California Court of Appeal Dec 3, 2015 No. E061854Unpublished
Filed 12/3/15 P. v. Carrillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E061854
v. (Super.Ct.No. SWF1301087)
RUDY MODESTO CARRILLO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Quisteen S.
Shum, Deputy Attorneys General, for Plaintiff and Respondent.
One of two motorcycle officers clocked the speed of defendant Rudy Carrillo at
more than 60 miles per hour on Pechanga Parkway, so one of them initiated a traffic stop.
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However, instead of stopping, defendant, who was driving a stolen vehicle, executed a
high-speed three-point turn and accelerated in the direction of the officer, striking the
Defendant was tried by a jury and testified on his own behalf.2 The jury acquitted
defendant of the attempted murder charges in counts 1 and 2, but convicted him of the
remaining charges. The court struck one of the prison priors, and defendant admitted the
other four prior convictions. The court sentenced defendant to the upper term of 5 years
on count 4 (§ 245, subd. (c)), with consecutive subordinate terms reflecting one-third the
midterm for counts 3 and 5, plus one year each for the three prison priors, for a total
sentence of 10 years in prison. Defendant appealed.
DISCUSSION
1. The Trial Court Properly Exercised Its Discretion in Ruling Defendant’s
Prior Convictions Were Admissible.
In limine, the prosecution sought admission of six prior convictions, with which to
impeach defendant if he testified. In turn, defendant sought a ruling that not all of his
prior convictions be admitted. Defendant’s record of convictions includes a 1991
conviction for felony driving under the influence (Veh. Code, § 231523; a 1994
conviction for being a felon in possession of a firearm (§ 12021, subd. (a)(1)), a 2001
2 By way of defense, defendant asserted he had been drinking since 10:00 a.m., and that his judgment was impaired.
3 The record does not indicate whether the conviction was for driving under the influence (Veh. Code, § 23152, subd. (a)) or driving with a 0.08 or higher blood alcohol level (Veh. Code, § 23152, subd. (b)).
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conviction for sexual battery (§ 243.4), two convictions, in 2005 and 2006, for possession
for sale of controlled substances (Health & Saf. Code, § 11378), and a 2006 conviction
for failing to register as a sex offender (§ 290).
The court ruled that the prior convictions were admissible for impeachment after
determining that the probative value of the prior convictions was not outweighed by the
possibility of prejudice. Notwithstanding the in limine ruling, defendant did testify.
Defendant now argues on appeal that the court should have excluded the sexual battery
and felony drunk driving convictions. We disagree.
For purpose of attacking the credibility of a witness, it may be shown that he or
she has been convicted of a felony, absent certain circumstances where the prior
conviction is not viable. (Evid. Code, § 788.) Under the “Truth-in-Evidence” provision
of Proposition 8 in 1982, section 28, subdivision (f), of article I of the California
Constitution, “[a]ny prior felony conviction of any person in any criminal proceeding”
may be “used without limitation for purposes of impeachment or enhancement of
sentence in any criminal proceeding.”
No witness, therefore, has the right to give testimony immune from challenge or
impeachment. (People v. Collins (1986) 42 Cal.3d 378, 387.) However, the
admissibility of any past misconduct for impeachment is limited by the relevance
requirement of moral turpitude. (People v. Edwards (2013) 57 Cal.4th 658, 722.)
Beyond this, trial courts have broad discretion to admit or exclude prior convictions for
impeachment purposes. (People v. Hinton (2006) 37 Cal.4th 839, 887, citing People v.
Collins, supra, 42 Cal.3d at p. 389.) A trial court’s exercise of discretion will not be
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disturbed unless it appears that the resulting injury is sufficiently grave to manifest a
miscarriage of justice. (People v. Green (1995) 34 Cal.App.4th 165, 182.)
When determining whether to admit a prior conviction for impeachment purposes,
the court should consider, among other factors, whether it reflects on the witness’s
honesty or veracity, whether it is near or remote in time, whether it is for the same or
similar conduct as the charged offense, and what effect its admission would have on the
defendant’s decision to testify. (People v. Clark (2011) 52 Cal.4th 856, 931.)
Here, the court excluded evidence of the prior conviction for failing to register as a
sex offender because it was not clear if that was a crime of moral turpitude. The
remaining prior convictions relate to crimes involving moral turpitude: sexual battery
(People v. Chavez (2000) 84 Cal.App.4th 25, 30); felony drunk driving (People v. Forster
(1994) 29 Cal.App.4th 1746, 1757); possession of a firearm by an ex-felon (People v.
Robinson (2011) 199 Cal.App.4th 707, 716); and possession of drugs for sale (People v.
Harris (2005) 37 Cal.4th 310, 337, citing People v. Castro (1985) 38 Cal.3d 301, 317).
This does not end our enquiry, because Evidence Code section 352 allows the trial
court to exclude otherwise relevant evidence if its probative value is outweighed by the
probability its admission will create a substantial danger of undue prejudice. In this
respect, defendant argues that the 1991 conviction for felony drunk driving was too
remote in time. It is true that remoteness of evidence weighs in favor of exclusion
(People v. Harris (1998) 60 Cal.App.4th 727, 739.)
However, convictions remote in time are not automatically inadmissible. (People
v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Even a fairly remote prior conviction
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is admissible if the defendant has not led a legally blameless life since the time of the
remote prior. (People v. Green, supra, 34 Cal.App.4th at pp. 182-183; People v.
Muldrow (1988) 202 Cal.App.3d 636, 647-648.) Defendant has not led a blameless life
since 1991.
Defendant also argues that the sexual battery conviction should have been
excluded because sexual offenses are especially prejudicial. However, the trial court
directed that the conviction be described as “sexual battery of an adult” so the jury would
not be left with the impression that it was an offense against a child. Although not
“sanitized,” any undue prejudice was eliminated by the court’s proviso.
In the present case, we find no prejudice. Notwithstanding the trial court’s rulings
respecting the prior conviction evidence, defendant testified in his own behalf, admitted
stealing the truck and nearly striking the two officers as they attempted to apprehend him.
Nevertheless, he was acquitted of the most serious crimes. The evidence did not
prejudice defendant.
2. The Trial Court Properly Imposed Consecutive Terms for Each Assault
Against a Peace Officer.
At sentencing, defense counsel requested that the court impose concurrent terms
for counts 4 and 5, the two convictions for assault with a deadly weapon against a peace
officer. The court imposed a consecutive, one-third the midterm sentence for count 5.
On appeal, defendant argues that the imposition of consecutive terms constitutes an abuse
of discretion. We disagree.
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It is well established that a trial court has discretion to determine whether several
sentences are to run concurrently or consecutively (§ 669, subd. (a); People v. Giminez
(1975) 14 Cal.3d 68, 71-72). In the absence of a clear showing of abuse, the trial court’s
discretion will not be disturbed on appeal (People v. Caesar (2008) 167 Cal.App.4th
1050, 1059 [disapproved on another ground in People v. Superior Court (Sparks) (2010)
48 Cal.4th 1, 18]).
Criteria affecting the decision to impose consecutive rather than concurrent
sentences include facts relating to the crimes, including whether or not the crimes
involved separate acts of violence or threats of violence (Cal. Rules of Ct., rule
4.425(a)(2)). The presence of separate victims named in separate counts will justify a
consecutive sentence. (People v. Caesar, supra, 167 Cal.App.4th at p. 1060-1061, citing
People v. Calhoun (2007) 40 Cal.4th 398, 408.)
Here, defendant committed separate acts of violence to separate victims. The trial
court properly exercised its discretion in deciding to impose consecutive terms.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
KING J. MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in admitting prior felony convictions for impeachment or in imposing consecutive sentences for separate acts of assault against two different peace officers.
Issues
Did the trial court abuse its discretion by admitting prior felony convictions for impeachment purposes?
Did the trial court abuse its discretion by imposing consecutive sentences for two counts of assault with a deadly weapon on a peace officer?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Here, defendant committed separate acts of violence to separate victims. The trial court properly exercised its discretion in deciding to impose consecutive terms.”