P. v. Shields 5/18/07 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E039693

Case Date: 08/09/2007

Preview:Filed 5/18/07 P. v. Shields 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN EARL SHIELDS, Defendant and Appellant. E039693 (Super.Ct.No. INF050366) OPINION

APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge. Affirmed in part; reversed in part. Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Annie

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Featherman Fraser and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION Defendant Jonathan Earl Shields appeals from his conviction of taking property from another, receiving stolen property, possessing methamphetamine, and possessing a device for unlawfully smoking a controlled substance. He argues the trial court prejudicially erred in (1) refusing to sanitize a prior conviction before the prosecutor used it for impeachment; (2) failing to instruct the jury on the believability of a witness convicted of a felony; (3) refusing to allow all statements he made in a conversation with a deputy after the prosecution was allowed to use one statement from that conversation; (4) refusing to instruct the jury on the lesser included offense of petty theft; (5) giving and erroneous instruction on theft from a person; and (6) failing to give a unanimity instruction because there were two separate acts that might have supported a conviction for possession of methamphetamine. Defendant further contends his conviction for possession of stolen property must be reversed because he was convicted of the theft of the property he possessed, and the trial court erred in punishing him twice for the same conduct. The parties submitted supplemental briefing to address defendant's aggravated sentence for count 1 in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). The People concede that the conviction for receiving stolen property must be reversed. We find no other errors.

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II. FACTS AND PROCEDURAL BACKGROUND In the evening of March 25, 2005, Toni Amigliore was unloading bags of groceries from a shopping cart into the trunk of her car in the parking lot of a supermarket in Palm Desert. She had her hand on the cart, and she felt a small jerk. She turned around to see a man leaning out of a car window and holding her purse, which had been in the child seat of the shopping cart. Amigliore got the license plate number, 4WAN785, before the car, driven by a blond woman, sped away. At trial, Amigliore identified defendant as the man who had grabbed her purse. Riverside County Deputy Sheriff Michael Tapp responded to the scene. Amigliore described the vehicle and gave him the license plate number. She described the person who had taken her purse only as a White male adult, and she said she could not identify him if she saw him again. Deputy Tapp ran the license plates and learned that the vehicle was registered to Jodi Smith at 39-344 Ciega Creek. He went to that residence but was told Smith was not there. On March 27, 2005, Rene Godinez, a security guard at the Palm Desert Greens Country Club, received a report of a suspicious vehicle in a driveway on Ciega Creek. Godinez approached the vehicle and saw that it was filled with boxes and clothing. A blond woman and a man were in the driver's seat and front passenger seat, respectively, under a yellow blanket. Godinez told them to leave or he would call the sheriff. In the next few minutes, the man, whom Godinez identified as defendant, and the woman got out of the car, reached into the back seat, got their clothing and dressed. Defendant opened the trunk and reached inside. 3

Deputies Sean Freeman and Tommy Mix arrived at the scene. Defendant explained to Deputy Mix that he and the woman were staying in the car at her mother's trailer, and her mother had given them permission to be there. Deputy Freeman learned that the woman's name was Jodi Smith. Defendant told Deputy Freeman that he and Smith "had recently met and that it was love at first sight and they were planning on getting married." The car's license number was 4WAN785. Deputy Freeman asked if there was anything illegal in the car, and defendant replied, "No." Deputy Freeman asked if the deputies could search the car, and Smith and defendant agreed. Defendant and Smith acted nervous and tried to whisper to one another. Deputy Mix told them that if there was anything illegal in the car, they should tell him. Defendant, said there was "something illegal wrapped up on my side of the car." The deputies searched the car and found a glass pipe commonly used to smoke methamphetamine. The pipe was wrapped up in a yellow blanket behind the front passenger seat; there was no other yellow blanket in the car. A small amount of white crystal methamphetamine was in the pipe. Deputy Mix asked defendant if the pipe was the illegal item he was talking about, and defendant replied, "Yeah, that's mine." Inside the passenger door, Deputy Freeman found a glue container stuffed with a clear plastic bag of methamphetamine. The pipe contained .17 grams of methamphetamine, and the glue container contained .86 grams. Deputy Mix testified that the amount of methamphetamine found in the pipe was "a very usable quantity." Deputy Freeman

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testified that the methamphetamine found in the glue container was the equivalent of two to three doses. Defendant was arrested. When Deputy Freeman was putting defendant in the back of Deputy Mix's vehicle, defendant shouted to Smith, "I love you." The deputies continued searching the car. Men's and women's possessions were intermingled in the car. In the trunk filled with women's clothes, they found a duffle bag with a Social Security card, credit cards, and identity cards belonging to Amigliore. At the station, after receiving Miranda1 warnings, defendant admitted the drugs in the car were his. He told Deputy Mix that "there was no reason to arrest both of them, so he would claim the drugs." Deputy Mix told him that Smith had already been arrested. Defendant told Deputy Mix that he and Smith had found Amigliore's credit cards and other identity cards in a trash dumpster. Before the preliminary hearing, Deputy Tapp was told defendant's case might be suspended because Amigliore could not identify defendant. Deputy Tapp spoke to Amigliore, who was seated in the courtroom, and she told him she could identify defendant among the inmates seated in the jury box. Amigliore testified she had recognized defendant in the courtroom that day. Amigliore later identified his photograph from a photographic lineup, but she could not identify Smith from another photographic lineup.

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Miranda v. Arizona (1966) 384 U.S. 436.

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Defendant testified in his own behalf. He said he had run into Smith, an acquaintance, at a fast food restaurant the night before their arrest; he had not seen her for about a week before that. Smith invited him to go to her mother's house, but when they arrived at around 1:00 a.m., the house was locked and no one was there, so they decided to sleep in the car. Defendant said he had told the officer at the police station he would "take claim for the drugs" and there was therefore no reason to arrest both him and Smith. He did not want Smith to get into trouble for the drugs. Defendant also testified he did not know about the methamphetamine in the glue container, and that he had told the officers more than once that "the stuff" was not his. He testified he did not know that Amigliore's credit cards and other identity cards were in the trunk of Smith's car. Defendant denied having taken Amigliore's purse, and he denied telling Deputy Mix that he and Smith had found Amigliore's documents in a dumpster. He denied telling Deputy Freeman that he and Smith were getting married, and he denied saying, "I love you," to Smith when he was being placed in the patrol car after his arrest. Deputy Tapp testified about what Amigliore had told him at the scene regarding whether she had control of the shopping cart when the purse was taken. (This testimony is set forth at more length in the discussion below.) He testified that when he told Amigliore at the preliminary hearing that the case was going to be suspended, she became nervous and upset and pointed to defendant and said, "That's him, I see him."

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The jury found defendant guilty of taking property from the person of another (Penal Code2 section 487, subdivision (c) (count 1)); receiving stolen property (section 496, subdivision (a) (count 2)); possession of methamphetamine (Health and Safety Code section 11377, subdivision (a) (count 3)); and possession of a device for unlawfully smoking a controlled substance (Health and Safety Code section 11364 (count 4)). In a bifurcated proceeding, the trial court found true that defendant had a prior strike and a prior conviction under section 667.5, subdivision (a). The trial court sentenced him to eight years four months in prison, consisting of the aggravated term of three years for count 1, doubled to six years based on the prior strike, and one year four months for count 3. The sentence on count 2 was stayed under section 654. A concurrent sentence of six months was imposed for count 4. III. DISCUSSION A. Sanitizing Prior Conviction Defendant admitted in cross-examination that in February 2004 he had pleaded guilty to "first degree burglary, a felony conviction." Defendant contends the trial court prejudicially erred in refusing to sanitize his conviction before allowing the prosecutor to use the conviction to impeach defendant's testimony. He argues the prosecutor should have been allowed to elicit evidence only that defendant had been convicted of an unspecified prior felony.

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

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When the trial court weighs the probative value of evidence against its prejudicial effect under Evidence Code section 352, we review the trial court's determination under the abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Defendant argues that the four factors set forth in People v. Beagle (1972) 6 Cal.3d 441, 453, superseded by statute as stated in People v. Reza (1984) 152 Cal.App.3d 647, 653, fn. 1, among other cases, should guide a trial court's discretion in deciding whether to allow impeachment of a defendant with a prior conviction. Those factors are: (1) whether the prior conviction reflects adversely on honesty or veracity; (2) the nearness or remoteness in time of the 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 prejudice from impeachment with prior convictions. Defendant concedes that "the first, second, and fourth factors weigh in favor of admitting the prior conviction." He argues, however, that the third factor, the similarity of the conduct, is prejudicial and weighs against admission. We disagree. First, defendant fails to acknowledge that section 28(f) of article I of the California Constitution, which was added by Proposition 8, provides in pertinent part that "[a]ny prior felony conviction . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding." The California Supreme Court held in People v. Castro (1985) 38 Cal.3d 301, 306, "that--always subject to the trial court's discretion under [Evidence Code] section 352--[Proposition 8] authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is 8

one other than dishonesty." And in People v. Hinton (2006) 37 Cal.4th 839, 887, the court rejected the defendant's objection that prior convictions should have been excluded as too similar to the charged crime. The court explained, "`While before passage of Proposition 8, past offenses similar or identical to the offense on trial were excluded, now the rule of exclusion on this ground is no longer inflexible.' [Citations.]" (Id. at p. 888.) Thus, prior convictions for even an identical offense are not automatically excluded. Rather, "`"[t]he identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion."' [Citations.]" (People v. Mendoza (2000) 78 Cal.App.4th 918, 926.) Here, the prior conviction for burglary was not for an identical offense -- the current charges included drug offenses, theft from the person of another, and receiving stolen property. Moreover, the prior offense was not even particularly similar to the charged theft offenses (and it bore no similarity whatever to the drug-related offenses). The elements of first degree burglary are entry into an inhabited dwelling or other structure with the intent to commit theft "or any felony." (

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