Filed 9/4/14 P. v. Piocortes CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C073935

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F03649)

          v.

NOE PIOCORTES,

                   Defendant and Appellant.




          A jury convicted defendant Noe Piocortes of furnishing methamphetamine to a
minor, S.T., possessing methamphetamine, felony child abuse as to S.T., and
misdemeanor child abuse, a lesser included offense, as to D.D. The jury acquitted
defendant of furnishing methamphetamine to D.D.
          Sentenced to state prison, defendant contends the trial court deprived him of his
right to a defense when the court barred him from impeaching a prosecution witness with
a prior conviction for negligent discharge of a firearm, a crime of moral turpitude. We
affirm.


                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       Prosecution Case
       On January 22, 2012, defendant lived in apartment number 72 at an apartment
complex on Sunrise Vista Drive in Citrus Heights. Victim S.T., aged 17, lived next door
in apartment number 70. He had told defendant his age when he moved in six months
before. Prosecution witness Antoine Clay lived in apartment number 68.
       S.T. lived with his father, but his father was not home that day. S.T. had invited
his 15-year-old friend D.D. over. During the afternoon, S.T. and D.D. were drinking
vodka, some inside the apartment and some outside on the balcony, where they saw
defendant across the way on his balcony. S.T. asked defendant if he could buy beer for
him and D.D. Defendant gave them a case of Budweiser Light. According to S.T., he
had trouble recalling what happened after that because of his alcohol consumption.
       S.T. testified defendant came over to S.T.’s apartment and entered the kitchen,
carrying a baggie that held a white powdery substance. Defendant directed S.T. to heat
up a plate in the microwave and used a credit card to cut up lines of the substance on the
warm plate. S.T. ingested a line; then at some point he passed out. When he testified,
S.T. could not recall how many lines he had ingested. He recovered consciousness at the
hospital.
       D.D. testified that he got drunk at S.T.’s apartment. He said they consumed a fifth
of a gallon of vodka. D.D. did not remember how much beer he drank from the case
defendant gave them. He talked to defendant outside on the landing between the two
apartments and in S.T.’s living room, but did not know what defendant was doing in the
apartment. D.D. did not see S.T. heat a plate in the microwave. D.D. knew he passed out
on S.T.’s bed, but did not recall lying down on the bed. He also did not recall the police
coming, or any interaction with S.T.’s neighbor, Antoine Clay.
       Clay testified that on the afternoon of the alleged crimes, he watched a 49ers
football game on television, then took his dog outside. He saw defendant and S.T. on the

                                             2
staircase outside apartments 70 and 72. He saw another boy who looked like a teenager
at the bottom of the staircase. Clay saw defendant pour himself a shot of honey-colored
or gold liquid, which Clay believed to be Bacardi Gold, and give S.T. a shot. S.T. made a
face after drinking it, as if it was strong. Clay did not see D.D. drink a shot, but a third
shot glass was on the ground on the landing. Clay declined defendant’s offer of alcohol.
Defendant and S.T. returned to their apartments, while Clay and D.D. remained
downstairs. D.D. was holding a Budweiser.
       When defendant and S.T. came back downstairs, Clay heard S.T. ask defendant if
defendant knew where to get any “cris” [sic], which Clay took to mean drugs. Defendant
returned to the door of his apartment, and Clay saw him make a phone call. S.T. and
D.D. went back to S.T.’s apartment; defendant told them he would be right back. At
some point, Clay saw defendant return.
       Clay went to check a pizza he was baking in his oven, then he went upstairs to
check on the boys.
       Through the partially open door of S.T.’s apartment, Clay saw D.D. lying flat on
the ground, partly in S.T.’s bedroom and partly in the hallway. Defendant and S.T. were
in the kitchen, where defendant was chopping a white substance that looked like crystal
meth or cocaine. Clay saw S.T. and defendant snort the substance through a rolled-up
paper or dollar bill. S.T. was visibly drunk, stumbling around, and slurring his speech.
Clay warned defendant that S.T. did not know what he was doing and that it could kill
him. Defendant said S.T. was old enough to make his own decisions. After snorting the
substance, S.T.’s eyes rolled back in his head and he fell to the ground, apparently having
a seizure; then he got up and ran to the bathroom.
       Clay left and called 911. A recording of the call was played for the jury.
According to the transcript of the call in the record, the information Clay provided was
consistent with his trial testimony, but he gave his name as “Anthony Ray.” He testified
that he gave a false name because he was not supposed to be living there and feared being

                                              3
evicted if the apartment manager found out he was there. (The apartment was rented by
the mother of Clay’s child; Clay went back and forth between the apartment and his
mother’s home.)
       At approximately 9:40 p.m., Citrus Heights Police Officers Austin Azevedo and
Vincent Young were dispatched to the apartment complex. They saw defendant leaving
S.T.’s apartment and ordered him to stop. Instead, he hurried into his own apartment.
They followed him inside and apprehended him. Searching defendant, they found a
baggie of white crystalline substance in his sweatshirt pocket, later confirmed to be 0.10
of a gram of methamphetamine (a usable amount), a lightbulb with burnt residue inside,
which they knew from their experience to be a common smoking device, and a rolled-up
dollar bill.
       In S.T.’s apartment, Officer Young and another officer found both boys
unconscious. Later, the boys woke up and were responsive but disoriented, with
incoherent slurred speech. Taken to Mercy San Juan Medical Center, S.T. was found to
have a blood-alcohol level of 0.355 percent and a urine toxicology screen that was
positive for amphetamines, while D.D. had a blood-alcohol level of 0.24 percent and a
urine toxicology screen that was positive for marijuana. A criminalist testified that a
male weighing 140 pounds, as did S.T., would have had to have consumed 12.5 to 13.5
“drink equivalents” (i.e., one-half ounce of pure alcohol or ethanol) to get to a blood-
alcohol level of 0.355 percent; a male weighing 150 pounds, as did D.D., would have had
to have consumed at least nine to 10 drink equivalents to get to a blood-alcohol level of
0.24 percent.




                                             4
Defense Case
       Two of defendant’s roommates on the date of the alleged crimes, Jose Hernandez
Castillo and Damian De Los Santos, testified on his behalf. Both stated they were home
on that date. Castillo did not see defendant with drugs and did not see him give S.T. and
D.D. alcohol. De Los Santos did not see defendant give the boys alcohol or drugs. S.T.
and D.D. asked to come into their apartment that afternoon, but Castillo would not let
them in because the boys had been drinking.
       Defendant testified he watched a football game and barbecued on the balcony with
his roommates that day. He saw the boys drinking vodka outside S.T.’s apartment and
believed they were very drunk. He bought beer that day, but did not give the boys any
alcohol or drugs.
       According to defendant, he went downstairs at approximately 7:00 p.m. and saw
Clay go inside S.T.’s apartment. Clay later approached defendant and offered him a bag
of “chemicals,” calling it “something so that [defendant] could feel fine.” Clay advised
him to put the substance into a lightbulb, light it, and smoke it; Clay also advised him to
roll up a dollar bill for that purpose. Defendant testified he had never smoked
methamphetamine before that night.
       After defendant used the drugs, Clay peeked inside S.T.’s apartment, then said he
would return. Instead, after approximately 10 minutes, the police came. When they
arrived, defendant was in front of his own apartment, not S.T.’s. Despite an officer
calling to defendant, he went into his apartment because he did not understand what the
officer said.
                                      DISCUSSION
       Defendant contends the trial court abused its discretion and deprived him of the
right to put on a defense by denying his motion to impeach Clay with a 2006
misdemeanor conviction for negligent discharge of a firearm, a crime evincing moral


                                             5
turpitude. (People v. Clem (2000) 78 Cal.App.4th 346, 351-353; People v. Feaster
(2002) 102 Cal.App.4th 1084, 1092-1093.) We disagree.
       Before trial, defense counsel moved to impeach Clay with a 2009 misdemeanor
conviction for false imprisonment. The trial court granted the motion, finding under
Evidence Code sections 210 and 352 that the conviction was relevant to impeach the
witness’s credibility, it was “relatively recent,” and its probative value substantially
outweighed any prejudicial effect. Counsel impeached Clay with this prior conviction on
cross-examination.
       During trial, before Clay began to testify, defense counsel requested permission
also to impeach him with a 2006 misdemeanor conviction for negligent discharge of a
firearm, suggesting that along with the 2009 conviction it showed “sort of a continuing
pattern of criminal conduct.” The prosecutor objected and asserted this second prior was
“even more remote” than the 2009 conviction and had no relevance under Evidence Code
section 1101, subdivision (b). The trial court found that the 2006 conviction was
“remote,” “would not further assist the jury in determining credibility,” and “could be
misused”; therefore it would be excluded under Evidence Code section 352.
       Evidence of a witness’s misconduct that evinces moral turpitude and results in a
misdemeanor conviction is admissible to impeach the witness. (People v. Wheeler (1992)
4 Cal.4th 284, 295, 297.) But, as with felony convictions, the trial court has broad
discretion under Evidence Code section 352 to exclude such evidence if its probative
value is substantially outweighed by its potential for undue prejudice, confusion, or
consumption of time. (People v. Clark (2011) 52 Cal.4th 856, 931.) We review rulings
under Evidence Code section 352 for abuse of discretion. (People v. Lightsey (2012) 54
Cal.4th 668, 714.) We will not disturb such a ruling unless the trial court “exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-
10.)

                                              6
       Here, there was nothing arbitrary, capricious, or patently absurd about the trial
court’s ruling. The court reasonably exercised its discretion to admit the more recent of
Clay’s misdemeanor convictions for impeachment while excluding the less recent. The
court also impliedly found the conduct underlying Clay’s conviction for negligent
discharge of a firearm, even though evincing moral turpitude, did not bear strongly on his
honesty. (People v. Feaster, supra, 102 Cal.App.4th at p. 1094; see People v. Lightsey,
supra, 54 Cal.4th at p. 714 [evidence of misdemeanor conduct that does not strongly
demonstrate moral turpitude does not provide jury much assistance in assessing witness’s
credibility].) Whether or not we might have ruled differently, we cannot find the court’s
ruling was an abuse of discretion.
       But even if the court erred, the error was harmless under the standard of People v.
Watson (1956) 46 Cal.2d 818, 836, which is the applicable standard for evidentiary
errors. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) Contrary to defendant’s assertion,
the exclusion of the 2006 misdemeanor did not deprive him of a defense. Defense
counsel impeached Clay thoroughly, not only with his more recent misdemeanor
conviction but with the fact that he gave a false name to 911 in order to cover up the fact
that he was illegally residing in the apartment complex, and with discrepancies between
his trial testimony, his preliminary hearing testimony, and his statement to the police.1
Counsel then used this impeachment effectively by making an extended argument to the




1       As the Attorney General points out, these discrepancies included, among others:
(1) variances between Clay’s accounts of what type of alcohol the victims were drinking
and what types of cups, bottles, or glasses they used; (2) variances between Clay’s
accounts of S.T.’s words in asking defendant for drugs; and (3) variances between Clay’s
trial testimony that defendant snorted drugs and his preliminary hearing testimony and
911 report that defendant was smoking the drugs.

                                             7
jury, closely tied to the standard instruction on witness credibility, that Clay could not be
believed on any point.2
       In any event, S.T.’s testimony, so far as it went, corroborated that of Clay. On the
other hand, defendant’s claim that Clay made a gift of illegal drugs and paraphernalia to
him for no apparent reason was uncorroborated and implausible on its face. So far as it
was intended to imply Clay actually furnished the drugs to the victims, the jury evidently
found it unconvincing, since no witness, including defendant, claimed to have seen Clay
doing so, and it was not apparent why Clay would have done so and then immediately
called 911 to report the crime.
       Thus, even if the trial court should have admitted the 2006 misdemeanor
conviction for impeachment, there is no reasonable probability that defendant would have
achieved a better outcome had the court admitted that evidence.
                                       DISPOSITION
       The judgment is affirmed.


                                                         NICHOLSON             , J.


We concur:


      BLEASE                , Acting P. J.


      HOCH                  , J.



2       In the course of this argument, counsel minimized the significance of the
misdemeanor conviction with which he had been allowed to impeach Clay:
“Misdemeanor conviction. Not really a big deal. I mean, it’s there. He admitted that he
committed a Penal Code Section 236, false imprisonment. It’s something you can
consider when determining if he’s being honest, and the Judge will instruct you that’s all
it’s for, is to determine that.”

                                              8
