PEOPLE v. STICH

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. James Sherman STICH, Defendant and Appellant.

No. F004858.

Decided: January 15, 1986

Allen R. Crown, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Edmund D. McMurray and Esteban Hernandez, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Appellant was charged by an amended information with one count of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) 1 involving five victims.   After court trial, appellant was found guilty as charged.   Probation was denied and appellant was sentenced to state prison for three years, the middle term.   He filed a timely notice of appeal.

STATEMENT OF FACTS

On July 7, 1984, at approximately 9:45 p.m., Dennis Laughlin, age 15, Jeff Leyba, age 17, Ruben Castillo, age 15, Armando Valenzuela, age 15, and Tommy Valenzuela, age 16, were riding their bicycles north on Chestnut Avenue near the Shields Avenue intersection in Fresno.   A white or off-white sedan, “obviously damaged,” with the words “Honk if you're horny” scratched into the trunk lid, traveling southbound on Chestnut Avenue, made a U-turn and swerved toward the boys.   Appellant came within three or four feet of the boys and “almost hit [them].”  Several boys yelled “Watch out!” but heard no foul language.   In addition, Ruben remembered hearing the words “Watch out idiot” and “Asshole” used by himself, Tommy and Jeff in reference to the appellant.

Shortly thereafter, Armando noticed appellant's car in a parking lot with its headlights off.   Appellant drove the vehicle out of the parking lot and onto Chestnut Avenue.   The boys observed the sedan moving slowly one-half block behind them with the headlights still off.   Appellant passed the boys, then, as appellant approached the turn lane, he “skidded and peeled out.”   Appellant made a U-turn and “came back at [the boys].”

Appellant drove rapidly, made two or three U-turns chasing after the boys.   Each time appellant turned around to chase them, the boys, using their bicycles, hopped to the other side of the island or traffic divider.   Appellant continued to turn to chase the boys;  however, in so doing, he drove his car over the island on three or four occasions.   As he was doing so, he came within a three- to five-foot distance of the boys two or three times.

From Hank's Driving Range near the Chestnut and Shields Avenues intersection, Robin Frost observed a reckless driver on Chestnut Avenue.   He heard some youngsters on bicycles headed north on Chestnut yell “Turn around.”   He observed a car traveling between 20 to 25 miles per hour make a U-turn then proceed at a high rate of speed south on Chestnut.   It was a beige Chrysler sedan.   The boys headed north then turned south.   The car accelerated going south to such a degree it had to lock its brakes to stop.   The sedan came “fairly close” to the cyclists.   The car headed north again but five minutes later reappeared crossing over the divider strip.   Mr. Frost called the Fresno Police Department and 15 minutes later observed a sheriff's deputy detain appellant.

Jim Hernandez, Jr., was operating a vehicle headed east on Shields toward Clovis Avenue at approximately 9:45 p.m. on July 7, 1984.   As he approached Chestnut Avenue, he observed a white car blocking his lane.   He observed the vehicle “burning excessive rubber” causing smoke to fill the air, and create a flurry of sparks while trying to jump the center divider.   Youngsters on bicycles attempted to remain on the opposite side of the street as the vehicle and appeared to be attempting to distance themselves from the vehicle.   Mr. Hernandez also observed local residents coming out of houses in the neighborhood apparently due to the loud noises of breaking traction.   Mr. Hernandez followed appellant's car on Shields Avenue until the sheriff's deputy pulled appellant over to the side of the road.   At that point Hernandez provided appellant's license number and a statement to the sheriff's deputy at the scene.

Defense

Appellant basically admitted to chasing these boys up and down the street.   Initially, he was driving slowly trying to decide whether to stop at a fast food eatery before going to a party.   He thought he saw someone throw something at his car.   He turned his head to see several youngsters on bicycles “flipping [him] off” and heard them calling him names such as “fucking asshole.”   He made a U-turn, driving slowly, and observed the boys ride across the divider strip, laughing and “flipping [him] off” and saying “Ha, ha, you can't catch us.”   He made two U-turns, crossed the divider, the boys scattered.   He wanted to see why the boys threw something at his car and called him names.   He wanted to “catch” them after the taunts they made and to “scare them.”   He had no intent to hit them and was never closer than 15 feet away from them.

He stopped when he noticed the boys stopped laughing and it appeared they did not find the situation funny any longer but tried to hide.   Just as he was going to go home, he heard someone say “That's him” and the sheriff's deputy pulled him over to the side of the road.

Defendant testified he was 26 years of age.   He admitted to drinking two beers that evening, one of which he was drinking while operating the vehicle.   During cross-examination he also admitted to driving without a driver's license on that day and admitted having suffered a prior felony conviction for cultivation of marijuana.

Steven Lavoie, appellant's employer since August 30, 1983, and friend since 1974, appeared on appellant's behalf and testified appellant is “not a liar” and “not prone to violence.”

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE 2

II. WHETHER IRRELEVANT EVIDENCE WAS IMPROPERLY ADMITTED TO IMPEACH APPELLANT

Despite relevancy objections lodged by defense counsel, the prosecution was permitted to impeach appellant with a prior felony conviction of cultivation of marijuana and the suspension of appellant's driver's license in effect at the time of the incident in question.   Appellant contends the objections were improperly overruled.

Evidence Code section 350 provides:  “No evidence is admissible except relevant evidence.”  Evidence Code section 210 provides:

“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

(A) USE OF PRIOR FELONY CONVICTIONS FOR IMPEACHMENT PURPOSES

When defense counsel objected to the introduction of evidence of appellant's prior felony conviction for cultivation of marijuana, the trial court stated:

“I will overrule the objection.   And permit the evidence to remain on the—as being relevant to the testing standards as to truth and veracity that this witness [Steven Lavoie] is using.  [¶] It has been represented that the Defendant is going to testify, therefore, you know, this witness is out of order.   I think it is appropriate.   I will overrule the objection.”

Article I, section 28, subdivision (f) of the California Constitution, added by Initiative Measure effective June 1982, commonly referred to as Proposition 8, provides in pertinent part:

“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

In People v. Castro (1985) 38 Cal.3d 301, 306, 211 Cal.Rptr. 719, 696 P.2d 111, our Supreme Court concluded only morally turpitudinous priors were admissible to impeach a witness' credibility and, further, the trial court retained its discretion to exclude such priors if the prejudicial impact of the evidence outweighs its probative value.   The Castro court held:

“[S]ubject to the trial court's discretion under section 352—subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.   On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.”   (Ibid.)

 The court established a two-pronged test for admissibility of prior convictions.   Initially, the trial court must determine whether the felony conviction necessarily involves moral turpitude.  (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)   The court equated moral turpitude with a readiness to do evil, reasoning a crime involving moral turpitude has some bearing upon credibility.  (Ibid.)  By so holding, the court broadened the class of prior felonies prima facie admissible for impeachment from those including only dishonesty to felonies involving moral turpitude.   If it is determined the felony conviction necessarily involves moral turpitude, the court must then weigh the probative value of the prior conviction against its prejudicial effect.  (Id., at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468.)

 In the instant case, the prior felony conviction admitted for impeachment purposes was a felony conviction for cultivation of marijuana in violation of Health and Safety Code section 11358.   Although the reporter's transcript does not reveal the number of marijuana plants involved, the report of the probation officer included the information appellant suffered a 1982 felony conviction for cultivating 44 marijuana plants.   Respondent argues

“it is self-evident from the number of plants involved that appellant intended to distribute the marijuana to others (i.e., ‘corrupt’ them;  id., p. 317 [211 Cal.Rptr. 719, 696 P.2d 111] )․  [M]arijuana is still an illegal drug and the fact that 44 plants were being cultivated is a quantitative measure of the extent to which appellant intended to corrupt others.”  (Fn. omitted.)

However, these facts were not before the trial court at the time of its ruling.   The Castro court held that in order to determine the presence of moral turpitude, the trial court may look only to the least adjudicated elements of the offense of which the witness was previously convicted, i.e., “a witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.”  (Id., at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   Applying these precepts, the Castro court held:

“[W]hile simple possession of heroin does not necessarily involve moral turpitude (see In re Higbie (1972) 6 Cal.3d 562, 572 [99 Cal.Rptr. 865, 493 P.2d 97] and In re Fahey (1973) 8 Cal.3d 842, 849–850 [106 Cal.Rptr. 313, 505 P.2d 1369, 63 A.L.R.3d 465] ), possession for sale does—though the trait involved is not dishonesty but, rather, the intent to corrupt others.   (Ibid., fn. omitted.)

The question then is whether simple cultivation of marijuana is necessarily an act involving moral turpitude.   It is not necessary to the offense appellant intended to distribute the marijuana to others.   In People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519, this court concluded a prior conviction for transportation/sale of heroin (Health & Saf.Code, § 11352) did involve moral turpitude.   We there reasoned the

“pertinent part of section 11352 is directed at trafficking in narcotics and their proliferation in our society.  [Citations.]  Anything that is related to trafficking is more serious than possessing.  [Citations.]  We are mindful of the fact that ‘transportation’ of a controlled substance is susceptible to as many variations as there are possible factual situations․  However, ․ we conclude a conviction under section 11352 does satisfy the threshold test of Castro, ‘a readiness to do evil,’ and thus entails moral turpitude.”   (Id., at p. 950, 215 Cal.Rptr. 519.)

In People v. Cina (1974) 41 Cal.App.3d 136, 115 Cal.Rptr. 758, the Second District Court of Appeal determined Cina was ineligible for a diversion program as he was prosecuted on a charge of cultivation of marijuana.   The prosecutor objected to the diversion on the basis cultivation is not one of the offenses to which diversion is applicable.   In deciding Cina was ineligible for diversion the Cina court reasoned

“[t]he Legislature could have rationally concluded that because cultivation of marijuana is often associated with trafficking in narcotics and normally carries a higher degree of culpability than simple possession, the cultivator should not be entitled to the benefits of diversion proceedings.”  (Id., at p. 140, 115 Cal.Rptr. 758, emphasis added.)

Health and Safety Code section 11357, subdivision (b) currently provides possessing or transporting less than 28.5 grams of marijuana is punishable by a maximum of a $100 fine.   A person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than 6 months or by a fine of not more than $500, or by both such fine and imprisonment.  (Health & Saf.Code, § 11357, subd. (c).)  Every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than 1 year or by a fine of not more than $500, or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison.   (Health & Saf.Code, § 11357, subd. (a).)  Yet, “[e]very person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison.”  (Health and Saf.Code, § 11358.)   The Legislature has determined that cultivation of marijuana should remain a felony punishable by state prison.   This may be construed as a signal the Legislature determined cultivation of marijuana remains more culpable than simple possession.  (See People v. Rogers (1971) 5 Cal.3d 129, 136–137, 95 Cal.Rptr. 601, 486 P.2d 129.)   A more severe penalty for those who cultivate drugs may have been deemed by the Legislature appropriate to restrict sources of supply in order to reduce occurrences of sales or distribution to others.   (Ibid.)

While this may seem a harsh result when one considers the relatively de minimis culpability involved in growing one marijuana plant in one's own garden, we presume the prosecution will have properly exercised its discretion in the manner in which it prosecuted these cultivation cases.   We conclude, under the guidelines of Castro, cultivation of marijuana is a morally turpitudinous offense.3

(B) APPELLANT'S SUSPENDED DRIVER'S LICENSE

During the cross-examination of appellant by the prosecution, an inquiry was made whether appellant was driving with a suspended driver's license on the evening of the offense.   Defense counsel's objection on the grounds of relevancy was overruled by the trial court.   Respondent claims “appellant placed his driving ability and status into issue” on direct examination.   Respondent bases this assertion on appellant's testimony that he obeyed the traffic lights on the night in question, driving slowly for the most part, and at no time exceeded 40 miles per hour.   In our view, respondent is painting this picture with a very broad brush.   Appellant admitted to chasing these boys up and down the streets to “scare” them as if it were a “game.”   There is little relationship between the possession of a valid driver's license and the question of whether or not an individual was driving safely on a specific occasion.

 Evidence Code section 1101 provides in relevant part:

“(a) ․ [E]vidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.

“(b) Nothing in this section prohibits an admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”

Construing this statute, People v. Thompson (1980) 27 Cal.3d 303, at page 315, 165 Cal.Rptr. 289, 611 P.2d 883, set out three requirements which must be met before evidence of other crimes is admitted:  the evidence must be relevant to some material fact at issue;  it must have a tendency to prove that fact;  and admissibility must not contravene policies limiting its admission.   The latter requirement takes account of policies barring evidence which tends to prove guilt by proving disposition to commit crime, those barring use of prejudicial cumulative evidence, and the statutory provision (Evid.Code, § 352) permitting exclusion of evidence when its probative value is outweighed by its prejudicial effect.  (People v. Bigelow (1984) 37 Cal.3d 731, 747, 209 Cal.Rptr. 328, 691 P.2d 994.)

 Respondent's assertion that driving with a license which was suspended due to a prior automobile accident has “direct bearing on the kind of driver appellant is” is in direct contradiction with the purpose of Evidence Code section 1101.  (People v. Tassell (1984) 36 Cal.3d 77, 83–89, 201 Cal.Rptr. 567, 679 P.2d 1.)   The question in this case is the manner in which appellant was driving on July 7, 1984, not the manner in which the appellant was driving on a previous occasion.   The only real issue in dispute here was appellant's intent while driving by the victims.   The status of appellant's driver's license has no relevance whatsoever to this issue.

 Thus, the trial court erred in allowing questions regarding appellant's suspended driving privilege.   In addition, the trial court erred in failing to engage in the Evidence Code section 352 process of weighing probative value against prejudicial effect as to the “cultivation” conviction as mandated by Castro.   In our view, however, the errors were harmless and reversal is not required.   As to the prior felony, the Castro court utilized the Watson4 standard in determining the prejudice, if any, from such error.   It has long been the rule that the Watson standard applies to Beagle5 error where the defendant testifies.  (People v. Rollo (1977) 20 Cal.3d 109, 121, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Almarez (1985) 168 Cal.App.3d 262, 268, 214 Cal.Rptr. 105.)

Seven eyewitnesses testified to appellant's conduct in the instant case.   (Ante.)  Their testimony was not effectively disputed.   Appellant testified on his own behalf.   The only essential element of the charge disputed was his intent.   Circumstantial evidence of intent was overwhelming.   This was a court trial and the prosecutor did not unduly emphasize or dwell on the fact of the prior conviction.   In sum, we conclude it is not reasonably probable that a different result would have occurred but for the court's error.  (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

We reach a similar conclusion as to the erroneous admission of evidence that appellant's driver's privilege was suspended.  Article VI, section 13, of the California Constitution provides:

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Evidence Code section 353 precludes reversing a judgment based upon the erroneous admission of evidence unless the error complained of has resulted in a miscarriage of justice.   The quantity and quality of the prosecution's evidence against appellant has been discussed.   The testimony of seven eyewitnesses amply supports the conviction.   It is extremely unlikely a result more favorable to the appellant would have occurred but for the admission of the evidence as to the status of his driver's license.  (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

III. WHETHER APPELLANT WAS IMPROPERLY SENTENCED 6

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references will be to the Penal Code unless otherwise specified.

2.   See footnote *, ante.

3.   We discuss the second prong of Castro, the weighing of probative value against prejudicial effect, after discussion of the next subissue.

4.   People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.

5.   People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.

6.   See footnote *, ante.

MARTIN, Associate Justice.

WOOLPERT, Acting P.J., and HAMLIN, J., concur.

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