*1 7, 1969.] 519. No. Fifth Dist. Jan. [Crim. PEOPLE, Respondent, THE Plaintiff v. ROBERT VINSON, Appellant.
FRANK Defendant and Gregory, appointment V. James under *2 Appeal, Appellant. Defendant and for Maier, Lynch, Attorney General, Doris Thomas C. H. Attorney oye General, Assistant Arnold 0. Over Michael and Fabian, Deputy Attorneys General, H. and Re- for Plaintiff spondent. Appellant was GARGANO, pimping convicted of in vio J. Penal (h),
lation of section subvibision Code and statu tory rape only in of violation Penal Code section 261.1. His prior testimony prose for contention reversal that the of the cution chief ’s witness was admitted his trial for the of truth asserted, derogation in of right matters of confronta guaranteed by the tion as Sixth and Fourteenth Amend ments to the United States Constitution. chronology substantially The events is as of follows. The prosecution’s witness, Green, chief Glia Andria became 16 on January 12, 1966; going appellant she commenced out in with year. of October that Around November of Miss Green pregnant. appellant discovered that she Later told her he marry
would he also her; told witness’ grandmother, “Well, grandmother, in pregnant if she is it is However, appellant mine.” April March 1967 Miss Green learned that girl. had married another A few months later Miss Green police according called the and, to Officer Earl Powers of the Fresno Police Department, said that she wanted to turn her pimp. appellant’s At trial Miss appellant admitted that Green only years knew that age she was when he was going out with the time Miss her. At was in high Green school and she appellant age. denied, told her however, She that she ever had appellant. sexual intercourse with She said prosti- she was a tute before met appellant, appellant she and when asked her prostitute him be a she refused. She testified that when appellant she heard had girl upset married another it her and complaint so against filed the she him. The witness did not telling police recall that she wanted to turn in pimp her but telling remembered them, “I want to make a case ’’
against Mr. Vinson.
At the conclusion of Miss
direct
Green’s
examination the
pursuant
prosecutor,
to section 1235 of the
Code,
Evidence
prior
excerpts
read
to the
from the witness’
appellant’s
taken at
preliminary hearing. The witness had
stated
she had
appellant
sexual intercourse with
on more
than one occasion, that
a-prosti-
she
worked for him as
tute, and
given appellant
that she had
money.
Section 1235
abrogates
of the Evidence Code
the former law
of this state and
exception
establishes
new
to the
provides
rule. It
impeach
that inconsistent statements used to
a witness are also
admissible
substantive evidence for the
truth of
previously
the matters
asserted
the witness. How
ever, albeit the section
appellants
effect at the time of
trial, he
nevertheless relies on the recent case of
Cal.Rptr. 599,
675 negative absolutely is in the prior since it is clear that Miss Green’s prosecutor merely was not used testimony by impeach the witness under Evidence Code section 785 but was part fact, used as an essential this of his case in chief. In without justify there was no substantial evidence to I, extremely defendant’s on and it conviction count is doubt- guilty ful that the would have found him of count II. words, absolutely excerpts other albeit it was clear that the prior from Miss Green’s were not used impeach the witness but as substantive evidence charged, appellant’s to standably the crimes trial counsel under- request did not limiting a instruction because nei- judge any way ther he nor knowing the trial Supreme scope California Court was about to narrow the Evidence Code section in criminal cases in to con- order appellant form the section to constitutional limitations. should not be deemed to have waived a substantial constitu- right by perform tional peared ap- counsel’s failure to what then (People Kitchens, to be a fruitless or idle act v. Cal.2d 262-263 Marsden, P.2d v. ; [294 17] Cal.App.2d 796, Cal.Rptr. 728]). In short, while it normally is the rule that when evidence is admissible purpose, request limited the defendant limiting must in- struction or the evidence is purposes, admissible for all this inapplicable rule to the limited facts of this As case. our People Kitchens, supra, said contraiy holding place 263: “A would an unreasonable anticipate changes burden on defendants to unforeseen in the encourage objections fruitless law in other situations might hope where defendants that an established rule of evi- ’’ changed appeal. dence on would be question, therefore, The crucial is whether the admis prior sion of Miss impeachment, testimony, limiting Green’s without it to appellant’s violated Sixth Amendment to confront the witness under the Johnson Signifi rationale. cantly, in that grand case the was taken at a jury hearing, and the defendant did not have the to cross-examine the given. witness when the Moreover, inconsistent out-of-court statements of the witnesses were also used as substantive evidence. the instant case given appellant’s *4 represented by when he was counsel opportunity who had the to cross-examinethe witness.
After careful consideration significant ques- of this most prior testimony Miss Green’s falls
tion, we conclude that decision and that a ambit of Johnson without within the the undoubtedly jury considered the limiting instruction was that contrary the mandate of decision.2 purposes, for all Supreme of the Court’s decision short, albeit the main thrust against prior testimony adduced at Johnson was directed opportunity hearings which the no cross- defendant maintains, it is witness, examine the as neverthe- Supreme that less Court held such clear that when the testi- mony truth of the matters for the asserted inadmissible preservation of the effective therein, it also had in cross- mind “against encroachments, however examination innocuous (Italics they added.) may face.” seem to be on their More- over, has charted the a United States course unequivocally committed to safeguarding the cross- “against examination rule. corrosive of the extension Manifestly, the use of at a defendant’s taken evidence, substantive when the witness is in testify, court and able to is a extension of the corrosive though rule represented by even the defendant was counsel and had the to cross-examine the witness when given. the
First, the cross-examination of a witness at a defendant’s preliminary hearing is adequate. seldom The cross-examiner does not have the same motivation to cross-examine witness at a preliminary hearing prosecution’s only when the burden probable cause, is to establish as he has at the later defend- ant’s trial beyond People when guilty must the defendant a reasonable doubt. the cross-examination is sel- searching exploration dom a into the witness’ motives other facets of his experienced credibility. fact, to test his lawyers trial often defer cross-examination en- tirely until the time trial when it is most effective.3
Second, the use of as substantive evidence testify opens when witness is in able to the door 2Respondent’s argument presume jury we cannot that that con sidered Miss Green’s as substantive because judge give they jury did not an instruction were to so consider gave it and he because the standard instruction which informs the credibility judge how of witness and which includes a reference statements, to inconsistent necessary. untenable and no further discussion is importance 3See Justice Mosk’s discussion excellent of cross- pp. examination at the time of trial ooa. 654-
677 only of not corrosive the Sixth trial tactics which to are. contrary right of confrontation but are to the Amendment concept play, upon very spirit fair the fundamental which of system possible judicial It makes our entire has been built. it knowing that prosecutor testify, call a for the to witness to changed testimony then, his and under the has the witness guise testimony as impeachment, to use his unreliable sub- of helpless against a defendant who would stantive evidence place. thing is never in first It one have called the witness the prior under well to use or out-of-court declarations in- exceptions dead, is hearsay the witness formulated when entirely competent jurisdiction. It is an different out evidence when the matter to use such as substantive very testify the forum witness is in and to before able going judgment defendant who is on trial pass that is on a situation, hearsay is the or freedom. In the former his life jury in presented the reasonably good is reliable and presumably In latter faith it is the available. the since reliable, the longer and it is not situation the is no only evidence available. Third, already the United States Court has taken
cognizance of the subtle but real distinction between the ad- missibility of taken at a hearing through when the witness is dead or unavailable no fault of prosecution admissibility the and the of such evidence when negligence the witness’ is absence due to the or omission of People. prior the situation, the latter the has been held though inadmissible even repre- defendant was by sented counsel and had the to cross-examine given (Motes when it States, was United v. 178 458 U.S. [44 1150, 993, ; Page (1968) L.Ed. 20 S.Ct. Barber v. 390 998-999] 255, 1318], U.S. L.Ed. 88 719 S.Ct. There is no rea- [20 high son to believe that the attitude of the court would be this, present different in a case such as where the witness is in simply court, testimony is because the first offered under guise impeachment. contrary, of On the as Justice Mosk Johnson, supra, 646, in observed “And here v. 659-660: again testimony’ the ‘former eases are instruc- even taken at a tive : when complete adequate opportu- the defendant had a which nity counsel, to cross-examine with the of the court assistance subsequent has held that its introduction violates right if of confrontation the witness’ absence constitutional negligence prosecution allowing to the of due 678 escape (Motes v. United States (1900) 458, 178 U.S. 471-474 1150, L.Ed. 20 S.Ct or its failure 993]) good [44 to make a faith compel effort procedural his attendance various (Barber Page means (1968) 390 719 U.S. L.Ed.2d [20 1318]). S.Ct. (at the latter decision the court observed p. 725 of 390 p. 260]) U.S. right L.Ed.2d at that ‘The [20 ’ may dispensed confrontation lightly. not be with so These rulings emphasize high importance court’s in the belief ensuring the defendant’s to conduct his cross-examina- contemporaneous tion before a i.e., trier of fact, before same trier judgment who sits in on the truth of witness’ direct testimony spoken as it (See from the stand. also
Bruton v. United (1968) States U.S. L.Ed.2d 1620].)” S.Ct.
Respondent contends that if error occurred it was harm- less and does require not judgment. However, reversal of the the error was “of federal (People constitutional dimensions.” supra, 646, 660.) Cal.2d And has failed to that it was “harmless a reasonable beyond (Chapman doubt.” 705, 711, v. California, 18, 24 386 U.S. L.Ed.2d 87 S.C.t. 828].) contrary, On the as we have indicated, without Miss Green’s testimony there was little if substantial justify appellant’s evidence to con- I, viction on count and the against appellant on count convincing II was circumstantial and lacked highly generally required in a criminal quality not action. we can- say beyond that it clear a reasonable dif- doubt erent result would not have occurred on this count even if the jury had they known that were to previ- consider Miss Green’s ous impeachment only. judgment The is reversed.
Stone, J., concurred. CONLEY, P. result, J. I concurin the that is say, judgment reversal of the of the conviction, approve but do not reasoning majority opinion. petition rehearing A for a February 5, 1969, was denied opinion printed was modified Respond- to read as above. petition hearing ent’s for a Court was denied March 1969.