Opinion
A jury convicted appellant Morris Benson Stewart of three counts of attempted robbery (Pen. Code, §§ 664, 211) and three counts of false imprisonment (Pen. Code, § 236) and found that he used a firearm during commission of these offenses (Pen. Code, §§ 12022.5, 1203.06). The jury also convicted appellant of possession of a firearm by a felon. (Pen. Code, § 12021.) In addition, the trial court found that appellant had suffered four prior felony convictions. (Pen. Code, §§ 667, 667.5.) Appellant contends that his conviction should be reversed because the court (1) refused to give a requested jury instruction relating eyewitness identification to reasonable doubt; and (2) denied his motion to exclude use of four prior
*62
robbery convictions for impeachment. The case has been retransferred to this court for reconsideration in light of
People
v.
Castro
(1985)
I
On September 24, 1983, at about 12:15 p.m., several employees were working in the kitchen area of the Chuck E. Cheese restaurant in Redwood City when a man in a brown cap entered, carrying a black gun with a brown handle. He ordered Luis Galindo to open the office door, but it was locked, and only the manager had the key. Desiree O’Donnell was allowed to go find the manager, who was already aware of the incident and had notified police. The man fled.
Several of the employees identified appellant as the man with the gun. O’Donnell testified that she was 80 percent sure that appellant was the robber. Galindo also identified appellant, although on cross-examination he stated that he thought appellant was a little taller than the man with the gun. Edward Smith identified appellant, and Charles Accurso thought that appellant looked like the robber, although he was not positive. A .38 caliber pistol seized in a search of appellant’s home looked like the one carried by the robber. Two other employees were unable to identify appellant.
Officer Shelley Aldridge of the California Highway Patrol (CHP) was getting off duty at approximately 12:15 p.m. on September 24. As she was leaving the CHP parking lot, she saw a black adult male running from the Chuck E. Cheese restaurant across the street. The man, who was wearing a tan cap and brown pants, climbed into the trunk of a tan-over-brown Cadillac which was parked in the restaurant’s lot. The Cadillac then drove out of the lot. Aldridge followed it for a time, and noted its license number.
Officer Henry Begnaud of the CHP spoke to appellant’s wife at her home in Stockton on the evening of September 24, in response to her report of a stolen vehicle, a Cadillac which had a license number identical to the one observed by Officer Aldridge. Appellant’s wife stated that she last saw the car at about 7 a.m. that morning. Two days later CHP Officer Clark took a report from a man who identified himself as Morris Stewart regarding the recovery of the vehicle. Officer Clark observed in appellant’s driveway a tan-over-brown Cadillac; its license number matched that reported by Officers Aldridge and Begnaud. Appellant told Clark that the car had been borrowed by his nephew, David Pierce, and that appellant had retrieved the car in San Francisco after Pierce telephoned him about some car trouble. Appellant stated that he drove the vehicle back from San Francisco on that *63 day. However, it was stipulated that Pierce was actually in prison on September 24, 1983.
Appellant did not testify, but offered an alibi defense. Robert Kennedy, appellant’s brother-in-law testified that on September 24, there was a family gathering in Auburn, which is about 119 miles from San Francisco. Appellant’s wife arrived in the morning in a blue Plymouth, and appellant arrived at between 12:30 p.m. and 2 p.m. in a Cadillac other than the brown and tan Cadillac. Elizabeth Kennedy, appellant’s sister-in-law, thought that appellant arrived in Auburn at close to 2 p.m.
II *
III
Appellant moved pursuant to
People
v.
Beagle
(1972)
In
People
v.
Castro, supra,
The first question, therefore, is whether appellant’s prior robbery convictions involved moral turpitude. In answering that question, we look *64 to the elements of the offenses. (People v. Castro, supra, 38 Cal.3d at pp. 316-317.) Robbery is the felonious taking of personal property in the possession of another, from his or her person or immediate presence, and against his or her will, accomplished by means of force or fear (Pen. Code, § 211); it is beyond dispute that robbery necessarily involves moral turpitude or the “‘readiness to do evil,’” and evinces a character trait which can reasonably be characterized as ‘“immoral.”’ (Castro, supra, at pp. 314, 317, fn. 13.)
However, the trial court erred in this case when it concluded it had no discretion to exclude appellant’s priors, and we must decide whether it is reasonably probable that a result more favorable to appellant would have occurred in the absence of that error. (Cal. Const., art. VI, § 13;
People
v.
Watson
(1956)
In
People
v.
Beagle, supra,
We first note that the court’s opinions in
People
v.
Castro
provide little enlightenment as to the parameters of the trial court’s discretion under Evidence Code section 352 when a felony involving moral turpitude is offered for impeachment. The three-justice lead opinion does not squarely address the question. Instead, it states that
Beagle
was never intended to establish rigid standards governing the trial court’s exercise of its section 352 discretion, and that the electorate has rejected the “rigid, black letter rules of exclusion” which the Supreme Court grafted onto the Evidence Code with its
“Antick [People
v.
Antick
(1975)
First, it is apparent that these statements concerning how trial courts are now to exercise discretion in such matters were dicta, or observations un
*65
necessary to the court’s decision to affirm the judgment. (See
Hollister Convalescent Hosp., Inc.
v.
Rico
(1975)
When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.
(Brown
v.
Newby
(1940)
These general principles, which have often been restated, are applicable to the trial court’s power to exercise its discretion pursuant to Evidence Code section 352. That section permits the court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules.
(People
v.
Yu
(1983)
Mindful of these principles, we consider appellant’s four robbery prior convictions. As we have stated, appellant’s four robbery convictions unquestionably involved moral turpitude and were therefore probative on the issue of his honesty.
(People
v.
Castro, supra,
We conclude, therefore, that the “reasonable exercise of judicial discretion by the trial court could not have justified the exclusion” of all of these priors. (See People v. Beagle, supra, 6 Cal.3d at p. 454, italics added.) In other words, while the trial court may have reasonably concluded that all four priors should not have been admitted, it would not have excluded all of them, because “[n]o . . . defendant who elects to testify in his own behalf is entitled to a false aura of veracity.” (Id., at p. 453.) Accordingly, it is not reasonably probable that a result more favorable to appellant would have occurred had the court properly exercised its discretion.
Judgment is affirmed.
White, P. J., and Anderson, J., * concurred.