People v. Cortez CA2/6

Filed 5/12/23 P. v. Cortez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319506
(Super. Ct. No. 2021002150)
Plaintiff and Respondent, (Ventura County)
v.
VANESSA CORTEZ,
Defendant and Appellant.
Vanessa Cortez appeals a judgment following her
conviction of second degree robbery after a jury trial. (Pen. Code,
§ 211.1) The trial court suspended imposition of sentence and
placed her on formal probation for 36 months. She subsequently
was found in violation of her probation conditions and sentenced
to state prison. We conclude, among other things, that 1) the
trial court did not err by admitting evidence of Cortez’s prior
misdemeanor convictions for theft and giving false identifying
All statutory references are to the Penal Code unless
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otherwise stated.
information to a police officer as impeachment evidence; and 2)
Cortez has not shown that the court committed reversible error
by admitting evidence of her prior misdemeanor battery
conviction. We affirm.
FACTS
On Christmas Eve, Mohsen Ali was the manager of the
General Needs Company store. He testified that the store had a
pink toy car for sale. Christina Davalos and Cortez entered the
store together. Davalos wanted to buy the toy car with a 50
percent discount and pay $199. But the sale price for the car was
$399.
Ali was willing to give Davalos a 5 percent discount.
Davalos placed between $220 and $240 cash on the counter and
took the car without “permission.” She left the store. Ali went
outside to try “to bring the car back.” He and Davalos both held
onto the car. Ali told her to bring it back and he would not call
the police. Cortez “pushed” him away, and Davalos left with the
car.
After Davalos and Cortez left the store, they put the toy car
on “top” of a pickup truck. They were accompanied by two men
and they left.
Ali called the police. Officer Ramzi Raad arrived and
viewed a surveillance video of the incident. He recognized Cortez
and Davalos. He knew that they frequently visit a “transient
encampment.” When he arrived there, he saw Cortez with the
toy car and arrested her for robbery.
While in custody, Raad interviewed Cortez after advising
her of her Miranda rights. He showed her the surveillance video.
Raad testified Cortez admitted “to using force to take that
property.” In the transcript of the police interview, Cortez was
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asked, “And you used your body to push [Ali] off of it – away from
it.” Cortez: “Yes. ‘Cause I just told you that right now.”
At trial Cortez testified she was a heroin addict, was
“kicking,” not feeling well, and was not paying attention to what
Ali and Davalos were saying. She believed Davalos had paid Ali
for the toy car. She was surprised when Ali suddenly “darted
past” her and “grabbed the car.” Cortez testified she “stepped
into their little scuffle that they had at the door” and did not
believe Davalos “was doing illegal.”
On cross-examination, Cortez said she knew there was
“disagreement about the price [of the car].” She knew the money
Davalos left at the counter was “$260 less than what the store
owner wanted for that car.” She knows that when someone
leaves cash, but only pays “half of the cost,” that this is “theft.”
She admitted that she and Davalos started “to pull” the car away
from Ali. She said she “stepped into him” and “[she] did get in
the middle of it.”
Admission of Cortez’s Prior Convictions
In a pretrial proceeding, the trial court allowed the
prosecutor to introduce evidence of Cortez’s three most recent
prior misdemeanor convictions. After Cortez and a defense
witness testified that Cortez was not violent, the court also
granted the People’s request to introduce Cortez’s prior battery
conviction as rebuttal evidence.
DISCUSSION
Evidence of the Three Misdemeanor Convictions
In response to a defense motion in limine, the trial court
ruled Cortez’s three most recent convictions for petty theft with
priors (§ 666) in 2010 and 2102, and her misdemeanor conviction
for providing false identifying information to a police officer
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(§ 148.9) in 2015, could be used to impeach Cortez’s testimony
because those offenses “qualify as moral turpitude crimes.”
Cortez contends this was error. We disagree.
We review a trial court’s rulings on the admissibility of
evidence for abuse of discretion. (People v. Harris (2005) 37
Cal.4th 310, 337.) “Past criminal conduct involving moral
turpitude that has some logical bearing on the veracity of a
witness in a criminal proceeding is admissible to impeach” a
witness. (Ibid.) Moral turpitude crimes are offenses “in which
dishonesty is an element.” (People v. Chavez (2000) 84
Cal.App.4th 25, 28.) “[T]heft crimes necessarily involve an
element of deceit.” (People v. Gurule (2002) 28 Cal.4th 557, 608.)
Consequently, they involve moral turpitude. (People v. Gray
(2007) 158 Cal.App.4th 635, 641.) The crime of providing false
information to a police officer necessarily involves dishonesty
and, therefore, moral turpitude. (People v. Maestas (2005) 132
Cal.App.4th 1552, 1556, fn. 4.)
Here Cortez testified at trial for the purpose of showing she
did not commit the charged offense. The trial court properly
admitted this evidence because the “defendant’s line of defense at
trial was an outright denial of guilt” and therefore the
defendant’s “credibility was directly at issue.” (People v. Mendoza
(2000) 78 Cal.App.4th 918, 925.)
Cortez contends the trial court erred because the 2010 and
2012 prior convictions were too remote in time to be admissible.
But courts have held trial courts have properly admitted prior
convictions for impeachment that were in the age range of
Cortez’s priors. (People v. Carter (2014) 227 Cal.App.4th 322, 330
[11-year-old prior convictions were properly admitted].)
Moreover, here the trial court, aware of the remoteness issue,
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exercised its discretion to only admit the three most recent
convictions.
Cortez claims the admission of this evidence was unduly
prejudicial. She contends the prosecutor used these prior
convictions: 1) to bolster a weak case, and 2) to convince jurors to
use these prior convictions instead of considering the evidence on
the charged offense. She notes the prosecutor told jurors, “[Y]ou
need to evaluate who to believe in this case. Do you believe her?
Convicted of petty theft with priors in 2010 for the same charge
in 2012.”
But the prior convictions were properly admitted for
impeachment purposes and a prosecutor has a right to make a
“fair” comment on the evidence. (People v. Young (2005) 34
Cal.4th 1149, 1191.) Credibility is necessarily involved where the
defendant testifies with the goal of defeating the People’s case.
(People v. Mendoza, supra, 78 Cal.App.4th at p. 925.) The
prosecutor may cite to admitted evidence and ask jurors to draw
different inferences than the defense draws. (Young, at p. 1191.)
To make sure the jury would not be distracted, the trial
court instructed jurors that the evidence of “prior convictions”
“may be considered by [the jurors] solely for the purpose of
assessing that witness’s credibility, and for no other purpose.”
(Italics added.) We presume the jury followed those instructions
and “that jurors treat the court’s instructions as a statement of
the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade.” (People v.
Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
Moreover, the People note that any error is harmless given
the strength of the People’s case. Robbery is the taking of
property from the immediate possession of another person
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accomplished by the use of force or fear. (People v. Scott (2009)
45 Cal.4th 743, 749.) “The crime of robbery includes the element
of asportation, the robber's escape with the loot being considered
as important in the commission of the crime as gaining
possession of the property.” (People v. Estes (1983) 147
Cal.App.3d 23, 27.) The People note Cortez admitted to police
that she used force to prevent the store clerk from obtaining
possession of the toy. She was asked, “And you used your body to
push [Ali] off of it – away from it.” Cortez: “Yes. ‘Cause I just
told you that right now.” That was a highly incriminating
admission. There was also a store surveillance video. Both the
interview and the video were played for the jury. Cortez was
asked in the police interview, “Why, why did you pull it? Why did
you start pulling the car?” Cortez: “Because I . . . wanted [Ali] to
call the police if there was a problem.” (Italics added.) The
prosecutor also successfully impeached the credibility of Cortez’s
direct testimony on cross-examination.
The Prior Misdemeanor Battery Conviction
Cortez contends the trial court erred by admitting her prior
misdemeanor battery conviction because she “did not put her
character for peacefulness at issue.” (Initial capitalization
omitted.)
Evidence Code section 1101, subdivision (a), provides, in
relevant part, that “evidence of a person’s character or a trait of
his or her character . . . is inadmissible when offered to prove his
or her conduct on a specified occasion.”
But “evidence of the defendant’s character or a trait of his
character in the form of an opinion or evidence of his reputation
is not made inadmissible by Section 1101 if such evidence is: [¶]
(a) Offered by the defendant to prove his conduct in conformity
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with such character or trait of character. [¶] (b) Offered by the
prosecution to rebut evidence adduced by the defendant under
subdivision (a).” (Evid. Code, § 1102, subds. (a) & (b), italics
added.)
The People claim Cortez opened the door for rebuttal
evidence of the battery conviction because evidence in the defense
case involved her character trait of being nonviolent. Cortez’s
friend Alejandro Garcia testified about Cortez’s character. He
said, “I’ve never known her to be violent.” He said she would not
use physical force against someone. Cortez testified that during
the incidents involving her prior petty theft convictions she was
not violent.
“Under the doctrine of ‘opening the door,’ one party may
render otherwise inadmissible evidence admissible by
introducing the topic selectively such as to leave a misleading
impression.” (People v. Kerley (2018) 23 Cal.App.5th 513, 553.)
“A trial court’s ruling on whether rebuttal evidence is admissible
on this theory is reviewed for abuse of discretion.” (Ibid.) The
court could reasonably find that defense case evidence presented
the “impression” that Cortez would not be violent, consequently
rebuttal evidence would be appropriate. (Ibid.)
Cortez claims the rebuttal evidence may not include her
prior battery conviction. She notes in People v. Mansfield (1988)
200 Cal.App.3d 82, 88, the court said a battery conviction “need
not be violent” and it does not involve moral turpitude. Under
Mansfield, it was not the type of rebuttal evidence to show
violence or moral turpitude. But see People v. Williams (1985)
169 Cal.App.3d 951, 957, where the court said, “[B]attery by a jail
inmate upon a noninmate, a crime of violence, demonstrates ‘a
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general readiness to do evil,’ and thus moral turpitude.” (Italics
added.)
We have reviewed Cortez’s remaining contentions and we
conclude she has not shown grounds for reversal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Nancy Wechsler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
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