Filed 12/3/15 P. v. Carrillo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E061854

v.                                                                       (Super.Ct.No. SWF1301087)

RUDY MODESTO CARRILLO,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,

Judge. Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Quisteen S.

Shum, Deputy Attorneys General, for Plaintiff and Respondent.

         One of two motorcycle officers clocked the speed of defendant Rudy Carrillo at

more than 60 miles per hour on Pechanga Parkway, so one of them initiated a traffic stop.

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However, instead of stopping, defendant, who was driving a stolen vehicle, executed a

high-speed three-point turn and accelerated in the direction of the officer, striking the

officer’s motorcycle and the tip of the officer’s foot. Then defendant spun out slightly,

and accelerated towards the second officer, who struck some signage in an attempt to

avoid being struck, as defendant got away. Hours later, defendant was arrested at a

friend’s house by police officers conducting a probation check. Defendant was charged

with two counts of attempted murder (Pen. Code, §§ 664, subd. (e), 187, subd. (a)),

taking or driving a vehicle without the owner’s permission (Veh. Code, § 10851,

subd. (a)), and two counts of assault with a deadly weapon upon a peace officer (Pen.

Code, § 245, subd. (c)).1 A jury acquitted defendant of the attempted murder counts, but

convicted him of the remaining charges, and defendant was sentenced to a term of 10

years in state prison. Defendant appeals.

       On appeal, defendant argues the court erred in (1) allowing the prosecution to

impeach him with three of his five prior felony convictions, and (2) imposing

consecutive, rather than concurrent, terms for the two assault convictions. We affirm.

                                       BACKGROUND

       In February 2013, defendant was staying in the home of Phyllis Gordon, who

allowed him to use her 2000 GMC pickup truck. The truck was black with chrome rims.

However, a disagreement arose over defendant’s use of the truck while drinking, so

Phyllis told defendant he could not use it anymore, and told him to leave. Defendant

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



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became so enraged that Phyllis locked herself in her bedroom, during which time

defendant left the house, taking the truck. Defendant did not have permission to take the

truck.

         Shortly thereafter, defendant showed up at the home of Maddy Witt, claiming to

be a friend of her son, and asking if he could help around the house. Defendant was

driving a black truck. Maddy and her disabled husband lived on two acres in Hemet,

where there was a garage with a painter’s booth for painting cars. Maddy’s husband

invited defendant into the home to help with work, and defendant stayed there for three to

five days. During this time period, Maddy learned from her son that defendant was not a

friend, but was, instead, a thief. Maddy therefore took steps to get defendant out of the

home. However, when he left, defendant’s truck was no longer black; it had been spray

painted white, and the chrome wheels had been painted black.

         On March 6, 2013, Deputies Hughes and Hernandez were on duty in Temecula,

monitoring vehicles for compliance with speed limits using an electronic device called a

lidar. They were on the west side of the roadway facing northbound on Pechanga

Parkway, when Deputy Hughes observed a white truck traveling in his direction at 60

miles per hour, in excess of the 40 mile-per-hour posted speed limit. As soon as the lidar

device registered the speed, the deputy activated his emergency lights and drove

northbound on the shoulder, along the west side of the road, against traffic.

         When he reached defendant’s vehicle, the deputy made eye contact and pointed,

directing defendant to pull over. Defendant raised his right hand as if to acknowledge the

deputy, so Deputy Hughes assumed he was going to pull over. Deputy Hughes made a


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U-turn and was catching up to defendant as defendant turned into a gated area, stopping

his truck just inside the gate. As the deputy stopped his motorcycle and began to

dismount, he heard the truck moving forward with heavy acceleration. The truck’s tires

spun in the gravel as defendant commenced a left turn, reversed, and repeated the

maneuver, making a three-point turn.

       Then defendant put the truck in “drive” and accelerated in the direction of the

deputy, who was now off his motorcycle. The deputy, who was approximately 10 feet

away, saw defendant looking straight in the deputy’s direction, so Deputy Hughes pulled

out his firearm and told defendant to stop. Defendant’s eyes were visible to the deputy,

who did not observe symptoms of alcohol use. Defendant raised his hands off the

steering wheel (as if to say, “don’t shoot”), then placed his hands back on the steering

wheel, gunned his engine and came straight towards the officer. Deputy Hughes moved

to the right as fast as he could as defendant’s vehicle passed, but the left rear tire of the

truck clipped part of the deputy’s boot.

       As defendant sped off, Deputy Hughes saw the truck veer to the left across the

double yellow lines, heading in the direction of Deputy Hernandez. In so doing,

defendant’s vehicle came very close to a driver traveling north on Pala Road near

Pechanga, causing that driver to swerve off the road. Defendant cut off people, nearly

striking other cars, and crossing over into oncoming traffic.

       Deputy Hernandez heard Deputy Hughes yelling, and left his position on the side

of the road, made a U-turn, and pulled into the roadway. He turned and saw Hughes

pointing his firearm at the driver, and observed defendant’s truck accelerating out of the


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driveway. Then, the truck steered right towards Deputy Hernandez, crossing over the

double yellow lines. Defendant was driving aggressively, very fast, and headed straight at

the deputy. Deputy Hernandez accelerated his motorcycle and drove through some signs,

into the fence behind him, to avoid being struck by the truck. This caused significant

damage to the motorcycle. Defendant’s truck drove right through the location where

Hernandez’s motorcycle had been, and continued northbound on Pechanga Parkway.

       At approximately 3:00 p.m. that same day, Murrietta police officer Brian Quick

went with fellow officer Huss to a residence to serve a felony warrant on the resident at

that location. Defendant answered the door. Officer Huss asked defendant if he were the

homeowner, but defendant informed him that the homeowner was upstairs asleep.

Officer Huss went upstairs while Officer Quick interacted with defendant. Defendant

identified himself with a false name and date of birth, stating he was 42 years old, and

indicating he was born in 1967. When Officer Huss came back downstairs, he looked at

defendant’s cell phone and showed it to Officer Quick. There was a test message from

defendant to an unknown recipient indicating defendant had been in a high speed chase.

Officer Huff then did a search of defendant’s person, in which he located a shaved key,

used for stealing cars.

       Defendant was charged with separate counts of attempting to murder the two

sheriff’s deputies (§§ 664, subd. (e), 187, subd. (a), counts 1, 2), driving or taking a

vehicle without owner’s consent (Veh. Code, § 10851, subd. (a), count 3), and two counts

of assault with a deadly weapon against a peace officer as to each of the deputies (§ 245,

subd. (c), counts 4, 5). It was further alleged in connection with counts 1 and 2 (the


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attempted murder counts) that defendant used a deadly weapon (motor vehicle) (§ 12022,

subd. (b)(1)), and that he had suffered four prior convictions for which he had served

prison terms (prison priors). (§ 667.5, subd. (b).)

       Defendant was tried by a jury and testified on his own behalf.2 The jury acquitted

defendant of the attempted murder charges in counts 1 and 2, but convicted him of the

remaining charges. The court struck one of the prison priors, and defendant admitted the

other four prior convictions. The court sentenced defendant to the upper term of 5 years

on count 4 (§ 245, subd. (c)), with consecutive subordinate terms reflecting one-third the

midterm for counts 3 and 5, plus one year each for the three prison priors, for a total

sentence of 10 years in prison. Defendant appealed.

                                           DISCUSSION

       1.     The Trial Court Properly Exercised Its Discretion in Ruling Defendant’s

Prior Convictions Were Admissible.

       In limine, the prosecution sought admission of six prior convictions, with which to

impeach defendant if he testified. In turn, defendant sought a ruling that not all of his

prior convictions be admitted. Defendant’s record of convictions includes a 1991

conviction for felony driving under the influence (Veh. Code, § 231523; a 1994

conviction for being a felon in possession of a firearm (§ 12021, subd. (a)(1)), a 2001

       2 By way of defense, defendant asserted he had been drinking since 10:00 a.m.,
and that his judgment was impaired.

       3 The record does not indicate whether the conviction was for driving under the
influence (Veh. Code, § 23152, subd. (a)) or driving with a 0.08 or higher blood alcohol
level (Veh. Code, § 23152, subd. (b)).


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conviction for sexual battery (§ 243.4), two convictions, in 2005 and 2006, for possession

for sale of controlled substances (Health & Saf. Code, § 11378), and a 2006 conviction

for failing to register as a sex offender (§ 290).

       The court ruled that the prior convictions were admissible for impeachment after

determining that the probative value of the prior convictions was not outweighed by the

possibility of prejudice. Notwithstanding the in limine ruling, defendant did testify.

Defendant now argues on appeal that the court should have excluded the sexual battery

and felony drunk driving convictions. We disagree.

       For purpose of attacking the credibility of a witness, it may be shown that he or

she has been convicted of a felony, absent certain circumstances where the prior

conviction is not viable. (Evid. Code, § 788.) Under the “Truth-in-Evidence” provision

of Proposition 8 in 1982, section 28, subdivision (f), of article I of the California

Constitution, “[a]ny prior felony conviction of any person in any criminal proceeding”

may be “used without limitation for purposes of impeachment or enhancement of

sentence in any criminal proceeding.”

       No witness, therefore, has the right to give testimony immune from challenge or

impeachment. (People v. Collins (1986) 42 Cal.3d 378, 387.) However, the

admissibility of any past misconduct for impeachment is limited by the relevance

requirement of moral turpitude. (People v. Edwards (2013) 57 Cal.4th 658, 722.)

Beyond this, trial courts have broad discretion to admit or exclude prior convictions for

impeachment purposes. (People v. Hinton (2006) 37 Cal.4th 839, 887, citing People v.

Collins, supra, 42 Cal.3d at p. 389.) A trial court’s exercise of discretion will not be


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disturbed unless it appears that the resulting injury is sufficiently grave to manifest a

miscarriage of justice. (People v. Green (1995) 34 Cal.App.4th 165, 182.)

       When determining whether to admit a prior conviction for impeachment purposes,

the court should consider, among other factors, whether it reflects on the witness’s

honesty or veracity, whether it is near or remote in time, whether it is for the same or

similar conduct as the charged offense, and what effect its admission would have on the

defendant’s decision to testify. (People v. Clark (2011) 52 Cal.4th 856, 931.)

       Here, the court excluded evidence of the prior conviction for failing to register as a

sex offender because it was not clear if that was a crime of moral turpitude. The

remaining prior convictions relate to crimes involving moral turpitude: sexual battery

(People v. Chavez (2000) 84 Cal.App.4th 25, 30); felony drunk driving (People v. Forster

(1994) 29 Cal.App.4th 1746, 1757); possession of a firearm by an ex-felon (People v.

Robinson (2011) 199 Cal.App.4th 707, 716); and possession of drugs for sale (People v.

Harris (2005) 37 Cal.4th 310, 337, citing People v. Castro (1985) 38 Cal.3d 301, 317).

       This does not end our enquiry, because Evidence Code section 352 allows the trial

court to exclude otherwise relevant evidence if its probative value is outweighed by the

probability its admission will create a substantial danger of undue prejudice. In this

respect, defendant argues that the 1991 conviction for felony drunk driving was too

remote in time. It is true that remoteness of evidence weighs in favor of exclusion

(People v. Harris (1998) 60 Cal.App.4th 727, 739.)

       However, convictions remote in time are not automatically inadmissible. (People

v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Even a fairly remote prior conviction


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is admissible if the defendant has not led a legally blameless life since the time of the

remote prior. (People v. Green, supra, 34 Cal.App.4th at pp. 182-183; People v.

Muldrow (1988) 202 Cal.App.3d 636, 647-648.) Defendant has not led a blameless life

since 1991.

       Defendant also argues that the sexual battery conviction should have been

excluded because sexual offenses are especially prejudicial. However, the trial court

directed that the conviction be described as “sexual battery of an adult” so the jury would

not be left with the impression that it was an offense against a child. Although not

“sanitized,” any undue prejudice was eliminated by the court’s proviso.

       In the present case, we find no prejudice. Notwithstanding the trial court’s rulings

respecting the prior conviction evidence, defendant testified in his own behalf, admitted

stealing the truck and nearly striking the two officers as they attempted to apprehend him.

Nevertheless, he was acquitted of the most serious crimes. The evidence did not

prejudice defendant.

       2.     The Trial Court Properly Imposed Consecutive Terms for Each Assault

Against a Peace Officer.

       At sentencing, defense counsel requested that the court impose concurrent terms

for counts 4 and 5, the two convictions for assault with a deadly weapon against a peace

officer. The court imposed a consecutive, one-third the midterm sentence for count 5.

On appeal, defendant argues that the imposition of consecutive terms constitutes an abuse

of discretion. We disagree.




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       It is well established that a trial court has discretion to determine whether several

sentences are to run concurrently or consecutively (§ 669, subd. (a); People v. Giminez

(1975) 14 Cal.3d 68, 71-72). In the absence of a clear showing of abuse, the trial court’s

discretion will not be disturbed on appeal (People v. Caesar (2008) 167 Cal.App.4th

1050, 1059 [disapproved on another ground in People v. Superior Court (Sparks) (2010)

48 Cal.4th 1, 18]).

       Criteria affecting the decision to impose consecutive rather than concurrent

sentences include facts relating to the crimes, including whether or not the crimes

involved separate acts of violence or threats of violence (Cal. Rules of Ct., rule

4.425(a)(2)). The presence of separate victims named in separate counts will justify a

consecutive sentence. (People v. Caesar, supra, 167 Cal.App.4th at p. 1060-1061, citing

People v. Calhoun (2007) 40 Cal.4th 398, 408.)

       Here, defendant committed separate acts of violence to separate victims. The trial

court properly exercised its discretion in deciding to impose consecutive terms.

                                           DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                         P. J.

We concur:

KING
                           J.
MILLER
                           J.


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