Filed 4/1/16 P. v. Brown 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069910
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. F14901624 &
                   v.                                                                F12905552)

EDWARD BROWN,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza,
Judge.
         Michael B. McPartland, 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
Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Detjen, J. and Franson, J.
                                      INTRODUCTION
          An amended felony information filed on May 6, 2014, charged defendant Edward
Brown with one count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)).
The information also alleged defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)), and had one prior strike (§ 667, subds. (b)-(i), § 1170.12, subds.
(a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior prison
term (§ 667.5, subd. (b)).
          On May 12, 2014, a jury found defendant guilty of the charged offense, and found
the bodily injury allegation to be true. Defendant admitted to the remaining allegations.
The trial court subsequently sentenced defendant to an aggregate term of 16 years in
prison.
          On appeal, defendant argues the trial court abused its discretion by prohibiting
defendant from introducing evidence of the victim’s prior convictions for impeachment
purposes. We affirm.
                                            FACTS2
          On February 13, 2014, Steve Taylor was searching for recyclables in a trash bin
outside of defendant’s girlfriend’s apartment. As he did so, defendant opened the gate to
the apartment’s yard area to let his dog out. The dog, which had previously bitten Taylor
on the leg, attacked Taylor and bit his arm down to the bone. Taylor called for help, but
defendant and his friends watched and laughed from a distance of 10 to 20 feet. Taylor
was eventually able to escape the attack by climbing inside a nearby dumpster, at which
time defendant retrieved the dog, placed it in his car, and drove away.



1         Unless otherwise specified, all further statutory references are to the Penal Code.
2     Appellant appeals from two separate Fresno County Superior Court cases, case
Nos. F14901624 and F12905552. As defendant’s appeal only concerns the facts of case
No. F14901624, the facts of case No. F12905552 have been omitted.


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       After Taylor reported the incident to police, Officer George Flowers went to the
scene of the attack where he observed a doghouse, dog food, a water dish, dog feces, and
numerous chew toys on the patio of the apartment. Flowers also noticed blood stains in
the area around the trash bin where Taylor had been attacked. Based on a recent police
call to that same apartment, Flowers was able to determine defendant was associated with
the address, and placed defendant’s picture into a photo array. Taylor identified
defendant out of the photo array, and on February 16, 2014, Flowers returned to the
apartment and placed defendant under arrest.
       Following the impaneling of the jury in defendant’s case, defense counsel moved
to introduce evidence of two prior convictions for the purposes of impeaching Taylor: a
felony conviction for receiving stolen property from 1980, and a misdemeanor conviction
for petty theft from 1993. The trial court denied the motion, however, stating the
remoteness of the crimes rendered their introduction more prejudicial than probative.
Defendant was subsequently found guilty of the charged offense, and this appeal
followed.
                                      DISCUSSION
       On appeal, defendant contends the trial court abused its discretion by prohibiting
defendant from introducing evidence of Taylor’s prior convictions for receiving stolen
property and petty theft. We disagree.
       All prior felony convictions that “necessarily involve moral turpitude” are
admissible to impeach a witness’s testimony. (People v. Castro (1985) 38 Cal.3d 301,
306.) Prior misdemeanor conduct is also admissible, if it has “some logical bearing upon
the veracity of a witness in a criminal proceeding.” (People v. Wheeler (1992) 4 Cal.4th
284, 295.) When determining whether to admit a prior conviction for impeachment
purposes, the court exercises broad discretion, and may consider factors such as “whether
[the misconduct] reflects on the witness’s honesty or veracity,” and “whether it is near or
remote in time.” (People v. Clark (2011) 52 Cal.4th 856, 931.) In order to abuse this

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discretion, “the court [must] exceed[] the bounds of reason, all of the circumstances being
considered.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
       Here, while the crimes defendant sought to impeach Taylor with were crimes of
moral turpitude, the first occurred 34 years prior to the date of defendant’s trial, and the
second offense had occurred 21 years prior to defendant’s trial. (People v. Mendoza
(2000) 78 Cal.App.4th 918, 926 [petty theft is a crime of moral turpitude]; People v.
Rodriguez (1986) 177 Cal.App.3d 174, 178-180 [receiving stolen property is a crime of
moral turpitude].) As such, the crimes were clearly remote in time, and we cannot
conclude the trial court abused its discretion by declining to allow defendant to impeach
Taylor with the convictions in question.
       Defendant seeks to mitigate this remoteness by pointing out the fact that Taylor
had three felony convictions for possession of a controlled substance from 1991, 2009,
and 2013, which rendered his history of misconduct far less remote. This argument is not
without substance, as remote prior convictions can be admissible for impeachment
purposes if the witness “has not led a legally blameless life since the time of the remote
prior.” (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926.) Nevertheless, the
mere fact a piece of evidence is admissible does not mandate its admission. As noted
above, the trial court has broad discretion in deciding whether or not to admit a prior
conviction for impeachment purposes. Given the extreme remoteness of the offenses
relating to moral turpitude in the instant case, we do not conclude the trial court’s
decision to exclude those offenses, even in light of Taylor’s subsequent drug convictions,
“exceed[ed] the bounds of reason.” (People v. Stewart, supra, 171 Cal.App.3d at p. 65.)
       Further, the trial court may, at its discretion, exclude otherwise relevant and
admissible 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.” (Evid.
Code, § 352.) Here, again, the remoteness of the offenses defendant sought to introduce

                                              4
provide a reasonable basis for the trial court to conclude the admission of those offenses
would prove insufficiently probative to compensate for their highly prejudicial effect.
Such a determination does not exceed the bounds of reason, and does not merit reversal.
                                     DISPOSITION
       The judgment is affirmed.




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