeached him with only one of his

misdemeanor convictions, his conviction for theft in 1996. The People also impeached

defendant with his felony conviction in 1999 for theft. During defendant’s testimony on

cross-examination, the People asked if defendant had been convicted of attempted second


                                              10
degree burglary in March 2007. Defendant testified he did not remember. The court

took judicial notice that defendant had been convicted of misdemeanor attempted second

degree burglary on March 9, 2007.

       “[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 . . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 295.)

“Misconduct involving moral turpitude may suggest a willingness to lie [citations], and

this inference is not limited to conduct which resulted in a felony conviction. While the

trial court may weigh proffered impeachment evidence on its individual merit, there is no

basis for a ruling that the court’s discretion may never be exercised to admit nonfelonious

conduct.” (Id. at pp. 295-296.) “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. Moreover, impeachment evidence other than felony convictions entails

problems of proof, unfair surprise, and moral turpitude evaluation which felony

convictions do not present. Hence, courts 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.” (Id. at pp. 296-297, fn. omitted.)

       “[E]vidence of a misdemeanor conviction, whether documentary or testimonial is

inadmissible hearsay when offered to impeach a witness’s credibility.” (People v.

Wheeler, supra, 4 Cal.4th at p. 300, fn. omitted.) “Nothing in the hearsay rule precludes

proof of impeaching misdemeanor misconduct by other, more direct means, including a

witness’s admission on direct or cross-examination that he or she committed such


                                             11
conduct. Nor is the Legislature precluded from creating a hearsay exception that would

allow use of misdemeanor conviction for impeachment in criminal cases.” (Id. at p. 300,

fn. 14.)

       “In 1996, the Legislature enacted Evidence Code section 452.5, which provides

the type of hearsay exception contemplated in Wheeler. Evidence Code section 452.5,

subdivision (a) provides that the official records of which a court may take judicial notice

(Evid. Code, § 452, subd. (d)) include certain computer-generated official court records.

Evidence Code section 452.5, subdivision (b), the provision more directly pertinent to the

question before us, states, ‘An official record of conviction certified in accordance with

subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the

commission, attempted commission, or solicitation of a criminal offense, prior conviction,

service of a prison term, or other act, condition, or event recorded by the record.’”

(People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)

       “Evidence Code section 452.5 states a new hearsay exception for certified official

records of conviction, which may be offered to prove not only the fact of a conviction,

but the commission of the underlying offense.” (People v. Duran, supra, 97 Cal.App.4th

at p. 1461, fn. omitted.) However, an attempt to impeach a defendant by eliciting

testimony about a prior conviction is a form of evidence still not excepted from the

hearsay rule. (People v. Cadogan (2009) 173 Cal.App.4th 1502, 1515, fn. 4; accord,

People v. Lopez (2005) 129 Cal.App.4th 1508, 1522, fn. 8; but see People v. Capistrano

(2014) 59 Cal.4th 830, 866-867 [trial court committed harmless error in precluding

counsel from questioning a witness as to whether she had committed misdemeanor


                                             12
offenses as she was a percipient witness to her own crimes]; People v. Farley (2009) 46

Cal.4th 1053, 1105 [same].)

       Here, the People’s elicitation of Carrillo’s misdemeanor conviction for theft would

appear to be an impermissible violation of the rule against hearsay evidence. Likewise,

the People’s attempted elicitation of defendant’s misdemeanor conviction for attempted

second degree burglary would appear to have been an impermissible violation of the rule

against hearsay evidence had it been successful. However, defendant’s misdemeanor

conviction was properly adduced through the court’s judicial notice of defendant’s

conviction from court records.

       Regardless, any error in the admission of either witness’s misdemeanor

convictions was harmless under any standard. (People v. Capistrano, supra, 59 Cal.4th

at p. 867; People v. Farley, supra, 46 Cal.4th at p. 1105.) The elicitation of Carrillo’s

misdemeanor conviction for theft in 1996 was brief and of an extraordinarily minor

prejudicial nature. Likewise was the court’s judicial notice of defendant’s misdemeanor

conviction for attempted second degree burglary. It is somewhat incongruous, and not

altogether clear, that the law finds it prejudicial to allow a witness to simply admit he had

been convicted of a misdemeanor offense involving moral turpitude, while allowing the

establishment of the misdemeanor conviction through documentary evidence or

descriptions of the offenses by the witness himself. In any event, the evidence, as

recounted in our factual background above without the impeachment evidence,

overwhelmingly established that defendant was not in Mexico at the time of the shooting.

Rather, the evidence overwhelmingly established defendant was the shooter.


                                             13
       Martinez was defendant’s friend for up to two years before the shooting. He

identified defendant as one of the men in the street engaged in an argument prior to the

shooting. He identified defendant as the shooter on four separate occasions: (1) at the

scene; (2) that evening from a photographic lineup; (3) out of a photographic lineup in

2007; and (4) in court. Martinez saw defendant running from the scene of the shooting.

       Badial told one officer he had seen defendant at the party. Badial told two other

officers defendant was one of the men arguing in the street immediately before the

shooting. Badial saw defendant run from the scene of the shooting. Badial identified

defendant from a photographic lineup. Thirkill identified defendant from a photographic

lineup. Thus, overwhelming direct evidence established that defendant was at the scene

of the shooting and not in Mexico. Any error was harmless beyond a reasonable doubt.

       Moreover, the credibility of the three witnesses who identified defendant at the

scene must be compared with that of defendant, of which the court noted, “Throughout

all the years I’ve been a bench officer, in terms of [defendant’s] testimony, it was the

most incredible testimony that’s ever been heard in terms of how [defendant] testified, in

terms of some of the statements [defendant] made that obviously were lies . . . .” The

court’s summation of defendant’s testimony is amply supported even on this cold record.

Defendant himself made prejudicial statements during his testimony. Defendant

spontaneously admitted he had been a marijuana dealer. Defendant divulged that he was

high on cocaine when interviewed by police. Any error was harmless.




                                             14
   B. Clerical Errors.

   Defendant contends the sentencing minute order and abstract of judgment erroneously

reflect the court sentenced defendant for the count 3 offense on which the jury found him

not guilty. Defendant further notes the abstracts of judgment erroneously reflect the

offenses occurred in 2013 rather than 2005. The People concede the abstracts of

judgment and sentencing minute order must be corrected to accurately reflect the record.

We agree.

       “To the extent a minute order diverges from the sentencing proceedings it purports

to memorialize, it is presumed to be the product of clerical error. [Citation.] . . . As with

other clerical errors, discrepancies between an abstract and the actual judgment as orally

pronounced are subject to correction at any time, and should be corrected by a reviewing

court when detected on appeal. [Citation.]” (People v. Scott (2012) 203 Cal.App.4th

1303, 1324; accord People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)

       Here, the sentencing minute order dated August 23, 2013, and one of the abstracts

of judgment, erroneously reflect the court imposed but stayed sentence on the Count 3

offense, an offense of which the jury found defendant not guilty. Likewise, both

abstracts of judgment reflect the offenses occurred in 2013 rather than 2005, as

established by the evidence at trial. Furthermore, undiscussed by the parties, the minute

order of the conviction dated February 15, 2013, erroneously reflects the jury found

defendant guilty on count 3. We shall direct the superior court to correct the minute

orders and abstracts of judgment.




                                             15
                                       DISPOSITION

       The superior court is directed to correct the minute order dated February 15, 2013,

to reflect that the jury found defendant not guilty on count 3. The superior court is

further directed to correct the minute order dated August 23, 2013, and the corresponding

abstract of judgment, to accurately reflect that defendant was not convicted or sentenced

on the count 3 offense. Finally, the superior court is directed to correct the abstracts of

judgment to reflect that all the offenses of which defendant was convicted occurred in

2005, not 2013. The corrected abstracts of judgment and minute orders shall be

forwarded to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 CODRINGTON
                                                                                              J.

We concur:


KING
                 Acting P. J.


MILLER
                           J.




                                             16
