*1 No. 20455. Feb. 1979.] [Crim. PEOPLE, Plaintiff and

THE Respondent, WOODARD, L. Defendant and

SAMUEL Appellant.

Counsel Defender, Jeffers, Chief Clifton R. Halvonik, Public N. State

Paul Lande, and Janet M. Defender, M. Brooks State Public Assistant Philip Defenders, for Defendant Public State Appellant. Deputy General, Winkler, Jack R. Chief Assistant Evelle J. Younger, Attorney General, O’Brien, General, Assistant Edward P. Attorney Attorney Jensen, Jr., Ann K. K. Clifford Attorneys Deputy Thompson, General, for Plaintiff Respondent.

Opinion Woodard,

BIRD, C. J. Samuel L. was convicted by jury Appellant, This court must decide if a second (Pen. robbery. degree witness, defendant, at trial other than a be may by felony impeached the risk of whose value outweighed by *4 undue (Evid. prejudice.

I 5, 1976, On the of October Florence the owner of a evening Spencer, Richmond, in North was robbed. She testified that she went to her cafe between 10:30 and 11 to close it for and to collect cafe p.m. p.m. night car in front a She her building adjacent day’s receipts. parked cafe, she saw two cafe. As she walked from her car to men in booth located about feet from front of a standing telephone trial, identified the two men as James front door of the cafe. At she that she had and she stated known Johnson appellant. Although referred to him and his for she throughout appellant family many years, men; trial Samuel Whitaker.1 She did not to either the two as speak were other outside the nor did to her. there they people speak Although cafe, “wasn’t she did not know who were because she paying any they attention.”

When she came out of the cafe with the someone day’s receipts, and, result, her as a She held on to the was grabbed purse. purse pulled fled down and about feet. The assailant with the dragged eight purse. Before fired two shots at the assailant with .38 she Spencer got up, caliber which she in a assailant ran between the had gun paper bag. cafe and another and building disappeared. was called. While

The Contra Costa Sheriff’s Department awaiting and arrival, the assailant had taken followed their path Spencer in the behind the When her discovered alley buildings. purse money known as Whitaker. had ever been 1There was no evidence that appellant was the arrived, told them that she the officers perpetrator appellant shirt with brown he was and that gold-brown wearing robbery in a she identified or dots. Later that flowers picture appellant’s evening an in-court identification She also made line-up. photographic her as assailant. appellant * - that had he Stockwell, a friend of testified

Leonard Spencer’s, He stated his to the cafe that evening. purpose Spencer accompanied in her car after was that she so to see in safely got collecting doing that, He as was about to in his testified he from business. get money He her robbed. stated that car, heard scream saw he being Spencer had been front who robbed standing Spencer person Stockwell had been outside the cafe booth. standing Although telephone out, he unable to as the came was when identify appellant Spencer robber. Woodard, testified on his appellant’s parents,

Marjorie Stylin been in North Richmond that had home behalf appellant evening. at the Ace of left to out for a sandwich Clubs At 11:30 he p.m. go time, At the faded blue North Richmond. wearing pair appellant *5 When returned home about and white tee-shirt. appellant jeans was asked what his noticed that he him They parents limping. midnight, and, he had heard he that had and shooting fearing happened replied direction, for cover were fired in his behind that shots jumped being car.

Mr. Woodard that he examined which was testified appellant’s injury, he was familiar with wounds from in the buttock area. Although gunshot did not he stated look like a his years Army, appellant’s injury Nevertheless, wound. decided to take to the he appellant hospital gunshot his that claimed to after informed them have shot daughter Spencer appellant. doctor, his did not wish to see mother was

Although appellant to the that examined. was driven adamant he be Appellant hospital, he was Dr. Isaac Dr. testified that where treated Slaughter Slaughter. had treated wounds he hundreds of bullet appellant’s injury not caused a bullet. He stated that consisted of a appellant’s injuries cut and an abrasion on one of his on the buttock elbows. sharp-edge cut was described the doctor as inch An being long deep. the area revealed no bullet or bullet fragments. X-ray injury

James Johnson was the last witness called and he testified for appellant under He stated that he had been in the immediate subpoena. area of the cafe but had not However, noticed arrive. he did see Spencer Spencer come out of the cafe while he was to a man and a woman near the talking cafe. He testified he had known for about one but “we appellant year don’t run Johnson saw the and was certain together anything.” robbery that the was not perpetrator appellant.

Johnson further testified that he after approached Spencer immediately incident, her from the sidewalk and handed picked them to up keys so, her. As he did that, asked: “Who is Johnson Spencer Jimmy?” replied he did not “Well, know. then stated: I know who he is.” Spencer

Out of the of the moved to presence exclude jury, appellant’s attorney evidence of Johnson’s convictions for man- voluntary Code, 192, (Pen. 1) subd. in 1971 and § for felon in slaughter possession a concealable firearm (Pen. in 1975. 12021) The trial judge motion, denied the that since the courts had not held ruling appellate this was “a matter of constitutional then this trial court should magnitude, the mandate of the He went on to state that he obey felt “our legislature.” further and further from even-handed justice getting away being a one-sided battle. . . . foreclose the becoming from They prosecution out about the defense witnesses, or the defense finding anything whereas the defense has access as to what the complete prosecution going do. . . . will the battle.” The Hopefully, someday they equalize prosecu- then tion asked Johnson about his convictions in the presence jury. deliberations, six hours of During nearly testimony Spencer and Johnson was reread to the at their jurors request. Subsequently, *6 returned verdict of second Pen. (former jury guilty degree robbery 211a). from the entered Appellant appeals judgment following this conviction.

II In v. 6 Cal.3d 441 313, (1972) 492 P.2d People Beagle 1], Cal.Rptr. [99 this court held that Evidence Code section 7882 unanimously although authorizes the of admission convictions to the prior felony impeach 2Evidence Code section 788 provides pertinent “For the part: of purpose attacking witness, the of a it be shown the credibility examination of may by the witness or the record of the that he has been convicted judgment of a . . .” felony. All references hereinafter to statutes are to the Evidence Code unless otherwise indicated.

335 must, its witness, a trial when exercise of a court requested, credibility the if 3523 exclude evidence under section discretion probative factors, such as the other the convictions of value outweighed prior 452-453; 6 Cal.3d at undue v. risk of pp. (People Beagle, supra, prejudice. 475, 79, 539 P.2d 96-99 15 Cal.3d v. Antick (1975) Cal.Rptr. [123 People 475, 545 218-219 Cal.3d Rist (1976) Cal.Rptr. 43]; [127 People 109, 115-116 20 Cal.3d v. Rollo 833]; P.2d Cal.Rptr. [141 People 177, 569 P.2d 771].) trial “the factors that must be considered of more

Some important to .” in to admit . . whether courts felony deciding a witness’ were enumerated in credibility People Beagle, impeach 6 Cal.3d 453. Since section 788 authorizes the use of at page the of of a evidence such only purpose attacking credibility “[f]or witness,” which trial court evaluate is the first factor must whether conviction reflects adversely upon credibility. felony Although of is sometimes said reflect character 'commission upon any convicted, not such a belief would the use of the individual justify “Character is conviction credibility. only impeach every type what exists is a number of abstract virtually actually group-term; traits, benevolence, violence, etc.” honesty, (Wigmore, separate e.g. 106; italics.) of Judicial Proof (1937) Science original relevant to has that the sole trait The Legislature provided impeaching character than is truthfulness: of traits of his other “Evidence to attack or their is inadmissible or support honesty veracity, opposites, conviction of a witness.” While (§ 786.) the credibility prior felony may character, traits” of it not of one or more may probative “separate is relevant one trait—truthfulness—which involve impeaching If a trait conviction does involve character credibility. prior felony truthfulness, outset, at the since it must be excluded as irrelevant evidence admissible section unequivocably provides “[n]o relevant evidence.”4 except if “The court discretion exclude evidence its in its provides: 3Section (a) will that its admission necessitate is substantially outweighed by probability

value (b) undue time or create substantial undue consumption danger prejudice, issues, misleading or of confusing jury.” would a 1965 which proposal 4The dissent contends that Legislature, by rejecting or false convictions involving dishonesty limited impeachment have *7 statement, be deemed relevant to intent that convictions must evidenced its all felony court legislative power” The dissent asserts the “arrogatfed] credibility. Beagle [] “ ‘ relate to credibility held that “convictions which rest on dishonest conduct when it ’ v. do not.” (People supra, those of violent or assaultive crimes generally Beagle, whereas 344.) 453.)” (Post, at at 6 Cal.3d p. p. However, this indicated its of approval has the dissent overlooks that the Legislature 336

Moreover, even convictions which are relevant to establish truthfulness are not of that one issue. “No denies that equally probative different felonies have different value on the issue of degrees probative Some, are such as connected with that credibility. perjury, intimately issue; others, relevant; such as and are somewhat less robbery burglary, ‘ and “Acts of violence . . have . little or no direct generally ’ ” Rollo, v. 20 Cal.3d at 118.) honesty veracity.” (People supra, p. Therefore, if court determines that a conviction involves truthfulness, it must consider the value” it has on “degree probative that issue when on a motion. ruling Beagle

The second factor to be considered is the nearness or remoteness in time of the conviction. v. Cal.3d at Beagle, supra, “ conviction, A 453.) one or ‘[ejven fraud for p. involving stealing, if it occurred before has been followed example, long legally life,[5] blameless should be excluded on the of remote generally ground court’s In at of the Beagle. least three four sessions since holding was legislative Beagle decided, amendments to been section 788 have which were to overrule proposed designed 1; (Sen. (1972 Sess.) and its Bill No. 845 Assem. Bill Beagle progeny. § No. 691 Reg. Sess.) 1.) (1977-1978 Both of the § houses have had an Reg. to Legislature opportunity bill, and, act such a each of amendments was although considered at proposed (One all of them committee failed to be enacted. died of law hearings, in the operation Senate; committee; after was one defeated a Senate Assembly passage by one committee.) (Final (1972 Sess.) was defeated Cal. of Business by Assembly Leg. Reg. 266; 296; Sess.) (1973-1974 (1977-1978 Final Hist. Sen. Assem. Semifinal Hist. p. Reg. Thus, 356.) al., Sess.) after et scrutinizing has Reg. indicated its Legislature, repeatedly Beagle this court’s line of decisions 788. section approval interpreting of this was The central thesis court’s unanimous decision its that the Beagle finding intend did not to section 788 from the Legislature “exempt general evidentiary provisions Evidence to all Division rules of applicable admissibility.” (People [of Code] 6 Cal.3d at these In supra, “general evidentiary provisions” Beagle, has “relevant provided evidence” is admissible in a court only Legislature 300, 350.) (§§ While the term “relevant evidence” has been proceeding. defined legislatively 210), (§ has been determine what judiciary given authority proffered (See evidence fits that Since description. “relevant evidence” includes evidence 210), (§ of a witness of the court extends credibility probative authority clearly whether evidence has in reason to determining preferred “any tendency prove {ibid.). disprove” Thus, the errs dissent when it authority asserts that this has been of the court limited in instance of convictions and that the court has no particular power if a prior determine Had conviction probative credibility. Legislature rules, out an intended to carve to the it would have said so exception general forthrightly. Moreover, it would not have this court’s rejected overrule consistently attempts holding that section 788 be an intended to to the “general exception evidentiary of the Evidence Code. provisions” Antick, 5In that the absence of “a Cal.3d at this court noted People page , most, blameless life’ . . . value at ‘legally only slightly enhance[s] evidence for impeachment purposes.”

337 ” from the value of The “remoteness detracts ness.’ (Ibid.) significantly Antick, . . v. 15 in . this evidence credibility.” (People supra, impeaching 99.) Cal.3d at factors, the the value of

These two which show probative prior conviction, the trial court to determine whether must be weighed of undue this evidence “will necessitate (a) admission of consumption the of undue of or create substantial (b) time prejudice, confusing danger decisions have identified issues, 352.) the Prior (§ of jury.” misleading this in which are of factors certain importance countervailing particular these is a criminal defendant. when the witness Among balancing process confusion of of undue risk factors are: (1) prejudice “unique this instructions, is to consider likely issues. jury limiting Despite is whether the accused of for the evidence determining purpose improper . . . .” would in criminal who activity (People engage type person Antick, the adverse effect on the 15 Cal.3d at 97); v. (2) supra, not the defendant elect to order should administration testify justice Cal.3d from the this information Beagle, juiy. (People supra, keep at p. that the General contends Attorney balancing process required by not

section 352 does when the witness to be not the impeached apply accused in a case. He and its criminal argues Beagle progeny involved who were defendants in criminal cases and that no witnesses witness than results when a other a defendant is impeached by prejudice evidence of convictions. felony

It is cases have correct line of from court involved Beagle However, who were criminal defendants. witnesses also analysis 788, which, those on sections decisions premised underlying trial when “read . . . discretion clearly together provide judge their value exclude evidence of convictions when the risk undue prejudice.” outweighed Neither of these statutes is limited in its 6 Cal.3d at Beagle, section 788 to a defendants. To refers to criminal contrary, application of criminal defendants on and there is no mention “witness” generally, Law or in the comments the face of either statute accompanying Moreover, when this court Revision Commission which them. proposed automatic that section did not admission held require Beagle conviction, it did witness every prior rely type section 788 contains This court reasoned that impeached. *9 word rather than permissive “may” word “shall” in mandatory admission convictions to credibil- authorizing prior felony impeach discretion conferred on the ity trial court section by exclude evidence is a the Evidence “general provision” to “evidence admissible under other applicable thereof.” provisions 6 Cal.3d at (People The class Beagle, of witness supra, to be is irrelevant. impeached court has identified considerations

Although relating prejudice which are in criminal actions especially where the significant witness is defendant, in these cases nothing that these supports argument considerations are the factors special or that only relating prejudice these considerations are of no when the witness to be import impeached is not the accused in a criminal case. It be true that a may nonparty witness suffers no with legally cognizable prejudice by impeachment convictions and he not refuse to on this prior felony may testify ground. However, case, a a criminal, civil or party nevertheless may the admission of a witness’ prejudiced by convic- nonparty prior felony tions. Where resolution of a critical issue on whose depends testimony believed, is to be a act little to the jury may arbitrarily give weight of a witness whose character has been testimony into brought question by the introduction of convictions. If the is witness called a by trial, a defendant in criminal a reasonable doubt be resolved against the accused because he felons, associates with even though prosecu- tion has not a reasonable doubt proven beyond defendant committed the offense. This is true in alibi or mistaken especially identity situations where the witness the defense only supporting theory witness who has suffered convictions. prior felony addition,

In influence a so that possibility prejudice may party witness, who otherwise evidence, relevant is not called. In might present cases, such the trier of fact would be deprived probative, competent evidence in the same manner itas is when a criminal defendant elects not due to convictions. This has an “adverse effect on testify prior felony the administration of because it hinders the trier of justice,” fact in its Rist, ascertainment truth. 16 Cal.3d at Therefore, in addition to the harm suffered the search for party, truth in our when system justice impeded are admitted to of a witness. improperly impeach nonparty the discretion called for section 352 and

Accordingly, line of decisions this court must be exercised whenever a Beagle for the defendant, criminal case—moves in a civil or party—plaintiff *10 the factors to be conviction. While of witness’ a exclusion felony prior of case or the the nature the differ party upon may depending weighed all is cases. be the who process applicable weighing prejudiced, in v. reached the Court of same conclusion was This Appeal People also v. 216], 700 (See 32 Carr (1973) Cal.App.3d Cal.Rptr. People [108 Carr, In the 46-47 751].) 62 Banks (1976) Cal.App.3d 38, Cal.Rptr. [132 he entitled a witness that was to impeach prosecution alleged appellant the of In of the trial a conviction murder. with propriety prior upholding evidence, the the court “It exclusion of Carr stated: would court’s a no discretion to exclude evidence hold that trial has anomalous to judge action, than defendant in a was convicted witness, other that a criminal was, for the even aggravated though felony example, felony earlier the witness was when committed assault many young years Carr, at v. 32 704.)6 immature.” supra, Cal.App.3d (People case, it clear that In the is the trial court erred in present admitting evidence Johnson’s convictions. No was discretion prior it failed base its exercised the trial court since on factors ruling The trial court considered neither outlined value probative Beagle. convictions, Rather, nor the for it of the relied on its potential prejudice. with the decisions of the This courts. appellate apparent disagreement Sales, Auto Inc. v. Court 57 was under (1962) Superior improper Equity 321, Further, 450, 369 937], Cal.2d 455 P.2d trial Cal.Rptr. judge [20 and based his denied motion to exclude convictions decision prior use, law that section 788 mandated its is to the on ruling although Carr, 700, 32 is no good 6The General argues supra, Cal.App.3d longer Attorney court, 211, Rist, in which it v. 16 Cal.3d this law because was decided before People supra, 222, to the 10 that “the views we now pertain only in footnote at stated express page in a a witness who is the defendant convictions impeach introduction prior we are concerned with the criminal not herein use prosecution; The General other witnesses in criminal or civil proceedings.” Attorney ignores impeach one the factors that the thus footnoted discussing particularly the fact paragraph to a defendant-witness: the adverse effect on administration of justice pertinent the defendant elect not to for fear of Also is the fact testify ignored should impeachment. in Rist cited Carr with that in the the court immediately preceding paragraph, approval: court, the trial and the court when a made to challenge is requires appellate “Beagle discretion, trial exercise of consider all those factors on the court’s pertinent bearing value of evidence of a conviction as whether it bears question the risk of undue under facts of the credibility outweighed by prejudice unique Antick, 97-99; (See (1974) v. 15 v. 41 case. Cal.3d Obie People supra, People particular Rollo, other 744 v. Cal.Rptr. [disapproved grounds People Cal.App.3d [116 283] (1973) 120]; 573]; 20 32 853 Cal.3d v. Coleman People Cal.App.3d Cal.Rptr. supra, [108 700.)” Rist, v. Carr Cal.3d at Cal.App.3d (People supra, People 221-222, italics.) pp. original None the reasons advanced the trial court contrary. justified failure to exercise trial discretion. discretion is not “[The court’s] absolute and must be where exercised an individual’s carefully liberty Antick, at stake.” 15 Cal.3d at In this neither case of the convictions had direct on the any witness, and should have been excluded for that reason at alone. (Ante, conviction estab voluntary manslaughter act, lished the a violent most, commission of which at the have may, indicated a character for trait violence. character Only particular *11 trait—and the not whole Johnson’s character—was It implicated. cannot be inferred from the of a commission violent act that he was also nature, a matter human a bad disposed falsify. general “[A]s does not or a involve lack of necessarily disposition commonly veracity. 922, . .” Evidence rev. (3A (Chadbourn 727, . ed. 1970) § Wigmore, p. Chief italics.) Justice has observed that of violence Burger original “[a]cts nature, . . from a short a . result combative extreme temper, causes, or other have little or no direct generally provocation, [and] v. United States (Gordon (D.C.Cir. bearing honesty veracity.” 936, 940; 383 F.2d accord v. 6 Cal.3d 1967) at People Beagle, supra, Rist, 433; v. 16 at 222.) Cal.3d “The most heinous p. People supra, in the Penal Code arsenal are those offenses violence. Yet a involving violence, for as conviction of violent suggested by previous propensity act, reflect the for does not trait which evidence is only upon admissible; Rollo, of a witness.” v. 20 Cal.3d credibility (People supra, 120, at fn. Since the offense of does not voluntary manslaughter fraud, involve element of deceit or evidence of the any dishonesty, conviction should have been excluded.

The for conviction felon of a concealable firearm should possession also have been There excluded. in the elements of this offense nothing which involves a elements that showing dishonesty. only must show in addition to the accused’s are status his prosecution or anof concealable firearm v. possession operable, ownership (People 341, 266 Jackson 348-349 (1968) 162]) his Cal.App.2d Cal.Rptr. [72 of its There character. is no that the knowledge presence requirement the firearm for accused v. Booker possessed illegal purpose (People 77 223 or 482]) he (1978) Cal.App.3d Cal.Rptr. [143 actually concealed it. It is that the show was only necessary weapon “capable concealed There (Pen. being upon person.” a concealable firearm. inherently nothing illegal possessing owning v. 22 12 (Cf. 409, Cal.3d 582 (1978) P.2d People King Cal.Rptr. [148

341 of the owner which makes it Since It is the status 1000].) felony. only truthfulness, direct the witness’ under had no this conviction evidence, have been excluded. the rules of it should convictions, on the erroneous the trial court’s rulings Despite Therefore, this court must did and was Johnson impeached. testify case the circumstances whether under determine particular 836 Cal.2d Watson [299 error prejudicial. Rist, Cal.3d at P.2d 243]; [where People compare defendant, did to be following witness testify impeached, motion, could not of his denial erroneous Beagle degree prejudice the conclusion that it considerations Several determined].) compel was. was the central issue in trial.

Identity appellant’s perpetrator victim, were the as Johnson and witnesses only testify Spencer, Therefore, this, Johnson’s was critical. Recognizing identity.7 admitted exploited erroneously prosecutor *12 to as a final discredit Johnson witness. the Initially, arguments during Mr. Johnson more cares declared: “I submit no about you prosecutor the truth the man in the than moon. If on the stand telling getting Mr. for a minute Woodard was or was for a second—assume thought you that Mr. would there, do think Johnson stand and get upon you crime if he saw? Do he committed the think as who you really testify Gentlemen, Mr. Johnson is human would? Ladies and being.” unique is, “But he our added: here reliable witness Later the great prosecutor Honor will indicate how can consider those Johnson, Mr. and his you ex-con in felonies, a firearm possession voluntary manslaughter, was Even there no indication that on his credibility.” though himself,8 the have been that Johnson had jury persuaded perjured due his was such an character convictions that Johnson unsavory his should be testimony disregarded. shut,

The issue of in this case was far from as evidenced guilt open evidence and the six hours of delibera- by sharply conflicting nearly tions had before reached a verdict. jury Clearly, jury they about as the The identification misgivings Spencer’s culprit. appellant source of some of even from cold record these is obvious misgivings 7Their was that the be reread. requested also testimony only testimony jury 8The fact that contradicted does not Johnson’s mean testimony Spencer’s inevitably of the two committed for it is that “innocent one perjury, widely recognized is not and that “two [experience]” misrecollection uncommon persons witnessing [an] (CALJIC 2.21.) will see or hear No. incident or transaction often it differently.” this court. whom the robber had from

before Spencer, approached Johnson, behind, believed was the who was appellant perpetrator. incident, clear view of the testified he near the scene and had a standing name, not.9 referred to wrong Spencer repeatedly appellant by recall at the name of her friend “Whitaker.” She was also unable to trial Stockwell, there time when whose at she “purpose being closing [in] comes out” was to insure that she into her car Since got safely. [Spencer] conclusion, the outcome of the trial was not a doubt cast foregone any of the assailant have been resolved in favor of upon identity might if the had been appellant jury given opportunity impartially weigh Therefore, Johnson’s “it is testimony against Spencer. reasonably that a result more favorable to would have been probable [appellant] Watson, in the absence of reached error.” 46 Cal.2d (People [this] at

Ill Prior to decision to admit evidence of convictions to any felony witness, the trial courts must careful impeach any give consideration to whether or not the evidence will be used the trier of for the which fact its admission. true only purpose justifies purpose “[T]he trial, criminal ,” the ascertainment of the . facts . . v. Riser 47 Cal.2d P.2d is not advanced 1]) [305 indiscriminate use of convictions which do not bear on the of the witness’ truthfulness inherent in the use of testimony. danger such convictions is that the a witness’ jurors may disregard because of his convictions. The testimony they disapprove proper *13 administration of and the search for truth cannot if be advanced justice make decisions based on facts that are irrelevant to the issue before jurors them. case,

In the the record indicates that the trial court failed to present exercise its discretion evidence of convictions. admitting prior felony Since those convictions did not bear on the truthfulness, trait of no choice but to court has remand the cause to the trial court for such as are consistent with this proceedings opinion. Accordingly, judg- ment is reversed.

Tobriner, J., Mosk, J., Manuel, J., Newman, J., concurred. Richardson, J., concurred in the judgment.

9Both and Johnson had known before Spencer appellant robbery. J., this court once CLARK, The majority again usurp Dissenting. role of the Legislature. are deemed issue

In California all felony Code, In section 788 the (Evid. 788.)1 Legisla § enacting credibility. have ture considered and that would changed rejected proposal of a crime in which “an California law by proof limiting impeachment Cal. element” is or false statement.” (Witkin, essential “dishonesty Trial, Evidence ed. Introduction of Evidence at (2d 1966) § Therefore, that “a . conviction . . by holding . the character trait of truthfulness . . must be excluded as involving] irrelevant” to (ante, 335), credibility majority clearly nullify intent. legislative

Evidence Code section 788 is a recodification of the law as it essentially existed under Code of Civil Procedure section 2051. Committee (Legis. com. to Evid. As the California 788.)2 Law Revision § Commission out, “under law conviction be used for pointed existing any felony may even the crime involved has no impeachment purposes though the witness’ or Cal. Law Revision Com. (7 honesty veracity.” Rep. The Law Revision Commission 143.)3 originally proposed change to a

the law conviction in which by limiting impeachment essential element of the crime is or false statement.” {Id., dishonesty “[a]n at As introduced in the 141-143.) originally pp. Assembly legislation the Evidence Code followed the recommendation of the Law enacting Revision Commission in this Bill No. 333 (Assem. (1965 respect. Reg. However, out, as Mr. Witkin Sess.) l.)4 points “Strong opposition, 1Section 788 witness, “For the provides pertinent part: purpose attacking it be examination witness or the record of the may by by shown that he has been convicted of a . . .” judgment felony. 2Section 2051 “A witness be whom he provided: may impeached by party against called, truth, evidence or evidence that his by contradictory for general reputation bad, acts, but not evidence of honesty, integrity that it particular wrongful except witness, shown examination or the record of the that he judgment, had been convicted of a unless he has received a full and unconditional previously *14 1872, 1949, (Enacted based a certificate of rehabilitation. amended Stats. pardon, upon by 333, 1965, 299, 126, 1, 616, 1366.) ch. and Stats. ch. § § repealed by assumes, course, of some do 3The commission’s statement not reflect view, seen, as will on one’s or Legislature “honesty veracity”—a ultimately rejected. would have in relevant 4Under this Evidence Code section 788 provided proposal part: (b), is “(a) to subdivision evidence of witness’ conviction of admissible Subject court, his if the in held out of the for the of attacking credibility proceedings purpose the crime (1) and of the finds that: An essential element of hearing jury, presence [H] or false statement. . . .” dishonesty 344 of the difficulties crimes in this manner

arguing classifying the trial, led to disadvantages separate hearing interrupting abandonment of this reform. v. (See Stewart 240 [(1966) People 1, 7, 1 & 2 fns. (50 Ev.C. 26)].) Cal.App.2d Cal.Rptr. Accordingly, the, rule restates of former 2051 . .” C.C.P. . . (Witkin, Cal. Evidence (2d Trial, ed. of 1966) 1243, Introduction Evidence at is, That it did until this court convened itself as a super-legislature.

This of can be traced to legislative particular arrogation power People Cal.3d 492 P.2d 1], held Beagle Cal.Rptr. Having [99 the trial has discretion under Code Evidence section 352 to exclude judge evidence of convictions when their value on prior felony probative their risk of undue this court credibility by outweighed prejudice, factors to be considered the trial in proceeded specify judge discretion, with of discussion such exercising quoting approval “ factors in Gordon v. United States (D.C.Cir. 383 F.2d 1967) 936. ‘In common human deceit, fraud, acts of or for experience cheating, stealing, are as conduct which reflects example, on universally regarded adversely a man’s . Acts violence . . have little honesty or integrity. generally no direct on A “rule of thumb” thus should honesty veracity. be that convictions which rest on dishonest conduct relate to credibility ” whereas those violent or assaultive crimes do not.’ generally 6 Cal.3d Beagle, at p.

What court is, course, in have overlooked appears Beagle the federal court in Gordon not bound the California appeals Evidence Code a “rule of thumb” for States United fashioning for District Court the District of If a Columbia. court is free to consult “common human rather than constrained to experience,” being give effect to a statute with there be some unambiguous history, view that “convictions rest which on dishonest conduct appeal relate to whereas those violent assaultive crimes generally However, herein, do not.”5 as has been stated this is view repeatedly which our Legislature clearly rejected. determined that James Johnson’s convictions for

Having prior felony and for aof concealable firearm an voluntary manslaughter possession all ex-felon—like convictions—are the issue hand, matter, most, 5On the other in this as in does human with experience speak one voice. It is as consistent with human just to assume that one who has experience most serious rules—felonies—will disregarded society’s also his obligation disregard tell truth under oath. It is our sufficient for that the Legislature has purposes spoken issue. *15 his we to consider the factors in the credibility, proceed remaining Beagle recent, test. The “remoteness” no balancing priors being relatively here; I do not understand the to claim that it is. The problem majority twd factors in identified as are: (1) Beagle prejudice stand, a defendant not take the thus possibility may depriving jury his side of in order to avoid with stoiy, being impeached prior convictions; and a defendant with possibility impeached conviction similar to that for which he is on trial be convicted may before, on the that if he did it he is more jury unacceptable ground likely to have done it this time. 6 Cal.3d at 453.) (People Beagle, supra, However, as the Court of out: “Those factors have no Appeal pointed to a witness who is not a defendant. A nondefendant witness application not decline to for fear of and the of a may testify impeachment, proof conviction cannot incline mind toward operate jury’s him when he is not under convicting again charge.” to this is remarkable. majority’s that a response They argue nevertheless, defendant be may, his prejudiced by impeachment witness with convictions because the prior felony consider the jury may in the witness’ and, priors this, assessing credibility, realizing defendant decide not to call the is, witness. {Ante, It may course, true that a witness’ quite convictions prior felony may tip balance when the his But what of jury that? The weighs credibility. intended that a witness with Legislature clearly convictions, prior felony as him, well as a who would call in this party As “prejudiced” respect. this court out in no witness is entitled to pointed the “false aura of Beagle, he would have if his veracity” were to be prior felony Cal.3d at (6 That a defendant choose not suppressed. to call a witness if the witness will be of that false aura of is no deprived veracity cause for concern unless this court now to do it what disclaimed proposes intention of any countenanc doing Beagle, namely, “encouraging] a form of blackmail defendants.” (Id.) ing] conclusion,

In the trial court acted clearly properly admitting evidence of Johnson’s convictions for purposes impeach- ment. There was no reason to exclude the were priors. They the issue of Johnson’s recent, were and defendant would credibility, they suffer no from their admission. cognizable prejudice should be affirmed.

Accordingly, judgment