1 Filed 9/4/14 P. v. Piocortes CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. NOE PIOCORTES, Defendant and Appellant. C073935 (Super. Ct. No. 12F03649)

A jury convicted defendant Noe Piocor tes of furnishing methamphetamine to a minor, S.T., possessing methamphetamine, fe lony child abuse as to S.T., and misdemeanor child abuse, a lesser included offense, as to D.D. The jury acquitted defendant of furnishing meth amphetamine to D.D. Sentenced to state prison, defendant cont ends the trial court deprived him of his right to a defense when the court barred him from impeaching a prosecution witness with a prior conviction for negligent discharge of a firearm, a crime of moral turpitude. We
affirm.2 FACTUAL AND PROCEDUR AL BACKGROUND
Prosecution Case On January 22, 2012, defend ant lived in apartment num ber 72 at an apartment complex on Sunrise Vista Drive in Citrus Height s. Victim S.T., aged 17, lived next door in apartment number 70. He had told defendant his age wh en he moved in six months
before. Prosecution witness Antoine Cl ay lived in apartment number 68. S.T. lived with his father, but his father was not home th at day. S.T. had invited his 15-year-old friend D.D. over. During th e afternoon, S.T. an d D.D. were drinking vodka, some inside the apar tment and some outside on th e balcony, where they saw defendant across the way on his balcony. S.T. asked defendant if he could buy beer for him and D.D. Defendant gave them a case of Budweiser Light. According to S.T., he had trouble recalling what happened after that because of his alcohol consumption.
S.T. testified defendant came over to S. T.’s apartment and entered the kitchen, carrying a baggie that held a white powdery s ubstance. Defendant directed S.T. to heat up a plate in the microwave and used a credit card to cut up lines of the substance on the warm plate. S.T. ingested a line; then at some point he passed out. When he testified, S.T. could not recall how many lines he had i ngested. He recovered consciousness at the hospital. D.D. testified that he got drunk at S.T.’s apartment. He said they consumed a fifth of a gallon of vodka. D.D. did not rememb er how much beer he drank from the case defendant gave them. He ta lked to defendant outside on the landing between the two apartments and in S.T.’s living room, but di d not know what defend ant was doing in the apartment. D.D. did not see S.T. heat a plat e in the microwave. D.D. knew he passed out on S.T.’s bed, but did not reca ll lying down on the bed. He al so did not recall the police coming, or any interaction with S. T.’s neighbor, Antoine Clay. Clay testified that on the afternoon of the alleged crimes, he watched a 49ers football game on television, then took his dog outside. He saw defendant and S.T. on the3 staircase outside apartments 70 and 72. He saw another boy who looked like a teenager at the bottom of the staircase. Clay saw de fendant pour himself a shot of honey-colored or gold liquid, which Clay believed to be Bacar di Gold, and give S.T. a shot. S.T. made a face after drinking it, as if it was strong. Clay did not see D.D. drink a shot, but a third shot glass was on the ground on th e landing. Clay declined defe ndant’s offer of alcohol.
Defendant and S.T. returned to their apartments, while Clay and D.D. remained downstairs. D.D. was holding a Budweiser.
When defendant and S.T. came back downst airs, Clay heard S.T. ask defendant if defendant knew where to get any “cris” [ sic ], which Clay took to mean drugs. Defendant returned to the door of his apartment, and Clay saw him make a phone call. S.T. and D.D. went back to S.T.’s ap artment; defendant told them he would be right back. At some point, Clay saw defendant return. Clay went to check a pizza he was baking in his oven, then he went upstairs to check on the boys. Through the partially open door of S.T.’s apartment, Clay saw D.D. lying flat on the ground, partly in S.T.’s bedroom and par tly in the hallway. Defendant and S.T. were in the kitchen, where defendant was chopping a white substance that looked like crystal meth or cocaine. Clay saw S.T. and defend ant snort the substance through a rolled-up paper or dollar bill. S.T. was visibly drunk , stumbling around, and slurring his speech. Clay warned defendant that S.T. did not know what he wa s doing and that it could kill him. Defendant said S.T. was old enough to make his own decisions. After snorting the substance, S.T.’s eyes rolled b ack in his head and he fell to the ground, apparently having a seizure; then he got up and ran to the bathroom. Clay left and called 911. A recordin g of the call was play ed for the jury. According to the transcript of the call in the reco rd, the information Clay provided was consistent with his trial testimony, but he ga ve his name as “Antho ny Ray.” He testified that he gave a false name because he was not supposed to be living there and feared being4 evicted if the apartment manage r found out he was there. (T he apartment was rented by the mother of Clay’s child; Clay went back and forth be tween the apartment and his mother’s home.) At approximately 9:40 p.m., Citrus Heig hts Police Officers Austin Azevedo and Vincent Young were dispatched to the apartment complex. They saw defendant leaving S.T.’s apartment and ordered him to stop. In stead, he hurried into his own apartment. They followed him inside and apprehended him. Searchin g defendant, they found a baggie of white crystalline substance in his sweatshirt pocket, later confirmed to be 0.10 of a gram of methamphetamine (a usable am ount), a lightbulb with burnt residue inside, which they knew from their experience to be a common smoking device, and a rolled-up
dollar bill. In S.T.’s apartment, Officer Young and another officer found both boys unconscious. Later, the boys woke up and were responsive but disoriented, with incoherent slurred speech. Taken to Mercy Sa n Juan Medical Center, S.T. was found to
have a blood-alcohol level of 0.355 percent and a urine toxicology screen that was positive for amphetamines, while D.D. had a bl ood-alcohol level of 0.24 percent and a urine toxicology screen that was positive for ma rijuana. A crimina list testified that a male weighing 140 pounds , as did S.T., would have had to have consumed 12.5 to 13.5 “drink equivalents” (i.e., one-half ounce of pu re alcohol or ethanol) to get to a bloodalcohol level of 0.355 percen t; a male weighing 15 0 pounds, as did D. D., would have had to have consumed at least nine to 10 drink eq uivalents to get to a blood-alcohol level of 0.24 percent.5 Defense Case
Two of defendant’s roommates on the date of the alleged crimes, Jose Hernandez Castillo and Damian De Los Santos, testified on his behalf. Both stated they were home
on that date. Castillo did not see defendant w ith drugs and did not se e him give S.T. and
D.D. alcohol. De Los Santos did not see defendant give the boys alcohol or drugs. S.T. and D.D. asked to come into their apartmen t that afternoon, but Castillo would not let them in because the boys had been drinking.
Defendant testified he watc hed a football game and barbecued on the balcony with his roommates that day. He saw the boys drinking vodka outside S.T.’s apartment and believed they were very drunk. He bought beer that day, but did not give the boys any alcohol or drugs. According to defendant, he went downst airs at approximately 7:00 p.m. and saw Clay go inside S.T.’s apartm ent. Clay later approached defendant and offered him a bag of “chemicals,” calling it “something so that [d efendant] could feel fine.” Clay advised him to put the substance into a lightbulb, light it, and smoke it; Clay also advised him to roll up a dollar bill for that purpose. De fendant testified he had never smoked methamphetamine before that night. After defendant used the drugs, Clay peeked inside S.T.’s apartm ent, then said he would return. Instead, after approximatel y 10 minutes, the police came. When they arrived, defendant was in front of his own apartment, not S.T.’s. Despite an officer calling to defendant, he went into his apartm ent because he did no t understand what the
officer said.
DISCUSSION
Defendant contends the tria l court abused its discreti on and deprived him of the right to put on a defense by denying his motion to im peach Clay with a 2006 misdemeanor conviction for negligent discharg e of a firearm, a crime evincing moral6 turpitude. ( People v. Clem (2000) 78 Cal.App.4th 346, 351-353; People v. Feaster (2002) 102 Cal.App.4th 1084, 1092-1093.) We disagree. Before trial, defense counsel moved to impeach Clay with a 2009 misdemeanor conviction for false imprisonment. The tria l court granted the motion, finding under
Evidence Code sections 210 and 352 that th e conviction was relevant to impeach the witness’s credibility, it was “relatively recen t,” and its probative value substantially outweighed any prejudicial eff ect. Counsel impeached Clay with this prior conviction on
cross-examination. During trial, before Clay began to tes tify, defense counsel requested permission also to impeach him with a 2006 misdemeanor conviction fo r negligent discharge of a firearm, suggesting that along with the 2009 conviction it show ed “sort of a continuing pattern of criminal conduct.” The prosecutor objected and asserted this second prior was
“even more remote” than th e 2009 conviction and had no re levance under Evidence Code section 1101, subdivision (b ). The trial court found th at the 2006 conviction was “remote,” “would not further a ssist the jury in determini ng credibility,” and “could be misused”; therefore it would be excluded under Evidence Code section 352.
Evidence of a witness’s mi sconduct that evinces moral turpitude and results in a misdemeanor conviction is admissible to impeach the witness. ( People v. Wheeler (1992) 4 Cal.4th 284, 295, 297.) But, as with felony convictions, the trial court has broad
discretion under Evidence Code section 352 to exclude su ch evidence if its probative value is substantially outweighed by its pote ntial for undue prejudice, confusion, or consumption of time. ( People v. Clark (2011) 52 Cal.4th 856, 931.) We review rulings
under Evidence Code section 352 for abuse of discretion. ( People v. Lightsey (2012) 54 Cal.4th 668, 714.) We will not disturb such a ruling unless the trial court “exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” ( People v. Rodriguez (1999) 20 Cal.4th 1, 9- 10.)7 Here, there was nothing arbitrary, capric ious, or patently ab surd about the trial court’s ruling. The court reas onably exercised its discretion to admit the more recent of Clay’s misdemeanor convictions for impeachment while excl uding the less recent. The court also impliedly found the conduct und erlying Clay’s conv iction for negligent discharge of a firearm, even though evincing moral turpitude, did not bear strongly on his honesty. ( People v. Feaster, supra, 102 Cal.App.4th at p. 1094; see People v. Lightsey,

supra , 54 Cal.4th at p. 714 [evidence of misd emeanor conduct that does not strongly demonstrate moral turpitude does not provide ju ry much assistance in assessing witness’s credibility].) Whether or not we might have ruled differe ntly, we cannot find the court’s ruling was an abuse of discretion. But even if the court erred, the error was harmless under the standard of People v.
Watson (1956) 46 Cal.2d 818, 836, which is the applicab le standard for evidentiary errors. ( People v. Cudjo (1993) 6 Cal.4th 585, 611.) Co ntrary to defendant’s assertion,
the exclusion of the 2006 misdemeanor did not deprive him of a defense. Defense counsel impeached Clay thor oughly, not only with his more recent misdemeanor
conviction but with the fact that he gave a false name to 911 in order to cover up the fact that he was illegally residing in the apartmen t complex, and with discrepancies between his trial testimony, his preliminary hearing testimony, and his statement to the police. 1 Counsel then used this impeachment effectiv ely by making an extended argument to the

1 As the Attorney General points out, thes e discrepancies included, among others: (1) variances between Clay’s accounts of what type of alcohol the victims were drinking and what types of cups, bottles, or glasse s they used; (2) variances between Clay’s accounts of S.T.’s words in as king defendant for drugs; and (3) variances between Clay’s trial testimony that defendant snorted drug s and his preliminary hearing testimony and 911 report that defendant was smoking the drugs.8 jury, closely tied to the standard instruction on witness credibility, that Clay could not be believed on any point. 2 In any event, S.T.’s testimony, so far as it went, corroborated that of Clay. On the other hand, defendant’s claim that Clay made a gift of illegal drugs and paraphernalia to him for no apparent reason was uncorroborated and implausible on its face. So far as it was intended to imply Clay actu ally furnished the drugs to th e victims, the jury evidently found it unconvincing, since no witness, incl uding defendant, claimed to have seen Clay doing so, and it was not apparent why Clay wo uld have done so and then immediately called 911 to report the crime. Thus, even if the trial court should have admitted the 2006 misdemeanor conviction for impeachment, ther e is no reasonable probability that defendant would have
achieved a better outcome had the court admitted that evidence.
DISPOSITION The judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

HOCH , J.

2 In the course of this argument, counsel minimized the significance of the misdemeanor conviction with which he had been allowed to impeach Clay: “Misdemeanor conviction. Not really a big deal . I mean, it’s there. He admitted that he committed a Penal Code Secti on 236, false impr isonment. It’s something you can consider when determining if he’s being honest, and the Judg e will instruct you that’s all it’s for, is to determine that.”