PEOPLE v. NIZ (1986)

Ralph Jesse Niz appeals from the judgment entered upon his conviction by jury for one first degree burglary and a second attempted first degree burglary. He further admitted he had sustained a prior serious felony conviction for burglary. (Pen.Code, §§ 459, 664/459, 667, subd. (a).) An upper term sentence of six years was imposed for his most recently consummated offense with a consecutive eight-month term for the separate attempt. His prior conviction, of course, produced a five-year enhancement for a total sentence of 11 years, 8 months. He contends:

“I. The trial court committed reversible error in excluding appellant's proferred testimony regarding his prior felony conviction. II. The trial court improperly made dual use of the same facts to both impose the upper base and to impose consecutive prison terms.” By supplemental brief submitted in propria persona, he contends: “I. Appellant has standing to challenge the imposition of a 5 year prior enhancement for the purpose of impeachment where he does testify in his own defense. II. Appellant was ineffectively represented by trial counsel for her failure to move the trial court for a bifurcated trial on the issue of his prior felony conviction pursuant to California Penal Code § 1025.”

The evidence established that on June 5, 1985, Marta Cruz observed appellant as he attempted to break into her Los Angeles residence. Later that day, Rod Davis saw appellant and a woman casing his Los Angeles neighborhood in a green Mercury Capri. Appellant then entered the residence of a neighbor of Davis, and carried out a video recorder and a rifle as Josephine Munoz watched. Cruz and Munoz each noted a portion of appellant's license plate number. Appellant also had been observed to have a distinctive tattoo on his arm. He was arrested on June 7 in the same vehicle he had used during the offenses and in the company of the same woman companion. He was positively identified by Cruz and Davis, as was his vehicle.

Appellant testified to an alibi defense. Prior to taking the stand, he had sought to exclude all reference to his prior felony conviction for impeachment purposes, urging that a 1978 burglary was not only too remote but too highly prejudicial in view of its similarity to the charged offense. The court denied the motion after determining that the probative value of such a revelation outweighed its prejudicial effect. Therefore, appellant acknowledged on direct examination that he had been convicted of a felony in 1978, and on cross-examination admitted it had resulted from a residential burglary. On redirect examination, defense counsel attempted to elicit the fact that appellant had pled guilty to this prior offense. The prosecutor's relevancy objection was sustained.

At the sentencing hearing, after having read the probation report, the trial court denied appellant's request to strike the prior serious felony conviction.¹ In sentencing appellant, the court observed, inter alia:

”Your juvenile record is just—it starts in '71. It comes on down. Sale of amphetamines dropped to possession. Time and time again you have been before some court and some judge, and some court or some judge has given you the opportunity and has given you leniency, hopefully to lead you to a more mature life. [¶ ] These crimes and the evidence I heard during the trial definitely point to a very sophisticated, knowledgeable burglar who does it on the basis of a profession. The screens come out; the windows come up; it's leaned here. It has all the earmarks of a professional․ [¶] You have got prior convictions as an adult, commissions of juvenile crimes, and you don't remember anything. You have a very convenient memory. [¶ ] So as far as I'm concerned, I'm going to sentence you as follows: [¶ ] I'm going to sentence you to high base on [the burglary count]; mid-base on [the attempted burglary]. I'm going to give you five years for the prior, and it's going to run consecutively; all of them.”

Appellant's first contention, though partially correct, does not justify a reversal. It was improper for the trial court to prevent appellant from laying a foundation for urging the jury to believe that when he was guilty he admitted it and only when he was innocent did he demand a trial. Furthermore, within reasonable limits one shown to have been previously guilty of any criminal activity is entitled to present evidence tending diminish the pejorative impact of such past misconduct. (See People v. Amanacus (1875) 50 Cal. 233, 234; People v. Costello (1963) 223 Cal.App.2d 748, 753, 36 Cal.Rptr. 155; People v. Hoenschle (1933) 132 Cal.App. 387, 389, 22 P.2d 777.) Nonetheless, since the proofs mustered against appellant in the present instance were overwhelming, even had the testimony regarding his earlier guilty plea been admitted, a different result would not have been reasonably probable. (Cf. People v. Castro (1985) 38 Cal.3d 301, 319, 211 Cal.Rptr. 719, 696 P.2d 111; People v. Betts (1980) 110 Cal.App.3d 225, 228, 234, 167 Cal.Rptr. 768.)

Appellant's second contention is unmeritorious. The complex catechism compelled by Penal Code section 1170, subdivision (c), and rule 443 of the California Rules of Court is designed to insure that in imposing sentence a busy trial court will be fully cognizant of the facts present in the individual case before it and that it has adhered to the sentencing rules in making its selections. That is to say, every court should strive to create a record sufficient to disclose that only relevant criteria were considered and that no one fact was twice utilized.

Nonetheless, once it has declared several factors in aggravation, it need not expand upon its recitation by expressly announcing which of them it is assigning to one sentencing choice and which to another. So long as the several aggravating factors exceed the sentencing choices made, no proscribed dual use is possible. In this instance, the court gave ample reasons for both its sentencing choices, i.e., appellant's professionalism, the number of his prior convictions, his failure to benefit from prior grants of leniency, etc. (Cal. Rules of Court, rules 408(a), 421(a)(8), (b)(2); 425(b).)

The contentions appellant raises in his supplemental brief are unavailing. The court's decision to permit his impeachment cannot be characterized as an abuse of discretion. (People v. Castro, supra, 38 Cal.3d at pp. 318–319, 211 Cal.Rptr. 719, 696 P.2d 111.) Similarly, since he chose to admit his prior serious felony conviction, no bifurcated trial on that issue was necessary. (Cf. People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144; People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

The judgment is affirmed.

FOOTNOTES

1.  Appellant's probation report had listed four factors in aggravation and none in mitigation.

GATES, Associate Justice.

COMPTON, Acting P.J., and BEACH, J., concur.