*1 20024. No. Aug. 1979.] [Crim. PEOPLE,
THE Plaintiff Respondent, SPEARMAN, Defendant and
ALBERT Appellant.
Counsel Court, E. under Countryman, Supreme Byron appointment Defendant and Appellant. Defender, Sevilla, Halvonik, Charles M. Chief Assistant
Paul State Public Defender, Steiner, B. State Public Public and Jonathan State Deputy Defender, on behalf of Defendant and as Amici Curiae Appellant. General, Winkler, Jack
Evelle J. R. Chief Assistant Attorney Younger, *5 General, Moore, General, S. Clark Assistant Frederick Attorney Attorney Millar, Jr., Rushton, and Ann R. Alexander W. Kirkpatrick Deputy General, for Plaintiff and Attorneys Respondent.
Opinion a be determine whether BIRD, C. J. This court must person when heroin for sale with a conviction possession impeached offense. he is tried for same being
I Police Officer Albert was arrested Pasadena Appellant, Spearman, heroin was discovered Martin on 1975. A substance containing April He hole in the rear of a car was was in a driving. bumper appellant Code, 11351), with of heroin for sale & Saf. § (Health charged possession Code, and a of heroin & Saf. 11352), (Health § transportation in 1973 of of heroin for sale. trial, At the Martin Officer testified that both and the car he appellant was were searched at the time of the arrest. No contraband was driving trunk, found in the interior or The car car’s or on was placed appellant. on a hoist in a local and several officers searched under it. Their garage attention was drawn to several holes in the rear in two of which bumper, checks, Martin 2 United States 7 Los Officer found Treasury Angeles checks, and a balloon sack one with County cellophane containing packet diluted heroin another with 23 to 24 of a white grams grams lactose. The officer concluded the heroin was resembling powder cross-examination, On he stated the car was sale. parked possessed He had occasions in front of the residence of a Howard. many Larry Howard, user, car. On twice seen a heroin six occasions riding user, Bluett, he saw another heroin James the car. Bluett in driving car, fact was the owner of the but confined in when was registered jail was arrested. examination of appellant During cursory appellant, Officer Martin noticed no was under signs indicating appellant influence of or had heroin. recently injected
United States Secret Service testified that Agent Colley appellant admitted checks in the after them placing Treasury receiving bumper from a Brooks. said stated that he “didn’t want Larry Colley appellant to do with them.” knew Brooks similar anything Colley many possessed checks. Officer Martin verified in later that Brooks was a heroin testimony user. called Pasadena Prodonovich, Police Officer who testified
Appellant that he saw Bluett the car three to four months before driving appellant’s Howard arrest. had driven the car a arrest, week or two before appellant’s *6 officer, to the it was outside Howard’s according frequently parked residence. 1973 conviction and
Outside the admitted his jury’s presence, appellant trial to its use for moved judge prevent impeachment purposes. result, to the motion and as a chose not denied testify. appellant use of heroin. to with familiarity prior Appellant stipulated A chemist was called to He stated the diluted heroin was police testify. 5 of heroin then sold “on the street.” The strength being percent pure, nature or of the white was not covered in the weight testimony. powder
113 deliberations, convicted After over five hours of the jury appellant further instructions on the second heroin. The transporting jury requested later, half returned a verdict of conviction and an hour and a they charge for of heroin for sale.
II
This court
held in
6 Cal.3d
(1972)
unanimously
People
Beagle
313,
441
492 P.2d
Evidence Code section
Cal.Rptr.
although
[99
1]
7881 authorizes
the use of a
conviction to
felony
impeach
witness,
must,
of a
a trial court
when
exercise its
credibility
requested,
discretion as
for
Evidence Code section 3522 and exclude this
provided
by
evidence when the
of the
value
impeachment
probative
considerations,
other
such as the risk of undue
outweighed
by
v. Fries
Beagle important that must be considered trial . courts . .” whether admit by deciding a conviction to a witness’ Cal.3d at (6 prior felony impeach credibility. Since the of the introduction of convictions purpose prior felony is to the first factor which the trial court must impeach credibility, 1Evidence Code section 788 “For the a provides: purpose attacking witness, it be shown the examination of the by witness or record of the by that he has been convicted a judgment unless: felony “(a) A based on pardon his innocence has been to the witness granted in which he was convicted. jurisdiction “(b) A certificate of rehabilitation and been has to the witness under pardon granted 4852.01) 3.5 with provisions Section of Title 6 of Part 3 of Chapter (commencing the Penal Code. “(c) The the witness has been under accusatory pleading against dismissed 1203.4, of Penal Code Section but provisions this does not exception any apply criminal trial where the witness is offense. being prosecuted subsequent “(d) The conviction was under the laws of another and the witness has jurisdiction been relieved of the and disabilities from the conviction to a penalties arising pursuant (b) (c).” (Stats. to that referred to in subdivision procedure substantially equivalent *7 788.) ch. § 2Evidence Code section 352 “The court in its discretion exclude evidence provides: if its value is the that its admission will probative substantially outweighed by probability (a) undue (b) necessitate of time or create substantial of undue consumption danger issues, the of the or of confusing misleading jury.” prejudice,
evaluate is whether the
conviction reflects
on an individ
prior
adversely
does,
ual’s
or
if it
the
of
value of the
honesty
veracity;
degree
probative
Woodard,
conviction must be determined.
v.
23 Cal.3d at
(People
supra,
335-336;
Fries,
see also
Second,
v.
These two value, factors establish the if of the probative any, prior conviction, and must be that their weighed against probability admission “will necessitate undue (a) of time or create (b) consumption substantial of undue issues, or of danger prejudice, confusing Code, This court has (Evid. 352.) misleading § jury.” previous identified several such considerations which are of ly counterbalancing in a criminal case when the witness to be particular importance defendant: risk of undue (1) impeached unique prejudice confusion of issues which occurs when the conviction is admitted to prior testifies, of an accused who the adverse impeach effect on the administration of when an accused elects not to take justice the stand in order to information about his keep prior felony Fries, from the 24 Cal.3d at (See jury. People supra, these now-settled to the case at p. Application principles bench the conclusion that the trial court’s was erroneous. compels ruling
The threshold
is whether a
conviction for
question
posses
sion of heroin for sale is relevant
to a determination of an accused’s
350;
Code,
Woodard,
(Evid.
23 Cal.3d
credibility.
§
supra,
at
Past decisions of
340-341.)
this court have established that a
pp.
conviction must involve
it must have as a
dishonesty—i.e.,
necessary
element of
lie,
the offense the
defraud, deceive, steal,
intent to
etc.—in
order to
Woodard,
reflect on a witness’
For
this
credibility.
example,
stated,
court
“Since the
offense
does not
voluntary manslaughter
fraud,
involve
deceit,
element of
evidence of
any
dishonesty,
th[at
conviction should have been excluded.”
at
340.) Woodard
(Id.,
prior]
also held
conviction for felon in
of a concealable firearm
“[t]he
should .
. have
.
been excluded
in the elements of this
nothing
[because]
.
offense . .
involves a
(Ibid.)
showing
dishonesty.”
focus has
been on the elements
appropriate
always
offense
thus, in
this court
found
a check without
Beagle,
issuing
itself:
sufficient funds
Code,
reflects on
since a
(Pen.
476a)
§
credibility,
*8
element
offense is the “intent
to defraud.”
Cal.3d at
of this
(6
necessary
Fries,
229,
v.
there, Code, (Pen. 470), satisfied the forgery § threshold because the statute itself inquiry Thus, the accused harbored the intent to requires crime did ‘rest prosecution defraud. prove “ ” 99.) (15 on dishonest conduct.’ Cal.3d at p. “vague,” meaningless “open-ended,” 4The dissent claims that this standard is and “a However, 121.) catchall” it (Post, because includes the term “etc.” the term “etc.” at has p. a limited and well understood in the It refers to “other meaning English language. things like kind or as with those theretofore mentioned.” purpose compared immediately ed., (Black’s (rev. 1968) added.) Law Diet. 4th It is used when a italics p. “generally number of individuals of a have been indicate that class more the same sort specified mentioned, have been New (Webster’s but for shortness have been omitted . . . .” might ed., 1974) added.) Twentieth (2d Diet. italics Century In this the term “etc.” is It indicates that opinion, used accuracy completeness. herein of convictions relevant to not all-inclusive. This does listing prior is not mean is or but rather that the nonenumerated listing vague open-ended, convictions are “of like kind” or “of same sort” as those enumerated. just In another time or another those convictions relevant for style writing, have been impeachment purposes (See, denoted the Latin “crimen falsi.” might phrase (9th 1976) 1326-1327.) United States v. Brashier e.g., Cir. 548 F.2d This phrase offenses, as a “used of a general class of all such as involve deceit designation or including falsification, measures, e.g., forgery, false etc. counterfeiting, using weights perjury, Includes forgery, subordination of perjury, offenses perjury, affecting public administration of (Black’s Law justice.” Diet. cit. op. supra, p. It is to note interesting that the editors of Black’s Law found it distinguished Dictionary to use the term appropriate “etc.” in “crimen falsi.” defining did not Presumably, they consider their definition to be “meaningless.” *9 116
Nevertheless, of theft and acts urges deception respondent He then to substitute this occur in the heroin trade. attempts commonly that, in order The defect in this “fact” for the offense itself. approach relevant, would have to of a conviction to be for the evidence jurors prior had been of acts about which no evidence assume the commission in about which no evidence could be court and presented presented Code, 787.) (Evid. § purposes. impeachment The case law The is clear. relevant consideration is whether the only conviction contains as a element the intent to prior necessary itself deceive, defraud, lie, cheat, steal, case, not, In etc. this it does as is Therefore, conceded. the trial court excluded it should have for purposes This was evidence that could have been used “for impeachment. only whether the accused is the improper purpose determining type Antick, who would in criminal v. person activity.” engage (People supra, 15 Cal.3d at indeed have wanted the to 97.) p. prosecution may jury conviction, heroin, it believe that because involved was prior appellant’s a fundamental for the law or showed morally reprehensible disrespect But these do not make the evidence admissible for society. grounds other conclusion would an unwarranted Any represent impeachment. from this court’s decisions.5 departure past trial court erred in
There is a second basis for ruling concluding That conviction was admissible prior prior impeach appellant. of the offenses—and similar in conviction was identical one very which on trial. in nature to the other offense—for was Recently, appellant Fries, 222, v. 24 court held that it was error for a Cal.3d this People supra, trial court to an to be with a accused permit impeached prior where he was accused of a different at a trial robbery subsequent “ made aware of a The court reasoned that which is robbery. jury ‘[a] if similar conviction will feel to conclude that prior inevitably pressure committed the crime accused committed the crime he prior likely ” Rist, 230, 16 at at from Cal.3d (Id., charged.’ p. quoting People supra, case. It Fries is from the compels indistinguishable present erroneous. conclusion that the trial court’s below was ruling 767], relied on here by 753 (1975) Cal.Rptr. Cal.App.3d 5People Hughes [123 heroin of sale of finds that convictions insofar as it is disapproved respondent, Jefferson, Code, California 11352) accused’s See credibility. bear on the (Health § & Saf. 22.2, (1978 “complete criticizing Hughes’ Benchbook section supp.) page Evidence felony whether determining of the factors used lack of understanding” v. Coleman advanced relevant to credibility. Compare analysis conviction is 407], 318-320 Cal.Rptr. 89 Cal.App.3d III *10 that, view, The dissent would affirm the conviction on the in its basis the conviction was of Examination of the prior probative credibility. of the dissent reveals serious its flaws. reasoning
The dissent to measure the value of a witness’ appears probative prior conviction whether the conviction shows that the “individual. . . has of chosen to the laws” or that he lacks freely reject responsibility “respect for civic . . at ... his outside the courtroom . .” (Post, responsibilities 120-121.) The commission of be on said to reflect pp. any felony might words of the dissent itself. a for conviction a violent Surely, felony a of lack for one’s civic the dissent suggests respect responsibilities, yet must that the commission of. . . assaultive se behavior “readily agree per and, . . . not reflect on the actor’s generally honesty accordingly, do[es] ” convictions thereof do not of the felon’s at (Post, speak ‘credibility.’ 120, 121.) The of commission be said to reflect on pp. any felony might one’s for his but it does not follow that it respect responsibilities, reflects “the trait for which evidence is necessarily upon only prior felony admissible; Rollo, the of the witness.” 20 (People supra, Cal.3d at fn. 4.)6 p. end, the
In the dissent a concludes that conviction for prior possession for sale of is heroin because it “seems probative present credibility self-evident” and because this conviction to credibili- “inherently” speaks at {Post, This is not the ty. 122.) “definitional which the pp. precision” dissent elsewhere at In {Post, this area. 121.) suggests appropriate p. event, this form of to the dissent is any subjective analysis by contrary Woodard, this court used 23 Cal.3d analysis recently supra, Woodard, In 329. this court determined the value probative prior convictions to the elements of these crimes. at {Id., by referring 340-341.) dissent neither mentions nor Woodard to the pp. points elements convictions involved here which disclose an intent prior 7 lie, deceive, defraud, or steal.6 the dissent would conclude Apparently, 6The dissent elsewhere that a conviction urges for for sale heroin possession truth, can be considered of a witness’ probative tell basis present tendency health, that could . . . possessor assert that the of heroin for or sale ‘steals’ “[o]ne (Post, 121.) or liberty the victim.” at sanity, p. however, the same statement could be those who commit Again, made concerning or violent crimes crimes against public peace. 7The dissent does state at that conviction for sale of several for points (Post, heroin involves an “intent to sell for at it commercial pecuniary gain profit.” 122; also, incorrect, as, see p. at This is an individual be post, example,
118 case, in this at issue whole is somehow as to the of its the sum than parts. greater
IV must the trial this court decide whether court’s Finally, improper v. Watson Cal.2d constituted reversible error. ruling (People of the evidence and the state P.2d After consideration 243].) harmless. case, it cannot be concluded the error was of the record in this *11 outset, evidence at trial At the it is that the presented recognized a case on to made out albeit circumstantial have strong, appeared, paper, not, However, cold that evidence was even a appellant. against irrebuttable. transcript, the court’s erroneous because of trial ruling,
More significantly, was from and thus any did not presenting prevented testify appellant Fries, 24 at Cal.3d v. to the also (See defense supra, People charges. have 228-229.) presented exculpa- might appellant pp. Unquestionably, of he was not aware for have testified He testimony. might, example, tory dominion or did not exercise of the heroin in the the bumper presence car was that Bluett’s it. He well have and control over explained might Bluett, of and used other including recently acquaintances routinely stored heroin in the who have as Howard themselves addicts such may the of without Alternatively, appellant knowledge bumper appellant. use but denied the for of heroin have admitted possession personal might true, a conviction if would warrant to Such intent sell. testimony, any for sale. offense than a lesser calls for have believed such the would testimony
Whether jury court. “The of this the appellate appellate beyond powers speculation affect the factors the mute record below. may limited to court is Many sex, such as experience, of intelligence, value testimony, age, probative or trial court demeanor, the witness. A of or temperament occupation, of take note in to is at least a witnesses before whom position appear jury cannot know no of so. It has An court such factors. doing way appellate but evaded a answered some whether witness forthrightly questions in form that truthful written an It find answer others. convincing may A the it was unreliable at time have sounded well-phrased given. may A at the trial. the have seemed rehearsed in record clumsy sentence may without abetting expecting the on the basis of aiding principles, convicted of offense for those efforts. any or receiving money
119 in the not the of truth that attended it sentence record convey ring when the witness his to its articulation.” way (Traynor, groped 20-21; also, Fries, Riddle of Error v. Harmless see (1970) pp. People 24 Cal.3d at this to 228.) For court that the supra, reject p. possibility have believed would not a involve juiy might appellant only high degree also, of but certain an invasion of presumption, respects, province of the to this court By jury. refusing indulge speculation, preserves accused his case to the version every right person present jury.8 court, therefore,
This
has no basis for
concluding
appellant’s
would not have
result of
trial.
at a
affected the
“[Ejrrors
testimony
trial that
his
of the
deprive
litigant
opportunity
present
version
reversible,
case . . . are . . .
no
since there is
ordinarily
evaluating
way
whether
not
affected
at
cit.
they
judgment.” (Traynor, op.
supra,
68.) A conviction under such circumstances is a
p.
“miscarriage
VI,
within the
of article
section
of the California
justice”
meaning
Watson,
837;
Constitution.
at
(See
Cal.2d
People
supra,
*12
835,
Gainer
19
861,
Cal.3d
855
566
(1977)
P.2d 997];
Cal.Rptr.
[139
People
Fries,
v.
The is reversed. judgment
Tobriner, J., Mosk, J., Manuel, J., J., Newman, and concurred. RICHARDSON, J. dissent. For the reasons stated in I respectfully my v. Fries 24 222 Cal.3d at 234 opinion (1979) dissenting People page [155 194, 594 P.2d I 19], with the conclusion that Cal.Rptr. disagree majority’s a defendant’s no be admission aof credibility may longer impeached by conviction of an offense identical or similar to offense charged. however, to the it is that
My principal objection majority opinion, holds a that defendant’s conviction of of heroin for previous possession sale does not affect his as a I that witness. think it does. credibility
Section 788 of indicated, the Evidence Code otherwise all (unless references are to that that for the code) statutory provides purpose testified, 8This court notes the additional he that had have possibility appellant, might denied that he admitted checks from Brooks and them in the car receiving placing He have denied the holes were Whether bumper. might knowing in the such bumper. would have been found credible the trier fact testimony involves speculation of an court. beyond appellate powers 120 it be shown that witness has been convicted credibility may
attacking
6
453
of a
In
v.
Cal.3d
P.2d we
(1972)
1],
felony.
People Beagle
[492
said that a trial court must exercise its discretion in accordance with the
in section 352 wherein
value is measured
guidelines expressed
probative
Fries,
cases,
In
222
four successive
Cal.3d
against prejudice.
supra,
[155
194, 594 P.2d
v. Rollo
heroin for sale of a witness” (ante, steal, etc., lie, impacts [which] dead I think 115). wrong. majority *13 788, and in section as it is used the term What is meant “credibility” by Third Webster’s cases? and we have it as succeeding Beagle expressed as 532, defines “credibility” New International Dictionary page .;. .; belief . of belief . . worthiness or of “the inspiring power quality defined “credible” is the term . . .” In similar fashion for belief. capacity . . : entitled of belief. or believed : of credited as worthy being “capable ; creditable, credulous . . . : reputable.” : to confidence .trustworthy the lack or of a witness or 786 the Under section veracity (Ibid.) honesty the issue of on thereof is admissible credibility. and honest witness is whether the capable here is
The essential inquiry aon which reflects person’s conduct adversely believed. of Any being I term. of the use the within statutory affects his “credibility” honesty crimes, as such of certain kinds of commission that the readily agree the se, generally or crimes peace, public behavior against assaultive per and, on convictions thereof do not reflect the actor’s honesty accordingly, errs, however, do not the felon’s The “credibility.” speak majority when it to kinds of which do class those offenses attempts by catalogue on an that reflect The such some kinds credibility. danger attempt Thus, offenses will be omitted. when the insists that our case law majority now demonstrates that the “The relevant consideration is whether only contains as a element the intent to necessary itself deceive, defraud, lie, cheat, . . .” the (ante, 116) steal must p. majority tack on the the list term “etc.” the necessarily (et cetera). This leaves standard majority’s The “etc.” is conve entirely open-ended. enigmatic In an area niently fuzzy definitional pleasantly vague. requiring If, however, it is a we term catchall. the precision meaningless interpret “etc.” include which reflects on the witness’ “any felony adversely the result is reasonable. This is what we meant in honesty,” when Beagle we said “convictions which rest on dishonest conduct relate to credibility . . . .” Cal.3d at (6 This common sense construction saves from the ethical and dead end principle conceptual rapidly approached finds, hand, in which it that on one a check by majority, issuing without sufficient funds reflects on and is {Beagle) adversely credibility whereas, hand, therefore on the other of heroin impeaching, possession for sale (or, the sale does not reflect heroin) presumably, adversely and is not has seized on impeaching. majority Beagle “deceit, fraud, which had as illustrative language quoted, only, or from Gordon v. United States (1967) cheating, stealing” expression F.2d 940-941 343], U.S.App.D.C. could
One crime of of heroin for sale readily argue is loaded with the first alternative necessarily deception, ingredient described One could also assert that the majority. possessor health, heroin sale “steals” the or But the victim. sanity, liberty error is in its narrow majority’s principal increasingly excessively definition of crimes. In an cetera” “et standard to impeaching applying *14 determine whether the conviction bears on the credibility majority an 18-inch The test which it is uses employs yardstick. measuring and incomplete inadequate.
The offense of of heroin for sale involves four (1) elements: possession narcotic, Actual or the constructive of for the of (2) purpose sale with of its and of its narcotic (3) (4) character. presence, knowledge, v. Newman 5 Cal.3d 52-53 484 P.2d (1971) (People Cal.Rptr. [95 Williams v. Court 421 1356]; Superior Cal.App.3d therefore, involves the of 485].) felony, Cal.Rptr. knowing possession sell it for a and unlawful with the intent to pecuniary very dangerous drug and with of its narcotic or commercial and full knowledge gain profit one heroin nature. It self-evident who addictive seems possesses of another, the to sell it to when tragic consequences intending illegally documented, heroin use are known and and so fully fairly may properly be a In to other such deemed “dishonest” addition several things, person. belief,” a be deemed “un- may reasonably “unworthy person not and “entitled to confidence.” trustworthy,” witness, otherwise, trial, When a whether defendant or in court during “ affirms his hand and the raises swears or ‘that evidence shall you give truth, truth, . . truth, . shall be the the whole and the so but help nothing ” Proc., a God’ Civ. the witness assumes both (Code 2094), § you thereby learn, and to moral A if it was obligation. might legal jury, permitted the or and therefore the reasonably question honesty veracity credibility who those and shun the common standards deliberately knowingly A decent and behavior to the sale of heroin. from legal by choosing profit itself, ask will has chosen could an individual who freely jury reasonably the the of laws in this manner also choose to reject responsibility reject oath? A has a task of of an often difficult measuring responsibility jury who to the individual witnesses what it should testimony, give give weight the lack a witness’ Information about respect, frequently conflicting. courtroom, thereof, as demon- for his civic outside responsibilities in aid a a criminal of this strated type, may jury by under how the witness is his taking responsibilities determining seriously information, assist a This his oath inside the courtroom. properly, Certain his in what should be accorded testimony. jury deciding weight nature, ones of crimes are their which kinds speak very inherently, for sale of those them. Possession the credibility committing eloquently is of heroin one of them. difficult, in a its
I cannot from join concealing jury, majority truth, which bears and so search for information closely directly upon, affects, of this To witness. jury deprive aura of is to the witness assume that “false veracity” knowledge permit which we expressly deplored Beagle. nutshell, to be an
In has concluded that it possible majority no the terms honest, There is such heroin person, trustworthy, pusher. This was the conclu- irreconcilable. are precise wholly incompatible *15 749, 753 reached in sion Cal.App.3d People Hughes which denied a but in which we a recent case 747], hearing Cal.Rptr. now In majority very unfortunately a unanimous rejects. speaking court in Justice Caldecott in was Hughes, my opinion precisely target concluded, when he “we cannot who steals is more say person to lie than a seller of heroin. likely the seller of heroin is as Certainly, as is the thief.” The same lacking integrity be said of the very of heroin for sale. possessor
Defendant’s conviction should be affirmed.
Clark, J., concurred.