Filed 7/25/16 P. v. Watkins CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070693
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF153580A)
                   v.

CASEY JEROME WATKINS,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Ian P. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
       Appellant Casey Jerome Watkins appeals his convictions for driving with a willful
or wanton disregard for safety while fleeing from pursuing police officers (Veh. Code,
§ 2800.2, subd. (a)) and resisting arrest (Pen. Code, § 148, subd. (a)(1)). Appellant
contends the trial court erred in admitting evidence of a prior misdemeanor conviction
from 1992, also for driving with a willful or wanton disregard for safety while fleeing
from pursuing police officers. For the reasons set forth below, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On February 27, 2014, Bakersfield Police Officer Lukious Sims of the Career
Criminal Apprehension Team and his partner, Officer Carl Martin, received a call from
California State Parole Agent Chad Greenwood advising that appellant was absconding
from parole and requesting assistance in apprehending him. Officers Sims and Martin
were driving an unmarked white car which was equipped with red and blue light bars on
the windshield and a siren. Parole Agent Greenwood was also in the area, driving a white
Chevy Colorado truck. His supervisor, Parole Agent Darrott Johnson, was also present in
the area, driving a blue Chevy Colorado truck.
       Agent Johnson testified to initially following appellant after seeing him get into a
vehicle. Agent Johnson fell off of the pursuit, however, when appellant passed through a
green light that changed to red before Agent Johnson could pass. Agent Johnson saw
Officers Sims and Martin pull behind appellant’s vehicle, but did not see anything else
until after appellant was in custody.
       Officers Sims testified to finding appellant driving a black Chevy Malibu. Officer
Sims initiated a traffic stop, utilizing his lights and sirens. Appellant initially pulled over,
but as Officers Sims and Martin approached the back of the Malibu, appellant drove
away. A relatively low-speed chase ensued, during which appellant ran several stop
signs, ending when appellant substantially increased his speed, lost control of the vehicle,
and crashed into a fence.



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       Upon crashing his vehicle, appellant fled on foot. Officer Sims gave chase,
yelling “Stop! Police.” Appellant jumped a fence and ran into an apartment complex.
At some point he stopped, turned around, and took an aggressive stance. Officer Sims
pulled out his collapsible baton and told appellant to get on the ground. Appellant
complied, but according to Officer Sims, pulled his hands and arms away as Officer Sims
attempted to handcuff him. Utilizing force and with assistance from Parole Agent
Greenwood, who had arrived on scene, Officer Sims was able to subdue appellant and
place him under arrest.
       Appellant contested these facts at trial. According to appellant, he never saw a
white car utilizing lights and sirens to pull him over and never stopped as a result of such
conduct. Rather, while driving to work through a known gang neighborhood, appellant
noticed a grayish/blue truck and a red truck following close behind him. Concerned for
his safety, appellant made several turns to determine whether he was being followed.
When he concluded he was being followed, appellant attempted to flee, crashing his car.
He took off on foot, hoping not to be shot by his pursuers, but stopped after a short while
when he realized the people following him were police officers. At that point, he
voluntarily submitted to their commands by laying on the ground and did not resist being
handcuffed. According to appellant, Officer Sims placed a knee on his back and pulled
one of his arms up, behind his back, causing him to roll onto his other arm. At that point,
Parole Agent Greenwood began hitting him while telling him not to ever run from him.
       During his direct examination, appellant admitted to having been convicted of
three prior felonies. When later questioned by his counsel on his conduct in this case, the
following exchange occurred:

             “[DEFENSE COUNSEL]: Okay. Did you ever notice a white car
       behind you?

              “THE DEFENDANT: No, I did not.



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               “[DEFENSE COUNSEL]: Did you hear a siren?

               “THE DEFENDANT: No.

               “[DEFENSE COUNSEL]: Did you see flashing lights behind you?

               “THE DEFENDANT: No.

               “[DEFENSE COUNSEL]: What would you have done if you heard
       the siren?

               “THE DEFENDANT: Of course, pull over. I’ve always pulled
       over.

               “[DEFENSE COUNSEL]: Why would you pull over?

               “THE DEFENDANT: Because I know it’s the officer of the law.”
       At the first break following this testimony, the People made an oral motion to
introduce evidence of appellant’s prior conviction from 1992 for “a misdemeanor
violation of 2800.2,” driving with a willful or wanton disregard for safety while fleeing
from pursuing police officers. Appellant’s counsel objected, referring to a prior motion
in limine to preclude impeachment by character evidence and referencing Evidence Code
section 352. The trial court admitted the evidence, explaining “in considering the 352
factors I do find that the probative value of the 1992 conviction would not be
substantially outweighed by the prejudicial effect, it would directly impeach the
defendant based on the nature of the prior charge.”
       Following the trial court’s ruling, the following exchange occurred during cross
examination:
               “[PROSECUTOR]: Now, you told us that you were driving like this
       trying to get away from the red trucks because if you knew that it was a law
       enforcement officer you would have pulled over.

               “THE DEFENDANT: No. If - - it’s not a point if I knew there was
       officers. What I’m saying is I didn’t know who it was. I did not know who
       it was.



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             “[PROSECUTOR]: But if you had known it was an officer, you
       would have pulled over?

             “THE DEFENDANT: If they had flashing lights and they identify
       themselves, was right there, yes, I would have pulled over.

              “[PROSECUTOR]: But in 1992 when officers are following you
       with their lights and sirens on, you evaded polices officers then; correct?

               “THE DEFENDANT: I was driving right behind my girlfriend who
       was at a party late at night with my kids out there, and I was following her,
       and the officer’s right behind me. This wasn’t even, like, 10, 15 seconds.
       Yes, I pulled over in the middle of the street and they arrested me. No
       fight, no arguments, no nothing.

              “[PROSECUTOR]: But you were convicted of evading police
       officers in 1992 for that; correct?

              “THE DEFENDANT: I accepted a plea deal.”
       Appellant was subsequently convicted by a jury and sentenced. This timely
appeal followed.
                                      DISCUSSION
       Appellant contends the trial court failed to conduct a proper analysis under
Evidence Code section 352, arguing the trial court must find a proffered misdemeanor
conviction is a crime of moral turpitude in order to admit it.
Standard of Review and Applicable Law
       Under Evidence Code section 352, 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.” In the context of
Evidence Code section 352, prejudice refers to evidence that uniquely tends to evoke an
emotional bias against a party as an individual and only has slight probative value with
regard to the issues. (People v. Scheid (1997) 16 Cal.4th 1, 19.)




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       We review the decision to admit evidence under Evidence Code section 352 for an
abuse of discretion and will not disturb the ruling unless there is a clear showing the trial
court exceeded the bounds of reason, all circumstances considered. (People v. Martinez
(1998) 62 Cal.App.4th 1454, 1459.)
The Trial Court Did Not Abuse Its Discretion
       Appellant insists the trial court was required to determine whether his 1992
misdemeanor conviction was a crime of moral turpitude in order to admit the conviction
for impeachment purposes. We do not agree.
       Relevant to this discussion, under Evidence Code section 780, evidence may be
admitted regarding the credibility of witnesses which bears on either their “character for
honesty or veracity” or the “existence or nonexistence of any fact testified to” by them.
(Evid. Code, § 780, subds. (e), (i).) It is true, as appellant argues, that evidence of prior
misdemeanor convictions offered to impeach the witness’s character for honesty or
veracity requires proof the conviction was for a crime involving moral turpitude. (Evid.
Code, § 787; People v. Wheeler (1992) 4 Cal.4th 284, 295 [concluding past criminal
conduct amounting to a misdemeanor having some logical bearing on the veracity of a
witness is admissible as general impeachment evidence].) But this admissibility
requirement is not mandated when the evidence is not offered for impeachment based on
one’s character for honesty or veracity, but instead offered to disprove a specific fact
testified to by the witness. (See Evid. Code, § 787 [excluding evidence of specific
incidents of conduct “relevant only as tending to prove a trait of [the witness’s]
character”].)
       “A witness who makes a sweeping statement on direct or cross-examination may
open the door to use of otherwise inadmissible evidence of prior misconduct for the
purpose of contradicting such testimony.” (Andrews v. City and County of San Francisco
(1988) 205 Cal.App.3d 938, 946.) As an example, in People v. Cooks (1983)
141 Cal.App.3d 224 (Cooks), the defendant testified he had never owned or possessed a

                                               6
gun. The prosecution properly cross-examined him on this statement by introducing
evidence that the defendant had previously pleaded guilty to the misdemeanor offense of
possessing a stolen handgun. (Cooks, supra, 141 Cal.App.3d at p. 324.) Rules such as
these serve to ensure a defendant does not seek to mislead a jury by presenting false facts
free of any risk of impeachment. (See People v. Robinson (1997) 53 Cal.App.4th 270,
282-283.)
       This case exemplifies why such a rule exists. On direct, and again on
cross‑examination, appellant testified that he would have certainly stopped for the
officers if only he had seen their lights and heard their sirens. This testimony was
presented in support of his defense that Officers Sims and Martin had not followed him in
a white car with their lights and siren on. Yet appellant had previously pleaded guilty to
a crime which required, as an element of the offense, evading or otherwise attempting to
elude a pursuing peace officer’s motor vehicle when the “vehicle is exhibiting at least one
lighted red lamp visible from the front and the person either sees or reasonably should
have seen the lamp” and the “vehicle is sounding a siren.” (Veh. Code, §§ 2800.1,
subds. (a)(1)-(2), 2800.2, subd. (a) [rendering criminal a willful or wanton disregard for
safety when “a person flees or attempts to elude a pursuing peace officer in violation of
[Vehicle Code s]ection 2800.1”].) The People were certainly permitted to impeach
appellant on his affirmative claims with conflicting past conduct.
       With respect to the trial court’s decision to admit the evidence under Evidence
Code section 352, we see no abuse of discretion. The evidence was relevant and highly
probative with respect to appellant’s affirmative claim he would have stopped. (People v.
Reyes (1976) 62 Cal.App.3d 53, 65.) While introduction of a past criminal conviction,
more than 10 years old, does carry with it some prejudice to appellant, this prejudice was
not undue and was further minimized by the fact that appellant had previously admitted
to three substantially more serious felonies on direct examination.



                                             7
                            DISPOSITION
The judgment is affirmed.




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