Filed 10/20/15 P. v. Davis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RODNEY HAWKINS DAVIS, JR.,

Defendant and Appellant.

F068923

(Super. Ct. No. CRF41782)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. 

Boscoe, Judge.

Anne V. Moore, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and 

Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Rodney Hawkins Davis, Jr., was convicted at the conclusion of a jury trial of 

second degree commercial burglary (Pen. Code,

1 § 459). One count of identity theft

(§ 530.5, subd. (a)) was dismissed prior to trial. The trial court denied defendant’s oral 

and written motions for a new trial. The court suspended imposition of sentence and 

placed defendant on felony probation for five years on various terms and conditions, 

including that he spend eight months in county jail.

On appeal, defendant contends the trial court deprived him of a fair trial by ruling 

a nonhearsay statement of a third party was inadmissible. Defendant contends the trial 

court also erred in not permitting him to impeach the victim with evidence the victim 

offered defendant money to enter into a plea agreement. Defendant argues the trial court 

erred in permitting him to be impeached with prior convictions without sanitizing them 

and there was cumulative error.

Defendant contends there was an error in the minute order granting him probation. 

In a supplemental brief, defendant seeks relief from this court to modify his conviction 

from a felony to a misdemeanor pursuant to Proposition 47 and section 1170.18. We 

affirm the judgment with instructions for the trial court to clarify its ruling granting 

defendant probation and without prejudice to defendant filing a motion with the trial 

court to recall his sentence pursuant to section 1170.18.

FACTS

People’s Case

At 1:45 p.m. on July 20, 2013,2 defendant and a woman who identified herself as 

Jessica Gomez or Gomes went to the Moccasin Point Marina at Lake Don Pedro to rent a 

jet ski for two hours from reservations clerk Jerri Souza. Defendant paid $680 cash for a 

two-hour rental. Neither defendant nor Gomez showed Souza any identification although 

 

1Further statutory references are to the Penal Code unless otherwise indicated.

2Unless otherwise designated, all date references are to the year 2013.
3.

they both executed liability release forms. Defendant did not return the jet ski that 

evening.

Defendant returned around 8:30 a.m. the next morning. As a courtesy, Souza 

switched the two-hour rental to a 24-hour rental. Defendant asked to have some of his 

cash payment refunded so he could place the balance on his credit card. Souza could not 

remember whether defendant identified the credit card as “a credit card” or “his credit 

card.”

Defendant handed Souza a credit card. Defendant and Gomez were not acting like 

other customers who usually want to get over the paperwork and onto the lake. They 

were being chatty, interacting with each other, and not in a hurry to finish the paperwork. 

These interactions were unusual enough that Souza would have remembered them even 

had an incident not happened. Also, defendant and Gomez made a point of stating they 

were not a couple and were dating other people. The banter was distracting and made it 

difficult for Souza to concentrate on the credit card transaction and move on. There were 

other customers in the store. Souza asked them to let her concentrate.

When Souza started to swipe the credit card, defendant and Gomez became very 

quiet and looked worried. Prior to swiping the card, defendant and Gomez told her not to 

swipe it because it had not been working. They told Souza she would have to manually 

enter the numbers. After swiping the credit card, it came up with all X’s and no name. 

Souza had never seen this before. After Souza entered the credit card numbers manually, 

the display showed the final numbers 8052 and the defendant’s name. The charge on the 

card was $494.60.

Souza generated a new invoice that defendant signed. Defendant and Gomez 

became chatty and interactive again. Souza never heard the name “Jay” mentioned in the 

conversation between defendant and Gomez. About 3:30 p.m. that day, David Paravagna 

called to explain that someone had used his credit card at the facility. Paravagna was 

very upset and told Souza the amount of the transaction was $494.60. Paravagna gave 
4.

Souza the last four numbers of his credit card. They were identical to those on the card 

used by defendant.

Souza gave Paravagna the number to the sheriff’s department and she also 

contacted rangers from the lake recreation agency. The rangers directed Souza to contact 

the sheriff’s department. Deputy Timothy Wertz contacted Souza and she told him what 

had happened and provided him with the paperwork from the transaction with defendant.

Paravagna lived in Walnut Creek and had a prior conviction in 2002 for assault 

and battery on a peace officer. On July 21, Paravagna was trying to make a purchase at 

Safeway and his credit card was declined. Paravagna used a bank application, or app, on 

his cell phone to check his credit card activity and discovered purchases had been made 

in Moccasin Point in Tuolumne County, at Wal-Mart twice, at Rite Aid, and at Carl’s Jr. 

Paravagna contacted Moccasin Point about the charge on his credit card because he lived 

in Walnut Creek.

The woman with whom Paravagna talked to sounded panicked when he asked her 

about the charges on his credit card and at first shared no information. The woman called 

back later and provided more information, including that the suspect had been arrested. 

Paravagna provided her and law enforcement with the entire credit card number. A 

sheriff’s deputy told Paravagna to get an affidavit of forgery from his bank.

Paravagna had replaced the old card with a new one. He recalled the old card had 

the last four numbers 8052 and the purchase from the jet ski vendor was $468 or $470. 

After refreshing his recollection, Paravagna verified the amount was $494.50. No one 

had Paravagna’s permission to use his credit card or to rent anything at Moccasin Point 

on July 21. Paravagna did not know defendant, Jessica Gomez, or a Hispanic woman 

named Jay. No one else had access to Paravagna’s credit card, which he kept in his 

wallet. Paravagna had been to the marina in the past, but never used his credit card there.

Tuolumne County Sheriff’s Deputies Timothy Wertz and Robert Speers, on boat 

patrol on Don Pedro Lake on July 21, were dispatched to the Moccasin Point Marina that 
5.

afternoon. There, they contacted Souza who told them about the incident and described 

defendant. The deputies soon found defendant. Wertz supervised the return of the jet ski 

and Speers talked to defendant. Defendant provided deputies with a phone number that 

was disconnected. Wertz recalled that defendant described his companion as his 

girlfriend. Wertz talked to Souza and Paravagna and the credit card numbers they each 

provided matched.

Prior to questioning defendant, Speers read defendant his Miranda rights from a 

department-issued card.3 Defendant waived his rights and talked to Speers. Defendant 

said he had come to Tuolumne County with Erica and a woman he had been seeing for a 

couple of weeks whom he variously referred to as Jay Degair, Jay Degairy, and Jay 

Deguer. Defendant explained they had stopped at a store on the way to the lake and 

bought ice with the credit card.

After not bringing the jet ski back on time, defendant said he got a “sweet deal” on 

an extended rental. Jay told defendant to get their cash back and place the rental fees on 

the credit card. Defendant initially said his name was on the credit card. Defendant said 

Jay took the credit card to do some shopping at Wal-Mart after he rented the jet ski. 

Asked how Jay could go shopping with his credit card, defendant told Speers the card had 

Jay’s name on it. Defendant then said he did not know what name was on the credit card 

but he “just knew” the card belonged to Jay. When Speers asked defendant why he was 

lying, defendant replied that some of what happened “was on him” because he signed the 

receipt. Defendant admitted he was the one who rented the jet ski.

A male and female came up to the marina after defendant was arrested and asked 

for property off the jet ski. The female asked for keys from defendant. Speers did not 

know the name of either person.

 

3Miranda v. Arizona (1966) 384 U.S. 436.
6.

Defense Evidence

Defendant testified he went camping on July 20 with Jessica Gomez and her 

friends, Erica and Jay. Defendant had prior convictions for pimping and unlawful sex 

with a minor in 2005. Gomez, Jay, and Erica purchased snacks at Wal-Mart on the way 

to the lake, but defendant did not know how they paid for them. Defendant denied telling 

investigators he paid for anything with Jay’s credit card.

Defendant went with Gomez to rent the jet ski on July 20. Defendant brought 

nearly $1,000 for the camping trip because he wanted to ride a jet ski. Defendant did not 

have a credit or debit card. After losing track of time and not returning the jet ski on the 

20th, the group decided to change the rental to 24 hours.

The credit card used to change the rental agreement belonged to Jay, not 

defendant. Defendant denied his name was on the card, although he admitted he never 

looked at the card to see whose name was on it. Jay gave the card to Jessica Gomez at 

the campsite, who later gave it to defendant when they changed the rental agreement. 

Defendant believed he had permission to use the credit card. Gomez, not defendant, told 

Souza the card would not work if swiped. Defendant did not know there was anything 

wrong with the card until deputies told him the card was stolen.

Defendant was unsure of Jay’s last name and denied he told anyone it was Deguer. 

Defendant has a friend named Valorie Deguair, but she was not with the camping party. 

Defendant never gave any officer a phone number, but Gomez did. Gomez and her 

boyfriend were the two people who retrieved property from the jet ski. Defendant could 

not explain why Gomez was not subpoenaed to testify at trial.

Rebuttal Evidence

Souza testified that Jay’s name was not on the credit card used to pay for the jet 

ski rental and defendant’s name was on the card. Souza would not have accepted the 

credit card if it had Jay’s name on it. Speers testified that the woman who retrieved 
7.

property from the jet ski was Jessica Valdez according to her driver’s license. She did 

not identify herself as Jessica Gomez.

DISCUSSION

1. Excluding Third Party Statement

Defendant contends the trial court erred in excluding a statement from “Jay” to 

defendant regarding Jay’s authority to use the credit card because the statement was not 

hearsay and was relevant for an issue at trial. Although we find error in the trial court’s 

ultimate ruling, we conclude it was harmless.

Pretrial Motion

Defense counsel sought to introduce evidence a third person, Jay, had the credit 

card and gave permission to defendant to use it to rent the jet ski. The prosecutor 

objected to the statement that Jay gave defendant permission to use the card because she 

was not under subpoena, it was hearsay offered for the truth of the matter, and there was 

no hearsay exception. Defense counsel replied the statement was admissible because it 

was proof of defendant’s state of mind when he used the card, even if the card did not 

belong to Jay. According to defense counsel, Jay’s statement was admissible to show its 

effect on the listener.

After arguing other matters, the court returned to the admissibility of Jay’s 

statement to defendant. Defense counsel explained defendant would testify Jay gave the 

credit card to Jessica Gomez, and defendant used the card with Jay’s permission. The 

prosecutor again objected this was hearsay with no applicable exception. The prosecutor 

argued it did not fit within the state of mind exception under Evidence Code section 1250 

because that exception goes to the state of mind of the declarant, not to the listener’s state 

of mind. The prosecutor further objected to the trustworthiness of the statement. 

Defense counsel insisted the statement was admissible to show its effect on the listener.

The court noted Jay’s statement was not being offered for the truth of the matter 

asserted and was relevant. Finding the statement outside the purview of hearsay and 
8.

admissible, the court held the declarant still had to be identifiable and asked defense 

counsel if defendant would be able to identify the person who made the statement. The 

only requirement the court imposed to admit the statement was the declarant’s name, 

including the last name. The court stated it was concerned about the trustworthiness and 

reliability of the statement and that defendant relied on it.

Trial Objections

Defendant did not give Jay’s last name during his testimony. As defendant 

testified concerning how the group decided to rent the jet ski, the prosecutor objected to 

any part of defendant’s testimony relying on hearsay. The trial court ruled defendant 

could describe how he rented the jet ski, but not to statements from others in the party. 

Defendant proceeded to testify the card belonged to Jay.

When asked how he came to use the card, the trial court sustained the prosecutor’s 

hearsay objection and reminded defense counsel his ruling would stand until the court got 

“more information.” Defendant testified he understood he was to use the card to pay for

the jet ski the next day, he believed he had permission to use the card, and Jay gave the 

card to Jessica Gomez, who then gave the card to defendant.

Analysis

During the in limine hearing, the trial court found the statement was not being 

offered for the truth of the matter asserted, but to show defendant’s intent when he used 

the credit card to rent the jet ski. The trial court’s ruling followed the principle that an 

out-of-court statement can be admitted for the nonhearsay purpose of showing it imparted 

information to the hearer, and the hearer, believing such information to be true, acted in 

conformity with that belief. The nonhearsay purpose must also be relevant to an issue in 

dispute. (People v. Montes (2014) 58 Cal.4th 809, 863.)

The trial court’s concern, however, was with the trustworthiness of the statement,

and it required defendant to give the full name of the declarant to ensure the statement 

was trustworthy. In so ruling, the trial court appeared to be following the requirement of 
9.

Evidence Code section 1252 holding that: “Evidence of a statement is inadmissible 

under this article if the statement was made under circumstances such as to indicate its 

lack of trustworthiness.” The article this section refers to is the one governing the use of 

hearsay. (Evid. Code, § 1200 et seq.)

Because the declarant Jay’s statement was nonhearsay, the hearsay section and 

exceptions were not applicable, and the requirement of trustworthiness set forth in 

Evidence Code section 1252 does not appear to be applicable to the trial court’s ruling. 

We find no reason why defendant had to provide Jay’s entire name because the absence 

of a last name goes not to the admissibility of the statement but to the weight the jury 

should have accorded it.

Any error in excluding Jay’s nonhearsay statement that she told defendant to use 

the credit card, however, was harmless under the standards set forth in People v. Watson

(1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18. The evidence 

against defendant was far stronger than he argues in his opening brief. The victim, 

Paravagna, testified he discovered after his credit card had been denied during an 

attempted purchase that the card had been used at the Moccasin Point Marina and several 

other locations in Tuolumne County without his permission, and no one was authorized 

to use his credit card. Souza testified she later received a telephone call on the day of the 

credit card transaction from Paravagna who related to her the exact amount of the jet ski 

rental purchase.

Souza, the clerk at the marina, related a series of events that bring into question 

defendant’s entire account. The card defendant handed to Souza had defendant’s name 

on it, not the victim’s name or Jay’s name. It matched the identification defendant 

provided. Souza explained that had defendant presented a card with another person’s 

name, she would not have accepted it.

Defendant and Gomez were very talkative prior to the credit card transaction, but 

became quiet as Souza attempted to swipe the card. They told Souza not to swipe the 
10.

card because it would not work, though she swiped it anyway. After swiping the card, 

Souza saw X’s show up where the credit card number and card holder’s name would 

normally appear. She had never seen this happen before. Defendant and Gomez told 

Souza to key in the number of the credit card. Defendant’s demeanor before and after 

Souza swiped the credit card was highly suspicious, as was the entire transaction.

Also, defendant testified his camping group decided to rent a jet ski and, more 

importantly, that Jay handed the credit card to Gomez, who in turn handed it to defendant 

prior to the credit card transaction. The most exculpatory evidence offered by defendant 

and the gravamen of Jay’s actions was her act of handing off the credit card. The only 

reasonable implication of this conduct was that the card belonged to Jay, not to Gomez or 

defendant, and Jay had given them permission to use the card. The jury heard this key 

evidence, although without the accompanying statement telling defendant to use the 

credit card. We further note the substance of the challenged statement came into 

evidence through the testimony of Deputy Speers who testified defendant told him Jay 

directed him to get back the cash deposit and use the credit card for the extended jet ski 

rental.

Defendant testified Gomez, not defendant, told Souza the card would not work if 

swiped. Defendant did not know there was anything wrong with the card until deputies 

told him the card was stolen. Defendant inconsistently told Speers the credit card had his 

name on it and later said it had Jay’s name on it. The jury was able to weigh the evidence 

advanced by the People and defendant and evaluate its credibility. We conclude the 

absence of the proffered testimony could not have changed the jury’s verdict.

2. Victim’s Pretrial Encounter With Defendant

Defendant contends the trial court abused its discretion, violating his Sixth 

Amendment right to confrontation, when it excluded impeachment evidence regarding a 

pretrial encounter between him and Paravagna in the courthouse hallway. We do not 

agree.
11.

Pretrial Hearing on Courthouse Encounter

As the trial was about to commence with jury selection, Paravagna encountered 

defendant in the hallway of the courthouse. Defense counsel brought a motion to 

introduce details of the encounter to impeach Paravagna, and the trial court conducted an 

in limine motion to determine the admissibility of the evidence.

The trial court viewed a video of the conversation between Paravagna and 

defendant without audio. The court noted the conversation took place over six minutes. 

The video reflected that Paravagna “reached into his left pocket and displayed some 

material” to defendant. A bailiff, Deputy Muriel Dutch, heard at least part of the 

conversation. According to Dutch, Paravagna said something like: “‘Come on, Davis. 

Let’s—make a plea. Let’s get out of here.’”

As an offer of proof, defense counsel stated defendant would testify Paravagna 

came over, asked if defendant was Davis, and defendant replied affirmatively. Paravagna 

explained he was the one whose credit card was used, or that he was the victim. 

Paravagna told defendant he did not want to testify and stated he was only there because 

they would arrest him if he did not come. Paravagna told defendant he should take a 

deal. Paravagna said: “‘What are you going to do for me? I’ll take the 5th on the 

stand.’” Counsel explained that when Paravagna went through security, he took a large 

wad of cash out of his pocket and then put it back into his pocket. Defense counsel 

believed Paravagna threatened defendant to one of the officers who was going to testify 

and was asked to leave until 11:00 a.m.

While noting Paravagna’s absurd behavior made him look like an idiot, the court 

asked defense counsel how Paravagna’s conduct would impeach his testimony that his 

credit card was used without his permission. Defense counsel replied defendant would 

testify the third party, Jay, gave defendant permission to use the card. The court was 

unconvinced any of this information impeached Paravagna.
12.

Deputy Wertz testified he spoke with Paravagna about the incident. Paravagna 

said he only told defendant to “just plead out, get rid of this” so he could go home. Wertz 

told Paravagna they rarely ever apprehend the suspect for these types of crimes. 

Paravagna told Wertz he did a good job and he was happy the person responsible got 

caught.

At the hearing, Valorie Deguair testified she was sitting in the courthouse hallway 

when the conversation between Paravagna and the deputy occurred. She heard the 

deputy mention he was the one who arrested defendant and Paravagna reply, “‘Good 

job.’” The deputy told Paravagna he did not know why defendant was “trying to beat the 

case.”

Deguair said she heard the conversation between defendant and Paravagna. 

Paravagna introduced himself to defendant as “‘the guy whose credit card number it 

was’” and urged defendant to “‘take the deal.’” Paravagna told defendant he was

subpoenaed and had to be there. Paravagna asked defendant not to make him go onto the 

witness stand. Paravagna told defendant his credit card was denied as he tried to 

purchase diapers. Paravagna outlined the purchases made on his credit card and asked 

defendant to settle the case so he did not have to take the stand. Paravagna asked 

defendant what he had for Paravagna or what defendant could offer Paravagna.

Deguair further explained Paravagna said, ““We could take this outside and handle 

it, but I’m coming to you man to man, sitting right in front of you man to man.’” 

Paravagna continued, “‘You need to just take the deal’” and “‘[w]hat do you have to offer 

me?’” Defendant replied he had paid cash and was just trying to explain his case. 

Paravagna replied, “‘That’s not enough.’” According to Deguair, Paravagna pulled out a 

big wad of money from his pocket and showed it to defendant. Deputy Speers testified 

he was not present during these encounters, which occurred in the morning. That 

afternoon, Speers and Wertz saw Paravagna talking to a prosecution witness and told him 

to stop talking to people involved with the case.
13.

Defense counsel argued the incident was directly relevant to Paravagna’s 

credibility. The prosecutor conceded there was some relevance to Paravagna’s 

credibility, but argued the evidence was more prejudicial than probative and should be 

excluded pursuant to Evidence Code section 352.

The trial court ruled the consumption of time to present the evidence outweighed 

its relevance. The court did allow for the evidence to be admitted if Paravagna somehow 

opened the door during his testimony.

Analysis

The constitutional right to confrontation is guaranteed under both the United 

States and California Constitutions. The primary reason an accused is entitled to confront 

adverse witnesses is to permit cross-examination. (People v. Brown (2003) 31 Cal.4th 

518, 538.) The right to cross-examine adverse witnesses includes the opportunity to 

question them on matters reflecting on their credibility. Judges retain wide latitude to 

impose reasonable limits on cross-examination. (People v. Frye (1998) 18 Cal.4th 894, 

946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 

22; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-842.) Confrontation rights 

are not violated unless a defendant shows a prohibited cross-examination would have 

produced a significantly different impression of the witness’s credibility. (People v. 

Frye, supra, at p. 946; People v. Szadziewicz, supra, at p. 842.)

A trial court has broad discretion under Evidence Code section 352 to exclude 

evidence if its probative value is substantially outweighed by the probability its 

admission will either necessitate undue consumption of time, or create a substantial 

danger of undue prejudice, confusing the issues, or misleading the jury. The trial court 

retains broad power to control the presentation of evidence to prevent criminal trials from 

descending into nitpicking wars of attrition over collateral credibility issues. Rulings 

under Evidence Code section 352 are evaluated on appeal using the abuse of discretion 

standard. (People v. Riccardi (2012) 54 Cal.4th 758, 808-809.) Although Evidence Code 
14.

section 352 must yield to a defendant’s due process right to a fair trial and to present all 

significant probative evidence to his or her defense, the exclusion of defense evidence on 

a minor or subsidiary point does not interfere with that constitutional right. (People v. 

Cunningham (2001) 25 Cal.4th 926, 999.)

Here, the probative value of the excluded evidence was low because it did not 

have any effect on Paravagna’s statements to Souza or investigators; these statements 

were corroborated by Souza and investigators. Also, defendant’s case did not rest on 

Paravagna’s credibility because defendant did not challenge the evidence establishing the 

credit card belonged to Paravagna. Instead, while acknowledging the card did not belong 

to him, defendant maintained the card was given to him by Jay.

Paravagna’s statements to defendant and to Wertz during the courthouse hallway 

encounters indicate he clearly did not want to testify at trial and he related this to 

defendant. Paravagna was nervous on multiple occasions during his trial testimony.4 

However, in his encounter with defendant, he never indicated the allegations were false 

or exaggerated.

A mini-trial on Paravagna’s encounter with defendant would have included 

evidence from Deputies Dutch and Wertz, and Valorie Deguair that Paravagna did not 

want to testify and Paravagna had urged defendant to accept a plea deal. Furthermore, 

evidence relating to a prior offer to plead guilty or of a prior guilty plea that was 

withdrawn is inadmissible in a criminal trial. (See Evid. Code, § 1153.) Evidence of the 

full encounter could have further included statements from Paravagna to Wertz that he 

did a good job in catching the culprit and Wertz’s statement to Paravagna that they rarely 

catch perpetrators of credit card fraud. These statements would only have inculpated the 

defendant, confused the issues, and misled the jury.

 

4During his testimony, Paravagna talked quickly and apologized. He said, “I am a little 

nervous being up here, so—it is not my cup of tea.” Later, the trial court asked Paravagna to 

slow down and Paravagna again said he was “a little nervous being up on the stand.”
15.

According to defense counsel, defendant alone would have added to the facts that 

Paravagna offered defendant money for Paravagna to plead the Fifth Amendment. The 

statement that Paravagna would plead the Fifth Amendment makes no sense in the 

context of these proceedings and would not impeach Paravagna because Paravagna was 

not charged with any offense.

The statement in defense counsel’s offer of proof that cash was offered to 

defendant was corroborated by Deguair, but not by Dutch. After reviewing the video of 

the encounter, which lasted about six minutes, the trial court stated that it looked as 

though Paravagna was pulling “material” out of his pocket. We have viewed the video, 

which is part of the record, and cannot conclusively determine what Paravagna did. 

Paravagna is sitting on a bench seat across from defendant, who is also seated. 

Paravagna is talking to defendant using animated hand and arm gestures. Toward the end 

of the conversation, Paravagna stands up, places his left hand into his left pants pocket, 

and briefly pulls something out of his pocket before placing it back and sitting down. 

Even if we assume Paravagna displayed cash to defendant, this would not necessarily cast 

Paravagna’s credibility in a negative light. There could be multiple innocent 

explanations for Paravagna’s conduct. Taking the time for the jury to hear those 

explanations, along with the time it would take to hear the negative connotations, would 

ultimately do little to impeach Paravagna, lead to confusion over the issues, and 

potentially mislead the jury.

We agree with the trial court’s early assessment of Paravagna’s encounter with 

defendant as absurd and casting Paravagna in a ridiculous light. Even though defendant 

couches the excluded evidence as substantial proof that undermined Paravagna’s integrity 

and credibility, the exclusion of evidence of Paravagna’s encounter with defendant, 

which was carefully considered by the trial court, ultimately involved a subsidiary point. 

Paravagna’s testimony established there was unauthorized use of his credit card. Most 

other key elements of the prosecution’s case were established by other witnesses. The 
16.

trial court did not abuse its discretion in applying Evidence Code section 352 to foreclose 

a mini-trial on a collateral matter that would have had the strong potential to confuse the 

issues and mislead the jury.

The parties cite People v. Ardoin (2011) 196 Cal.App.4th 102, 121-122. In 

Ardoin, the trial court limited defense cross-examination of a prosecution witness who 

had engaged in violent acts and deceit. There was already evidence the witness had prior 

convictions and had other character flaws affecting her credibility. The excluded 

impeachment evidence added little more to the witness’s profile. But the witness’s 

testimony was corroborated on key points by other prosecution witnesses.

The court in Ardoin found no error in the trial court’s application of Evidence 

Code section 352. Here, too, the strongest impeachment evidence against Paravagna was 

his prior felony conviction for assaulting a peace officer. This was presented to the jury. 

Also, Paravagna’s testimony was corroborated by other prosecution witnesses. We apply 

the holding in Ardoin to this case and find no error in the trial court’s application of 

Evidence Code section 352.

Furthermore, as discussed above concerning the alleged statement from Jay, the 

prosecution had a strong case. We are convinced, beyond a reasonable doubt, the jury’s 

verdict would have been the same had the challenged evidence been presented to the jury. 

(People v. Brown (2003) 31 Cal.4th 518, 546.)

3. Sanitizing Defendant’s Prior Convictions

Defendant contends the trial court erred in failing to sanitize his prior convictions 

in 2005 for unlawful intercourse with a minor under 16 years by a person 21 years or 

older (§ 261.5, subd. (d)) and pimping (§ 266h, subd. (a)). Defendant argues the trial 

court should have sanitized these convictions prior to them being presented to the jury. 

Defendant argues the convictions were “relatively remote and ... did not reflect directly 

on [his] honesty.”
17.

Notably, although defendant made a motion to exclude his prior convictions, he 

did not include a request to have them sanitized. Also, to reduce the element of surprise 

to the jury, defense counsel asked defendant on direct examination if he had prior 

convictions for the above offenses, and he replied affirmatively. Because defendant

introduced this testimony, he is subject to the doctrine of invited error. (People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1138-1139.)

Even if this issue was not subject to invited error, the trial court did not err in 

denying defendant’s motion. The admissibility of past misconduct for impeachment 

depends on whether it is relevant to moral turpitude. Trial courts have broad discretion to 

admit or exclude convictions used for impeachment. In making a determination on the 

admissibility of such evidence, courts should consider whether the prior conduct or 

offenses reflect on a witness’s honesty or veracity, if it is near or remote in time, if it is 

for the same or similar conduct as the charged offense, and the effect of its admission on 

the defendant’s decision to testify. (People v. Edwards (2013) 57 Cal.4th 658, 721-722; 

People v. Clark (2011) 52 Cal.4th 856, 931-932.) The impeaching offense may postdate 

the charged offense. (People v. Edwards, supra, at p. 722.)

Prior convictions for pimping, pandering, and burglary can be used against a 

defendant to impeach his or her testimony in a prosecution for assault likely to cause 

great bodily injury with a great bodily injury enhancement. Engaging in conduct 

showing moral depravity, such as pimping, demonstrates a readiness to do evil and is 

admissible under Evidence Code section 210. Pimping and pandering are crimes of 

moral turpitude. (People v. Jaimez (1986) 184 Cal.App.3d 146, 148-150.) Unlawful 

sexual intercourse with a minor has also been found to be a crime of moral turpitude. 

(See People v. Fulcher (1987) 194 Cal.App.3d 749, 753.)

The prior convictions were not for the same or similar conduct as the charged 

offense and, as the People point out, there was little danger the jury would confuse the 

issues or consider the prior offenses as a propensity by defendant to commit the instant 
18.

offense. The trial court instructed the jury pursuant to CALCRIM No. 303 that the prior 

convictions could only be considered for assessing the credibility or believability of the 

testimony and not for any other purpose. The instruction was not only directed to the 

testimony of defendant, but to Paravagna as well.

Convictions from 2005 were not too remote in time to be admissible. The prior 

convictions were eight years prior to the current offense. Prior convictions as far back as 

20 years before the current offense have been found to be not too remote where there is 

other evidence the defendant has failed to lead a blameless life. (People v. Green (1995) 

34 Cal.App.4th 165, 183; People v. Muldrow (1988) 202 Cal.App.3d 636, 648.) 

According to the probation report, defendant was convicted of misdemeanor vandalism in 

2011 and was still on probation for that offense when he committed the current crime. 

The jury was not informed of this misdemeanor conviction or defendant’s probationary 

status. Defendant had not led a blameless life since committing the prior offenses. Given 

these facts, we do not find defendant’s prior convictions to be too remote to be relevant.

Finally, defendant elected to testify at trial. The trial court’s ruling did not 

negatively impact defendant’s decision. We reject defendant’s contentions that his prior 

convictions were too remote in time and did not directly reflect on his honesty. The trial 

court did not abuse its broad discretion to permit defendant’s impeachment with 

unsanitized prior convictions. (People v. Clark, supra, 52 Cal.4th at p. 932.)

4. Cumulative Error

Defendant argues the cumulative effect of the alleged errors constituted a denial of 

his right to due process. A series of errors during trial, though independently harmless, 

may under some circumstances rise to the level of reversible and prejudicial error. 

Where there are a few harmless errors, considered individually or collectively, the 

doctrine of cumulative error does not apply. The defendant is entitled to a fair trial, not 

to a perfect one. (People v. Cunningham, supra, 25 Cal.4th at p. 1009; People v. Box

(2000) 23 Cal.4th 1153, 1214, disapproved on another ground in People v. Martinez
19.

(2010) 47 Cal.4th 911, 948, fn. 10.) The few errors occurring here were harmless, 

whether considered individually or collectively. We reject defendant’s cumulative error

argument.

5. Correction of Minute Order

After the proposed terms and conditions of probation, the probation officer’s 

report requested under a separate section entitled “PROBATION FEES” that defendant 

pay $31.25 per month for probation supervision services. The minute order also has a

section entitled “PROBATION FEES.” This section, however, sets forth probation 

supervision services in the amount of $30.75 per month. In granting defendant probation, 

the court ordered defendant pay the probation fees set forth in the order granting 

probation.

Defendant contends the minute order of the sentencing hearing requires 

modification to clearly state the costs of probation supervision are not a condition of 

probation. Although the People argue otherwise, we agree with defendant.

The costs of probation supervision may not be made a condition of probation. 

(People v. Flores (2008) 169 Cal.App.4th 568, 578.) Here, the applicability of this fee as 

a condition of probation is ambiguous in the trial court’s ruling, and the minute order 

should be clarified to indicate payment of the fees is not itself a condition of probation.

6. Proposition 47 Contention

Defendant contends the provisions of Proposition 47 enacted by the people at the 

November 4, 2014, General Election apply to his offense committed on July 21, 2013, 

and convert his offense of second degree burglary into shoplifting since the larceny did

not exceed $950. The charge on Paravagna’s credit card was only $494.60. Because the 

law created a retroactive procedure pursuant to section 1170.18, subdivision (a) to have a 

felony reduced to a misdemeanor, unless the court determines defendant presents an 

unreasonable risk of danger to public safety, defendant argues this court should order a

modification of his conviction to a misdemeanor.
20.

The People reply defendant is not entitled to automatic reclassification and 

resentencing, but must file a petition for relief from the trial court pursuant to section 

1170.18. We agree defendant is not entitled to automatic resentencing on direct appeal 

and decline to retroactively apply Proposition 47 to his case on this appeal. (People v. 

Delapena (2015) 238 Cal.App.4th 1414, 1425-1429; People v. Lopez (2015) 238 

Cal.App.4th 177, 180-182; see People v. Yearwood (2013) 213 Cal.App.4th 161, 167-179 

[defendant not entitled to retroactive application of changes to three strikes law on appeal 

without first petitioning trial court].)

We observe defendant’s current felony conviction, however, is not a serious or 

violent felony as defined in sections 1192.7, subdivision (c), and 667.5, subdivision (c). 

Our opinion is issued without prejudice to defendant to pursue any remedies he may have 

before the trial court on remand to recall his sentence pursuant to section 1170.18.

DISPOSITION

The case is remanded for the trial court to clarify that payment of the probation 

supervision fee is not a condition of defendant’s probation. The judgment is affirmed 

without any prejudice to the rights defendant may have under section 1170.18 to petition 

the trial court for a recall of his sentence and resentencing.

___________________________

PEÑA, J.

WE CONCUR:

________________________________

LEVY, Acting P. J.

________________________________

KANE, J.