Filed 4/5/16 P. v. Jones CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B261020

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA423666)
         v.

HOUSTON JONES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Monica Bachner, Judge. Affirmed.


         Morgan H. Daly, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Timothy M.
Weiner, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Houston Jones (Jones) was convicted of second degree burglary, a felony pursuant
to Penal Code section 459. He was sentenced to six years in state prison, calculated as
the midterm of two years, plus one year each for four incarceration priors within the
meaning of Penal Code section 667.5, subdivision (b). The trial court awarded Jones a
total of 496 days of custody credits, calculated as 248 actual days served and 248 days of
good conduct credit.
       On appeal, Jones contends that trial court abused its discretion under Evidence
Code section 3521 and violated his right to due process by admitting his prior theft
convictions for impeachment.
       We find no error and affirm.
                                         FACTS
Prosecution Case
       At about 11:55 p.m. on April 13, 2014, Daniel Sanchez (Sanchez) was in his
apartment on East 28th Street in Los Angeles waiting for his son to arrive home. While
looking out the second-story window, Sanchez saw his truck and Jones standing next to
the truck’s door. Jones raised his arm up and swung outward; at that point, Sanchez
heard breaking glass. Sanchez ran outside and saw that Jones had lifted the truck’s hood.
He was positioned near the location of the car battery, and was holding a pair of pliers.
When Sanchez approached, Jones dropped the pliers and ran away from the truck.
Sanchez began chasing Jones.
       Jones ran toward and then past Amasi Julian Murillo (Murillo), who was walking
home. Then Murillo saw Sanchez in pursuit. At some point, Murillo heard something
metal drop to the ground. Sanchez grabbed Jones by the arms and brought him back to
the truck. Murillo called 9-1-1.
       Officer John Boverie of the Los Angeles Police Department responded to the
scene with a partner. They observed a male Hispanic holding a male Black against a

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


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white truck. The officers detained Jones. Upon searching Jones, they found gloves and a
small flashlight. Sanchez told the officers about the pliers, which they recovered from
the street.
       One of the cables was loose on the truck’s battery.
Section 402 Hearing On Prior Felony Convictions
       After the People rested, the parties and the trial court discussed what would be
admissible for impeachment if Jones testified. The prosecutor indicated that she planned
to use all of Jones’s felony priors. The trial court indicated drug possession violations of
Health and Safey Code section 11350 could not be used for impeachment because they
did not involve moral turpitude.
       Defense counsel stated: “I would . . . ask under [section] 352, if the [trial] court
would consider limiting the number of convictions the [trial] court will allow [Jones] to
be impeached with. Because if . . . , let’s say 14 convictions come in, it’s highly
prejudicial, cumulative. And I think the jury is going to convict based on the number of
convictions he has, rather than on the evidence.”
       At a subsequent hearing, the trial court asked the prosecutor to state which priors
she wanted to use. She identified the following priors: (1) a 1994 burglary; (2) a 1995
petty theft with a prior; (3) a 1997 petty theft with a prior; (4) a 2000 conviction for
receiving stolen property; (5) a 2000 burglary; (6) a 2002 conviction for unlawful taking
or driving of a vehicle; (7) a 2004 conviction for unlawful taking or driving of a vehicle;
(8) a 2006 grand theft auto; (9) a 2007 conviction for possession of cocaine base for sale;
(10) a 2007 conviction for receiving stolen property; and (11) a 2007 conviction for
buying or receiving a stolen vehicle or equipment.
       Defense counsel asked the trial court to limit the number of convictions used, and
to sanitize any conviction involving facts similar to the burglary with which Jones was
presently being charged.
       The trial court excluded convictions from 1990 and earlier, convictions not
involving crimes of moral turpitude, and the 1994 burglary conviction on the grounds that
it was cumulative. With respect to convictions that involved automobiles or burglaries,

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the trial court stated that it would sanitize the description so the jury would learn only that
they involved crimes of moral turpitude.
Defense Case
         The defense called two witnesses to testify that in the weeks just prior to his arrest,
Jones walked with a limp and used a cane or a walking stick.
         Jones testified that on the night of his arrest, he was walking from a store where he
had recycled cans, bottles and plastic. He had a limp, and on that night he was using a
cane. After he stopped to relieve himself and pick up some cans, Jones was confronted
by Sanchez and accused of breaking into his truck. According to Jones, he was near the
truck but did not go up to it and break its window. He said he had gloves because he
recycles. He had the flashlight and pliers so that he could work on scooters and mini-
bikes.
         On direct examination, Jones admitted to a 1995 felony theft and a 1997 felony
theft. He also admitted to be convicted of theft offenses in 1997, 2000, 2002, 2004, 2006
and 2007.
         During cross-examination, Jones and the prosecutor had the following colloquy:
         “[THE PROSECUTOR]: And you’ve been convicted of petty theft with a prior in
1995; right?
         “[JONES]: Yes.
         “[THE PROSECUTOR]: And again in 1997?
         “[JONES]: Yes.
         “[THE PROSECUTOR]: And you were convicted of a crime of moral turpitude
in 2000, as well as receiving stolen property?
         “[JONES]: Yes.
         “[THE PROSECUTOR]: And you were convicted of another crime of moral
turpitude in 2002?
         “[JONES]: Yes.
         “[THE PROSECUTOR]: And another crime of moral turpitude involving theft in
2004?

                                                4
       “[JONES]: Yes.
       “[THE PROSECUTOR]: And a grand theft in 2005?
       “[JONES]: Yes.
       “[THE PROSECUTOR]: And possession for sale of cocaine base in 2007?
       “[JONES]: Yes.
       “[THE PROSECUTOR]: And unlawful concealing or selling stolen property and
receiving stolen property in 2007?
       “[JONES]: Yeah.
       “[THE PROSECUTOR]: Mr. Jones, you broke into Mr. Sanchez’s car, didn’t
you?
       “[JONES]: No, I didn’t.”
                                      DISCUSSION
       Evidentiary rulings are reviewed for an abuse of discretion. (People v. Cowan
(2010) 50 Cal.4th 401, 462.) If we find evidentiary error, that error does not require
reversal unless it is reasonably probable that a more favorable result would have occurred
had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Whether error under section 352 resulted in a fundamentally unfair trial and thereby
violated due process “is a question of law for the reviewing court.” (People v. Partida
(2005) 37 Cal.4th 428, 437.) A violation of due process is subject to review pursuant to
the standard in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under
Chapman, the reviewing court asks whether the constitutional error was harmless beyond
a reasonable doubt. (Id. at p. 24.)
       The initial question is whether the trial court abused its discretion when admitting
Jones’s theft priors.
       Section 788 provides: “For the purpose of attacking the credibility of a witness, it
may be shown by the examination of the witness or by the record of the judgment that he
has been convicted of a felony.” This statute is subject to section 352, which applies to
all relevant evidence. (People v. Castro (1985) 38 Cal.3d 301, 306.) Section 352
provides: “The court in its discretion may exclude evidence if its probative value is

                                             5
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.”
       When exercising its discretion under sections 788 and 352, “the trial court must
consider four factors identified by our Supreme Court in People v. Beagle (1972) 6
Cal.3d 441, 453 [(Beagle)]: (1) whether the prior conviction reflects adversely on an
individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior
conviction; (3) whether the prior conviction is for the same or substantially similar
conduct to the charged offense; and (4) what the effect will be if the defendant does not
testify out of fear of being prejudiced because of the impeachment by prior convictions.
[Citation.] These factors need not be rigidly followed. [Citation.]” (People v. Mendoza
(2000) 78 Cal.App.4th 918, 925.)
       The admission of the priors did not prevent Jones from testifying. Regarding the
other factors, we note the following. They reflected on Jones’s honesty, and therefore
served the purpose of impeachment. (Beagle, supra, 6 Cal.3d at p. 453 [acts of stealing
are universally regarded as conduct which reflects adversely on a man’s honesty and
integrity].) The convictions were not too remote. Rather they established a pattern of
misconduct. (Ibid. [generally, an old conviction should be excluded on the ground of
remoteness if the defendant lived a legally blameless life between the old conviction and
committing the new offense]; People v. Green (1995) 34 Cal.App.4th 165, 183 [20-year
old prior admissible because “appellant did not subsequently lead a blameless life”].)
Finally, the convictions were not substantially similar to the second degree burglary with
which Jones was charged in this case, or they were otherwise sanitized to avoid undue
prejudice. (Beagle, supra, at p. 453 [there are strong reasons to exclude prior convictions
involving the same or substantially similar conduct because of the inevitable pressure on
jurors to believe that if the defendant committed the prior offense, he or she probably
committed the current offense].)
       The trial court ruled within the bounds of its discretion.



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       In reaching this conclusion, we reject Jones’s contention that the theft priors were
similar enough to create pressure on the jurors to believe that “‘“if he did it before he
probably did [it] this time.”’” (Beagle, supra, 6 Cal.3d at p. 453.) The jury was given no
indication that the prior convictions involved burglary or vehicles. Thus, it had no reason
to conclude that Jones have previously burglarized a vehicle and was therefore more
likely to have committed the charged offense. Even if the priors were similar, we would
not find an abuse of discretion because the probative value regarding Jones’s honesty
outweighed the prejudicial impact. This is particularly so because excluding the theft
priors would have given Jones a “‘“false aura of veracity”’” when he disclaimed
culpability. He was not entitled to that. (People v. Muldrow (1988) 202 Cal.App.3d 636,
647, citing Beagle, supra, at p. 453.)
       If there had been error resulting in a violation of due process, we would find the
error harmless under the Chapman test. We note that Sanchez saw Jones break into the
truck and confronted him while he was standing near the truck’s battery with the hood
open. Jones had gloves, pliers and a flashlight. Sanchez testified that a cable had been
loosened on the truck’s battery. Beyond a reasonable doubt, the jury would have still
convicted Jones even if the priors had been excluded.
                                         DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                            __________________________, J.
                                                  ASHMANN-GERST
We concur:


_____________________________, P. J.
           BOREN


____________________________, J.
           HOFFSTADT

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