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Evidence-Impeachment Law
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EVIDENCE-IMPEACHMENT LAW

Evidence--Impeachment Law Case Summaries
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■ People v. Cadogan , No. G040200

A jury convicted defendant Robert Lee Cadogan of forcible rape (Pen. Code § 261, subd. (a)(2)),[1] forcible oral copulation (§ 288a, subd. (c)(2)), attempted sodomy by use of force (§ 286, subd. (c)(2), § 664), and first degree residential burglary (§ 459).  The court sentenced defendant to 37 years to life in prison.  Defendant contends in his appeal that the court erred by admitting at trial evidence obtained at a conditional examination of his late wife, because defendant’s competency was in question at the time of the conditional examination.  Defendant also asserts the prosecution was unfairly allowed to attack his credibility with prior misdemeanor convictions. 

We reject both arguments and affirm the judgment.[2]  Trial courts have discretion to allow conditional examinations of dying witnesses to go forward, notwithstanding the suspension of criminal proceedings mandated by section 1368, subdivision (c).  The testimony taken at a conditional examination should be excluded from trial only if the defendant is subsequently found to have been incompetent at the time of the conditional examination.  Moreover, the court properly allowed the impeachment of defendant based on conduct involving moral turpitude.  Although defendant was improperly asked about his misdemeanor convictions rather than his prior conduct leading to misdemeanor convictions, defendant did not raise a timely hearsay objection to the prosecutor’s questions and is therefore foreclosed from seeking relief on appeal.  (People v. Wheeler (1992) 4 Cal.4th 284, 295-299 (Wheeler).)

FACTS

In the early morning hours of December 24, 2004, defendant entered the residence in which his victim was sleeping.  Defendant blocked the door of the room the victim was sleeping in, shoved a gloved hand in the victim’s mouth, and threatened to kill her.  Defendant put his penis in the victim’s mouth, attempted to penetrate her anus, and then inserted his penis into her vagina.  Defendant does not claim there was insufficient evidence to sustain any of his convictions, so we need not provide a comprehensive catalogue of the evidence presented at trial.  Instead, we will detail the relevant procedural history underlying defendant’s claims that certain evidence should have been excluded from his trial.

In February 2005, the court ordered criminal proceedings suspended based on defense counsel’s representation that he believed defendant might be mentally incompetent.  The court also ordered a psychological evaluation of defendant to occur.  In March 2005, the court received a report from a psychologist opining defendant was not competent to stand trial.  Defendant, however, refused to talk to the psychologist and insisted at the hearing he was competent to stand trial.  On that basis, the court appointed a second evaluation of defendant by a second psychologist.

In May 2005, the prosecution moved for a conditional examination of defendant’s wife, Paris Cadogan, on the grounds she was terminally ill with cancer and likely would not survive until trial.  Defendant opposed the motion, arguing the criminal proceedings had been suspended and the conditional examination should not go forward.  The court ordered the conditional examination to proceed:  “There’s no question that we may go through this exercise and ultimately the conditional exam not be admitted based on [defendant’s competency issues].  I absolutely agree with you.  On the other hand, if we don’t preserve the testimony it’s gone forever.”

The conditional examination of Mrs. Cadogan occurred on May 16, 2005.  Midway through the examination, defendant engaged in disruptive behavior and the court ordered defendant’s removal from the courtroom.  For the remainder of the conditional examination, defendant was locked in a holding cell in which he could listen to the examination while his counsel continued to participate.  Mrs. Cadogan provided testimony probative of defendant’s guilt.  For instance, she stated defendant fled from her home when the police arrived to question him, she described sexual characteristics of defendant matching testimony by the victim, and she explained defendant has a skin condition (vitiligo) which resulted in white patches on his hands and genitals (confirming the victim’s description).  Mrs. Cadogan died in June 2005.

The court granted several continuances of the civil competency trial in June and August 2005 to allow the prosecution time to have an expert examine defendant.  The court also granted a motion to compel defendant to submit to a psychological examination, based in part on defendant’s refusal to submit to previous attempts to examine him.  The court then granted two motions by defendant for continuances to retain new counsel.  The competency trial began in April 2006.  In May 2006, a jury found defendant to be competent to stand trial and the court reinstated criminal proceedings against defendant.

In July 2007, a second jury was impaneled and defendant’s trial on his alleged crimes began.  Defendant filed a motion seeking dismissal of the case based on the court having allowed the conditional examination despite the case having been suspended pursuant to section 1368, subdivision (c).  Defendant requested an evidentiary hearing in the written motion.  But at the hearing on the motion, defendant declined to present any new evidence, instead opting to submit his motion for dismissal based on his legal arguments.  The court denied defendant’s motion to dismiss and permitted the prosecution to play the videotape of Mrs. Cadogan’s conditional examination for the jury.

The court also allowed the prosecutor to cross-examine defendant concerning his criminal record.  The list of nine prior, out-of-state convictions included five misdemeanors and four felonies:  a misdemeanor conviction for forgery in 1984; a misdemeanor conviction for forgery in 1989; a felony conviction for theft in 1990; a misdemeanor conviction for possession of stolen property in 1994; a felony conviction for attempting to evade police in 1998; a misdemeanor conviction for possession of stolen property in 1999; a felony conviction for attempting to elude authorities in 2000; a misdemeanor conviction for theft in 2000; and a felony conviction for possession of stolen property in 2000.  Defendant objected before trial to the use of this evidence, claiming remote, out-of-state misdemeanors should not be used to impeach his credibility; the court overruled defendant’s objections.

Impeachment of Defendant with Misdemeanor Convictions

Defendant also claims the court erred by allowing the prosecutor to elicit testimony from defendant on cross-examination confirming he was convicted of five out-of-state misdemeanors — two counts of forgery, two counts of possession of stolen property, and one count of theft.  For each of the misdemeanors, the prosecutor asked the defendant whether he had been convicted of the crime, and the defendant responded affirmatively to each inquiry.  Defendant further suggests the error was compounded because the prosecutor refrained from identifying the convictions as misdemeanors; the prosecutor explicitly referred to four prior felony convictions as felonies, but did not specify the five misdemeanor convictions as either felonies or misdemeanors.[3]

“Misdemeanor convictions . . . are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion.”  (People v. Chatman (2006) 38 Cal.4th 344, 373; see also Wheeler, supra, 4 Cal.4th at pp. 295-299.)  “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.  (People v. Harris (2005) 37 Cal.4th 310, 337.)  Moral turpitude offenses “include[] crimes in which dishonesty is an element (i.e., fraud, perjury, etc.).”  (People v. Chavez (2000) 84 Cal.App.4th 25, 28.)

Here, defendant does not deny each of the misdemeanors used to impeach him involved moral turpitude.  (See, e.g., People v. Rodriguez (1986) 177 Cal.App.3d 174, 178-179 [theft and possession of stolen property]; People v. Parrish (1985) 170 Cal.App.3d 336, 349 [forgery].)  Nor does defendant claim the court abused its discretion under Evidence Code section 352 by allowing the impeachment of defendant based on his past conduct involving moral turpitude.  Instead, defendant claims the prosecutor improperly asked defendant whether he had been convicted of forgery, theft, and possessing stolen property, rather than asking defendant whether he had possessed stolen property, forged documents, and stolen personal property.

To analyze this issue, it is necessary to revisit why the fact of a misdemeanor conviction is inadmissible while the actual conduct which led to the misdemeanor conviction is (in the court’s discretion) admissible.  In Wheeler, supra, 4 Cal.4th 284, a case in which a key defense witness was impeached by asking her about a prior misdemeanor conviction (id. at pp. 288-289), our Supreme Court reaffirmed “the long-established understanding that a misdemeanor conviction comes within the statutory rule of inadmissible hearsay” (id. at pp. 298-299).[4]  The Wheeler court therefore found error in the admission of testimony confirming the existence of a prior misdemeanor conviction, but affirmed because the Wheeler defendant failed to object on hearsay grounds at trial.  (Id. at p. 300.)

Here, similarly, defendant was asked about prior convictions rather than prior conduct, without a hearsay objection being raised by defense counsel.  Defendant objected before trial to the use of the forgery, theft, and possession of stolen property misdemeanors on grounds of remoteness and the fact that the crimes were misdemeanors.  But defendant never raised a hearsay objection to the phrasing of the questions asked of defendant.  “A verdict shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:  [¶]  (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .”  (Evid. Code § 353, subd. (a).)  Defendant’s appeal of this issue is non-cognizable.  Had defendant raised a timely objection, the prosecutor could have rephrased her questions to ask defendant about past conduct bearing on his credibility rather than the fact that he had suffered specific misdemeanor convictions.  The lack of timely objections also dooms defendant’s claim of error in the prosecutor’s allegedly argumentative and prejudicial examination of defendant.

■ Held

Conviction for forcible rape and other crimes is affirmed where: 1) trial court did not err in admitting evidence obtained at a conditional examination of defendant's late wife as the court was exercising its inherent discretion in allowing the examination to proceed, and defendant was found to be competent at the time of the examination; and 2) the court properly allowed the impeachment of defendant based on his prior misdemeanor convictions involving moral turpitude, as defendant did not raise a timely hearsay objection when the prosecutor improperly asked about his misdemeanor convictions.
People v. Cadogan --5/20/09 CA4/3
People v. Cadogan --5/20/09 CA4/3-PDF

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