P. v. Pham CA4/3

Filed 3/15/13 P. v. Pham CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046219

v. (Super. Ct. No. 09CF0553)

DUNG MY PHAM, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
 Dung My Pham appeals from a judgment after a jury convicted her of theft
with prior convictions. Pham argues there were two evidentiary errors. We disagree and
affirm the judgment.
FACTS
Pham bought a Yorkshire Terrier from The Puppy Store (the Store) in the
Mainplace Mall (the Mall). The owners Boris Jang and Jisun Lee obtained her contact
information.
About one week later, Pham, her sister, Yen Chu, Pham‟s daughters, and a
couple friends went to the Mall. Pham and Chu went to Nordstrom and the girls went to
the Store. One of the girls called Chu because the Store does not permit unaccompanied
minors to play with the dogs. Chu arrived at the Store first and then Pham, who was
carrying her purse and a Nordstrom bag.
After Pham left, Lee noticed four items of puppy clothing, worth a total
value of $109, were missing. Jang and Lee watched the surveillance video. The video
showed Pham place the items in the Nordstrom bag and leave the Store without paying
for the items.
Jang called Pham‟s cellular telephone. Jang told Pham the video showed
her stealing and he asked her to return the items. Pham denied pinching puppy apparel.
Jung told Pham that if she did not return the garb, he would call the police. Pham said,
“„Okay‟” and hung up.
About 10 minutes later, Pham returned to the Store without the items or the
Nordstrom bag. Pham again denied she took anything. Jang replied the video showed
Pham taking the items and he was calling the police. Pham maintained her innocence and
claimed it was a misunderstanding.
Mall security detained Pham while Jang called the police. Chu returned to
the Store and offered to pay for the items. Lee told Chu she wanted the items returned
and not money. Chu brought back three of the items and later the fourth item.

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 When Officer Daniel Serna responded to the Store, Jang and Lee showed
Serna the video. Serna arrested Pham, who waived her rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436. Pham told Serna she took the items to surprise
her daughter but forgot to pay for them. Pham never stated Chu took the items
accidentally, although she later made that claim at trial.
Serna asked Lee for a copy of the video. Lee, who thought she was
copying the entire incident, copied it onto a compact disk (the CD). Serna took the
CD and booked it into evidence.
Several months later, Serna, Jang, and Lee watched the video. They
discovered the CD did not contain the entire incident. The CD did not show Pham
leaving the Store.
An information charged Pham with second degree commercial burglary
(Pen. Code, §§ 459, 460, subd. (b)) (count 1) and theft with prior convictions (Pen. Code,
§§ 666, 484, subd. (a), 488) (count 2). The information alleged Pham suffered theft
convictions in 1996, 1998, 2002, and 2008.
At a proceeding before trial, Pham‟s defense counsel explained there was
allegedly a CD that shows Pham taking merchandise from the Store and leaving but the
CD the police had did not show that. Counsel stated Jang told his investigator that he had
another copy of the CD but he would not give it to him. Jang, who was present in the
courtroom in response to a subpoena duces tecum, testified under oath he had searched
everywhere but could not find the CD. Jang explained he had seen the footage of the
entire incident on the computer but he had not seen the CD that Lee made pursuant to
Serna‟s request. Jang said they could not retrieve the incident from the computer because
it is only stored for 30 days.
Months later, Pham filed a motion to exclude admission of the video and to
dismiss the case. Pham also filed a motion to exclude evidence of her prior convictions.
At a hearing, Pham admitted she suffered her prior convictions. The trial court stated

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they were deemed admitted and the prosecutor was not to mention them unless Pham
testified and they were offered to impeach.
The trial court conducted an Evidence Code section 402 hearing on
admission of the video and testimony concerning the video. The prosecutor stated “the
crux of the case is the video.” Pham‟s defense counsel stated the CD does not show
when Pham entered and exited the Store. Counsel explained this was important to the
defense because witness testimony conflicts with Serna‟s testimony as to whether Pham
entered the Store alone or with Chu and a child. Counsel also explained the end of the
footage was crucial because it was Chu who left with the Nordstrom bag, not Pham. The
prosecutor explained Jang and Lee had the surveillance system in the Store for just two
months and this was only the second time they attempted to record footage onto a CD.
He stated that after they played the footage for themselves, Serna, and other employees,
they tried to copy the footage onto a CD. The prosecutor asserted there was no evidence
of intentional wrongdoing. He said, “the best explanation is [Jang] somehow screwed it
up accidentally.” The prosecutor claimed witnesses could testify as to what they saw on
the video. The prosecutor responded to the court the reliability issue was one for the jury.
The trial court watched the video as counsel discussed what was occurring. After
watching the video, the court mused it was his opinion Pham knelt down and put
merchandise in the Nordstrom bag and Chu moved in front of the bag.
Defense counsel then called numerous witnesses. Tara R., who was a
friend of Pham‟s daughter, testified Pham left with her daughter but she did not have a
Nordstrom bag. Tara stated Chu left with the bag.
Serna testified he watched the video two or three times. He said Pham
entered the store with her daughter and Chu and left with her daughter and Chu. Serna
stated Pham carried a Nordstrom bag when she entered the Store and when she left the
Store. Serna asked Lee to copy the footage, which she did while Serna was interviewing
witnesses, and Lee gave the CD to Serna. Serna booked the CD into evidence the same

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day, following standard procedures. On cross-examination by the prosecutor, Serna
testified he was not sure Pham entered the Store with her daughter and Chu. The
prosecutor asked the video be played and directed Serna‟s attention to the 3:15 mark.
The following colloquy occurred:
“[Prosecutor]: I will start playing. When you see what appears to be
[Pham] enter the store, just let us know and we will stop.
“[Serna]: Okay. [¶] . . . [¶]
“[Serna]: That is [Pham] walking inside the [S]tore with her
Nordstrom bag.
“[Prosecutor]: Okay. And just for the record, that was about
approximately the three minute to three minute 20 second mark, channel one.
[¶] Officer, you saw her enter alone here, correct, on the footage you just viewed?
“[Serna]: That‟s correct.
“[Prosecutor]: So is it safe to say that based on what you saw, she did not
enter the [S]tore with her sister and daughter simultaneously?
“[Serna]: That‟s correct.
“[Prosecutor]: But at some point you do see -- at some point on March 1st
when you viewed the video footage did you see [Pham] interact inside the [S]tore with
the person who‟s been identified as her sister to you and her daughter?
“[Serna]: That‟s correct.
“[Prosecutor]: Is that what you meant by that passage in your report when
you saw her enter with those two?
“[Serna]: Yes.”
An evidence supervisor with the Santa Ana Police Department testified
concerning standard evidence chain of custody procedures and specifically the chain of
custody for the CD.

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 Lee testified Pham entered the Store alone, but she did not see Pham leave
because she was in the back of the Store. She explained that based on her recollection of
the video, Pham left with everyone else. Lee then explained how she copied the footage
onto CDs, one for Serna, one for mall security, and one for herself. She had said it was
her second time copying footage onto a CD. Lee believed she copied the entire incident
from the time Pham entered the Store to the time she left. She stated that about a year
later she learned the CD did not show Pham leaving the Store.
Jang testified he reviewed the surveillance footage. He saw Pham place
merchandise in the Nordstrom bag and leave the Store with the bag. Jang stated that
about one year later, he searched for a copy of the CD but he could not find it. Jang
stated they still had the surveillance equipment.
Nick Morrow, a defense investigator, testified Jang told him to get a copy
of the CD from the police. Jang also told him they replaced the surveillance equipment.
A forensic audio video analyst testified for the defense that to record from a
hard drive the person must simply establish the time parameters and the machine will
record.
Pham‟s defense counsel argued Serna was not credible because there was
conflicting evidence as to whether Pham entered the Store alone and who left with the
Nordstrom bag. Counsel also asserted Serna had a duty to ensure the CD contained the
entire incident. Counsel argued admission of the CD would violate Pham‟s due process
rights to a fair trial. The prosecutor replied Serna performed his duties by watching the
video, gathering the evidence, and complying with standard evidentiary chain of
command procedures.
The trial court explained Lee made the CD not Serna and Serna complied
with what was standard procedure in viewing the video and collecting the CD. The court
stated the CD showed Pham kneeling down and placing merchandise in the

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Nordstrom bag and what appeared to be Chu blocking Pham from detection. The court
opined it was a jury issue and stated it would not exclude evidence based on what might
or might not be on the CD.
The trial court granted Pham‟s defense counsel‟s request to be heard
further. Counsel argued that to allow a witness to testify concerning what was on the
complete video was hearsay. The court replied it had anticipated that issue and had been
researching the issue. The court stated a video was a writing under the Evidence Code
and the issue was whether a person testifying about their observations of the video was
hearsay. The court indicated counsel should be ready to proceed on another Evidence
Code section 402 hearing the following afternoon.
Pham filed a motion to exclude the CD and all witness testimony
concerning the CD. She argued the following: (1) the CD included only a portion of the
incident; (2) the CD was not the “best evidence” of what occurred; (3) witness testimony
concerning what the footage showed was hearsay; (4) the CD was not properly
authenticated; and (5) admission of the CD violated her due process rights and right to a
fair trial. Apparently because of time constraints, counsel was not able to flesh out her
arguments in his motion. But counsel did argue that although the Evidence Code permits
a witness to testify as to the contents of a CD, it violated due process to permit a witness
to testify only to selective portions of the CD.
The prosecutor filed a motion to admit the video and witness testimony
concerning the video. The prosecutor argued the CD was not inadmissible hearsay
because it was not intended to convey a particular meaning to another person. The
prosecutor asserted witness testimony regarding the CD was proper lay opinion testimony
on the issue of the perpetrator‟s identity.
At the Evidence Code section 402 hearing, the trial court indicated it had
reviewed counsels‟ briefs and conducted a significant amount of research on the issues
before the court. Pham‟s defense counsel argued that if the court admitted the CD it was

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admitting the evidence that demonstrated guilt but excluding the exculpatory evidence.
Counsel asserted the CD was deliberately altered to delete exculpatory evidence. The
prosecutor argued Pham could call witnesses who would testify Pham did not leave the
Store with the Nordstrom bag, and defense counsel could make that argument to the jury.
The prosecutor asserted surveillance video is routinely admitted because it is not hearsay.
Recognizing the prosecutor authenticated the CD pursuant to the Evidence Code, defense
counsel argued the CD was incomplete and thus unreliable. The prosecutor countered
courts have previously admitted into evidence “snippet[s] of the surveillance footage.”
The trial court explained it spent a great deal of time researching and
considering the issue. The court began with an Evidence Code section 352 analysis.
Pursuant to the Evidence Code and People v. Hawkins (2002) 98 Cal.App.4th 1428, the
court concluded the CD was not hearsay. With regard to the secondary evidence rule, the
court framed the issue as follows: “This relates to the propriety of a witness testifying to
the contents of a writing, which is generally precluded under the secondary evidence rule
as set out in [Evidence Code] [s]ection 1520 . . . unless the writing has been admitted,
and in this particular instance video has been admitted . . . .” The court stated “the actual
video is the original, not the CD.” The court reasoned witnesses could testify as to what
they observed on the original footage because the original footage was lost or destroyed
without fraudulent intent. The court ruled the CD was admissible at trial but that its
ruling was tentative.
Pham‟s defense counsel continued to object on Evidence Code section 352
grounds. The trial court explained it had done the balancing test as required by
Evidence Code section 352 and determined the CD was relevant and its admission
prevented multiple witnesses from testifying they saw Pham leave the Store with the
Nordstrom bag. The court added the CD was not confusing or misleading. The court
concluded the weight to be given the CD was an issue for the jury. The court patiently
allowed defense counsel to make a statement but the court‟s tentative decision went

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undisturbed. Before the prosecutor‟s first witness testified, Pham renewed her objection
to admission of the CD on the grounds she argued earlier.
At trial, Serna testified he observed the video and it showed the following:
After Pham spoke with the Store owners and employee, Pham walked through the store.
As she picked up merchandise, she looked from side to side. Pham then placed
merchandise in a Nordstrom bag. Pham left the Store with the Nordstrom bag without
paying for the merchandise.
Pham offered testimony that while she was standing near the puppy
playpen area she put the Nordstrom bag on the floor, and her daughter wanted to get
something to eat, she left the Nordstrom bag in the Store but Chu took the bag. There
was evidence Pham had $11,000 cash in her purse.
Pham‟s daughter, Victoria N., testified Pham was talking on her cellular
telephone when they went to eat. When defense counsel asked Victoria what Pham said
to Chu when she had finished the call, the prosecutor objected on hearsay grounds, and
there was a sidebar. Defense counsel‟s offer of proof was Victoria would testify to the
following: “[Pham] got off the phone and said that was the . . . [S]tore that called. You
took the bag without paying for the stuff. I told you to stay there with the bag. Why did
you take the bag?” The court‟s tentative ruling was that it was admissible as an excited
utterance. The court took a recess to allow counsel to research the issue.
After the recess and out of the presence of the jury, the trial court indicated
it wanted to hear Victoria‟s testimony before hearing argument and making its ruling.
Victoria testified that after the telephone call, Pham said to Chu, “„[W]hy did you leave
the bag. I told you to stay at the store with the bag.‟” Victoria added that Pham asked
Chu if she paid for the puppy clothes. The trial court asked counsel whether Pham‟s
statements were excited utterances. Defense counsel argued because it was spontaneous,
it was not self-serving. The prosecutor argued Pham‟s statements were self-serving
because they attributed blame to Chu. After the court indicated it was going to allow the

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testimony because it was an excited utterance, the prosecutor sought to admit Pham‟s
prior convictions pursuant to Evidence Code section 1202 and People v. Jacobs (2000)
78 Cal.App.4th 1444 (Jacobs). After reading Jacobs and hearing argument, the court‟s
tentative ruling was to allow the prosecutor to impeach Pham with her prior convictions if
Victoria testified concerning what Pham said to Chu after the telephone call. The court
continued the matter to give defense counsel additional time to research the issue.
At the continued hearing, the trial court stated it had thoroughly researched
the issue and considered the prosecutor‟s written motion. The prosecutor argued that
pursuant to Jacobs, the prosecutor may impeach a declarant with prior convictions,
subject to an Evidence Code section 352 analysis. Defense counsel argued Jacobs could
be distinguished because it did not involve an excited utterance. After the court
discussed Jacobs, the court indicated Pham made a spontaneous and potentially
exculpatory statement in Victoria‟s presence. The court opined Pham‟s statements
amounted to a denial of the charges and she was not testifying. The court explained her
prior convictions were for theft, the same type of offenses charged here. With respect to
Evidence Code section 352, the court ruled Pham‟s statements were admissible as
spontaneous statements pursuant to Evidence Code section 1240. The court reasoned that
Pham‟s prior convictions would not consume undue time and were not misleading. The
court explained the prior convictions were prejudicial but everything is prejudicial to a
defendant. The court opined the relevance of the prior convictions was not substantially
outweighed by undue prejudice because the prior convictions were highly relevant in that
they were of the same type of offense as the charged offenses. The court ruled Victoria
could testify as to what Pham said after she ended the call, but the prosecutor could
impeach Pham with her prior convictions. Characterizing it as a “Hobbesian [sic]
choice,” defense counsel indicated he would not question Victoria about Pham‟s
statements.

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 The jury convicted Pham of count 2 but acquitted her of count 1. The trial
court sentenced Pham to two years in jail.
DISCUSSION
I. Admission of CD
Pham raises numerous contentions in arguing the trial court erred in
admitting the CD and permitting witnesses to testify as to its contents. We will address
each in turn.
A. Authentication
Pham argues the CD was not properly authenticated. Not so.
At the Evidence Code section 402 hearing, Pham‟s defense counsel stated,
“Under Evidence Code [section] 205, the prosecutor has authenticated it, but I am going
to get beyond that.” We assume defense counsel misspoke when he referred to Evidence
Code section 205, which is the definition of real property, and meant to refer to Evidence
Code section 250, which is the definition of a writing. Nevertheless, Pham conceded the
prosecutor properly authenticated the CD. Thus, Pham has forfeited appellate review of
the issue. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) In any
event, there was sufficient evidence the CD was what the prosecutor claimed it was.
(Evid. Code, § 1400.)
Jang and Lee testified the Store had a surveillance system. They were able
to watch the footage on a computer monitor and record the footage onto a CD. Lee
testified she had recorded footage onto a CD once before. Jang and Lee also testified
they knew Pham as she had previously bought a puppy at the Store. And they both
identified Pham in court and on the CD. Finally, Serna identified Pham in court and on
the CD. What Pham was really disputing below was that the CD did not include the
entire incident, namely the end of the encounter when someone, allegedly Chu, picked up
the Nordstrom bag from the floor and walked out of the Store. The inconsistencies in
Serna‟s testimony go to his credibility as a witness to recall the events on the CD and not

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whether the CD was what the prosecutor claimed it was. Thus, there was sufficient
evidence to authenticate the CD.
B. Secondary Evidence Rule
Pham contends the trial court erred in admitting the CD because it violated
the secondary evidence rule. In her moving papers, Pham initially asserted “this
truncated video is not the „[b]est [e]vidence‟ of what actually occurred[.]” But she went
on to claim that pursuant to Evidence Code section 1520 et seq., witness testimony
should not be admitted to prove the contents of the incomplete CD. When the trial court
framed the issue as one involving the correctness of witness testimony to prove the
contents of the original footage, and not the CD, Pham‟s defense counsel was silent. We
note that on appeal the Attorney General falls into the trap and discusses whether
admission of the CD rather than the admission of the testimony was proper. We will
limit our discussion to the correctness of the actual basis upon which the trial court ruled.
A video recording is a “writing” for purposes of the secondary evidence
rule. (People v. Panah (2005) 35 Cal.4th 395, 475.) Under the secondary evidence rule,
Evidence Code section 1521, “(a) The content of a writing may be proved by otherwise
admissible secondary evidence. The court shall exclude secondary evidence of the
content of writing if the court determines either of the following: [¶] (1) A genuine
dispute exists concerning material terms of the writing and justice requires the exclusion.
[¶] (2) Admission of the secondary evidence would be unfair. [¶] (b) Nothing in this
section makes admissible oral testimony to prove the content of a writing if the testimony
is inadmissible under [Evidence Code] [s]ection 1523 . . . .”
Evidence Code section 1523, subdivision (a), states the general rule that,
“(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the
content of a writing.” However, Evidence Code section 1523 also provides for several
exceptions to the general rule: “(b) Oral testimony of the content of a writing is not made
inadmissible by subdivision (a) if the proponent does not have possession or control of a

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copy of the writing and the original is lost or has been destroyed without fraudulent intent
on the part of the proponent of the evidence. [¶] (c) Oral testimony of the content of a
writing is not made inadmissible by subdivision (a) if the proponent does not have
possession or control of the original or a copy of the writing and either of the following
conditions is satisfied: [¶] (1) Neither the writing nor a copy of the writing was
reasonably procurable by the proponent by use of the court‟s process or by other
available means. [¶] (2) The writing is not closely related to the controlling issues and it
would be inexpedient to require its production.”
Here, the trial court properly concluded witnesses could testify as to what
they observed on the original footage. It is clear the original footage was lost as the
surveillance system stored it for only 30 days. And Pham offers no evidence Serna, Lee,
or Jung fraudulently intended to copy onto the CD only a portion of the incident. There
was evidence both Serna and Jung were not in the back office when Lee tried to record
the original footage onto a CD. Additionally, Lee testified it was only her second time
recording footage. Based on this evidence, it was certainly reasonable for the trial court
to conclude Lee‟s failure to record the entire incident was an accident and not done with
fraudulent intent. Thus, admission of witness testimony concerning the contents of the
original footage did not violate the secondary evidence rule.
C. Evidence Code section 352
Pham claims the CD was not relevant because it was only a “snapshot” of
the incident, it was misleading, and it was prejudicial. We disagree.
Evidence Code section 350 states: “No evidence is admissible except
relevant evidence.” Relevant evidence is “evidence . . . having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) Although “„there is no universal test of relevancy, the
general rule in criminal cases [is] whether or not the evidence tends logically, naturally,

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and by reasonable inference to establish any fact material for the prosecution[.]‟”
(People v. Freeman (1994) 8 Cal.4th 450, 491.)
Evidence Code section 352, however, authorizes a trial court to exclude
relevant evidence. “The court in its discretion may 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.” (Evid. Code, § 352.) For purposes of
Evidence Code section 352, prejudice means “„evidence that uniquely tends to evoke an
emotional bias against a party as an individual, while having only slight probative value
with regard to the issues. [Citation.]‟” (People v. Heard (2003) 31 Cal.4th 946, 976.)
We review a trial court‟s rulings for an abuse of discretion.
Here, the trial court properly performed the balancing test required by
Evidence Code section 352 and concluded the CD was admissible. The CD was certainly
relevant to the proceedings. It was an accurate, albeit incomplete, recording of what
transpired at the Store that day. And it was not misleading or confusing. It showed what
transpired from the time Pham entered the Store to the time before she left. The jury
would not be confused by the CD; it would simply have to determine based on other
evidence whether Pham or Chu left the Store with the Nordstrom bag. Finally, admission
of the CD was not unduly prejudicial. Although the CD was damaging, it would not
evoke an emotional bias against Pham, and it had substantial probative value. Thus,
Evidence Code section 352 did not require exclusion of the evidence.
D. Due Process
Pham argues admission of the CD violated her due process rights and right
to a fair trial. Not so.
“„Ordinarily, even erroneous admission of evidence does not offend due
process unless it is so prejudicial as to render the proceeding fundamentally unfair.‟ . . .
[¶] „To prove a deprivation of federal due process rights, [a defendant] must satisfy a

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high constitutional standard to show that the erroneous admission of evidence resulted in
an unfair trial.‟ [Citation.] „“The dispositive issue is . . . whether the trial court
committed an error which rendered the trial „so “arbitrary and fundamentally unfair” that
it violated federal due process.‟ [Citations.]” [Citation.]‟ [Citation.]” (People v.
Covarrubias (2011) 202 Cal.App.4th 1, 20.)
As we explain above, the trial court properly concluded the CD was
relevant and that its admission was not misleading or unduly prejudicial. Thus, its
admission did not violate Pham‟s constitutional rights.
II. Admission of Prior Convictions
Pham contends the trial court erred in ruling the prosecutor could impeach
Pham with her prior convictions if Pham introduced an exculpatory hearsay statement.
We disagree.
In Jacobs, supra, 78 Cal.App.4th at page 1446, footnote omitted, the court
held “that a defendant‟s prior felony convictions are admissible under . . . [Evidence
Code] sections 1202 and 788 to attack his credibility when, at his own request, his
exculpatory statement to the police is admitted into evidence, but he does not testify at
trial.” The court reasoned that because the defendant had offered his out-of-court
statement into evidence, Evidence Code section 1202 entitled the prosecution to impeach
defendant as though defendant had testified to it on the stand. (Jacobs, supra, 78
Cal.App.4th at pp. 1449-1450.) The court stated that because defendant‟s prior
convictions were felonies, Evidence Code section 788 made them specifically admissible
to impeach his credibility. (Jacobs, supra, 78 Cal.App.4th at p. 1449.)
In People v. Little (2012) 206 Cal.App.4th 1364 (Little), another panel of
this court approved of the Jacobs court‟s reasoning. The Little court stated: “We see no
reason to depart from the reasoning of . . . Jacobs, supra, 78 Cal.App.4th 1444. As the
appellate court in Jacobs observed, if [defendant] had chosen to testify, Evidence Code
section 788 would have permitted the prosecution to challenge his credibility with prior

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conviction evidence. [Citation.] Should he have been allowed to avoid a challenge to his
credibility, and undercut the operation of [Evidence Code] section 788, by the simple
device of putting on exculpatory hearsay evidence without taking the witness stand?
[¶] Evidence Code section 1202, upon which the Jacobs court also relied, closes the door
on any such chicanery.” (Little, supra, 206 Cal.App.4th at p. 1375, fn. omitted.)
We conclude the reasoning in Jacobs and Little is sound. If Pham had
testified, the prosecutor could have challenged her credibility with her prior convictions
pursuant to Evidence Code section 788. Pham sought to admit an exculpatory statement
via an excited utterance. Evidence Code section 1202 permitted the prosecutor to
challenge Pham‟s credibility with her prior convictions like the prosecutor would have
been able to do if she testified.
Pham raises a few additional points. First, she claims the concerns present
in Jacobs are not present here as there is “no gamesmanship” involved. We disagree.
Before trial, Pham admitted her prior convictions and without testifying, tried to get
before the jury an exculpatory statement. This is a textbook example of gamesmanship.
Second, Pham, without citing to any authority or any reasoned argument,
argues Jacobs should not apply when a defendant seeks to admit a spontaneous
exculpatory statement. We discern no reason for drawing a distinction between a
spontaneous exculpatory statement and other out-of-court statements, i.e., defendant‟s
out-of-court statement to an officer in Jacobs, and an exculpatory alibi declaration in
Little.
Finally, Pham claims the trial court erred in its Evidence Code section 352
analysis. Contrary to Pham‟s claim otherwise, her convictions were not of “slight
probative value.” They were of great probative value as to her credibility. The issue is
whether they were unduly prejudicial, which they were not. Courts routinely admit prior
conviction to impeach a testifying defendant. Although they were ultimately not
admitted into evidence, the court likely would have limited the evidence to the fact she

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suffered prior theft convictions and likely limited the number of convictions Pham
suffered. Thus, the trial court properly ruled that if Pham introduced an exculpatory
hearsay statement the prosecutor could impeach Pham with her prior convictions.
DISPOSITION
The judgment is affirmed.

O‟LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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