*1 Dist., A028711. First Sept. [No. Div. One. 1985.] PEOPLE, THE Plaintiff and Respondent, KNOWLDEN,
RICHARD WAYMOND Defendant and Appellant. *3 Counsel Dombknowski, of Appeal, the Court
Dale under appointment Defendant and Appellant. Granucci, General, Deputy Robert R.
John K. de Attorney Van Kamp, General, for Plaintiff and Attorney Respondent.
Opinion Knowlden, fel had two ELKINGTON, J. prior who suffered Defendant convictions, residential degree was first ony at least one which burglary His burglary. appeal found burglary, by degree was second guilty verdict, enhanced is from the entered on the jury’s was judgment one of by convictions. prior felony follow,
For reasons as we affirm judgment. Knowl- are stated by as they consider several contentions appellate
den. de by error
I. “The court reversible Contention: trial committed from impeaching ap nying appellant’s motion to preclude prosecution with his pellant prior convictions.” Cal.3d 441 (1972), 6 [99
On so-called Beagle Beagle (People 313, motion, Knowl that were 1]) the trial court ruled 492 P.2d Cal.Rptr. behalf, he to own might impeached den take the witness stand on his stand and took the witness his two convictions. He thereafter prior burglary was so impeached. court, Knowlden not raised in the
Although superior point burglary prior now not show that argues: did prosecutor appellant’s to violent or arose theft offenses as target opposed convictions from related are not Therefore, convictions burglary assaultive offenses. target appel are not admissible impeach relevant to and appellant’s credibility lant.”
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It is a rule of prime “ordinarily that matters not appellate procedure presented to the trial court and hence not of the record on a proper part will appeal (1970) not be (People considered on v. St. Martin appeal.” 524, Cal.3d 166, 537-538 463 P.2d We nevertheless Cal.Rptr. [83 consider the contention. 28, I,
areWe here concerned with of the article section state’s Constitution, sometimes called “The Bill of and Victims’ Rights” “Prop (hereafter 8, 1982, osition 8” 28). Section Section 28 was June and adopted before commission of the convicted. offense which Knowlden stands
Section (1985) 28 was v. Castro recently interpreted by (1) Cal.3d 301 Castro 696 P.2d explains 111]. to be admissibility convictions for continues prior felony impeachment subject (see the trial court’s discretion under Evidence Code section Section (d)), subd. relevant to (2) that such convictions must be issue of the witness’ “moral turpi And crimes credibility. only involving tude” will be deemed relevant.
Knowlden points burglary may out that his convictions have *5 resulted from commit to “violent or entry with intent as buildings, saultive offenses,” target [felony] or “moral tur “dishonesty” unrelated to ” pitude. He did show that argues: not prosecutor appellant’s burglary convictions arose from theft as to target related offenses opposed Therefore, violent or assaultive target offenses. the convic prior burglary tions are not relevant to and are not admissible to credibility appellant’s ” impeach appellant.
We are unpersuaded.
Castro (f) teaches that Section the use of any subdivision authorizes felony conviction which moral even if the necessarily turpitude, involves immoral trait is one other than dishonesty.
The rationale of Castro on this issue was stated follows.
“It is . . . that we remind ourselves of the appropriate progression precise of inferences which trier of to conclude that of a may proof lead a fact felony conviction may affect the of a witness. The classic state- credibility Holmes, ment the rationale for is that of Justice felony impeachment written when he was still Council of a member the Judicial Supreme Massachusetts: it that a witness has been convicted of is proved ‘[W]hen crime, the him such affords is the only ground disbelieving proof general readiness do to to evil which the conviction be show. may supposed to infer is asked that the jury It is from that alone general disposition fact. The has lied in case, that he lie and thence readiness to in a particular mistaken, that he but only that he was evidence has no to tendency prove the himself, gen solely through that conclusion has and it reaches perjured ’ . . . credit. unworthy he eral that of bad character is proposition the witness follows, of which said], It that if the felony therefore [¶] [Castro evil,’ fact of con to do has been convicted does not show a ‘readiness lie. ... viction will not inference readiness an simply support [¶] Nevertheless, moral depravity italics] a witness’ [our it is undeniable that confidence one’s kind reason’ ... shake ‘tendency has some tenuous—for in his basis—however honesty. . . . There is then some [¶] moral which involves has a crime who committed inferring person than witness other is to be dishonest than more turpitude dishonesty likely ir is not so inference about whom is Certainly no such known. thing ain proper it to decree that rational that of the beyond power wishes, ‘no it, and the case if it must to draw permitted limita the People tion’ clear that (f) abundantly makes it language subdivision (38 Cal.3d, 314-315.) so decreed.” pp. with building
We are that one who enters residence opinion “moral intent a “bad charactera therein to commit a demonstrates felony ” ” convic- depravity and a readiness to do evil. “general Knowlden’s 28. Section tions under turpitude, thus involved crimes of moral admissible trial court properly whether the are to the brought question, Beagle Knowlden’s exercised its Evidence 352 discretion Code section motion. motion, “She
It court stated: is observed that trial *6 Knowlden’s 8.” The statement reason- has a it under prosecutor] use Prop right [the conviction, regardless ably a belief in a to use the expresses “right” this, of erred. Evidence Code 352. In the trial court section that, “hot pursuit” But we be termed a reasonably observe in what must was inter- automobile immediately after the Knowlden’s charged burglary, and therein the cepted by burglary’s proceeds, officers who found police We strong. exceedingly other evidence of the crime. The guilt proof that it we of the opinion declare that a the entire record are after review of would to defendant is not favorable that a result more reasonably probable 13; VI, Const., People art. (Cal. have occurred in the of error. § absence v. 243]; 818, P.2d and see (1956) v. Watson 46 836 Cal.2d [299 Castro, 301, 319.) 38 supra, Cal.3d refusing by
II. its discretion Contention: abused magistrate a reduce the offense to misdemeanor.”
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A sheriff deputy on duty one about 2 a.m. heard the sound of morning window alarm, smashing, and or look- Going, of closed market. burglar ing, sound, the direction of the he observed two some- throwing persons assistance, into thing an automobile and off. The driving officer radioed for and the vehicle was one of the suspect soon Knowlden was intercepted. beer, automobile’s and inside it found cold cans and occupants were a tire iron with small cut fragments it. had fresh glass upon Knowlden market, on his window, hand. Back at victimized its door and front and its beer door, cooler’s glass were found smashed. And at least three 6-packs of beer Moreover, noted, were found missing. and as Knowlden had twice before been convicted burglaries. no perceive abuse of the discretion. magistrate’s
III. Contention: “The trial court error in failing committed reversible to instruct the on the stolen receiving offense charged property.”
Although Knowlden had been with stolen charged receiving alternatively property, the had been charge by abandoned No impliedly prosecutor. evidence, or or argument, as to is to found in the theory be charge record. evidence,
Instructions need not or given by are unsupported theory 671, advanced aby (1979) v. Saddler 24 Cal.3d party. (People course, 130].) And, of [156 597 P.2d where the evidence jhe establishes that if a defendant all at he is guilty anything guilty offense, greater lesser, related, instructions on a need not be offense given. (People McCoy (1944) 25 Cal.2d P.2d IV. Contention: “The trial court its discretion abused sentencing sentencing to serve appellant three in state two six years stealing prison ” of beer. packs
In addition to Knowlden’s two he had also prior convictions of burglary, theft, been convicted of misdemeanor auto theft. The twice petty *7 instant offense was on no committed while he We observe abuse was parole. in discretion midterm for one two-year year as enhanced burglary, aby prior Nor charge conviction. are we that the instant was persuaded offense, a minor is the burglary The suggested. gravamen felonious entry commit with intent And here building therein steal felony. the trial court might have concluded that but for the reasonably happen- alarm, stance of have stolen from burglar far more would been property the victimized market. circumstances matter of mitigating
The trial court had considered the of Knowlden’s that the use argument found none. Nor merit found in the sentence, burglary midterm at the for his status time parole offense forbid- enhancement, constituted for its and the use of conviction den dual use of facts. sentence
There no discretion in fixing abuse of judicial enhancement. with the statutory at the midterm two burglary years The is affirmed. judgment is, in error
RACANELLI, P. Since I that the Concurring. agree J. event, standard, not reach I would Watson harmless under the conventional met the convictions whether defendant’s unargued question “least adjudicated threshold moral based requirement turpitude (1985) 38 Cal.3d (See elements” of in v. Castro burglaries general. People Thus, in the result I concur P.2d only. clearer
NEWSOM, dichotomy a much opinion Concurring. In my J. to the could be by resorting drawn more and less serious crimes between se and mala in measurable common law crimes objectively categories v. Castro to mala prohibita. But I am the decision compelled I believe and since whether a crime involves moral say particular turpitude, moral Knowlden’s conviction inheres in all I turpitude burglaries agree should be affirmed.