Filed 12/31/15 P. v. Lugo CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 AP PEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIV ISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v. EDWIN LUGO,

Defendant and Appellant. B257897
(Los Angeles County Super. Ct. No. LA071580)

APPEAL from a judgment of the Superi or Court of Los Angeles County. Larry
Martin Herscovitz , Judge. Affirmed with directions

.
Donna L. Harris , under appointment by the Court of Appea l, for Defendant and Appellant

. Kamala D. Harris, Attorn ey General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, A ssistant Attorney General, Stephanie A. Miyoshi and David A. Voet, Deputy Att orneys General, for Plaintiff and Respondent.2

Edwin Lugo appeals from the judgment of conviction for two counts of first degree murder. He claims that the trial cou rt violated his federal Sixth Amendment right

to confront witnesses , his due process right to present a defense, and his state law right

to im peach witnesses when it precluded him from cross

- examining a prosecution witness about the witness’s misdemeanor c onduct. Lugo also complains that the sentencing
minute order does not correctly reflect the oral pronouncement of the sentence. As we shall explain, only Lugo’s claim with respect to the minute order has merit

. Acc ordingly, we affirm the judgment and di rect the trial court to correct the minute order

.

FACTUAL AND PROCEDURAL BACKGROUND

Jamie Polino, Mario Martinez , Juan Romero and Lugo worked on construction projects for MC Construction in the San Fernando Valley

. Romero , who Lugo had known for years, had gotten Lugo the job with the construction company which was owned by Mauricio Cruz.
A. The Crime s A t a pproximately 11:00 p.m., on June 2, 2012, Los Angeles p olice officers
discovered the dead bodies of Jaime Polino and Mario Martinez in a Panorama C ity apartment

. The men had been shot in the head at close range that day apparently between 4:30 p.m. and 5 :30 p.m. Police also found guns, ammunition, st reet gang paraphilia,
cocaine and indicia of narcotics sales inside the ransacked apartment.
Detectives interviewed residents of the apart ment complex. A neighbor, Irma Lopez , reporte d that on June 2 , between 10:30 a.m. and 11:00 a.m., an unidentified woman mistakenly opened the front door of her apartment. Ms. Lopez observed the

woman, and a ma n, later identified as Lugo , wal k to the victims’ apartment, knock on the
door and then enter

. A pproximat e ly an hour later the a pa rtment manager saw the victims
and Lugo , and an unidentified man and woman , inside the apartment

. Ms. Lopez also told police that at some time between 4:30 p.m. and 5:30 p.m. on
June 2 , she was in the apartment directly below the victims’ apartment when she heard a loud bang and then the sound of something heavy falling to the floor inside the victims’3

apartment

. Another neighb or reported that a t approximately 5:30 p.m., he saw Lugo
and a woman leaving the victims’ apartment and drive away in Polino’s car

. Video surveillance film obtained from a CVS store in Los Angeles showed that

at approximately 9:30 p.m. on June 2, 2012, Lu go dr ove Polino’s car in the store’s parking lot. Lugo’s fingerprints were on a CVS receipt found in the car. The DNA from a beer can found in the victim’s apartment connected Lugo to the crime scene.
B. Romero ’s Statements to Police
Six weeks after the murders , police arrested Lugo’s friend Romero for possession
of a firearm

. Romero , a known gang member and a felon, told officers that he had some
information about the murders of Polino and Martinez. Detectives questioned Rom ero three times over the course of several hours

. 1 During the first interview, Romero claimed that he had left his gang but obtained
the gun in his possession only for the protection of his wife and daughter. At first,
Romero said that he a cquired the gun from someone who liv ed in the “projects,” but later
said Mauricio Cruz had given him the gun

. Romero also told investigators that the
victi ms st ole appliances from construction sites and resold them. Romero admitted he
had been invo lved in those activities

. Romer o told one of the investigators he believed that another employee of
MC Construction, Joel Alvaro was involved in the murders because Alvaro (who was related to one of the victims), had left town immediately after the crimes; he thought th at Alvaro had set

- up the vi ctims. Romero also reported that he had heard that the killings
were gang

- related and connected to the victims’ drug dealing s

. Romero said he had spoken to Lugo about the murders and that Lugo denied any involvement in the crimes. During the second interview, Romero stated that he spoke with Lugo after the murders and Lugo told him that “something happened.” I n the third interview , Romero
said that Lugo attempt ed to explain Lugo’s involvement in the shooting, but Romero stopped him because Romero f eared he would be killed for introducing Lugo to Mauricio

1 The interviews were recorded and the recordings were played for the jury during the trial.4

Cruz. Although Romero at first maintained that Lugo had not c onfessed to the murders , he eventually changed his story. He stated that Lugo had admitted that he was inside the victims’ apartment but Lugo claimed that the woman told him that the victims we re going
to kill him. According to Romero, Lugo said “ it was me or them.” Romero explained that Lugo said “it happened” and “they’re dead,” and that “they had a gun at his head.”
C. Trial Pro ceedings Lugo was arrested and charged with two counts of first degree murder ( Pen. Code, § 187, subd. (a)). The information further alleged that Lugo personally and in tentionally
used a firearm which caused great bodi ly injury and death (Pen. Code, § 12 022 .53,
subds. ( b), (c) & (d)), and the special circumstance of m ultiple murders

. Prior to the preliminary hearing the prosecution provided Lugo’s counsel with a list of Romero’s prior convictions, which included : 2003 and 2012 felony convictions for possession of a firearm by a felon; 2005 misdemeanor convictions for domestic violence
and criminal threats ; and a 2000 misdemeanor conviction for vandalism. Several months
later , on the first day of trial , Lugo’s counsel sought an order allowing him to i mpeach Romero with his prior convictions. The court indicated that it would allow counsel to impeach Romero with his 2012 felony conviction for possession of a firearm by a felon. When Lugo asked whether he could also impeach Romero with hi s three misdem eanor convictions, the following exchange occurred:

“The Court: Well, I mean, we’re going to be talking to the witness

— because it’s not the impeachment. It’s the conduct for the misdemeanor offenses. Then we’re going to have to ask, ‘Mr. Romero, is it true you battered your wife or girlfriend or threatened her in 2005?’ Let’s assume he says, ‘No.’ Where do you go from there?
[ Lugo’s Counsel ] : I’d have to bring in the police officer.

The Court: No, you wouldn’t bring in the police officer. The vi ctim.

. . . Do you have the victim under subpoena? Do you even have the police reports on it?5 [ Lugo’s Counsel ] : I don’t because the prosecution did not provide and I did not ask. I still have time to do those things. I can always attempt to do those things. They are misdemeanors. S o I understand what the court is saying, but

—
The Court: What I’m saying is, it will , in my opinion, cause an undue consumption of time to get into an argument about ten

- year

- old misdemeanor conduct between Mr. Romero and his girlfriend[/] cohabitant of ten years ago, with witnesses who may or may not be available other than Mr. Romero, who’s going to be testifying, especially considering the fact that he’s going to be impeached with a very recent felony of being in possession of a firearm, where, then, the jury will know that he has at least two felonies , one that made him inelig ible and o ne that makes him guilty. I’m going to exercise my discretion and keep out the misdemeanor conduct from 2004 and 2005.
[ Lugo’s Counsel ] : All three of them that I just requested?

The Court: Yes, since they’re hearing about two felonies and they’re of much more recent origin. ”
Shortly thereafter Lugo’s counsel asked to put on the record that she had discussed with Lugo if he would be “willing to waive time” to allow counsel to locate the witnesses
to the misdemeanor conduct. Counsel ind icated that Lugo was unwilling to do so , to which the court remarked: “ [ E ] ven if the witness were available, it would be having the jury to determine whether or not a battery took place in 2005 that could then reflect on
Mr. Romero in 2014 ; so that seems to be a lot of litigation for a very small issue, especially in light of his other impeachment.” During trial Romero testified that he had suffered felony co nvictions in 20 03
and 2012 for possession of a firearm by a felon

. He admitted that he served four years in federal prison and had been involved in a street gang since he was a teenage r. Romero
left the gang and his former gang had given the “green light [] ” for him to be killed. H e further testified that he abused drugs in the past and was under the influence of LSD and
PCP when he gave his statement to the police about the murders. At various points during his testimony , Romero recanted the statements he made to the police; he said he felt pressured by the detectives and therefore lied to them. Romero denied that Lu go had6

confessed to the murders and stated that he was mere ly passing along rumors he had
heard on the street. At ot her points during his testimony Romero claimed he could not
remember his police interview, did not know the tr uth and could not remember his testimony from the preliminary hearing. He explained that he was currently taking medication for anxiety w hich caused memory lapses. The jury convicted Lugo of the two counts of first degree m urder and found the
enhancement s and speci al circumstance true

. The court imposed consecutive terms of life without the possibi lity of parole together with 25 years to life for the gun
enhancement for each count

. Lugo timely appealed

. DISCUSSION

I. The Trial Court D id Not Err When it Denied Lugo’s Request to Impeach Romero With His Prior Misdemeanor Conduct

. Lugo asserts the trial court violated his federal Sixth Amendment right to
confront witnesses , his due process right to present a defense, and his state law right to

cros s

- examin e witnesses when it denie d his request to impeach Romero’s testimony with his prior misdemeanor conduct

. A. Constitutional Claim The Sixth Amendment’ s Confrontatio n Clause guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. ( Delaware v.
Van Arsdall (1986) 4 75 U.S. 673, 678.) A s the Court stated in Davis v. Alaska (1974) 415 U.S. 308, 315, “[c]onfrontation means more than being allowed to confront the witness physically.” The Court recognized that “the cross

- examiner is not only perm itted
to delve into the witness’ [ s ] story to test the witness’ [ s ] perceptions and memory, but [also]

. . . allowed to impeach, i.e., discredit, the witness.” ( Id. at p. 316 , italics omitted ; accord People v. Quartermain (1997) 16 Cal.4th 600, 623 [r ecognizing the right of confrontation under the Sixth Amendment “ includes the right to cross

- examine adverse
witnesses on matters refl ecting on their credibility ” ].)7

“ However, not e very restriction on a defendant’ s desir ed method of

cross

- examination is a constitutional violation.” ( People v. Chatman (2006) 38 Cal.4th 344, 372.) “[T] he Confrontation Clause guarantees an opportunity for effective

cross

- examination, not cross

- examination that is effective in whateve r way, and to whatever extent, the defense might wish. ” ( Delaware v. Fensterer (1985) 474 U.S. 15, 20.) A trial court , therefore, has discretion to limit or exclude impeachment evidence
when the evidence is repetitive, prejudicial , marginal ly relevant, t ime consuming , or is likely to confuse the issues. ( Delaware v. Van Arsdall , supra , 47 5 U.S. at p. 679; People

v. King (2010) 183 Cal.App.4 th 1281, 1316

. )
In addition , the trial court’s discretionary exclusi on of impeachment evidence
does not violate the Sixth Amendment unless the prohibited cross

- exa mination might reasonably have produced “ a signifi cantly different impression” of the witness’s credibility. ( Delaware v. Van Arsdall , supra , 475 U.S. at p. 680; People v. Greenberger (1997) 58 Cal.App.4th 298, 350 [ “The determination whether a defendant has been denied the right of confrontation is focused on the individual witness. The standa rd for determining if a [C]onfrontation [C] lause violation has occurred is whether a reasona ble jury might have received a significantly different impression of the witness’s credibility had the defendant been permitted to pursue his pro posed line of cross

- examination ” ].)
The burden rests on the defendant to make this showing. ( People v. Willia ms (1997)
16 Cal.4th 153, 207.) Preliminarily , the Attorney General argues that Lugo forfeit ed the claim b y failing

to raise it in the trial court. Because Lugo has not cit ed to the appellate reco rd , nor does he claim, that he asserted a federal constitutional objection to the court’s ruling
, he has
forfeited the cla im

. (See Evid. Code, § 353; People v. Redd (2010) 48 Cal.4th 691, 730 & fn. 19; People v. Thor

n ton (2007) 41 Cal.4th 391, 427 ; see also Melendez

- Diaz v. Massachusetts (2009) 557 U.S. 305, 314 [holding the right to confron tation may be
forfeit ed ].) In an y case , the claim lacks merit.
As the trial court observed , the misdem eanor conduct from 2004 and 2005 was relatively old , compared to his 2012 felony conviction. Further, although Lugo’s counsel8

was aware of Romero’s prior misdemeanor convictions before the preliminary hearing
, she had not developed the evidence to prove the conduct in ti me for trial. Thus, if
Romero had denied that he committed the misdemean or conduct, the trial w ould
have had to be delayed for counsel to obtain further proof. (See People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 , 300 & fn. 14 [holding impeaching conduct must be proven by direct evidence of the acts committed , i.e., a witness could admit the con duct
or witnesses could be ca lled to describe the conduct ] , superseded by statute on another point in People v. Duran (2002) 97 Cal.App.4th 1448, 1459

- 1460 ; cf. People v. Clark (2011) 52 Cal. 4th 856, 931 [u nder Evid. Code, § 788, a witness may be impeached with the record of judgment es tablishing a felony conviction]. )
Furthermore , Lugo has not demonstrated that the prohibited cross

- examination
about Romero ’s prior misdemeanors would have produced a significantly different impression of his credibility. The jury heard that Romero suffered two felony
convictions for gun posse ssion, spent four years in federal prison, had been an active
and violent gang member, abused drug s and engaged in criminal activities with his

co

- workers . He admittedly lied to the police about where he obtained his gun and misled
authorities about the murders during his police interviews . Romero also conceded he

was im paire d during the police interviews; he could not recal l his statements to police.
He repeatedly gave vague and i nconsistent versions of Lugo’s purported confession ; and Romero’s testimony at the preliminary hearing and at trial was r iddled with
contradictions. At trial h e claimed that he was heavily medicated

. Lugo ’s trial counsel
thoro ughly cross

- examined Romero regarding all o f these matters

. Romero’s
inconsistent testimony and prior statements about the murders coupled with his demeanor and criminal background provided Lugo with ample material to discredit Romero

. The evidence of Romero’s misdemeanor conduct w as not likely to have produ ced a different impression of Romero’s credibility , let alone, a significantly different impression . T he trial court’s exercise of discretion to exclude it did not violate the Sixth Amendment

. ( Peo ple v. Hillhouse (2002) 27 Cal.4th 469, 494 .) Therefore, e ven if Lugo had preserved
his constitutional claim for appeal it would fail

.9

B

. State Law Claim Appellant does not challenge that u nder California law, a witness may be impeached with evidence of conduct that i nvolves moral turpitude, including conduct that results in a misdemeanor conviction, but may not be impeached with evidence of the
misdemeanor conviction itself. ( People v. Wheeler , supra , 4 Cal.4th at pp. 295

- 296
& 299 ; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1522 .) The parties
also agree, as do we, that proof of the conduct underlying Romero’s misdemeanor
convictions

— corporal injury on a spouse or cohabitant (Pen. Code, § 273.5) , criminal
threats ( Pen. Code, § 422) , and vandalism ( Pen. Code, § 594 ) is relevant to show
moral turpit ude for the purposes of impeach ment

. ( E.g., People v. Rodriguez (1992)
5 Cal.App.4th 1398, 1402 [ violation of Penal Code section 273.5 connotes readiness to
do e vil , and thus, impeachment with evidence of [ the facts of the ] crime is proper]; People v. Thornton (1992) 3 Cal.App.4th 419, 424 [ “section 422 is a crime of moral turpitude,” for the purposes of impeaching a witness]; see People v. Campbell (1994 )
23 C al.App.4th 1488, 1493 [concluding misdemeanor vandal ism is a crime of moral turpitude].) Notwithstanding relevance , the “trial court may restrict defense cross

- examination of an adverse witness on the grounds stated in Evidence Code section 352.” ( People v.
Whisenhunt (2008) 44 Cal.4th 174, 207; accord, People v. Clark , supra , 52 Cal.4th

at p. 931 .) Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (See E vid

. Code, § 352.) The court’s decision to exclude the misdemeanor conduct in this case complied
with Evidenc e Code section 352. The evidence would add only minimally, if at all, to
the impeachment of Romero but would have require d an u n due consumption of time
because the evidence of ea ch crime would have had to be pre sented through witnesses

to the events. Lugo, however, asserts that , at the very least , the trial court should have permi t t ed him to inquire directly of Romero about the conduct

. He argues that if Romero admitted the acts, then he would not have need ed other witnesses or evidence, and the10

trial would not have been unduly delayed. Although , an admission by Romero would
have resolved the need for additional proof, the cour t also ruled that even if the evidence

was re adily available, it would exercise its discretion to exclude it because the evidence
l acked sufficient probative value , being both remote and adding little, if anything, to
further discredit the witness. We agr ee. T he probative value of this prof fered evidence

was , at most, minimal given the discrediting testimony from the witness himself. T he
trial court , therefore, did not abuse its discretion by excluding the evidence of the
misdemeanor conduct

. Regardless , any error was harmless . The evidence against Lugo was strong. Eyewitnesses placed Lugo at the scene of the crimes before, during and after the murders. DNA evidence placed him inside t he victims’ apartment and the victim ’ s vehicle. In view of this evidence, absent the alleged error

— the exclusion of Romero’s misdemeanor
conduct

— it is not reasonably probable that Lugo would have received a more favorable result. ( People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The Trial Court Must Amend the Minute Order t o Re flect the Oral Sentence

. At the sentencing hearing, the trial court ordered Lugo to pay a criminal conviction assessment of $60 under Government Code section 70373, reflecting that
the jury convicted Lugo of two felonies. Th e abstract of judgment properly reflect s the imposition of the assessment, but the July 25, 2015 minute order from the sentencing hearing reflects a criminal conviction assessment of $70. Lugo argues, and the Attorney
General concedes , and we agree, that the minute order must be corrected to c onform to the oral sentence. (See People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [ errors in minute order are subject to correction where they deviate from oral pronouncement of the judgment].)11 DISPOSITION The judgment is aff

irmed. The trial court is di rected to correct the July 25, 2014
minute order to re flect a total criminal conviction assessment of $60 under Government
Code secti on 70373

. NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J.
We concur:

JOHNSON, J

.

LUI, J.