THE PEOPLE v. SORACHAT PHIEWPHAEK (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Sorachat Phiewphaek was charged with one count of battery and one count of assault with a deadly weapon.   Because the two counts arose out of unrelated, separate incidents occurring several months apart, defendant moved to sever them for trial.   His motion was denied.   After a first jury deadlocked on both counts, a second jury convicted him of the battery, but deadlocked on the assault.   On appeal, he contends that the trial court prejudicially erred by denying his severance motion.   He also contends that the court erred in admitting an unavailable witness's testimony at the preliminary hearing, evidence of his prior misdemeanor conviction, and rebuttal evidence.   We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.  Factual background.

A. Prosecution's case-in-chief.

1. The May 29, 2006 incident at defendant's apartment.

On May 29, 2006, Chyanont “Tony” Yanrat received a phone call from his friend, Rattana Porn Runtsupakrittanon at around 3:00 a.m. She lived with her boyfriend, defendant, but she asked Yanrat to pick her up because she and defendant were quarreling.   When Yanrat got to Runtsupakrittanon's apartment, she came out, crying and upset.   Defendant followed her and pulled her with such force that she fell.   He dragged her along the ground back towards the apartment.

Yanrat called 911.   Defendant grabbed the phone from Yanrat, and the two men struggled.   Defendant hit Yanrat.   The next thing Yanrat could remember was waking up in defendant's apartment, in pain and bleeding.   He was taken to a hospital.   His nose was broken.

That same morning, Norma Anicete heard a commotion outside her apartment.   Looking out her window, she saw a bigger man hitting a smaller man in the stomach.   The smaller man fell to ground, unconscious.   Although a car obscured her view of the smaller man, Anicete could see the bigger man stomp on him.   Anicete recognized the bigger man as someone who lived below her, but she was unable to identify defendant as the man in court.

2. The September 25, 2006 at KT restaurant.

On September 25, 2006, the victim, Surasak Kwanon, was at Kruang Tedd (KT) restaurant with some friends, including Chonlaphat Khaothiemsang and Joy. When the restaurant closed, Kwanon went outside and saw a man and Joy quarrelling.   Another man walked quickly toward Joy. Thinking that the man was going to hurt Joy, Kwanon grabbed him.   The man pushed Kwanon to the ground and kicked him.   Kwanon walked away, but defendant then ran up and kicked him, causing Kwanon to fall to the ground.   Defendant punched and hit him with a bottle, causing Kwanon's head to bleed.

Boonlitha Sukcham was singing at KT that night.   He saw defendant hit Kwanon with a bottle.   Sukcham tried to help Kwanon by pushing defendant, but Sukcham fell and he was stabbed in the back.   He does not know who stabbed him.

Khaothiemsang also saw defendant kick Kwanon and hit him with a bottle.   Neither Sukcham nor Khaothiemsang saw Kwanon do anything to provoke defendant's attack.

B. Defense case.

Kamoltip Chuenchon was also at KT restaurant that night with her boyfriend, Din, who is defendant's cousin.   After the restaurant closed, she saw a friend, Bird, arguing with a woman.   Din approached Bird, but a man came up to Din, grabbed his hands and punched his face.   Defendant then came out of the restaurant and three to four men dragged him towards some trashcans and attacked him.   One of the men who dragged defendant was the singer (Boonlitha Sukcham) at KT restaurant.   Defendant's hand was injured and Din had a wound above his eyebrow.

Defendant testified.   He too saw Bird arguing with a man.   He was coming out of the restaurant when he saw his cousin, Din, with a bloody face.   A guy came up from behind defendant and grabbed his hands and pulled him back.   Three or four guys kicked and punched him.   Defendant grabbed a bottle and swung widely to free himself.   Boonlitha Sukcham was one of his attackers.

Vaspol Agavatpanitch (Bird) testified that he was the man arguing with Joy outside of KT restaurant.   He saw a man grab Din, and then a fight broke out.   A group of men jumped defendant.

As to the May 29, 2006 incident, defendant explained that he and his then girlfriend had argued, and she decided to leave.   When Yanrat arrived, he pushed and then punched defendant.   To defend himself, defendant hit him back.   Yanrat fell to the ground, but he grabbed defendant's leg and tried to pull him to the ground.   To free himself, defendant kicked Yanrat.

A toxicologist testified about Yanrat's blood alcohol level, which was .125 at 6:41 in the morning, approximately three hours after the incident.   To have that level of blood alcohol in his system, Yanrat would have had closer to nine beers, rather than the couple (two or three) he claimed to have drunk.

C. Rebuttal case.

Olran Chujai testified as a rebuttal witness for the People.   He saw defendant at KT restaurant the night of the fight.   Defendant hit a shorter man, and defendant held a broken bottle.   Chujai did not see the shorter man push defendant or threaten him in any way.

D. Surrebuttal evidence.

Defendant testified that not only was Sukcham one of his attackers, but so was Olran Chujai.   When Chujai testified, defendant recognized him.

E. The People's further rebuttal evidence.

Two days after the incident at KT restaurant, Chujai saw defendant at another restaurant, where defendant told him he didn't stab Sukcham.

Sukcham testified that he never saw Chujai hit defendant.

II. Procedural background.

An information alleged count 1, battery with serious bodily injury of Chyanont Yanrat (Pen.Code, § 243, subd. (d)),1 and count 2, assault with a deadly weapon of Surasak Kwanon (§ 245, subd. (a)(1)).   Defendant's motion to sever the counts for trial was denied.   On June 18, 2008, the jury deadlocked on both counts, 11-to-1 on count 1 in favor of guilt and 8-to-4 on count 2 in favor of guilt.

Defendant was retried on both counts.   Before retrial, however, defendant renewed his motion to sever the counts for trial, but it was again denied.   On September 16, 2008, the jury found defendant guilty of count 1, but deadlocked 11-to-1 in favor of guilt on count 2. He was sentenced on October 10, 2008 to two years in prison.   The People dismissed count 2. This appeal followed.

DISCUSSION

I.  Joinder of counts 1 and 2.

Defendant contends that the trial court abused its discretion by not severing counts 1 and 2 for trial.   We disagree.

Defendant moved to sever trial on counts 1 and 2, and the People opposed the motion.   Defense counsel argued that the counts were “bootstrapped” together, with a weaker count being joined to a stronger one.   His law clerk stated in a declaration that he was present during an interview of jurors after the first trial.   At least one juror said that charging the multiple counts affected her deliberations, and another juror said she couldn't help but be influenced by the two charges even though they were instructed to consider the charges separately.   The prosecutor responded that the jury obviously did not conclude defendant was guilty because he was charged with two similar crimes, given that they did not convict him at the first trial.   The court denied the motion.2

Because joinder of charged offenses ordinarily promotes efficiency, joinder is an outcome preferred by the law.  (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.)   An accusatory pleading thus may “charge two or more different offenses connected together in their commission ․ or two or more different offenses of the same class of crimes or offenses․”  (§ 954.)   “ ‘Offenses “committed at different times and places against different victims are nevertheless ‘connected together in their commission’ when they are ․ linked by a ‘ “common element of substantial importance.”  ‘ [Citations.]”  ‘ [Citations.]”  (People v. Valdez (2004) 32 Cal.4th 73, 119 [murder charge and escape charged were connected because defendant's motive for escape was to avoid prosecution for the murder].)

Where, as here,3 the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying a severance motion.  (People v. Marshall (1997) 15 Cal.4th 1, 27.)   Given the State's interest in joinder, the trial court enjoys a broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence.  (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221.)   In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling.  (People v. Price (1991) 1 Cal.4th 324, 388.)   We assess the ruling in light of the following factors:  (1) whether the evidence is cross-admissible in separate trials;  (2) whether some of the charges are likely to inflame the jury;  (3) whether a weak case has been joined with a strong case so that a “spillover” effect might affect the outcome;  and (4) whether one of the joined charges is a capital crime, so that joinder of the charges converts the matter into a capital case.4  (People v. Mendoza (2000) 24 Cal.4th 130, 161.)

Defendant points out, first, that there was no evidence relevant to count 1 that was admissible as to count 2, or vice versa.   The complete absence of cross-admissibility, however, does not by itself demonstrate prejudice.   (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221;  People v. Mendoza, supra, 24 Cal.4th at p. 161.)   We therefore must examine the second factor, whether some of the charges were likely to inflame the jury.   Defendant argues that count 1 was a “marginal” case involving a domestic dispute;  whereas count 2 involved a large scale brawl during which defendant hit someone with a bottle, making him appear violent and out of control.   We disagree that either count was more inflammatory than the other.   Count 1 alleged that defendant pushed and dragged his girlfriend and then beat into unconsciousness the man who tried to help her.   Count 2 involved a brawl outside a restaurant in which defendant was one of several participants.   Both counts involved similar batteries or assaults;  neither case involved, for example, something more inflammatory, like a rape or murder.

Nor does the third factor-joinder of a weak count with a strong one-mitigate in favor of severance.   In fact, defendant admits that “neither Count 1 nor Count 2 were particularly strong.”   The state of the record at the time the trial court ruled on the severance motion supports that admission, because the first jury hung on both counts.   Also, eyewitnesses who knew defendant identified him as the person who beat Yanrat (count 1) and struck Kwanon with a bottle (count 2).   Indeed, to the extent defendant argues that the strength of the evidence on count 2 somehow caused the jury to find him guilty of count 1, we note that it was count 1 that had an independent eyewitness, Norma Anicete, with no ties to any involved party.   Therefore, it is arguable that count 1 had a “stronger” eyewitness.  “In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other.   A mere imbalance in the evidence, however, will not indicate a risk of prejudicial ‘spillover effect,’ militating against the benefits of joinder and warranting severance of properly joined charges.”   (People v. Soper (2009) 45 Cal.4th 759, 781.)   We therefore conclude that the trial court did not abuse its discretion by denying defendant's motion to sever counts 1 and 2 for trial.

In addition to the argument that the trial court abused its discretion in denying severance, defendant alludes to a violation of his due process rights.   Even if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the “defendant shows that joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.”  (People v. Arias (1996) 13 Cal.4th 92, 127;  see also People v. Soper, supra, 45 Cal.4th at p. 783 [“ ‘[M]isjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial’ “].) Other than alluding to his due process rights, defendant does not explain how joinder of the counts resulted in gross unfairness.   To the contrary, the jury acquitted defendant of count 2. Also, our review of the record shows that, notwithstanding the joinder of the counts, the evidence on each of them was “relatively straightforward and distinct” and there is no evidence of any spillover effect.  (Soper, at p. 784.)   This suggests that the jury was capable of differentiating between the two counts.

II. Unavailability of Rattana Porn Runtsupakrittanon.

After the trial court found that Runtsupakrittanon was unavailable to testify at trial, the court allowed her preliminary hearing testimony to be read to the jury.   Defendant contends it was prejudicial error to allow that testimony to be introduced.   We disagree.

A. Additional facts.

The trial court conducted a hearing under Evidence Code section 402 regarding the availability of Runtsupakrittanon for trial.   An investigator for the district attorney's office testified that he called the witness, who was in Thailand.   He described her as very cooperative.   She was willing to come to Los Angeles to testify, but she was concerned about traveling because she was four and one-half months pregnant, and her doctor had recommended she not travel, a recommendation she intended to follow.

Defense counsel would not agree that the witness was unavailable because he thought it was possible a telephonic examination could be set up.   Defense counsel then suggested a continuance, which it conceded would be long, seven to nine months, because of the witness's pregnancy.   The court found such a lengthy continuance not to be a “viable option” and said that her prior preliminary hearing testimony could be read into the record.   Defense counsel responded that the problem with the witness's preliminary hearing testimony was he had been forced to cross-examine her without the benefit of discovery.   He had objected to her testifying because he was unprepared, but the magistrate gave him only 10 minutes to interview the witness.

Overruling these objections, the trial court found that Runtsupakrittanon was unavailable and allowed the People to use the preliminary hearing transcript of her testimony in lieu of live testimony.   At trial, her testimony was read to the jury.   Runtsupakrittanon testified that she had a disagreement with her boyfriend, defendant, so she called her friend, Tony/Yanrat, to come and get her.   She and defendant went outside and “we just push and pull and then I turn around and saw Tony fell down.”   She didn't see how Tony fell, but while he was on the ground, defendant kicked his head and punched him about three times in the face.   Tony did not fight back.   He just pushed defendant and tried to defend himself.   Defense counsel asked one question on cross-examination:  was Tony drunk that night?   Runtsupakrittanon admitted he was drunk.

B. The preliminary hearing testimony of Runtsupakrittanon was properly admitted.

A defendant does not have an absolute right to confront witnesses.   (People v. Smith (2003) 30 Cal.4th 581, 609.)   If a witness is unavailable at trial and was subject to cross-examination at a previous judicial proceeding, that testimony may be admitted at trial.  (Ibid.) Evidence Code section 240 governs unavailability of witness.   It provides, in part:  “(a) Except as otherwise provided in subdivision (b), ‘unavailable as a witness' means that the declarant is any of the following:  [¶] ․ [¶] (3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.  [¶] (4) Absent from the hearing and the court is unable to compel his or her attendance by its process.  [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.”  “ ‘[R]easonable diligence’ “ is the same as “ ‘due diligence’ “ and presents a mixed question of law and fact.  (People v. Cromer (2001) 24 Cal.4th 889, 898-900.)   A deferential standard of review is applied to a trial court's factual findings, but an appellate court independently reviews a trial court's conclusion that an exception exists to the defendant's constitutionally guaranteed right of confrontation at trial.   (Id. at p. 901.)

Evidence Code section 240 sets forth “two closely related but slightly different ways” in which a person may be shown to be unavailable.  (People v. Smith, supra, 30 Cal.4th at p. 610.)   The prosecutor can show (1) that the witness is absent and the court is unable to secure her attendance or (2) the witness is absent and the prosecutor has exercised reasonable diligence, but has been unable to procure the witness's attendance by the court's process.   (Ibid.) The prosecutor here made both showings.   First, the prosecutor's investigator testified that he called Runtsupakrittanon in Thailand.   Because she was in Thailand, she was “absent” and outside the court's jurisdiction.   (Id. at p. 611 [noting that witness was in Japan and therefore unavailable].)   Second, the prosecution exercised due diligence.   It located Runtsupakrittanon in Thailand and called her.   Although she was willing to testify, she was unable to do so because she was pregnant and had been advised by her doctor not to travel.   This met the prosecution's burden of reasonable diligence.

Defendant, however, counters that Runtsupakrittanon was not “unavailable” because she could have come in seven or nine months, after the baby was born.   But whether a witness might be available sometime in the future is not the standard by which unavailability is measured.

Nor are we persuaded by defendant's argument that he was not given a full and fair opportunity to cross-examine Runtsupakrittanon at the preliminary hearing.  “[I]t is the opportunity and motive to cross-examine that matters, not the actual cross-examination.”  (People v. Smith, supra, 30 Cal.4th at p. 611.)   Also, absent some wrongdoing on the part of the prosecution, a defendant's subsequent discovery of material that might prove useful in cross-examination is not a ground for excluding otherwise admissible prior testimony at trial.  (People v. Jurado (2006) 38 Cal.4th 72, 116.)

Here, defense counsel had the opportunity to cross-examine the witness at the preliminary hearing.   He asked her one question:  whether the victim, Yanrat, was drunk that night.   She answered that he was drunk.   This line of questioning was a main part of the defense.   At trial, defendant focused on Yanrat's sobriety (or lack thereof) and called a toxicologist on that issue.   Defendant therefore had an opportunity to cross-examine the witness.   Not only did he have that opportunity, but he focused his cross-examination on an issue that was central to his defense.

III. Admission of Orlan Chujai's testimony.

During presentation of the defense case, the prosecutor informed the court and defense counsel that he wanted to introduce the testimony of a rebuttal witness, Orlan Chujai, who had not previously been disclosed.   Over defendant's objection, the court allowed Chujai to testify.   Defendant now contends that Chujai's testimony should have been excluded because he was not disclosed before trial to the defense and he was not a proper rebuttal witness.

A. Additional facts.

At the close of the defense case on September 10, 2008, the prosecutor informed the trial court that a potential witness had told Orlan Chujai to call the prosecutor.   Two days before, Chujai called the prosecutor.   The prosecutor gave defense counsel the witness's name and phone number the next day, giving him an opportunity to interview the witness.   Chujai had not been identified in the police reports or otherwise disclosed to the defense as a witness.   Defense counsel argued that the disclosure of the witness was untimely and he did not have time to prepare for the witness and Chujai was not a proper rebuttal witness.   If the court was inclined to let Chujai testify, then the defense requested a two-week continuance.   The trial court declined to exclude the witness and found that the prosecutor did not act in bad faith by disclosing the witness during trial.   But the court said it would recess after direct examination of Chujai to allow the defense an opportunity to prepare its cross-examination.   Defense counsel moved for a mistrial, which was denied.   Chujai then testified as summarized above.

B. The trial court did not abuse its discretion by allowing Chujai to testify.

A prosecutor must disclose to the defense the name and address of persons he or she intends to call as witnesses at trial. (§ 1054.1, subd. (a);  In re Littlefield (1993) 5 Cal.4th 122.)   These disclosures shall be made at least 30 days before trial. (§ 1054.7.) But if the material and information becomes known to or comes into the possession of a party within 30 days of trial, it shall be disclosed “immediately.”  (Ibid.) If a party does not comply with these disclosure requirements, “a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b);  see also People v. Jenkins (2000) 22 Cal.4th 900, 951 [trial court has broad discretion to fashion a remedy in the event of discovery abuse].)   A trial court's ruling on matters concerning discovery are generally reviewed under an abuse of discretion standard.  (People v. Lamb (2006) 136 Cal.App.4th 575, 581.)

Defendant's first argument is that Chujai's testimony should have been excluded.   But such a doomsday sanction should be employed only if other sanctions have been exhausted. (§ 1054.5, subd. (c).)  We, like the trial court, see no evidence to warrant that sanction.   The trial court found that late disclosure did not result from bad faith.   Chujai was not identified in police reports and the prosecutor was unaware of his name until another witness told Chujai to call the prosecutor.   The prosecutor also disclosed the witness as soon as his identity was discovered.   After Chujai was examined on direct, the court recessed to give defense the rest of the afternoon and night to prepare its cross-examination.   That remedy of limited continuance, rather than exclusion of the witness or the two-week continuance defense counsel requested, was not abuse of discretion.

We also do not agree that Chujai's testimony should have been precluded because he was not a proper rebuttal witness.   Whether to admit rebuttal evidence rests largely in the trial court's discretion.  (People v. Young (2005) 34 Cal.4th 1149, 1199.)   Rebuttal evidence generally is restricted “to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.”  (People v. Carter (1957) 48 Cal.2d 737, 753-754.)   That Chujai could have testified in the prosecution's case-in-chief does not necessarily render him an improper rebuttal witness.  (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 68.)   Although it is improper for a prosecutor deliberately to withhold evidence that is appropriately part of its case-in-chief to surprise the defense with it, if the evidence meets the requirements for impeachment it may be admitted on rebuttal to meet the evidence on a point the defendant put into dispute.  (Ibid.) In his defense, defendant here introduced evidence, including his own testimony, that he was not the aggressor that night at KT restaurant.   He was merely defending himself.   In rebuttal, Chujai testified that he saw defendant, unprovoked, hit a man.   Chujai's testimony therefore impeached the defense.   That the testimony repeated or fortified a part of the prosecution's case-in-chief, did not render it improper rebuttal evidence.  (Young, at p. 1199.)

The trial court therefore did not abuse its discretion by admitting Chujai's testimony.

IV. Admission of defendant's prior misdemeanor conviction.

Over defendant's objection, the trial court admitted evidence of a prior misdemeanor conviction.   Defendant now contends that its admission was prejudicial error.

In Virginia, defendant was convicted of misdemeanor identity fraud and was sentenced to 12 months in jail, 11 months of which were suspended.   Before trial, the People asked to be permitted to impeach defendant with that conviction, should he take the stand.   Defense counsel objected, arguing that a defendant may not be impeached with a misdemeanor conviction and the conviction should be excluded under Evidence Code section 352.   The trial court overruled the objections and found that the conviction was admissible as a crime of moral turpitude.   The court also found that the crime was not remote in time, the prior conviction was for different conduct, and it is not the kind of conviction that would cause a defendant not to testify for fear of having the prior conviction exposed.   The court therefore found that its probative value outweighed any prejudicial effect.

At trial, on direct examination, defendant admitted that in 2004 he pled guilty to misdemeanor identity fraud in Virginia.   On cross-examination, the prosecutor asked defendant to confirm that he committed identity fraud while he was living in Virginia.   Defendant admitted it.   The prosecutor then said during closing argument:  “And also remember that the defendant has committed identity fraud in the past.   And one of the instructions that the judge gave you is that you can't include that past conduct in evaluating his credibility.   But the fact of the matter is his story just doesn't hold up.”

Past criminal conduct amounting to a misdemeanor, if relevant, is admissible, subject to the trial court's discretion.  (People v. Wheeler (1992) 4 Cal.4th 284, 295.)   But documentary or testimonial evidence of a misdemeanor conviction -as opposed to conduct -is inadmissible hearsay when offered to impeach a witness's credibility.  (Id. at p. 300;  accord, People v. Chatman (2006) 38 Cal.4th 344, 373 [“Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion” (italics omitted) ];  People v. Lopez (2005) 129 Cal.App.4th 1508, 1522 [“a person can be impeached in a criminal case by evidence of prior misdemeanor conduct that involves moral turpitude․  However, evidence of a misdemeanor conviction remains ‘inadmissible hearsay when offered to impeach a witness's credibility.’  [Citation.]”  (Italics omitted.) ];   but see People v. Duran (2002) 97 Cal.App.4th 1448, 1460 [section 452.5 creates “a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred”].) 5

Assuming that Evidence Code section 452.5 and Duran do not supersede Wheeler on this point and do not permit the admission of a prior misdemeanor conviction for impeachment purposes, we find any error in admitting the evidence was harmless.   It is well settled that “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of ․ the improper admission or rejection of evidence, ․ 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.”  (Cal. Const., art.   VI, § 13.)   A miscarriage of justice occurs only when it appears that a result more favorable to defendant would have been reached in the absence of the error.  (People v. Watson (1956) 46 Cal.2d 818, 836.)

Assuming that evidence defendant pled guilty to identity theft was inadmissible, evidence of defendant's conduct was admissible under Wheeler in the court's discretion.   We see no abuse of that discretion.   To determine the admissibility of a prior conviction, four factors should be considered:  “(1) whether the prior conviction reflects on honesty and integrity;  (2) whether it is near or remote in time;  (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial;  and, (4) finally, what effect admission would have on the defendant's decision to testify.”  (People v. Castro (1985) 38 Cal.3d 301, 307.)   Defendant does not discuss these factors.   He merely argues that the trial court could not have conducted a proper analysis under Evidence Code section 352, because the People did not provide the court with information other than the mere fact that defendant had been convicted of identity theft in Virginia.   Defendant fails to challenge the court's conclusion that identity theft is a crime of moral turpitude and that the crime, having occurred around 2004, was not remote in time.   The prior conviction for identity theft was for substantially different conduct than the assaultive crimes for which defendant was on trial, and the court said that the nature of the prior crime was not such that it should cause a defendant not to testify.

Also, there was no undue consumption of time or any risk that the jury would be confused or misled.   In fact, the identity theft was mentioned just once on direct examination, once on cross-examination, and once by the prosecutor in closing.   Moreover, the jury was instructed:  “If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony.   The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility.   It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”   Given all of this, we cannot conclude that admitting evidence that defendant pled guilty to identity theft was prejudicial error.

V. Cumulative error.

As we have “ ‘either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial[,][w]e reach the same conclusion with respect to the cumulative effect of any [purported] errors.’   “ (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. A severance motion was made and denied before the first trial.   The motion was renewed before the second trial;  in fact, before the second trial began, defense counsel was permitted to argue the motion twice..  FN2. A severance motion was made and denied before the first trial.   The motion was renewed before the second trial;  in fact, before the second trial began, defense counsel was permitted to argue the motion twice.

FN3. By failing to argue that the requirements of section 954 were not met, defendant implicitly concedes that counts 1 and 2 involved assaultive behavior and therefore were of the same class of crimes or offenses..  FN3. By failing to argue that the requirements of section 954 were not met, defendant implicitly concedes that counts 1 and 2 involved assaultive behavior and therefore were of the same class of crimes or offenses.

FN4. Defendant concedes that the fourth factor is not applicable..  FN4. Defendant concedes that the fourth factor is not applicable.

FN5. Evidence Code section 452.5, subdivision (b) provides:  “An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.”.  FN5. Evidence Code section 452.5, subdivision (b) provides:  “An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.”

KLEIN, P. J. KITCHING, J.