*1 No. 20031. May [Crim. 1979.] PEOPLE,
THE Plaintiff and Respondent, FRIES,
JAMES PAUL Defendant and Appellant.
Counsel Court, D. for Ronald under MacGregor, appointment by Supreme Defendant and Appellant. General, Winkler, J.
Evelle Jack R. Chief Assistant Attorney Younger, General, General, O. Arnold Assistant Attorney Overoye, Attorney Adams, General, P. Charles Just and Richard L. Deputy Attorneys Plaintiff and Respondent.
Opinion Fries, in Paul was convicted BIRD, C. James Appellant, J. — Code, He this court to hold asks § second (Pen. degree by jury. exclude in motion to its discretion his trial court abused denying his which was offered evidence credibility.
I 9, 1973, Bill Burrell left a bar on November p.m. Approximately bar, lot he Modesto. As walked across parking adjacent head, him struck him on the him and someone knocking grabbed consciousness, his he When he discovered unconscious. regained $40, did robbed wallet, Burrell not see who which contained was gone. from the bar. to or with him nor did he remember talking leaving anyone trial circumstantial. was The evidence presented against appellant he testified about one-half hour before Andrew Haines robbery, and Burrell was in the with Richard noticed sitting wás bar Nystrom they Burrell, in their direction. the counter and looking Nystrom spoke Burrell, and which was on counter front some up money picked since Burrell, to the who had Burrell table. been returned with drinking afternoon, down, fell when to sit hitting middle of attempted then to the bathroom. floor. Burrell and head on the got up staggered bathroom, While Burrell was another man joined Nystrom Haines at the table. the other man the he had Nystrom gave money counter, from the that Burrell was “loaded.” Haines picked up remarking the remark to mean that Burrell had a amount of interpreted large The man went into the bathroom and when he came out money. shortly thereafter, him. Nystrom approached
The two men conversed the bathroom and then returned to the table. Haines heard the man “Let’s him to with toNystrom, say get go returned, Burrell, us.” When Burrell other man left the Nystrom man, bar, bar. The who was the last to leave the waved to one good-bye *4 of the cocktail waitresses.
About bar, five three Sanchez, minutes after the men left the Francisco bartender, the bar’s owner and called the because he police suspected outside. the time the 15 arrived something might happen By police later, minutes Burrell had been robbed and had returned to the bar. trial,
At the Sanchez a identified as the man photograph appellant he However, had seen in the bar with Burrell and Sanchez Nystrom. admitted that at a trial1 had been unable to identify or from his as the third man. appellant person photograph Haines also identified at the trial as the third man. Haines appellant further claimed that he had seen on two other occasions in late appellant November and December 1973 and that he had talked to early appellant However, latter encounter. during Lieutenant Richard Deputy commander of the jail Stanislaus McKay, testified that County jail, had been arrested at 12:30 appellant 10, 1973, a.m. on November and had remained in the 5, until 1974. continuously county jail February
The cocktail waitress could not as the man who identify appellant waved to her.
At the close moved to exclude prosecution’s appellant evidence of his conviction. The trial court denied the prior robbery motion and did not The sole witness appellant testify. presented by defense was commander. jail was convicted of.second
Appellant degree robbery. 1 The fourth present involves trial. The had been unable to reach appeal appellant’s a A trial verdict in the first trial. second ended a mistrial when it was discovered
some had the first trial. The of conviction in the jurors participated judgment third trial was reversed on appeal.
II
313,
P.2d 1],
(1972)
In
Cal.Rptr.
[99
People Beagle
section
Evidence Code
held
this court
although
unanimously
conviction
the use
impeach
authorizes
prior felony
its
must,
exercise
discretion
witness, a trial court
when
requested,
value of
this evidence if the
3523 and exclude
under section
considerations,
other
such as the risk
conviction
outweighed by
The trial court must factors, these two which show the weigh conviction, value of the that admission of such probability evidence “will necessitate undue (a) time create (b) consumption substantial undue issues, or of danger prejudice, confusing (§ misleading jury.”
While the trial court must
in this
when a
engage
balancing process
conviction is offered to
witness,
there
impeach
credibility
any
are several considerations which are of
in a
particular
importance
criminal case when the witness is the defendant. This court has previously
these considerations into two
grouped
general categories:
“unique
risk
undue
Antick,
and confusion of issues”
prejudice
If a defendant testifies and is means of a impeached felony conviction, there is a that this evidence will widely acknowledged danger be misused the trier of instructions, fact. *6 “Despite limiting jury to consider this evidence the for of likely improper purpose determining whether the accused is the of who would in criminal type person engage 5 Antick, v. 15 As the activity.” (People 97.) United supra, p. States Court context, has noted in a related evidence of a Supreme “defendant’s trouble with the law ... is said to too much weigh Antick, 99, 4 In v. People supra, 15 Cal.3d at noted page court that the absence of “a , most, blameless life . . . legally the probative value of the only slightly enchance[s] evidence for impeachment purposes.” stated, 5 Onewell known commentator has “If the accused forced to is admit that he has convictions, a ‘record’ of past if the convictions are crimes similar to the particularly trial, one on instructions, there is an obvious that the danger despite [limiting] will jury, more heed to give the convictions as evidence past that the accused is the of kind man who would commit the crime on . . . than will to charge the they legitimate of bearing (McCormick, 43, 89; the convictions on past (2d 1972) Evidence ed. credibility.” § see p. Griswold, 1017, 1021; (1965) Schaefer, also View Long A.B.A.J. Police 506, and the Interrogation 512.) Privilege Against 61 Nw.U.L.Rev. Self-Incrimination as bad with the and to so them to one with a juiy overpersuade prejudge a to record and him fair defend a deny opportunity general 469, States United U.S. (Michelson particular charge.” 168, 173-174, 69 to 475-476 L.Ed. S.Ct. This 213].) tendency prejudge issue of denies accused of innocence and guilt presumption to a lessens the burden reasonable prosecutor prove guilt beyond doubt.
There also the “obvious will decide that based danger” jury convictions, too his the accused to be without “ought put away much concern with (McCormick, § present guilt.” supra, Further, of convictions often confuses the issues at the admission trial and minds from the real issue” of or jurors’] away guilt “draw[s] [the 142 U.S. L.Ed. innocence. United States (Boyd v. Antick, 1080, 12 S.Ct. see also Cal.3d at 292]; hand, not to in order to If, the accused elects on the other keep convictions from the evidence jury, jury deprived For of the accused. evidence —the testimony competent, probative be to an accused’s complete necessary give testimony might example, events, witness or the defense since he sole may picture of the events with the most witness complete knowledge underlying involved, intent crime is or if defenses diminished If a specific charges. testi- are an accused’s unconsciousness or proffered, capacity, insanity Further, his mental state. well be the most direct evidence of mony may of other add testimony weight credibility testimony may to the to be otherwise witnesses unconvincing appear juiy may court for a which is difficult This is factor reviewing extremely suspect. “ Thus, ‘[e]yen to assess from words judge transcript. though and the that the convictions are relevant find might exclusion, not their the defendant does warrant risk of prejudice it is have the nevertheless conclude that more important of the case than to have defendant of the defendant’s version benefit ” out fear of remain silent *7 supra, impeachment.’ (People Beagle, at 453.) Cal.3d p. failure to itself be
An accused’s by juiy, misperceived testify may to him believe “his silence alone will since guilty.” prompt jury to 43, the defendant “will 89.) The expect § (McCormick, p. supra, jury conviction, and it will he can to all the evidence naturally escape present
229 him that his failure to evidence when the infer against explain deny are his within his arises from to do so. facts knowledge peculiarly inability an inference and be drawn ‘Such is natural irresistible. It will honest by and no will v. instruction it.’ prevent (People jurymen, [Citation.]” )6 436, 417, 398 P.2d Modesto Cal.2d [42 753]. of fact is diverted suifers if the trier Our of criminal system justice “the true a conviction from use of purpose prior felony improper trial, of the facts.” v. Riser the ascertainment criminal 566, 586 the accused “If he P.2d 1].) Cal.2d price: Similarly, pays stand, to off the alone will believe him his silence prompt jury stays If he elects to his ‘record’ to becomes provable impeach guilty. testify, him, and this to doom is his defense.” (McCormick, again supra, likely Therefore, convictions should be admitted at trial to § p. an accused when criteria have been only specific carefully evaluated.
In the case, the recent, conviction present was and under evidence, the rules of would However, admission be favored. a conviction is relevant to robbery because only partly is a credibility, “[robbery] crime which is both assaultive, larcenous and and thus bears on part Rist, and perpetrator’s v. integrity Cal.3d veracity.” (People supra, Moreover, at italics added.) as this court p. reiterated in recently Rollo, v. for theft offenses such as People “robbery are relevant” somewhat less on the issue than are burglary, credibility crimes such as Cal.3d at and hence are to (20 118) entitled perjury p. “somewhat less” weight.7 Modesto, this court 6 In held People that an accused's self- supra, right against
incrimination was not violated when prosecutor commented in on closing arguments the failure of the accused to testify. was overruled holding Subsequently, infer, court, States United “What the Supreme Court: no from the help is may given What it one the court silence of thing. infer when solemnizes the the accused into evidence him is another.” 380 U.S. quite (Griffin California 106, 110, 1229].) L.Ed.2d 85 S.Ct. is, 7 There in this with the no dissent that the crime of quarrel robbery (Cf., the “partial” to be made about post, relevance of a honesty. points conviction to a witness’ are than robbery more subtle the dissent appears A conviction involves reflect appreciate. (the factors that robbery honesty fear; theft) Woodard, (the use of factors do not force or see Thus, 340). some the elements of are relevant only robbery Therefore, the others are irrelevant. impeachment; robbery only relevant “partly credibility.” those Even elements of a conviction which on a do reflect witness’ credibility *8 230
Balanced these two the factors was fact the robbery conviction was to the identical crime for which was tried appellant being thus indicated While the exclusion. risk of undue strongly prejudice is substantial when conviction is used to prior any impeach credibility defendant-witness, it is far when the conviction of greater prior similar identical to the crime v. 6 (People supra, charged. Beagle, Antick, 97; 453; 15 v. Cal.3d at v. p. People supra, p. People Rist, 16 “A which is of a 219.) Cal.3d at made aware similar supra, p. to an conviction will feel conclude that if accused prior pressure inevitably committed crime he committed crime prior charged.” likely italics {Ibid., added.) this court has warned that similar or Consequently, Rist, identical should be admitted v. 16 priors “sparingly.” (People supra, Cal.3d at Rist, the
In trial court’s of a similar conviction to admission prior defendant-witness, dissimi when there were impeach credibility lar available for was to an convictions found be abuse prior purpose, of discretion. In that similar convictions should be admitted stating prior not this court was that a or identical similar “sparingly,” prior implying conviction should be admitted in case where no dissimilar prior every conviction is to of available a defendant-witness. impeach credibility Rather, the court the extreme trial was caution that courts emphasizing must exercise in whether to admit a similar conviction deciding prior If the since the risk of undue is so value prejudice probative great. the risk of similar conviction undue prior by prejudice, outweighed there must be excluded. It is irrelevant that similar conviction prior may ns8 Court decisio no convictions. Several be dissimilar Appeal convictions similar were Rist because specifically disapproved In two defendant-witness. were admitted to credibility impeach convictions, than the elements of other such as are less Thus, of that issue perjury. theft relevant it is entitled while a or other credibility, robbery such other process less than offenses. weight balancing Beagle It is used in the dissent to with language describe noteworthy a.person trier of that such evidence will be fact. conviction is itself misused proof convictions are relevant it is well settled that only Although character, prove the dissent general and not to the witness’ a witness’ argues prior robbery (Post, conviction shows ais thief.” If the use on the restriction statutory “[h]e evidence of can be so learned and felony easily forgotten court, in the calm well-trained one atmosphere appellate judges acting relatively or others in the heat of to do better. can trial expect persons operating hardly lay (1973) 32 v. 242 v. Stewart Cal.App.3d Cal.Rptr.399]; People 8 People Delgado [108 (1974) 37 826]; v. Jackson 496 Cal.Rptr. People Cal.App.3d Cal.App.3d [109 448]; Cal.Rptr. 411]; Wingo Cal.App.3d Cal.Rptr. People [110 their 348]; Cal.App.3d “progeny.” Hayden Rist, 221-222.) at pp. *9 decisions, of these disapproved People Delgado Cal.App.3d and Cal.App.3d Cal.Rptr. People Hayden 399] no convictions were available for dissimilar 348], prior These decisions were because accorded impeachment. disapproved they “little to the crucial factors noted in weight counterbalancing Beagle, the near of the crimes effect of the particularly identity defendant’s failure to in circumstances where his testimony might Rist, Thus, 16 Cal.3d at significant.” 221.) Rist p. foreshadowed, if it did not the conclusion that strongly compel, appel- lant’s identical conviction must be excluded in this case.
The second factor exclusion of the counterbalancing favoring conviction was that have contributed to the appellant’s testimony might since no other jury’s witness testified to a understanding ante, defense version of the facts. (Cf., the more obvious p. Among defenses to which alibi, potential háve testified are appellant might identification, mistaken diminished or at the scene of capacity, presence without it. robbery, aiding abetting The exclusion of a conviction to does not impeach credibility from prevent prosecutor defendant-witness subjecting piercing cross-examination, “the ever invented for the greatest legal engine of truth.” (5 Evidence discovery rev.ed. Wigmore, (Chadbourn 1974) cross-examination, § can raise Through prosecutor doubts as to the truthfulness of the witness and general question of his Also, version of the facts. the defendant’s memory for observation can be Prior capacity inconsistent statements challenged. be used to impeach credibility. The dissent asserts that the exclusion of similar “rewards criminal (Dis. all 236.) With due specialist.” opn., post, miss respect, the essence of It dissenting justices today’s holding. the innocent accused who suffers when evidence of a similar or identical admitted, conviction is for this evidence persuades inevitably that the accused must be of the crime because has been guilty charged However, of such crimes even the so-called guilty “criminal past.9 9 Indeed, the dissent’s use of the label “criminal to describe an inflammatory specialist” accused who has been convicted of a crime similar to the one for previously which he is trial, is itself an indication of how such evidence is prejudicial be. likely *10 offense The be innocent the charged.10 holding by
specialist” may innocent individual a fair to that court opportunity today designed give to it. prove as it is “home free”
Nor can said that a individual be accurately guilty conviction. (Dis. exclusion of his similar or identical result the prior those methods which There are numerous other at opn., post, and are can and who are .be impeached defendants routinely guilty ante, (Cf., at convicted. Ill testified not have The General that would argues appellant Attorney He this contention the conviction had excluded. bases even if been trial, take the stand he failed to on the fact that at third appellant’s However, did he not sustained a conviction. had appellant yet although An to at his trial was unable reach verdict. first and testify would be that conclusion could reached appellant equally compelling more trial, had been elected to in his fourth since he have testify he did when he did not.11 successful when than testify have that should General further Attorney argues appellant he have if made an offer of as to what his would been proof testimony Rist, However, at had testified. this court in page supra, offer, court, not held that an to the doubtless “[sjuch helpful although to the to value sine non court’s evaluate qua duty ..” effect.. prejudicial 10 Cf.,Griswold, record at man with a criminal 51 A.B.A.J. 1021: “The page more police judicial is far mercy this country authorities — —than as have straight He have learned his lesson and gone to me to warranted.
seems if he is an arrest. And he is immediate future an since his release. But suspect arrow trial, can states. He he has two almost alternatives in hopeless many on put arrested this, his now If he does stand his crime participation charged. take and deny .the he is very often to which case conviction can be shown his testimony, stand, refuse to take on his constitutional to be convicted. Or he can resting likely not, with to be we even in which case is also convicted. very likely Ought privilege, which offended undertake develop procedures who have once persons against society, not some charged, far out the truth about crime now will seek as as possible bring crime?” have stated contends that should appellant expressly 11 The General Attorney motion to not to was due to the denial exclude record that his decision However, recitation is not necessary. such explicit evidence conviction. that to the trial court counsel did communicate The record indicates defense trial court denial the motion. Indeed the would be affected decision appellant’s this, if I it would permit so says understood it: “[N]ow [defense counsel] the stand.” him from stop taking probably To such an offer of from would have violated require proof appellant self-incrimination. This court has forbidden right against repeatedly disclosures which could a ‘link in a chain’ of serve as “compelled establish criminal evidence offense . . . .” guilt (Prud tending homme v. Court Superior
P.2d So as the disclosure 673].) long might conceivably lighten burden of its a defendant “cannot be prosecution’s proving to disclose time to its actual use at *11 compelled any [the evidence] 332, 333, trial.” v. 2 3 Court Cal.3d fn. (Bradshaw (1970) Superior [85 136, 466 P.2d “It no effort or 680].) Cal.Rptr. requires great imagination to conceive of a of situations wherein the disclosure of the variety of defense witnesses . . . could an expected testimony easily provide essential link in a chain of evidence case prosecution’s underlying Court, chief.”12 326; v. (Prudhomme 2 Cal.3d at Superior People v. Bais 31 663 (1973) 519].) Cal.App.3d Cal.Rptr. [107 case,
In the General seeks present Attorney testimony accused before he testifies. The thát such an offer of will possibility proof if, case, state’s burden is obvious. For as often the lighten example, evidence, motion is made in advance of the Beagle taking will be able to and structure case around the its prosecution anticipate defense. In other cases where the offer of is made and the expected proof denied, motion conviction, is a reversal on there appeal following will know in advance of retrial the essence of the prosecution defendant’s even if the defendant did not at the first testimony trial. In the this court has declined to an accused to make past, require such an offer in order to his motion to exclude perfect impeachment evidence of convictions. in that would prior felony Any change policy violate well-settled constitutional principles.
IV It is clear that the trial court erred in admitting prior robbery conviction since the conviction was identical to the offense for which Further, was on trial. this court has no clue as to what appellant would have been had he testified. Absent basis appellant’s testimony any result, that such would not have affected the concluding testimony 13, 1, 653, Malloy (1964) 663, 12 Asstated in v. 378 U.S. footnote 9 L.Ed.2d Hogan [12 “ 84 1489], S.Ct. from an earlier ‘in whether the witness quoting determining really apprehends danger cannot himself to be answering question, permit judge skeptical; must he be aware that in its the deviousness of crime and acutely rather detection incrimination and achieved obscure and lines approached unlikely ” of inquiry.’ 234 ‘that it is that a result court is of the
“the reasonably probable opinion reached in the would have been absence favorable more [appellant] ” 818, P.2d 46 Cal.2d (1956) 243].) v. Watson error.’ [299 is reversed. The judgment Manuel, J., Newman, J., Mosk, J., concurred.
Tobriner, J., contin- RICHARDSON, dissent. The J. —I opinion respectfully majority the total cases of this court toward a lamentable trend of three ues section 788. Rollo (See demolition of Evidence Code 109, 177, 569 P.2d (dis. opn.); People Cal.Rptr. 771] [141 457, 545 P.2d (dis. 16 Cal.3d Rist Cal.Rptr. 833] Antick opn.); People *12 Here, the reverses defendant’s trial (dis.
P.2d opn.).) majority 43] fourth erred in that the trial court the on the same robbery, ground As I conviction. of defendant’s admission prior robbery permitting its exercised court in will the trial opinion, explain, properly, my Moreover, the conviction. in discretion majority’s prior admitting offense, reversal, the same trial for reason for necessitating thereby fifth that It founded the doubtful is is premise upon entirely speculative. in his trial from court’s defendant was deterred testifying by ruling defense. aof introduction section 788 prior
Evidence Code
expressly permits
The section
provides
conviction for
purpose
impeachment.
felony
witness, it
of a
may
that “For the
attacking
credibility
purpose
the record
of the witness
the examination
judgment
shown
by
by
1972,
In
we
added.)
convicted of
. . . .” (Italics
has been
that he
felony
section
under
discretion
the trial courts
held that
possessed
properly
quite
on
value
“when their
convictions
exclude
788 to
of undue
the risk
prejudice.”
credibility
outweighed
We
Despite Beagle specifying standards” of discretion, control the trial court’s “rigid admissibility Antick, our cases have done that. In subsequent just we ruled that the trial court abused its discretion in admitting Rist, time; were too remote which in we ruled that convictions identical or similar nature to the offense never charged could be used for where dissimilar were impeachment purposes priors Rollo, that available for we ruled trial court purpose; could not achieve a solution from the compromise by withholding nature, fact, but not the conviction. specific
In the rules inadmissible a 1974 present majority on it fails to bear grounds sufficiently witness, defendant’s as a it is identical to the charged offense, and hence have its admission would defend- unduly prejudiced ant. The net result at defendant’s holding majority’s fifth trial for take the witness stand without fear of robbery, any his recent impeachment conviction. He thus assumes the prior robbery “false aura of precise which in we had veracity” Beagle carefully concluded he was not entitled.
With due I must take issue with respect, insistence that majority’s defendant’s conviction “is relevant to credibili- prior robbery only partly (Ante, In a bears 229.) conviction of my ty.” opinion, robbery and is relevant on the issue of defendant’s directly upon fully credibility. aside, Robin Hood I never heard of an honest robber. The crime of is defined as “the felonious in the robbery taking personal property another, from his or immediate and possession person presence, will, Code, means force or fear.” accomplished (Pen. The offense § involves stealth fact and The necessarily case, dishonesty. that, in a the robber has been assaultive or used violence particular detracts not at all from the fact that he has stolen. He is thief. He is dishonest.
While to exercise the discretion it which attempting reasonably it stated, assumed the trial court “It seems me that the possessed value of this . . . [1974] conviction outweighs prejudice. another or a conviction bears on Certainly robbery, certainly conduct, . His . . without reflects on his veracity. question adversely and It seems to be a matter in which I have honesty integrity. discretion, considerable and I feel that the is entitled to know frankly jury this.” This is exercise of discretion. proper judicial careful its the trial court’s and thoughtful attempt perform Despite under finds abuse. responsibilities majority discretionary Beagle, offense here was identical to The stresses the fact that majority that, as offense. We have said in legislatively charged Beagle in section “The rule is felony expressed general To once the role of are admissible.” assume again bearing veracity another to section draftsmen still exception legislative by writing its zeal exceeds extends our limited function. majority’s judicial Furthermore, conviction its exclusion unnecessarily power. whose rewards the criminal specialist very unfortunately If a diverse as that of other felons. criminal career not have been as may as or insofar defendant felony- specializes robbery, rape forgery, concerned, hand he is a home free. If on the other is impeachment crimes, face then he and tries his hand at different may generalist I share the trial court’s belief that appraising impeachment. of defendant’s denial of in the complicity charged robbery, know, truth, had was entitled to in its search for the that defendant and, committed that offense that his testimony recently accordingly, with caution. be viewed might appropriate
Second, the relies the fact that of his prior majority upon admissibility stand have deterred defendant from taking matters which have contributed to jury’s testifying upon “might {Ante, But this factor of the case.” present understanding defendant must choose between testifying every every no in favor of silent. Section contains exception remaining of the case. “contribute” to the defendant who jury’s understanding might *14 section, who elect Instead, all defendants under the clear of that language disclosure of their of must face possibility impeachment by convictions. above, will be the immediate effect As noted today’s ruling in this case. trial of this defendant unnecessary require fifth of this continued unfortunate effect judicial The more far-reaching course, enactment, will be to allow at a clear statutory whittling away “false aura kind to assume in future cases defendants precise their commission condemned despite Beagle, veracity” expressly bear which recent, similar or identical directly type their credibility. upon
I would affirm judgment Justice Richardson for the reasons CLARK, J. —I dissent expressed by ante, and in opinion my dissenting dissenting opinion, 590 P.2d 343-345 Woodard (1979) Cal.Rptr. 536, 391].