People v. Campbell

• Decision Date: 30 March 1994
• Docket Number: No. C015667,C015667
• Citation: 28 Cal.Rptr.2d 716,23 Cal.App.4th 1488
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Scott Milton CAMPBELL, Defendant and Appellant.

Page 716

28 Cal.Rptr.2d 716

23 Cal.App.4th 1488

The PEOPLE, Plaintiff and Respondent, v. Scott Milton CAMPBELL, Defendant and Appellant.

No. C015667.

Court of Appeal, Third District, California.

March 30, 1994.

Certified for Partial Publication ^*

Review Denied June 29, 1994.

[23 Cal.App.4th 1490] Stephen Temko, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Cynthia G. Besemer and Janis Shank McLean, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Defendant Scott Campbell was convicted by jury of the second degree murder of Daniel Willis (Pen.Code, § 187; all subsequent undesignated section references are to the Penal Code). The jury also found that he personally used a shotgun during the murder (§ 12022.5, subd. (a)). He was acquitted of assaulting Robert McAlvain with a firearm (§ 245, subd. (a)(2)).

Following his sentence of 20 years to life in state prison (15 years to life on the murder conviction plus an upper consecutive term of 5 years for the gun-use enhancement), defendant appeals, contending: (1) he suffered ineffective assistance of counsel because his counsel's unawareness of a recent change in a statute led counsel inadvertently to open the door to evidence of defendant's violent conduct, which undermined his defense; (2) he was improperly impeached with a conviction for felony vandalism; (3) he was convicted on a standard of proof less than required by due process; (4) cumulative error denied him a fair trial; and (5) the trial court improperly aggravated the gun-use enhancement sentence. In an unpublished portion of this opinion, we conclude only defendant's last contention has merit. In this published portion of the opinion, we conclude defendant was properly impeached with a prior conviction for felony vandalism. We shall remand the matter for resentencing on the enhancement and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND ^**

DISCUSSION

I ^***

II

Defendant contends he suffered prejudice from the trial court's ruling that he could be impeached with a 10-year-old prior conviction for felony vandalism. (§ 594.) He asserts first that felony vandalism is not a crime of moral turpitude, second that even if it is such a crime the trial court should have excluded the evidence of his conviction under Evidence Code section 352 (§ 352). He finally asserts that the error was prejudicial under the Watson ⁶ standard. We conclude the trial court did not err by admitting the prior.

A. Moral turpitude.

Under Evidence Code 788, a defendant who testifies may be impeached with a prior conviction of any felony evincing moral turpitude, defined as the "general readiness to do evil." (People v. Castro (1985) 38 Cal.3d 301, 313-316, 211 Cal.Rptr. 719, 696 P.2d 111.) Only if "the least adjudicated elements of the conviction necessarily involve moral turpitude" is the conviction admissible for impeachment. (Id. at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)

The "least adjudicated elements" test means that "from the elements of the offense alone--without regard to the facts of the particular violation--one can reasonably infer the presence of moral turpitude." (People v. Thomas (1988) 206 Cal.App.3d 689, 698, 254 Cal.Rptr. 15, italics added; accord People v. White (1992) 4 Cal.App.4th 1299, 1303, 6 Cal.Rptr.2d 259; People v. Bautista (1990) 217 Cal.App.3d 1, 6, 265 Cal.Rptr. 661.) In other words, a court need not determine that a criminal statute could be violated only with evil intent in order to find that a conviction under that statute evinces moral turpitude, because it is possible to imagine a set of circumstances under which almost any statute might be violated without evil intent; only a " 'substantial assurance that the credibility of a witness is adversely affected by his having suffered [a] conviction' " for a given offense is required. (Thomas, supra, 206 Cal.App.3d at p. 698, 254 Cal.Rptr. 15, original italics, quoting Castro, supra, 38 Cal.3d at p. 313, 211 Cal.Rptr. 719, 696 P.2d 111.)

Defendant was convicted of felony vandalism in 1983 pursuant to section 594, which provided in relevant part at the time of the offense: "(a) Every person who maliciously (1) defaces with paint or any other liquid, (2) damages or (3) destroys any real or personal property not his own, in cases otherwise than those specified by state law, is guilty of vandalism. [p] (b)(1) If the amount of defacement, damage or destruction is one thousand dollars ($1,000) or more, vandalism is punishable by imprisonment for six months in the county jail, imprisonment in the state prison not to exceed one year and one day, a fine of five thousand dollars ($5,000), or both such fine and imprisonment." ⁷ (Stats.1982, ch. 1413, § 3, p. 5402, italics added.)

No published case has considered whether a felony conviction under section 594 evinces moral turpitude, as the trial court found. However, the trial court's ruling is supported by the language of the statute and by case law construing analogous statutes.

As defendant acknowledges, the term "maliciously," defining the requisite mens rea of the offense, "import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (§ 7.) Moreover, section 594, subdivision (a), which was enacted as section 594 in the original 1872 Criminal Code as a "preliminary catch-all provision" to what is now title 14 of the Criminal Code, dealing with malicious injury to property (2 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against Property, § 678, pp. 761-762), still follows the language of the original malicious-mischief statutes in specifying "malice" as the mens rea of the offense. "It is generally held that [the term 'malice' in such statutes] calls for more than mere intentional harm without justification or excuse; there must be a wanton and wilful (or 'reckless') disregard of the plain dangers of harm, without justification, excuse or mitigation." (Id. at p. 762.) Such a state of mind betokens that "general readiness to do evil" which constitutes moral turpitude. (See Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 38 Cal.3d 301.)

In arguing to the contrary, defendant first suggests that felony vandalism is not a specific-intent crime. Even assuming that is so, the distinction is irrelevant to the question of moral turpitude. "... [T]he distinction between general[-]intent and specific[-]intent crimes is at bottom founded upon a policy decision regarding the availability of certain defenses." (People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1081, 225 Cal.Rptr. 885; see also People v. Hood (1969) 1 Cal.3d 444, 456-457, 82 Cal.Rptr. 618, 462 P.2d 370 [difference between general and specific intent "only a linguistic one"].) It is not based on the premise that specific-intent crimes reveal moral blameworthiness while general-intent crimes do not, since the perpetrator of a general-intent crime may be found morally blameworthy. (Gutierrez, supra, 180 Cal.App.3d at p. 1084, 225 Cal.Rptr. 885.) Furthermore, numerous general-intent crimes have been held to evince moral turpitude. (See, e.g., White, supra, 4 Cal.App.4th at p. 1301, 6 Cal.Rptr.2d 259 [§ 246 (shooting at inhabited building) ]; People v. Brooks (1992) 3 Cal.App.4th 669, 671, 4 Cal.Rptr.2d 570 [§ 273d (corporal punishment of child resulting in trauma) ]; People v. Zataray (1985) 173 Cal.App.3d 390, 400, 219 Cal.Rptr. 33 [§ 207 (simple kidnapping) ].) ⁸

Defendant next asserts that the trial court "set too low a standard to decide whether a crime was one of moral turpitude." He bases this claim solely on the trial court's remark during argument on the issue: "I am going to have a very difficult time defining what crime does not involve moral turpitude, because any crime, anytime somebody even possesses marijuana, that is doing evil. Possessing marijuana is in this Court's judgment doing evil." (Italics added.) Correctly noting that simple possession of marijuana is not, in fact, a crime of moral turpitude (People v. Valdez (1986) 177 Cal.App.3d 680, 697, 223 Cal.Rptr. 149), defendant apparently construes the trial court's comment to mean that the court wrongly believed all felonies evince moral turpitude. However, even if the trial court did entertain such a view, it would not compel us to find that the court's ruling was error: it is axiomatic that we review the trial court's result, not its rationale. (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730-731, 284 Cal.Rptr. 687.) In any event, the comment quoted out of context by defendant does not support his conclusion. It is clear from the full context of the argument on this issue that the trial court understood the relevant legal standard, but was simply expressing its own feeling that the standard did not give the clearest possible guidance to lower courts.

Defendant next asserts that one cannot infer moral turpitude from a conviction under section 594 because that statute criminalizes spray-painting graffiti on another person's property or causing other "trivial" damage. (In re Trinidad V. (1989) 212 Cal.App.3d 1077, 1079, 261 Cal.Rptr. 39; People v. Kahanic (1987) 196 Cal.App.3d 461, 463, 465, 241 Cal.Rptr. 722.) There are two answers to this contention. First, the desecration of California's visual landscape by graffiti is not a "trivial" matter at all. Moreover, the statute under which defendant was convicted required the vandalism to result in at least $1,000 in damage. That amount of damage is not "trivial."

Taking up a suggestion offered in Castro, supra 38 Cal.3d at p. 316, fn. 11, 211 Cal.Rptr. 719, 38 Cal.3d 301, defendant next turns to federal immigration cases which have considered the issue of moral turpitude as to various offenses in the context of deportation proceedings. (See generally Annot., What...