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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 Haye s , 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, Se th
Friedman , and Sabrina Y. Lane

- Erwin, Deputy Attorneys General, for Plain tiff and Respondent.2 Seth R oland 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 in formation 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 ple a d ed 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 t rial court imposed a six

- month sentence for count 2 and stayed th e 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 a sked 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 anyt h ing. ”

Morris ra n away , and Blackmon pursued him while talking on his cell phone with the pol ice dispatch. Blackmon saw Morris move his hands near his pockets3

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 investigat ing office r . He interviewed
Blackmon and watched the surveillance video. Office r 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 credibi lity 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 t he 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 probativ e 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 wi ll discuss each separately below.

1 All further statutory references are to the Evidence Code, unless otherwise indicated.4

A. Abuse of Discretion

Morris argues the trial court should have admitted the impeachment
evi dence because it was clearly relevant to the issue of witness credi bility. All parties
agree Blackmon ’ s 1998 conviction is relevant because it involves a crime of moral turpitude. (S ee People v. Chavez (2000) 84 Cal.App.4th 25, 28 [crimes in which dishonesty is an ele ment 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 give s the trial court discretion to “ exclude evidence if its probative value is substantially outweighed by the probability that its admission w ill

. . . 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 impeac hment
evidence. ’” ( People v. Mendoza (2011) 5 2 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 evidenc e is not a felony and when the witness to be impeached is not the defendant. As explained by o ur 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 co nduct not amounting to a felony

— i s 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
surp rise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should conside r 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

- 2 97 .) 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

u sed 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 refl ects 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 .) Howev er, “‘ W hen 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 rule s , t he trial court correctly reasoned the conviction
was too remote and , therefore, did not “ adequately refl ect 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 substantia l difference between a person ’ s sometimes reckless and immature temperament as a 20

- year

- old as opposed to the charac ter 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 also6

a factor of no small importance. Even one inv olving 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 convicti on “ certainly meets any reasonable
threshold test of remoteness ” ].) Morris speculates it is well known that most criminal
conduct i s 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. T he remoteness factor alone moved “ the needle
closer toward exclusion of the evidence under section 352 . [Citation.] ” ( Piscitelli v.
Salesian Soc iety (2008) 166 Cal.App.4th 1, 12.) T he 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 Argument s

Morris further argues his rights under the Fifth, Sixth, and Fourte enth
Amendments were violated because the trial court excluded impeachment evidence against Blackmon

. The Attorney General argues that by not objecting on c onstitutional grounds at tria l, Morris waived these arguments. Morris believes his c onstitutional arguments have not been waived because the trial court ’ s error in excluding impeachment evidence had the legal consequence of vio lating his c onstitutional rights

. We conclude
that Morris ’ s constitutional arguments were not waived.7 Failure to raise an objection at trial on c onstitutional 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 c onstitutional 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 cour t, 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 th e newly applied constitu tional ‘ gloss ’ as well. No separate constitutional discussion is required in
such cases. ” ( Ibid .)

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

e xcluding impeachment evidence under section 352 , we also reject the newly applied
constitutio nal 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 ad mitting the evidence ” ] ; People v. Brown (2003) 31 Cal.4th 518, 545 [ “ [R]outine application of state evidentiary l aw 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 de fendant ’ 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. I t is

not re asonably 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 conviction8

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

conce rning a witness ’ s credibility is not preju dici al . ( 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 w hether 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 convict ions admissible for impeachment but excluded similar evidence with respect to Blackmon.
Morris ’ s argument is flawed. T he trial court ’ s decision to admit or exclude evidence of
defendant ’ s prior convictions is wholly d istinct 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 , 24.9 III
T he trial court imposed a s ix

- month sentence for count 2 and stayed th e sentence pursuant to Penal Code section 6 54. However, the court ’ s minute order reflects

a concurrent six month sentence was imposed on c ount 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 abstra ct 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.