Wednesday, May 12, 2010
Court: ‘Moral Turpitude’ Can Be Defined as ‘Evil’
By STEVEN M. ELLIS, Staff Writer
A defendant’s request to refer to his prior assault-with-a-deadly-weapon conviction simply as a generic felony involving “moral turpitude” opened the door to an instruction that the term meant “a readiness to do evil,” the Third District Court of Appeal ruled yesterday.
A three-justice panel reasoned there was no error where the instruction set forth a definition adopted by the state’s high court and the jury was instructed that Bansa Douangpanya’s two prior felony convictions were only relevant to his credibility as a witness.
The justices also said that the strategy of “sanitizing” Douangpanya’s convictions, while perhaps an incorrect tactical choice in hindsight, was neither uncommon nor improper and therefore not ineffective assistance of counsel.
Douangpanya was charged with assault with a deadly weapon after he broke a beer bottle over the head of another man during a February 2008 fight on a sidewalk in front of a Sacramento dance club.
He planned to testify at trial, but had previously been convicted of two felonies in 2003 and 2005, including receipt of stolen property and a prior conviction for assault with a deadly weapon.
Anticipating that the convictions would be raised to challenge Douangpanya’s credibility, his attorney attempted to avoid naming them specifically, asking that they be referred to generically as felonies involving “moral turpitude.”
The prosecution agreed to the request and, at trial before Sacramento Superior Court Judge Delbert W. Oros, Douangpanya conceded during cross-examination that he had been convicted of two felonies involving moral turpitude.
Before the jury retired to deliberate, however, one juror asked the court to define the term’s meaning, so Oros conferred with counsel out of the jury’s presence. Upon returning, he explained that he was adopting language from the California Supreme Court’s opinion in People v. Castro (1985) 38 Cal.3d 301 that moral turpitude constituted “a readiness to do evil.”
Douangpanya’s counsel objected that the definition, specifically the word “evil,” had “some very emotional connotations for certain people, and could mean such a variety of things that it is a highly provocative term.” She argued that the court should “use something that more reflected dishonesty or something of that nature,” but Oros denied the request.
Douangpanya appealed after he was found guilty, asserting that the instruction predisposed the jury to see him as an “evil” man.
Justice Ronald B. Robie, however, wrote that Oros did not err.
“Defendant opened up the issue of what moral turpitude means by requesting the priors be ‘sanitized’ and agreeing to the terminology,” he said. “It is not particularly surprising that members of the jury were not clear what ‘moral turpitude’ meant. After conferring with counsel, the court provided the jury with a correct definition…, a definition consistent with that provided by this state’s highest court.”
Robie noted that both the prosecution and the defense advised the jury that Douangpanya’s convictions only related to his credibility, and he rejected Douangpanya’s ineffective assistance claim.
The justice wrote that Douangpanya provided “no authority, nor are we aware of any, to support his claim that inclusion of the moral turpitude language was in any way improper.” He also pointed out in a footnote that the practice of requesting that prior convictions be “sanitized” is “not uncommon and well-intentioned when accepted by the court.”
But, he added, “as is shown…, it often makes more sense to simply to refer to a prior conviction as what it in fact is.”
Justices Coleman Blease and George Nicholson joined Robie in his opinion.
The case is People v. Douangpanya, 10 S.O.S. 2471.
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