People v. Flemming CA3

Opinion

Filed 9/2/26 P. v. Flemming CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

THE PEOPLE, C102788 Plaintiff and Respondent, (Super. Ct. No. 19FE017955)

v.

JONATHAN FLEMMING, Defendant and Appellant.

A jury found defendant Jonathan Flemming guilty of first degree murder after a trial at which he testified in his own defense. On appeal, Flemming argues that the trial court erred in two respects when it allowed the prosecution to impeach his testimony with evidence of his prior juvenile adjudications. First, he claims that, while the conduct underlying a juvenile adjudication may be used to impeach, the fact of a juvenile adjudication may not. Second, Flemming contends that the trial court should have excluded the evidence of his prior juvenile adjudications under Evidence Code section 352.1 We conclude that Flemming forfeited his first argument by failing to object on that basis below. His second argument fails on the merits because the trial court could properly conclude that the evidence’s probative value was not substantially outweighed by its potential prejudicial effect.

1 Undesignated statutory references are to the Evidence Code.

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BACKGROUND

The People charged Flemming with murder (Pen. Code, § 187, subd. (a)) and alleged that he personally used a deadly and dangerous weapon in committing the offense (id., § 12022, subd. (b)(1)).

Before trial, the People moved in limine to admit for impeachment purposes Flemming’s three felony juvenile adjudications, sustained in September 2017, for receiving a stolen vehicle or equipment, carjacking, and assault by means of force likely to produce great bodily injury. The People argued that each of these offenses was a crime of moral turpitude. At a pretrial hearing, the trial court agreed that the prior offenses were crimes of moral turpitude and stated that they were “not too remote.” Defense counsel replied: “I would object under [Evidence Code section] 352 as not remote, but it’s simply because Mr. Flemming was very young, was very young at the time of the present alleged offense in this case. Looks like he was a juvenile at least for the 2017 carjacking – well, it indicates he did time in [j]uvenile [h]all, but the danger here is that if a jury hears an allegation of a carjacking and a force although not a strike, an allegation of a force likely, an incident, there’s a danger that they would have serious ill will against him just based upon those offenses or convictions alone and convict him based on those convictions irrespective of the facts in the current case. And so under [Evidence Code section] 352, I would state that the prejudice is too great and outweighs any probative value.”

The prosecutor responded: “They are fairly recent. There is a pattern of felonious activity by Mr. Flemming. I think the jury should know if he were to take the stand it is directly relevant to his credibility, these particular felony adjudications. If the Court or [defense counsel] would like to sanitize that, the People would be willing to call it a crime of moral turpitude or whatever. [Defense counsel] and I can come up with phrasing, but I believe the People should be able to impeach [Flemming] with these crimes should he take the stand.”

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The trial court ruled: “I am fully aware of my obligation under Evidence Code section 352, and in looking at these convictions, again, they are all crimes of moral turpitude. They do bear on [Flemming]’s believability and credibility should he decide to testify in this case. He should not be cloaked with a false aura of believability and credibility having committed these crimes which bear specifically on his credibility and believability as a witness, so under Evidence Code section 352, I find these convictions to be substantially more probative than prejudicial as to the issue of his credibility, and I would permit the People to use them to impeach [Flemming] should [he] decide to testify in this case.”

Flemming testified at trial. Defense counsel asked Flemming, “back in 2017 you had – right around that time you had a couple of problems with the law; right?” Flemming answered affirmatively. On cross-examination, the prosecutor asked Flemming, “One of the questions your attorney asked you, I think he said something to the effect of you’ve had some previous run-ins with the law, but in fact, in 2017 you were previously convicted of three separate felonies involving moral turpitude; correct?” Flemming answered yes. Defense counsel made no objection.

The jury found Flemming guilty of first degree murder and found true the weapon enhancement. The trial court sentenced him to 25 years to life for murder plus one year for the weapon enhancement.

Flemming timely appealed.

DISCUSSION

I.

Flemming argues that the trial court erred by admitting evidence of his prior juvenile adjudications to impeach his testimony. Citing People v. Sanchez (1985) 170 Cal.App.3d 216 and People v. Lee (1994) 28 Cal.App.4th 1724, he submits that the conduct underlying his juvenile adjudications was admissible to impeach but that the adjudications themselves could not be admitted for that purpose.

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We agree with the Attorney General that Flemming forfeited this claim by failing to object on these grounds in the trial court. “[A] challenge to the admission of evidence is not preserved for appeal unless a specific and timely objection was made below.” (People v. Anderson (2001) 25 Cal.4th 543, 586.) “[A]n ‘ “objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” ’ [Citations.] A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.” (People v. Marks (2003) 31 Cal.4th 197, 228.) Here, Flemming’s sole objection to the evidence came at a pretrial hearing at which Flemming argued that “the prejudice is too great and outweighs any probative value” under section 352. Flemming did not argue, as he does now, that the prior juvenile adjudications were inadmissible to impeach because they did not qualify as prior convictions or that only the conduct underlying those adjudications, and not the adjudications themselves, could be admitted. Nor did Flemming object to the phrasing of the question when the prosecutor asked him whether he had been “previously convicted of three separate felonies involving moral turpitude.” Accordingly, Flemming has forfeited this claim on appeal.

This conclusion is consistent with the reasons underlying the requirement that parties make specific and timely objections. As courts have explained, “ ‘[t]he objection requirement is necessary in criminal cases because a “contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his [or her] trial secure in the knowledge that a conviction would be reversed on appeal.’ ” ’ ” (People v. Myles (2021) 69 Cal.App.5th 688, 696, quoting People v. Partida (2005) 37 Cal.4th 428, 434.) Here, had Flemming timely objected on the grounds now asserted, the prosecutor could have introduced evidence of

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Flemming’s prior conduct or reformulated his question when conducting his cross- examination.

Flemming also urges us to reach the merits of his claim, even if we conclude that it is forfeited. We decline to do so. (§ 353, subd. (a) [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] [t]here 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”]; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [although “[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party[,] … it is in fact barred when the issue involves the admission [citation] or exclusion [citation] of evidence”].)

II.

Flemming alternatively contends that the trial court abused its discretion in admitting evidence of his juvenile adjudications under section 352.

“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.) Section 352 authorizes a trial court to “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.” “[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad.” (People v. Wheeler (1992) 4 Cal.4th 284, 296, fn. omitted.)

A trial court’s admission of impeachment evidence under section 352 is reviewed for abuse of discretion. (People v. Johnson (2015) 61 Cal.4th 734, 766.) “Because the

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court’s discretion to admit or exclude impeachment evidence ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises’ [citation], a reviewing court ordinarily will uphold the trial court’s exercise of discretion.” (People v. Clark, supra, 52 Cal.4th at p. 932.) The admission of impeachment evidence will be reversed only if the trial court “ ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)

Emphasizing that he was only 16 years old when he committed the acts leading to his juvenile adjudications, Flemming maintains that the trial court “misweighed the competing section 352 considerations” and failed to consider “recent developments in brain science [that] call into question the value of juvenile misconduct or adjudications as proof of moral turpitude.” In his view, juvenile misconduct should be understood as attributable to a minor’s immaturity and not reflective of a trait of dishonesty.

We perceive no abuse in the trial court’s exercise of its discretion. Flemming does not dispute that the offenses at issue were crimes of moral turpitude; and he did not argue below that his youth diminished the relevance of his prior adjudications as impeachment evidence. At the hearing, Flemming noted his young age at the time of the charged offense and the fact that his prior offenses were committed when he was a juvenile, but his section 352 argument centered on his contention that admission of the prior adjudications for carjacking and assault would result in significant undue prejudice. In ruling, the court explained that the evidence did “bear on [Flemming]’s believability and credibility” and concluded that it was “substantially more probative than prejudicial as to the issue of his credibility.” On the record before the trial court, we discern nothing irrational or arbitrary in this reasoning.

Finally, Flemming contends that the admission of his prior adjudications resulted in a fundamentally unfair trial and violated his due process rights. To the extent this claim is premised on the unpreserved evidentiary issue discussed above, this due process

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argument is also forfeited. (See People v. Partida, supra, 37 Cal.4th at p. 431 [“To the extent … [the defendant] argues that due process required the court to exclude the evidence for a reason not included in the trial objection, that argument is forfeited because he did not object to the evidence on that basis at trial”].) Insofar as Flemming contends that the erroneous admission of the evidence under section 352 violated his due process rights, we reject this contention. (See People v. Riccardi (2012) 54 Cal.4th 758, 809 [“The routine and proper application of state evidentiary law does not impinge on a defendant’s due process rights”], abrogated on another ground by People v. Rangel (2016) 62 Cal.4th 1192.)

DISPOSITION

The judgment is affirmed.

/s/ FEINBERG, J.

We concur:

/s/ EARL, P. J.

/s/ RENNER, J.