1 Filed 7/2/13 P. v. Venegas CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. GREGORIO MARIN VENEGAS, Defendant and Appellant. A133996
(San Mateo County Super. Ct. No. SC072740)

A jury convicted defendant Gregorio Ma rin Venegas of assa ulting and inflicting great bodily injury upon Salvador Flores. At trial, the district attorney questioned
defendant about an earlier in cident, then being separately charged as misdemeanor vandalism, in which he lit his ex-girlfriend’s clothes on fire. Defendant asserts evidence of this prior misconduct was inadmissible and the prosecutor’s questioning and argument to the jury violated his Fift h Amendment right against compelled self-incrimination. We reject defendant’s assertions and affirm.
F ACTUAL AND P ROCEDURAL B ACKGROUND Defendant lived with his mother in a house in South San Francisco. The victim Flores and his girlfriend, Ma rgarita Hernandez, rented, fro m defendant’s mother, a studio apartment located on the same property. Just after midnight on February 28, 2010 , defendant saw Flores’s car parked in defendant’s driveway, a place Flores was told he could not park. Ac cording to Flores’s girlfriend Hernandez, defendant came over to the studio and banged on the door—a sliding glass patio door—and, calling Hernandez by name, told her to tell Flores to move2 his car. Hernandez responded that Flores had been drinki ng and the car would have to wait until morning. Defendant insisted she rouse Flores from bed or he would damage
the car. Flores awoke on his own and told Hernandez and defendant it should wait until the morning. The two men, defendant still outside by th e door and Flores in the studio, then began to argue. Flores claims he then be grudgingly said he would move the car and started walking toward the door. According to Flores, he we nt outside, where defendant struck him, sending him to th e ground for, according to He rnandez, three minutes. Flores then got up, walked forward—away from the studio and toward the car—and
defendant struck Flores in the face and Flor es fell to the ground a second time. While Flores was down, defendant hit or kicked him, saying “this is the way I wanted to have you.” Defendant then left. Flores had blood on his face and could not walk.
Defendant’s version of events was so mewhat different. After knocking on Flores’s door, he saw Flores sitting awake on a bed just inside the studio. Defendant asked Flores to move the car, but Flores refu sed. Defendant repeated his demand, saying he did not want to have to call a towing comp any. Defendant and Flores began to argue. Then, Flores came towards the door. Defend ant claims Flores, lo oking intoxicated, approached him and took the first swing. Defendant then hit Flores, who fell to the ground. Flores, after blacking out for “a sp lit second,” got up, thre w two punches at the air, after which defendant hit Flores again two or three times. Flores, again on the ground, grabbed defendant’s le g and only let go after defenda nt hit him one last time. Defendant then called the police. The district attorney filed a two-count information on Januar y 31, 2011, accusing
defendant of assault with fo rce likely to cause great bodily injury (Pen. Code, § 245, 1 subd. (a)(1)) and inflicting serious bodily in jury (§ 243, subd. (d)). The information further alleged, with respect to each count , defendant personally in flicted great bodily

1 All further statutory references are to the Penal Code unless otherwise indicated.3 harm (§ 12022.7, subd. (a)) rendering each co unt a “serious felony” (§ 1192.7, subd. (c)(8)). Trial began on August 8, 2011. On Au gust 10, 2011, toward the end of the prosecution’s case, the district attorney info rmed the trial court he wanted to impeach defendant, if he testified, with evidence he pr eviously vandalized an ex-girlfriend’s clothes. The court requested briefing, and so, la ter in the day, the district attorney filed a
written motion. The motion stated defendant ha d, as witnessed by his mother, “burnt all of his girlfriend[’s] clothes following an ar gument” and that this conduct constituted
vandalism under Penal Code section 594. It cited cr iminal cases pending against defendant, presumably encompassing the va ndalism charge, case Nos. NM395165 and NM394570. Even though these cases had not proceeded to any final determination, the motion confusingly requested admission of both defendant’s conduct and his
“convictions.”
When defendant took the stand near the e nd of the day on August 10, he asserted Flores threw the first punch and that he acted in self-defense. On cross-examination, this exchange occurred:

“Q. And your—Do you feel that you have a quick temper? “A. No. “Q. No? “A. No. “Q. I’m going to ask you ab out an incident that to ok place on March 3rd of 2010. “A. Uh-huh. “Q. Do you recall which inci dent I’m asking you about? “A. No, I don’t. “Q. And do you know an individual by the name of Magdalena? “A. Yes. “Q. And who is Magdalena to you? “A. Magdalena was my girlfriend at that time. “Q. Your ex-girlfriend? “A. Yes. “Q. So, do you recall what happ ened on May 3rd of 2010? “A. Um, if you’re talking about when—the time I—4 “THE COURT: You can answer that with a yes or a no. “WITNESS: Yes. “[DISTRICT ATTORNEY]: Q. Okay. Did you do somethi ng to her personal property? “A. Yes. “Q. What did you do? “A. I vandalized her clothes. “Q. What did you do to the clothes? “[DEFENSE COUNSEL]: Objection, Yo ur Honor. I think we—may we approach? “THE COURT: Yes. “(Discussion between Court and counsel not reported.) “[DISTRICT ATTORNEY]: Q. Okay. Again, just to be specific, I’m asking you about an incident that happened May 3rd of 2010, okay? Do you understand? “A. Yes. “Q. There was an incident that occurred at this residence— “THE COURT: We’ve already— “[DISTRICT ATTORNEY]: Q. —in the backyard. “THE COURT: We’ve already been there and done that. There was a vandalism. “[DISTRICT ATTORNEY]: Q. What was the nature of the vandalism you did to your ex-girlfriend’s clothing? “A. I destroyed her clothes. “Q. I want you to be specific. What di d you do to your ex-girlfriend’s clothes in that backyard? “[WITNESS:] A. I burned— I burned her clothes. If you’re asking me to be specific, I – “THE COURT: That’s fine. Thank you.”
At no time did defendant put objecti ons to this exchan ge on the record. During closing argument the following day, the district attorney argued:

“His prior conduct shows him to be untru stworthy. And he can’t admit to the conduct. Now, specifically, th at’s concerning the actions that came out that he had burned his girlfriend’s clothing.”
And continued:
“When you start pressing him on those things [such as which leg Flores grabbed], he starts not having answers.5 “And I asked him a simple question of what happened in March—excuse me— actually, it was in May of 2010. There was an incident that can be presented to you that the Judge, under th e law, allows, for you to we igh his credibility. There’s this issue that happens in May wher e he burns his girlfriend’s clothes.

“When we start to ask defe ndant about that, you have to look at the way he’s answering that question. He’s answering in the way he wants to. He says, well, I vandalized my girlfriend’s clothing. That’s a very legal answer to what he did. I asked him again, pulling the truth out of him, okay. You know, and he knows we know what happened.
“All right. Gregorio, why don’t you ad mit what happened. Well, okay. I destroyed my girlfriend’s clothes. All ri ght. Why don’t you actually tell us what you did. Well, actually, I burned all of my girlfriend’s clothes. Okay. It took three questions to get the tr uth out of him. And he wa s holding back. He doesn’t want to take responsibility for what he did.” Defense counsel never objected during th is portion of the district attorney’s closing argument. Defendant’s closing argument focused on defendant’s testimony that Flores was the aggressor and defendant acted in self-defense. After a few hours of deliberation, the ju ry found defendant gu ilty of both counts
and the section 12022.7 enhanc ement. On October 4, 2011, the trial court imposed a suspended sentence and placed defendant three years’ probation, which included a sixmonth term in county jail. Defendant filed a notice of appeal on De cember 2, 2011.
D ISCUSSION Defendant asserts the trial court should have disallowed que stions and argument about the May 2010 vandalism.
Waiver
Defendant has forfeited review of his cl aims on appeal because he did not first raise them as objections in the trial court. Failure to object to alleged erroneous evidentiary rulings or instances of improper argument waives these issues for appellate review. (Evid. Code, § 353 [no reversal “by reason of the erroneous admission of evidence” unless a timely, sp ecific objection made and th e erroneous admission was prejudicial]; People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6; People v. Visciotti6 (1992) 2 Cal.4th 1, 51–52, 54 [failure to ra ise objection to evidence “bars reversal”; failure to object to alleged miscon duct fails to preserve issue].) This is not a case where the parties or trial court later put unrecorded, sidebar objections on the record, nor is this a capital case in whic h the government bore responsibility for assuring a record of proceedings was being kept. (Cf. People v. Dykes (2009) 46 Cal.4th 731, 800, fn. 16 [addressing bo th scenarios]; People v. Cummings (1993) 4 Cal.4th 1233, 1334–1 335, fn. 70 [distinguishing cap ital cases]; see also Code Civ. Proc., § 269, subd. (a)(2) [a reporter's tr anscript of proceedings is required “on the order of the court or at the request of the pr osecution, the defendant, or the attorney for the defendant”]; People v. Turner (1998) 67 Cal.App.4th 1258, 1264 [under section 269, non-capital defendants have only “a statutory right to have the proceedings recorded . . . , which right can be waived”]; People v. Manson (1976) 61 Cal.App.3d 102, 214 [“In the absence of request that a record be made of a conference between court and counsel, none is required.”].) Ineffective Assistance of Counsel Realizing this court might find his a ppellate arguments forfeited, defendant has
asked us to consider whether his trial counsel’s failure to object constituted ineffective assistance of counsel. (See, e.g., People v. Roberts (2011) 195 Cal.App.4th 1106, 1130 [addressing whether forfeiture resu lted in ineffective assistance].) “To prevail on a claim of ineffective a ssistance of counsel, defendant ‘must establish not only deficient pe rformance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. . . .’ [Citations.]” ( People v. Hart (1999) 20 Cal.4th 546, 623–624.) Ineffective assistance claims based upon the failure to make objections “are routinely denied on the bases that the una sserted objection was nonmeritorious and would have been overruled (see, e.g., People v. Majors (1998) 18 Cal.4t h 385, 403–404, 75 Cal.Rptr.2d 684, 956 P.2d 1137; People v. Cudjo (1993) 6 Cal.4th 585, 616 . . .); the
existence of a tactical reason for defense co unsel’s failure to assert the objection (see,

e.g., People v. Diaz (1992) 3 Cal.4th 495, 560 . . . ; People v. Kelly (1992) 1 Cal.4th 495,7 520–523 . . .); or the lack of a showing of an outcome prejudicial to the defendant as a
result of the introduction of the evidence (see, e.g., People v. Huggins (2006) 38 Cal.4th 175, 248–249 . . . ; People v. Gray (2005) 37 Cal.4th 168, 208 . . .).” ( People v. Roberts
, supra , 195 Cal.App.4th at p. 1131.) Thus, although defendant has forfeited his claims, we consider their substance in order to dispose of the ineffe ctive assistance argument. (See People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 82 [“Because, however, he asserts counsel rendered
ineffective assistance in faili ng to preserve the point, we address its substance.”]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1140 [“Accord ingly, defendant’s alternative claim
that counsel rendered ineffectiv e assistance in failing to object must be rejected; counsel undoubtedly realized an objecti on would have been unavailing.”]; People v. Cunningham (2001) 25 Cal.4th 926, 1003 [failu re to object to unobjectiona ble material not ineffective assistance].) As we explain, we conclude no error occurred, fore closing any claim of ineffective assistance of counsel. (See People v. Gutierrez
, supra , 28 Cal.4th at p. 1140.) Admission of Evidence of Vandalism According to the district attorney’s evid entiary motion, defendant had been charged with misdemeanor vandalism, in violation of Penal Code section 594, for burning his ex-girlfriend’s cl othing after a May 20 10 argument. The trial court ultimately allowed evidence of the vandalism, but not the pending charge.
Section 594 defines vandalism as the malicio us destruction or da mage of any real or personal property. (§ 594, subd. (a); People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1281.) The parties do not dispute that a conviction for vand alism evinces moral turpitude, and thus could serve as the basis for impeachment. (See People v. Campbell (1994) 23 Cal.App.4th 1488, 1492–1495.) However, the vandalism charge was only pending at the time of trial; there was no co nviction. Defendant asserts without the conviction, evidence of the vandalism was inadmissible pr opensity evidence. (See Evid. Code, § 1101, subd. (a).) A defendant, however, may be impeached with evidence of mi sdemeanor criminal
conduct that has not resu lted in a conviction. ( People v. Wheeler (1992) 4 Cal.4th 284,8 295–296; People v. Lopez (2005) 129 Cal.App.4th 1508, 1522 [“a person can be impeached in a criminal case by evidence of prior misdemeanor conduct that involves moral turpitude”]; People v. Lepolo (1997) 55 Cal.App.4th 85, 89; cf. People v. Martinez (2002) 103 Cal.App.4th 1071, 1080 [“Although the charges pending against [a nondefendant witness] at the time constituted only misdemeanors, the conduct underlying those charges was admissible to impeach de spite the lack of a conviction.”].)
In People v. Wheeler, supra, 4 Cal.4th 284, the Supreme Court considered whether a witness in a criminal proceeding might be impeached with misdemeanor conduct. The court held that evidence of past misdemeanor conduct bearing on a witness’s veracity was admissible in a criminal proceeding s ubject to the trial court’s discretion. ( Id. at p. 295.) The court concluded “[m]isconduc t involving moral turp itude may suggest a willingness to lie [citations], and this inferenc e is not limited to conduct which resulted in a felony conviction . . . . [¶] Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the re levance requirement of moral turpitude.” ( Id. at pp. 295–296.) Subject to the moral tu rpitude requirement, immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. ( Id. at p. 297, fn. 7.) In this case, defendant admitted the pr ior conduct, burning his ex girlfriend’s clothing. He insists, however, he never admitted malicious intent—the element of vandalism imbuing the crime with moral turpitude (see People v. Campbell
, supra , 23 Cal.App.4th at pp. 1492–1495)—and the distri ct attorney never put forward an offer of proof under Evidence Code section 403 that addressed this element of vandalism. Intent, however, is “rarely susceptible of direct proof and must therefore be proven circumstantially.” ( People v. Thomas (2011) 52 Cal.4th 336, 355 .) In a vandalism case, malicious intent may be inferred from the “commission of any wrongful act that caused damage.” ( People v. Kurtenbach
, supra , 204 Cal.App.4th at p. 1282.) Thus, in People v.
Kurtenbach , the court held malice giving rise to va ndalism could be either an “ ‘actual ill will or intent to injure’ ” or “ ‘ “presumed” or “implied” from the in tentional doing of the act without justification or excuse or mitigating circumstances.’ ” ( Ibid. ) “Kurtenbach’s9 wrongful act was his participation in the arson of his house. That wrongful act collaterally damaged the neighbors’ house, satisfying the definition of vandalism.” ( Ibid. ) Because, as in People v. Kurtenbach , defendant’s malicious intent impliedly follows from the nature of defendant’s wrongf ul act, we conclude the clothes-burning incident underlying defendant’s misdemean or vandalism charge demonstrated moral turpitude. Therefore, eviden ce of the vandalism was rele vant impeachment evidence bearing on defendant’s credib ility, rather than impermissibl e propensity evidence, and could be used for impeachment without violating defendant’ s due process. (See Evid. Code, § 1101, subds. (a), (c); People v. Castro (1985) 38 Cal.3d 301, 315 [carefully considering, but rejecting due process concer ns arising from impeachment with a crime like vandalism, “which in volves moral turpitude ot her than dishonesty”].)
We must next consider whether admission of this evidence, even if relevant, ran
afoul of Evidence Code secti on 352, which provides: “The court in its discretion may exclude evidence if its probativ e value is substantially outw eighed by the probability that its admission will (a) necessita te undue consumption of time or (b) create substantial danger of undue prejudice, of confusing th e issues, or of misleading the jury.” “[E]vidence of misconduct not amounting to a felony is less probative of immoral character than is a prior felony conviction.” ( People v. Clark (2011) 52 Cal.4th 856, 933, citing People v. Wheeler, supra, 4 Cal.4th at pp. 296–297 & fn. 7 [nevertheless allowing impeachment with uncha rged misconduct].) “[I]mpeach ment evidence other than a felony conviction might entail problems of proof, require undue time, or create confusion,” and can lead to “protracted que stioning” concerning the prior misconduct. ( People v. Clark, supra , at p. 933, citing People v. Wheeler, supra, 4 Cal.4th at pp. 296– 297.) Thus, while evidence of prior misconduct is relevant, it remains subject to the trial
court’s discretion under Eviden ce Code section 352, which “empowers courts to prevent criminal trials from degenerating into ni tpicking wars of attrition over collateral credibility issues.” ( People v. Wheeler, supra, 4 Cal.4th at p. 296.)10 A trial court’s ruling under section 352 “ ‘must not be disturbe d on appeal except on a showing that the court exercised its discreti on in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125, italics omitted.) We would only find ineffectiv e assistance of counsel for fa iling to raise a section 352 objection if defendant can “demonstrate . . . an objection on section 352 grounds would have been successful” ( People v. Barnett (1998) 17 Cal.4th 1044 , 1131) and if it were “reasonably probable a verdict more favorable to [defendant] would have been returned had counsel” objected ( People v. Kelley (1990) 220 Cal.App.3d 1358, 1375). Recognizing the vandalism misconduct, as a crime of moral turpitude, had some, albeit limited, probative value on defe ndant’s character for truthfulness ( People v.
Wheeler
, supra , 4 Cal.4th at p. 295 [“ ‘it is undeniab le that a witness’ moral depravity of any kind has “some tendency in reason” [c itation] to shake one’s confidence in his honesty” ’ ”]), the trial court appears to have carefully considered and managed any prejudicial effects of admission as if defe ndant had in fact had made a section 352 objection. First, the district attorney’s motion, though it does not cite to section 352, describes the balancing of relevance and prejudice the section requires. Second, questioning on the vandalism was brief, extending over just two transcript pages in a trial whose testimony consumed ov er 200 pages. (See People v. Clark
, supra , 52 Cal.4th at p. 933 [even though “defenda nt’s admissions of wrongdoing were probed in depth” at some points during trial, “none of the questio ning was excessive”].) Third, once the district attorney made his point, the tria l court intervened to stop duplicative and unnecessarily detailed questioning and furthe r inquiry into the va ndalism, stating: “[w]e’ve already been there a nd done that. There was a vandalism”; and “That’s fine. Thank you.” Fourth, the trial court instruct ed the jury with CA LCRIM No. 316, which reads: “If you find that a witness has co mmitted a crime or other misconduct, you may consider that fact [onl y] in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact11 and whether that fact makes th e witness less believable.” ( People v. Anderson (2007) 152 Cal.App.4th 919, 941 [“CA LCRIM No. 316 limits consid eration of prior crimes
evidence to the issue of credib ility”].) We are entitled to pr esume the jury followed this instruction. ( People v. Holt (1997) 15 Cal.4th 619, 662.)
We therefore conclude there was no erro r in the admission of defendant’s act of
vandalism. Fifth Amendment
Defendant also contends his direct exam ination never “placed” the vandalism at “issue,” and the district attorney’s questio ns about it on cross-examination therefore unlawfully compelled de fendant to incriminat e himself. (See People v. Bagwell (1974) 38 Cal.App.3d 127, 140 [“forcin g defendant to testify on cross-examination to matters not covered on direct examination, violated her rights under the Fifth and Fourteenth Amendments”].) 2 “[A] defendant who speaks in his ow n defense cannot avoid testifying fully. [¶] ‘ . . . [A] defendant who takes the sta nd in his own behalf cannot then claim the privilege against cross-examina tion on matters reasonably relate d to the subject matter of his direct examination.’ ” ( Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 3.) Thus,
when a defendant “takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is ‘very wide.’ ” ( People v. Cooper (1991) 53 Cal.3d 7 71, 822.) If a question on cr oss-examination is relevant, “ ‘ “[i]t matters not that the defendant’s answ er . . . might tend to establish his guilt of a

2 People v. Bagwell involved an unusual situation in which a defendant “may have been lulled [by the trial court] into a sense of securi ty that if she, on direct examination, made no mention of the Los Angeles affair [(the prior misconduct)], no cross-examination on that subj ect would be allowed.” (38 Cal.App.3d at pp. 139–140.) Though the Court of Appeal reversed, it left the trial court the option, at retrial, of allowing or excluding the evidence of prio r misconduct, so long as the court made a reasoned analysis under Evidence Code sect ion 352 and did not mislead defendant. ( People v. Bagwell , at pp. 140–141.) Here, of course , the district attorney moved to impeach defendant with his prior misconduct before defendant took the stand, and the record discloses no statement by the trial cour t remotely suggesting defendant could take the stand and avoid questions about past misconduct.12 collateral offense for which he c ould still be prosecuted.” ’ ” ( People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 72.) The defend ant, in these circumstances, waives his privilege against self-incrimination with re spect to uncharged collateral crimes. ( People

v. Cooper , at p. 822; People v. Thornton (1974) 11 Cal.3d 738, 76 0, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, and abrogated on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 234.) As the vandalism concerned defendant’s credibility and his cl aim of self-defense, questions about it were permissible.
Prosecutorial Misconduct
Defendant further claims the district attorney’s reference to the vandalism in closing argument amounted to prosecutor ial misconduct. Specifically, defendant complains the district attorney commented on defendant’s “refusal to incriminate himself with respect to the a lleged vandalism.” “[T]he Fifth Amendment, . . . in its bearing on the States by reason of the Fourteenth Amendment, forbids . . . co mment by the prosecution on the accused’s silence.” ( Griffin v. California (1965) 380 U.S. 609, 615.) “Under the rule in Griffin
, error is committed whenever th e prosecutor or the court comments, either directly or indirectly, upon defendant’s fa ilure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendant’s silence does not extend to
comments on the state of th e evidence . . . .” ( People v. Medina (1995) 11 Cal.4th 694, 755.) Here, defendant did not remain silent , but admitted he vandalized his former girlfriend’s clothing. The dist rict attorney’s closing argument highlighted the manner in
which defendant adm itted the act—that he “held ba ck” and only reluctantly was forthright—and tried to tie defendant’s ma nner in which he acknowledged the vandalism to his credibility. While this argument appears to have been only marginally supported by the record—since defendant’s answers reflec ted the tenor of the district attorney’s questions (i.e., became more detailed as the district attorney’s qu estions became more detailed)—that does not render the argument unlawful misconduct. Arguments during closing not about silence , but about “credibility as a witn ess” are “in ac cord with our13 longstanding rule that when a defendant takes the stand, ‘his credibility may be impeached and his testimony assailed like that of any other witness.’ ” ( Portuondo v. Agard (2000) 529 U.S. 61, 69, ita lics omitted.) Such argument s do not violate the Fifth
Amendment.
D ISPOSITION The judgment is affirmed.

_ ____________ ____________ Banke, J.

We concur:

_____________ ____________ Margulies, Acting P. J.

_____________ ____________ Dondero, J.