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Filed 10/5/15 P. v. Blevins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

DANIEL R. B. BLEVINS,

Defendant and Appellant.

C076384

(Super. Ct. No. 62118545)

A jury found defendant Daniel R. B. Blevins guilty of two counts of committing a 

lewd act with a child under 14 by force. Defendant later admitted to having previously 

served a term in prison and the trial court sentenced him to an aggregate term of 11 years 

in state prison. 

On appeal, defendant contends the trial court erred in admitting evidence of four 

prior misdemeanor convictions. In support of his contention, defendant relies on 

Evidence Code section 352.1 We conclude defendant forfeited his claim by failing to 

raise a timely and specific objection in the trial court. 

 

1 Undesignated statutory references are to the Evidence Code.
2

On rehearing, defendant claims trial counsel's failure to make a timely and specific 

section 352 objection rendered counsel ineffective. We disagree and affirm the 

judgment.

I. BACKGROUND

The People charged defendant with two counts of committing a lewd act with a 

child under 14 by use of force (Pen. Code, § 288, subd. (b)(1)) and alleged that defendant 

previously served a term in prison (Pen. Code, § 667.5, subd. (b)). He pleaded not guilty. 

Prior to trial, the People filed several motions in limine including motions seeking to use 

defendant’s prior felonies and certain misdemeanors to impeach defendant should he 

choose to testify. Neither the People’s motions in limine, nor the defendant’s address the 

four misdemeanor convictions that are now the focus of this appeal. 

At trial, defendant admitted his prior convictions for receiving stolen property 

(Pen. Code, § 496) and auto theft in 1998 (Veh. Code, § 10851), receiving stolen property 

in 2002 (Pen. Code, § 496), and felony spousal abuse (Pen. Code, § 273.5) in 2011 (his 

victim was Megan G.). The following exchange then took place between defendant and 

his counsel: 

“Q: The first three convictions, did they—had you met [Megan G.] yet at the time 

that those offenses were committed?

“A: No.

“Q: And after meeting her, did that cause you to realize that you needed to change 

your life in some way?

“A: Yes, it did.

“Q: What was that?

“A: Basically I was running amok stealing cars and that was what all the—all 

three of those offenses were for. After I met her, I mean, it helped me change my life 

around, it wasn’t the only thing, but it helped me change my life around.” 
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Outside the presence of the jury, the People then asked the trial court to allow 

them to admit evidence that after meeting Megan G., defendant was convicted of four 

misdemeanors—three for driving under the influence, and one for soliciting a prostitute. 

These convictions, the People argued, would “show that his statement that he’s turned his 

life around is not, in fact, true.” 

Defendant argued that when he said he “turned his life around” he was referring 

only to “crimes that involved dishonesty.” He further argued that based on his own 

admissions at trial, “[i]t’s pretty clear that he did not turn his life around with respect to 

drinking.” Thus, he argued, “none of these four other offenses that the [People] want[] to 

inquire about, three DUIs and a [Penal Code section] 647(b) go to his honesty or 

truthfulness. So I would object to them being referred to at all for that reason.” 

The trial court reviewed the relevant portion of the transcript and ruled as follows: 

“I think [defendant’s statement] did give the impression to the jurors that he, by changing 

his life around, has become law abiding, and so I think the fact that he’s had three or four 

misdemeanor convictions subsequent to that would tend to have some relevance on that. 

So I would permit the People to simply—‘Isn’t it true you were convicted of those 

offenses?’ And then that’s it.” 

The jury later found defendant guilty of all charges. Defendant admitted to 

serving a prior prison term and the trial court sentenced him to an aggregate term of 11 

years in state prison. Defendant appeals. 

After we issued our opinion in this matter, defendant filed a petition for rehearing, 

seeking rehearing on the issue of forfeiture. Relying on Government Code section 

68081, defendant claimed he was not given the opportunity to address forfeiture in his 

opening or reply briefs. We granted defendant’s petition. 
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II. DISCUSSION

A. Defendant Forfeited His Evidence Code Section 352 Claim on Appeal.

Defendant claims the trial court erred in allowing the People to admit evidence of 

his misdemeanor convictions for driving under the influence and soliciting a prostitute. 

Defendant relies on section 352 to support his claim. He contends the evidence that he 

was convicted of these four misdemeanors after meeting Megan G. was “not 

inconsistent” with his testimony and it was cumulative because he already admitted to 

committing felony spousal abuse after meeting Megan G. Defendant also contends the 

trial court “did not properly evaluate this evidence pursuant to . . . section 352.” 

Defendant forfeited these arguments by failing to raise a section 352 objection in the trial 

court.

“To preserve a claim that a trial court abused its discretion in not excluding 

evidence under . . . section 352, ‘a party must make a timely and specific objection when 

the evidence is offered.’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 230-

231; see also People v. Valdez (2012) 55 Cal.4th 82, 138-139; People v. Alexander

(2010) 49 Cal.4th 846, 905.) “Under . . . section 353, subdivision (a), a reviewing court 

cannot grant relief on a claim that evidence was erroneously admitted unless a timely 

objection was made ‘and so stated as to make clear the specific ground of the objection or 

motion.’ ‘ “What is important is that the objection fairly inform the trial court, as well as 

the party offering the evidence, of the specific reason or reasons the objecting party 

believes the evidence should be excluded, so the party offering the evidence can respond 

appropriately and the court can make a fully informed ruling.” ’ [Citation.]” (People v. 

Hajek and Vo (2014) 58 Cal.4th 1144, 1214.)

At trial, the People wanted to offer evidence of defendant’s four misdemeanor 

convictions to show defendant lied when he said he turned his life around after meeting 

Megan G. Defendant argued his testimony only referred to crimes of dishonesty, i.e., 

stealing cars, and any evidence that he was later convicted of offenses related to drinking 
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alcohol did not speak to his credibility. Defendant never argued that the evidence would 

prolong the proceedings unduly, unfairly prejudice defendant, confuse the issues, or 

mislead the jury, or that any one or more of these negative consequences substantially 

outweighed the testimony’s probative value. Indeed, defendant never referred to section 

352 in his argument to the trial court. Because there was no specific objection on the 

grounds set forth in section 352, the issue is not preserved for review.

Further, defendant’s objection was not preserved by the motions in limine heard 

before the start of trial. “A properly directed motion in limine may satisfy the 

requirements of . . . section 353 and preserve objections for appeal. [Citation.]” (People 

v. Ramos (1997) 15 Cal.4th 1133, 1171, italics omitted.) To comply with section 353, 

however, a motion in limine must meet the following requirements: “(1) a specific legal 

ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is 

directed to a particular, identifiable body of evidence; and (3) the motion is made at a 

time before or during trial when the trial judge can determine the evidentiary question in 

its appropriate context.” (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on 

another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The record 

shows the motions in limine in this case did not address the four misdemeanor 

convictions that are the focus of this appeal. Accordingly, whether admitting evidence of 

defendant’s misdemeanor convictions for driving under the influence and soliciting a 

prostitute violated section 352, was not an issue preserved for appeal by the motions in 

limine. 

B. Defendant Received Effective Counsel at Trial.

On rehearing, defendant claims his trial counsel was ineffective for failing to make 

a timely and specific section 352 objection at trial to the relevant misdemeanor 

convictions. 

To establish ineffective assistance of counsel, defendant must demonstrate that 

counsel’s performance was deficient and that defendant suffered prejudice as a result. 
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(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 

696].) To prevail on the prejudice prong of an ineffective assistance of counsel 

challenge, “[t]he defendant must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Id., at p. 694 [80 L.Ed.2d at p. 698].)

Because defendant claims trial counsel was ineffective for failing to make a timely 

and specific section 352 objection to the relevant misdemeanor convictions, we address 

their admissibility. 

Section 352 provides that “[t]he court in its discretion may exclude evidence if its 

probative value is substantially outweighed by the probability that its admission will (a) 

necessitate undue consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)

“The prejudice which exclusion of evidence under . . . section 352 is designed to 

avoid is not the prejudice or damage to a defense that naturally flows from relevant, 

highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or 

damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” 

The “prejudice” referred to in . . . section 352 applies to evidence which uniquely tends to 

evoke an emotional bias against the defendant as an individual and which has very little 

effect on the issues. In applying section 352, “prejudicial” is not synonymous with 

“damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d. 612, 638.)

Defendant testified that Megan G. “helped [him] change [his] life around.” Such 

testimony suggested that since meeting Megan G., except for the felony spousal abuse 

conviction in 2011, he had become a more law-abiding citizen. This opened the door for 

the People to impeach him with evidence that indeed he had not become a more law 

abiding citizen. (See People v. Vidaurri (1980) 103 Cal.App.3d 450, 459.)
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The evidence was brief and straight forward. It was not time consuming, nor did it 

have the potential to mislead the jury. Moreover, and contrary to defendant's contention 

on appeal, misdemeanor convictions for driving under the influence and soliciting a 

prostitute are no more (and perhaps less) inflammatory than his 2011 felony conviction 

for spousal abuse, which the jury already knew about. Nor are they more socially 

reprehensible than committing lewd acts on a child under 14 with force, the crimes for 

which he was on trial. 

We thus conclude the prior convictions were properly admitted and trial counsel 

was not ineffective for failing to object to their admission under section 352. (See People 

v. Diaz (1992) 3 Cal.4th 495, 562 [no claim for ineffective assistance of counsel based on 

defense counsel’s failure to make a futile objection].)

III. DISPOSITION

The judgment is affirmed.

 /S/ , J.

 RENNER, J.

We concur:

 /S/ , Acting P. J.

BLEASE, J. 

 /S/ , J.

MURRAY, J.