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Filed 7/23/15 P. v. Cooper 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN MICHAEL COOPER,

Defendant and Appellant.

C076884

(Super. Ct. No. 62-126872)

Defendant Justin Michael Cooper appeals his conviction following a jury trial. 

Defendant was sentenced to state prison for the aggregate term of six years—the upper 

term of four years on count two for unlawful taking or driving of a vehicle (Veh. Code, 

§ 10851, subd. (a)) and the midterm of two years on count three for receiving stolen 

property (Pen. Code, § 496, subd. (a)),

1 plus one year each for two prior prison term 

enhancements (§ 667.5). 

 

1 Undesignated statutory references are to the Penal Code.
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Defendant contends (1) the trial court erred in excluding evidence relevant to 

discrediting a prosecution witness and establishing third party culpability, and (2) that 

this court should reduce his conviction for receiving stolen property (§ 496, subd. (a)—

count three) to a misdemeanor pursuant to Proposition 47. We disagree and shall affirm 

the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

The victim took her 2011 Maserati to an auto repair shop to have work performed 

on it in September 2013. She left the car with the repair shop while its staff waited for 

parts to be delivered from Italy. Staff recalled that the car was parked in an open garage 

in the back lot of the facility, and was there on Friday evening, when the auto repair shop 

closed for the weekend. The lot is enclosed by a chain-link, barbed wire fence, with two 

vehicle rolling fences along the perimeter, and is monitored by security cameras. When 

staff returned the following Monday, one of the rolling fences had been unbolted from its 

hinges, six sets of keys had been stolen from a lock box (including the keys to the 

Maserati), some cars had been moved, and the Maserati was missing. The repair shop 

informed law enforcement of the theft.

Around the same time as the theft occurred, Karina Thompson, a live-in caretaker 

for a retired disabled veteran, was at her patient’s new apartment in Sacramento. The 

patient asked Thompson to leave the apartment for a little while. She did not have a car, 

so she contacted defendant, though he did not have a car either. Defendant came to the 

apartment to pick Thompson up driving a Maserati; Thompson had never seen the car 

before, assumed it was borrowed, and, at the time, did not realize it was a Maserati or 

expensive. Thompson got into the car with defendant, who suggested they drive to Lake 

Tahoe. They got lost on their drive, ate in a small town, went to a beach, and returned 

later that evening to a Roseville apartment where Thompson’s patient had lived before. 
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Thompson had keys to the apartment and her patient’s permission to enter the apartment 

to collect his mail and some of his belongings.

During the course of the day, defendant took pictures of Thompson in front of the 

car on her cell phone, and they took a picture of themselves in the car with defendant in 

the driver’s seat and Thompson in the passenger seat. She also drove the car part of the 

time. There was also a photograph from a traffic camera showing defendant driving the 

Maserati with Thompson in the passenger seat. Defendant initially did not tell Thompson 

where he got the car, but later in the day he indicated he got it from “a car service place,” 

where the keys were “accessible.” At some point during the day, Thompson noticed a 

“black sock-looking thing” with what felt like keys inside on the passenger side 

floorboard of the car. Defendant mentioned to Thompson the idea of going back to the 

same facility to get another car, but she disregarded it as joking. He also mentioned that 

he wanted to get a Porsche.

Officers located the Maserati in the parking lot of the Roseville apartment 

complex where defendant and Thompson were. Officers knocked on the door to the 

apartment. Defendant did not want Thompson to open the door, and while she waited to 

open it, defendant ran back and forth to the bedroom, where he had placed a dark-colored 

backpack when he and Thompson arrived there. Officers entered the apartment, where 

they found a backpack containing men’s clothing and “a plastic-wrapped, black-andchrome logo” stamped “Maserati Genuine Parts.” They also recovered the key to the 

Maserati, and in the Maserati they found a black sock with several key sets inside.

DISCUSSION

I. Exclusion of Evidence

Defendant contends the trial court abused its discretion and violated defendant’s 

right to present a defense by excluding, as unduly consumptive of time and misleading, 
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evidence that was relevant to third party culpability and to impeaching a witness’s 

credibility. Specifically, defendant challenges the trial court’s ruling that defendant could 

not introduce evidence that Thompson was the subject of a pending unrelated criminal 

case in which it was alleged she had received a stolen vehicle. We conclude defendant 

forfeited any argument regarding the admissibility of the evidence based on third party 

culpability by failing to raise it in the trial court, and that the trial court did not err in 

excluding the evidence for purposes of impeachment. 

Thompson was charged (though not yet convicted) in an unrelated case with 

receiving a stolen vehicle based on an incident occurring after the crime charged in the 

instant case. Defendant sought to cross-examine Thompson regarding the incident, and 

to introduce evidence from four witnesses to establish that Thompson knowingly 

received the stolen vehicle and blamed another for the crime. Both parties contemplated 

that the additional testimony would take approximately a half-day. 

The People acknowledged that whether Thompson had been found in possession 

of a stolen vehicle in the other case was relevant, but nonetheless requested that the trial 

court exclude the evidence pursuant to Evidence Code section 352 as unduly 

consumptive of the trial court’s time. Defendant argued Thompson gave varying and 

inconsistent accounts that are relevant to “her veracity.” He also argued that as the 

prosecution’s “star witness,” and the only witness to provide evidence that defendant 

knew the car was stolen or intended to permanently deprive the owner of the vehicle, 

impeaching her could undermine the prosecution’s entire case. 

After expressly clarifying that defendant’s purpose in eliciting this evidence was 

to “further impeach Ms. Thompson,” the trial court excluded the evidence. It stated its 

reasoning as follows: “The Court believes that, from what I have heard, on balance, 

under Evidence Code Section 352, there is a risk of confusing the issues and misleading 

the jury, essentially turning the trial into a prosecution against Ms. Thompson. The Court 
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has already ruled that the defense may attempt to impeach Ms. Thompson by virtue of her 

prior felony convictions. And therefore, her credibility, if that evidence comes in, will be 

placed squarely before the jury, in any event. [¶] There would be a consumption of time, 

and I think in this particular case, it would be undue. I think there is a risk, a substantial 

risk of confusing the issues and misleading the jury were that to play out. [¶] So 

therefore, pursuant to Evidence Code Section 352, the Court will direct that there be no 

evidence elicited from Ms. Thompson concerning the charge, yet unproved, events 

relating to the alleged [Penal Code section 496d] felony that’s charged in the case against 

her . . . .”

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As to defendant’s contention on appeal that the evidence regarding Thompson’s 

alleged receipt of a stolen vehicle in the pending case should have been admitted because 

it was relevant to establish third party culpability, we deem this contention forfeited. 

“[T]he proponent of evidence must identify the specific ground of admissibility at trial or 

forfeit that basis of admissibility on appeal.” (People v. Ervine (2009) 47 Cal.4th 745, 

783.) For, “[a] party cannot argue the court erred in failing to conduct an analysis it was 

not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435.) Here, defendant 

did not argue in the trial court that the evidence was admissible on that basis. Defendant 

limited his argument on relevancy to impeaching Thompson as a witness by attacking her 

credibility based on her lies regarding the charged incident. Therefore, defendant may 

not argue on appeal that the trial court erred in excluding the evidence on the basis that it 

was relevant to establish third party culpability. 

 

2 The trial court permitted, over an Evidence Code section 352 objection, defendant to 

ask Thompson whether she was facing a pending case in which she was charged with a 

crime of moral turpitude and whether she believed she would be receiving any special 

treatment in that case because she was testifying in defendant’s case. That case involved 

receipt of stolen savings bonds. 
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As to defendant’s contention that the evidence should have been admitted for 

impeachment purposes, we find no abuse of discretion by the trial court in excluding the 

evidence on that basis. “A witness may be impeached with any prior conduct involving 

moral turpitude whether or not it resulted in a felony conviction, subject to the trial 

court’s exercise of discretion under Evidence Code section 352.” (People v. Clark (2011) 

52 Cal.4th 856, 931 (Clark).) “A trial court may exclude evidence under Evidence Code 

section 352 if its probative value is substantially outweighed by the probability that

admission will unduly consume time, create a substantial danger of undue prejudice, 

confuse the issues, or mislead the jury.” (People v. Mincey (1992) 2 Cal.4th 408, 439.) 

“When determining whether to admit a prior conviction for impeachment 

purposes, the court should consider, among other factors, whether it reflects on the 

witness’s honesty or veracity, whether it is near or remote in time, [and] whether it is for 

the same or similar conduct as the charged offense . . . . [Citations.] Additional 

considerations apply when the proffered impeachment evidence is misconduct other than 

a prior conviction. This is because such misconduct generally is less probative of 

immoral character or dishonesty and may involve problems involving proof, unfair 

surprise, and the evaluation of moral turpitude. [Citation.] . . . ‘[C]ourts may and should 

consider with particular care whether the admission of such evidence might involve 

undue time, confusion, or prejudice which outweighs its probative value.’ ” (Clark,

supra, 52 Cal.4th at pp. 931-932.) 

We review rulings pursuant to Evidence Code section 352 under the abuse of 

discretion standard (People v. Hillhouse (2002) 27 Cal.4th 469, 496), and reverse only if 

the trial court’s ruling was “ ‘arbitrary, capricious or patently absurd’ ” and caused a 

“ ‘manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) 

While receiving a stolen vehicle may be a crime of moral turpitude involving dishonesty 

(see Alvarez-Reynaga v. Holder (9th Cir. 2010) 596 F.3d 534, 537 [a conviction for 
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violating § 496d is not categorically a crime of moral turpitude because it does not 

require a specific intent to deprive a victim of his property permanently]; but see RoblesUrrea v. Holder (9th Cir. 2012) 678 F.3d 702, 712 [where categorical approach fails, rely 

on the facts on which the conviction “necessarily rested” to determine whether it was one 

involving moral turpitude]), the trial court was within its discretion in concluding a 

minitrial involving the testimony of four witnesses (the same number of witnesses that 

testified in defendant’s entire trial) on the question of whether Thompson actually 

committed the crime would have consumed an undue amount of time and created a 

substantial danger of confusing the issues. 

II. Proposition 47

Defendant claims we should reduce his conviction for receiving stolen property. 

(Pen. Code, § 496, subd. (a)—count three.) He argues that without proof the property he 

received was valued at more than $950 the crime of receiving stolen property has been 

reduced to a misdemeanor for eligible offenders such as defendant by the enactment of 

Proposition 47, his judgment is not yet final, and Proposition 47 applies retroactively. 

We decline to resentence defendant because we conclude he is limited to the statutory 

remedy of petitioning the trial court for recall of his sentence.

The passage of Proposition 47 created section 1170.18, which provides for any 

defendant “currently serving a sentence for a conviction . . . of a felony or felonies who 

would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at 

the time of the offense [to] petition for a recall of sentence before the trial court that 

entered the judgment of conviction in his or her case to request resentencing . . .” under 

the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. 

(a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, 

pp. 73-74.) If a defendant properly seeks recall and resentencing pursuant to section 

1170.18, subdivision (a), the trial court must grant resentencing unless, in its discretion, it 
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determines resentencing “would pose an unreasonable risk of danger to public safety.” 

(§ 1170.18, subd. (b).) Among the crimes reduced to misdemeanors by Proposition 47, 

rendering the person convicted of the crime eligible for resentencing, is receiving stolen 

property where the property value does not exceed $950. (§ 496, subd. (a); see Voter 

Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 9, p. 72.) 

As a general rule, when a statute is amended “to reduce the punishment for a 

particular criminal offense, we will assume, absent evidence to the contrary, that the 

[enacting body] intended the amended statute to apply to all defendants whose judgments 

are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 

323, fn. omitted.) However, this rule “is not implicated where the [enacting body] clearly 

signals its intent to make the amendment prospective, by the inclusion of either an 

express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793.) 

In People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), the court 

addressed the retroactive application of the Three Strikes Reform Act of 2012 enacted as 

part of Proposition 36. With the passage of Proposition 36, the three strikes law was 

amended to remove the provision allowing for the imposition of indeterminate life terms 

for certain recidivists whose current offenses were not serious or violent felonies. 

(Yearwood, at pp. 167-168.) Like Proposition 47, Proposition 36 enacted a Penal Code 

provision, section 1170.126, creating a postconviction proceeding for recall and 

resentencing of a person currently serving a sentence who would have been entitled to a 

different sentence if Proposition 36 had been in effect when he or she was sentenced. 

(See Yearwood, at p. 168.) The Yearwood court held that the recall and resentencing 

provisions of section 1170.126 “operate[d] as the functional equivalent of a saving 

clause,” demonstrating that “[t]he voters intended for the amendments to [the three 

strikes law] to operate prospectively only.” (Yearwood, at p. 168.) 
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We have previously relied on the analysis of Yearwood to conclude that a 

defendant was not entitled to retroactive application of Proposition 47 while the judgment 

from which he sought relief was on direct appeal. (People v. Noyan (2014) 

232 Cal.App.4th 657, 672.) Rather, we concluded the defendant in that case was entitled 

to petition the trial court for a recall of his sentence and resentencing pursuant to section 

1170.18 once his judgment was final. (Noyan, at p. 672.) In light of the existence of that 

relief, which too operates as a “functional saving clause” (Yearwood, supra, 

213 Cal.App.4th at p. 168), we conclude, as we did in Noyan, that it was the electorate’s 

intent that Proposition 47 be applied prospectively only. Therefore, defendant is not 

entitled in this appeal to have his felony conviction for receipt of stolen property (§ 496, 

subd. (a)—count three) redesignated a misdemeanor. 

DISPOSITION

The judgment is affirmed. 

 BUTZ , J.

We concur:

 BLEASE , Acting P. J.

 HOCH , J.