Filed 10/27/15 P. v. Morris CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

SETH ROLAND MORRIS,

 Defendant and Appellant.

 G050355

 (Super. Ct. No. 13NF3546)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, W. 

Michael Hayes, Judge. Affirmed as modified.

Richard Jay Moller, 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, Barry Carlton, Seth 

Friedman, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and 

Respondent.
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Seth Roland Morris stole shoes from Kohl’s department store. The store’s 

loss prevention officer, Shaunte Blackmon, called the police and followed Morris into the 

parking lot. Morris threatened to shoot Blackmon and ran away. An information charged 

Morris with the following crimes: (1) second degree robbery; (2) making criminal 

threats; (3) second degree commercial burglary; (4) resisting an executive officer; 

(5) possessing drug paraphernalia; and (6) misdemeanor resisting arrest. The information 

also alleged three prison priors within the meaning of Penal Code section 667.5, 

subdivision (b). Morris pleaded guilty to resisting an executive officer, resisting arrest,

and possessing drug paraphernalia. A jury found him guilty of the remaining counts. 

The trial court determined the three prior prison allegations were true. The court 

sentenced Morris to serve four years in prison. On appeal, Morris contends the court

abused its discretion when it excluded evidence Blackmon had a 16-year-old prior 

misdemeanor conviction for giving false information to a police officer. We disagree and 

affirm the judgment. In addition, we modify the judgment to correctly reflect the trial 

court imposed a six-month sentence for count 2 and stayed the sentence pursuant to Penal 

Code section 654. 

I

In early October 2013, Blackmon watched Morris on a closed circuit 

surveillance camera enter the store, walk to the shoe department, put on a new pair of 

shoes, and walk out of the store. Blackmon called the police and followed Morris out of 

the store. When he caught up with Morris, approximately 10 to 15 feet outside the store, 

Blackmon identified himself as a loss prevention officer. He asked Morris to come back 

inside the store to discuss the stolen shoes. Morris responded, “Fuck you. I don’t know 

what you’re talking about. I didn’t take anything.”

Morris ran away, and Blackmon pursued him while talking on his cell 

phone with the police dispatch. Blackmon saw Morris move his hands near his pockets 
3

and heard him say, “‘Fuck you, I’ll shoot you.’” Morris ran across the street into an 

apartment complex, which is when Blackmon stopped pursuing. 

Officer Frank Nguyen was the investigating officer. He interviewed 

Blackmon and watched the surveillance video. Officer Nguyen recognized Morris in the 

video from prior contacts. Morris was arrested one week later.

Before trial, Morris brought a motion to admit evidence regarding a 

misdemeanor conviction Blackmon sustained in 1998, when he was 20 years old, for 

giving false identification to a peace officer (Pen. Code, § 148.9). Morris asserted this 

evidence was relevant because he planned to challenge Blackmon’s credibility about 

whether Blackmon heard Morris make a criminal threat. The trial court denied the 

motion, ruling the evidence was inadmissible pursuant to Evidence Code section 352.1 It 

reasoned the arrest occurred 16 years prior to trial and the police report had been 

destroyed. It concluded the use of the conviction itself was limited under People v. 

Wheeler (1992) 4 Cal.4th 284, 288 (Wheeler) [discussing restrictions on using 

misdemeanor convictions for impeachment purposes], would have very little probative 

effect, and would create an undue consumption of time. 

II

On appeal, Morris maintains the trial court erred in excluding impeachment 

evidence of Blackmon’s 1998 misdemeanor conviction, arguing it was relevant to the 

issue of whether the jury should believe Blackmon’s testimony that Morris threatened to 

shoot him. Morris also contends his rights under the Fifth, Sixth, and Fourteenth 

Amendments were violated when the trial court excluded this evidence. We conclude 

these contentions lack merit and will discuss each separately below.

 

1 All further statutory references are to the Evidence Code, unless otherwise 

indicated.
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A. Abuse of Discretion

Morris argues the trial court should have admitted the impeachment 

evidence because it was clearly relevant to the issue of witness credibility. All parties 

agree Blackmon’s 1998 conviction is relevant because it involves a crime of moral 

turpitude. (See People v. Chavez (2000) 84 Cal.App.4th 25, 28 [crimes in which 

dishonesty is an element constitute crimes of moral turpitude].) However, the fact 

Blackmon’s misdemeanor conviction has some relevance is not enough; it must also be 

admissible under section 352.

Section 352 gives the trial court discretion to “exclude evidence if its 

probative value is substantially outweighed by the probability that its admission will . . . 

necessitate undue consumption of time or . . . create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” Thus, “Under . . . section 

352, a trial court has ‘broad power to control the presentation of proposed impeachment 

evidence.’” (People v. Mendoza (2011) 52 Cal.4th 1056, 1089.) “The statute empowers 

courts to prevent criminal trials from degenerating into nitpicking wars of attrition over 

collateral credibility issues.” (Wheeler, supra, 4 Cal.4th at p. 296.) A trial court’s 

discretionary ruling under . . . section 352 will be upheld on appeal unless the trial court

“exercised its discretion in an arbitrary, capricious, or patently absurd manner.” (People 

v. Thomas (2012) 53 Cal.4th 771, 806.) “‘[D]iscretion is abused whenever the court 

exceeds the bounds of reason, all of the circumstances being considered.’” (People v. 

Mullens (2004) 119 Cal.App.4th 648, 658.)

When exercising its discretion, the court must evaluate other factors when 

the impeaching evidence is not a felony and when the witness to be impeached is not the 

defendant. As explained by our Supreme Court in Wheeler, “[A]dditional considerations 

may apply when evidence other than felony convictions is offered for impeachment. In 

general, a misdemeanor—or any other conduct not amounting to a felony—is a less 

forceful indicator of immoral character or dishonesty than is a felony. Moreover, 
5

impeachment evidence other than felony convictions entails problems of proof, unfair 

surprise, and moral turpitude evaluation which felony convictions do not present. Hence, 

courts may and should consider with particular care whether the admission of such 

evidence might involve undue time, confusion, or prejudice which outweighs its 

probative value. (Wheeler, supra, 4 Cal.4th at pp. 296-297.) In addition, the Supreme 

Court ruled direct evidence of a misdemeanor conviction itself is inadmissible hearsay 

when used to prove a witness’s credibility. (Id. at p. 300.) More direct means must be 

used when impeaching a witness based on misdemeanor misconduct, such as questioning 

the witness regarding the conduct on direct or cross-examination. (Id. at p. 300, fn. 14.) 

In addition, it is well settled when the witness subject to impeachment is the

defendant, the trial court weighs “(1) Whether the prior conviction reflects adversely on 

an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior 

conviction; (3) whether the prior conviction is for the same or substantially similar 

conduct to the charged offense; and (4) what the effect will be if the defendant does not 

testify out of fear of being prejudiced because of impeachment by prior convictions. 

[Citation.]” (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) However, “‘When 

the witness subject to impeachment is not the defendant, those factors [guiding the 

court’s discretion] prominently include whether the conviction (1) reflects on honesty and 

(2) is near in time.’” (People v. Leonard (2014) 228 Cal.App.4th 465, 497 (Leonard).) 

The other two factors are not applicable to someone who is not the defendant.

Applying the above rules, the trial court correctly reasoned the conviction 

was too remote and, therefore, did not “adequately reflect on who [Blackmon] is today”

given Blackmon’s age at the time of the conviction and the passage of time. We agree 

there is a substantial difference between a person’s sometimes reckless and immature 

temperament as a 20-year-old as opposed to the character of a middle-aged employee. 

(See People v. Beagle (1972) 6 Cal.3d 441, 453, abrogated on other grounds by People v. 

Diaz (2015) 60 Cal.4th 1176 [“‘The nearness or remoteness of the prior conviction is also 
6

a factor of no small importance. Even one involving fraud or stealing, for example, if it 

occurred long before and has been followed by a legally blameless life, should generally 

be excluded on the ground of remoteness’”]; People v. Burns (1987) 189 Cal.App.3d 734, 

738 (Burns) [conviction for a crime committed as a minor may be weighed less heavily 

than a crime committed when defendant was middle-aged].)

Blackmon has led a legally blameless life for the past 16 years. (Burns, 

supra, 189 Cal.App.3d at p. 738 [a 20-year conviction “certainly meets any reasonable 

threshold test of remoteness”].) Morris speculates it is well known that most criminal 

conduct is not discovered and prosecuted, suggesting Blackmon is not fault free. We will

not engage in such speculation. As stated earlier, when the witness is not the defendant, 

remoteness of the conviction is a prominent factor. Because Blackmon has led a 

commendable life for nearly two decades, his misdemeanor conviction has little, if any,

bearing on his credibility as a witness. The remoteness factor alone moved “the needle 

closer toward exclusion of the evidence under section 352. [Citation.]” (Piscitelli v. 

Salesian Society (2008) 166 Cal.App.4th 1, 12.) The trial court properly decided it was 

not worth the additional time to fill in gaps from the missing record to comply with the 

requirements of Wheeler (regarding admissibility of misdemeanor convictions). Based 

on all the above, it cannot be said the court’s ruling was an abuse of discretion. 

B. Constitutional Arguments

Morris further argues his rights under the Fifth, Sixth, and Fourteenth 

Amendments were violated because the trial court excluded impeachment evidence

against Blackmon. The Attorney General argues that by not objecting on constitutional 

grounds at trial, Morris waived these arguments. Morris believes his constitutional 

arguments have not been waived because the trial court’s error in excluding impeachment 

evidence had the legal consequence of violating his constitutional rights. We conclude 

that Morris’s constitutional arguments were not waived.
7

Failure to raise an objection at trial on constitutional grounds does not 

automatically bar raising such arguments on appeal. (People v. Boyer (2006) 38 Cal.4th 

412, 441, fn. 17.) Such is the case where the constitutional arguments “do not invoke 

facts or legal standards different from those the trial court itself was asked to apply, but 

merely assert that the trial court’s act or omission, insofar as wrong for the reasons 

actually presented to that court, had the additional legal consequence of violating the 

Constitution.” (Ibid.) However, “rejection, on the merits, of a claim that the trial court 

erred on the issue actually before that court necessarily leads to rejection of the newly 

applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in 

such cases.” (Ibid.) 

For the same reasons we rejected Morris’s claim the trial court erred in 

excluding impeachment evidence under section 352, we also reject the newly applied 

constitutional gloss as well. (See People v. Riccardi (2012) 54 Cal.4th 758, 809-810 

[where there was no error under section 352 in excluding impeachment evidence, 

defendant’s constitutional claims were rejected]; People v. Riggs (2008) 44 Cal.4th 248, 

292 [“To the extent any constitutional claim is merely a gloss on the objection raised at 

trial, it is preserved but is without merit because the trial court did not abuse its discretion 

in admitting the evidence”]; People v. Brown (2003) 31 Cal.4th 518, 545 [“[R]outine 

application of state evidentiary law does not implicate defendant’s constitutional rights”]; 

Leonard, supra, 228 Cal.App.4th at p. 497 [trial court’s exclusion of prior misdemeanor 

as impeachment evidence was not error and, therefore, did not violate defendant’s 

constitutional rights].) We conclude the purported evidentiary error did not implicate 

Morris’s constitutional rights.

Moreover, even if there was constitutional error, it would be harmless. It is 

not reasonably probable a result more favorable to Morris would have been reached had 

the impeachment evidence been allowed because the misdemeanor conviction would 

have had little impact on Blackmon’s credibility due to the remoteness of the conviction 
8

and his lack of a criminal record for the past 16 years. Additionally, the exclusion of the 

impeachment evidence was harmless because Morris had ample opportunity to question 

Blackmon’s credibility on cross-examination. The exclusion of cumulative evidence 

concerning a witness’s credibility is not prejudicial. (People v. Farley (2009) 46 Cal.4th 

1053, 1105 (Farley) [“The accuracy and veracity of [the witness’s] testimony was 

undermined by other evidence”].) Blackmon admitted he was unable to identify Morris 

in a photographic line-up, he misidentified what Morris was wearing on the day of the 

robbery, and testified Morris stole only one pair of shoes instead of two. Thus, Morris 

had other grounds upon which to impeach Blackmon’s story. We conclude there was no 

reversible error whether the Watson harmless error test is applied or the Chapman

harmless beyond a reasonable doubt test is applied.2 

Finally, Morris asserts his due process rights were violated and there is 

evidence of judicial bias because the court deemed his prior felony convictions 

admissible for impeachment but excluded similar evidence with respect to Blackmon. 

Morris’s argument is flawed. The trial court’s decision to admit or exclude evidence of 

defendant’s prior convictions is wholly distinct and separate from an analysis 

determining whether to admit or exclude prior convictions of witnesses. Morris cites to 

no authority, and we found none, suggesting this disparity proves a due process violation. 

Moreover, although the court admitted evidence regarding Morris’s three felony 

convictions, it excluded his 2004 misdemeanor conviction for the same reason it 

excluded Blackmon’s 1998 misdemeanor conviction. This ruling eliminates any 

suggestion of judicial bias. “‘[A] trial court’s numerous rulings against a party—even 

when erroneous—do not establish a charge of judicial bias, especially when they are 

subject to review.’ [Citation.]” (Farley, supra, 46 Cal.4th at p. 1110.) 

 

2 People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California

(1967) 386 U.S. 18, 24.
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III

The trial court imposed a six-month sentence for count 2 and stayed the

sentence pursuant to Penal Code section 654. However, the court’s minute order reflects 

a concurrent six month sentence was imposed on count 2. Both parties agree the minute 

order is erroneous. We agree. “Any discrepancy between the minutes and the oral 

pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral 

pronouncement of sentence prevails in cases where it deviates from that recorded in the 

minutes. [Citation.]” (People v. Price (2004) 120 Cal.App.4th 224, 242.) “Courts may 

correct clerical errors at any time, and appellate courts (including this one) that have 

properly assumed jurisdiction of cases have ordered correction of abstracts of judgment 

that did not accurately reflect the oral judgments of sentencing courts. [Citations.]”

(People v. Mitchell (2001) 26 Cal.4th 181, 185.)

IV

The matter is remanded to the trial court with directions to amend the 

court’s minute order to reflect the sentence for count 2; amend the abstract of judgment 

accordingly; and send a certified copy of the amended abstract of judgment to the 

Department of Corrections and Rehabilitation Division of Adult Operations. The 

judgment as modified is affirmed.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.