PEOPLE v. SIMS

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. James SIMS, Defendant and Appellant.

No. C026124.

Decided: June 30, 1998

Central California Appellate Program and Mark L. Christiansen, under appointment by the Court of Appeal, Granite Bay, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General, and Jean M. Marinovich, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant James Sims of second degree murder (Pen.Code, §§ 187, 189) and found he used a firearm in the commission of the offense (Pen.Code, § 12022.5).   The trial court sentenced defendant to state prison and ordered him to pay restitution to the victim's family.

In the published part of this opinion, we reject defendant's contention that, although the trial court properly allowed him to impeach a prosecution witness with evidence of the witness's felony convictions for vehicle theft and for being a convicted felon in possession of a firearm, the court erred in refusing to permit defendant to call the victim of the vehicle theft to testify about the facts of that crime as committed by the prosecution witness.

As we shall explain, in enacting Evidence Code section 788, permitting the impeachment of a witness with evidence of the witness's conviction of a felony involving moral turpitude, the Legislature has determined that it is the fact of the conviction itself which tends to prove the disputed fact (the witness's readiness to lie) regardless of the way in which the felony was committed.   Consequently, the circumstances of the witness's commission of the crime are not relevant and, thus, are not admissible.

In the unpublished portions of our opinion, we reject defendant's remaining claims of error.

FACTS ***

DISCUSSION

I

 Terry Edmerson testified that, while visiting his friend, James Nichols (“J-Bird”), and others in Stockton on April 13, 1994, he saw defendant come up with a sawed-off shotgun.   Defendant appeared angry, placed the gun to the back of J-Bird's head, and said, “What now punk.”   J-Bird, who was sitting on a tree stump, put up his hands and smiled.   Defendant then pulled the trigger, killing J-Bird.   Edmerson ran from the scene, and defendant chased him a short distance.   An acquaintance, Charles Cornell, picked up Edmerson and drove him home.   Edmerson told Cornell what had happened to the victim.

On cross-examination, Edmerson admitted having a felony conviction for vehicle theft in 1994 and a felony conviction for possession of a firearm by a convicted felon in 1995.

The trial court denied defendant's request to further impeach Edmerson by having the victim of the vehicle theft in 1994 testify to the facts underlying Edmerson's commission of that crime.   According to defendant's offer of proof, the victim would have testified that the vehicle theft was a carjacking in which Edmerson struck the victim in the face and caused him to run away in fear.

Relying on article I, section 28, subdivision (d) of the California Constitution (hereafter section 28(d)) and People v. Wheeler (1992) 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938, defendant contends the trial court erred in excluding the proffered testimony about the circumstances of Edmerson's felony vehicle theft conviction.

Defendant claims this evidence was relevant and admissible pursuant to section 28(d) to allow the jurors to weigh the impeachment value of both Edmerson's felony conviction for vehicle theft and his later felony conviction for possession of a firearm by a convicted felon.   In defendant's view:  “Possession of a firearm by a person previously convicted of automobile theft ․ is not very meaningful on credibility;  similarly, ․ automobile theft is a crime which may be committed in many different ways and circumstances, many of which are extremely minor in nature.   However, when that theft is accomplished by battery against the victim of the theft-violent actions which sufficiently threaten that the victim fears and runs for his life-not only the theft but the subsequent possession of a firearm take on entirely different weight.”   The contention fails for reasons that follow.

Section 28(d) states in pertinent part:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code[ ] Sections 352, 782, or 1103.”  (Italics added.)

The phrase “relevant evidence” in section 28(d) is governed by the definition of “Relevant evidence” in Evidence Code section 210.  (People v. Hill (1992) 3 Cal.App.4th 16, 28, 4 Cal.Rptr.2d 258.)   It is that “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)

With respect to credibility of witnesses, the Legislature enacted Evidence Code section 788 (hereafter section 788), which provides in pertinent part:  “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony․”  (Stats.1965, ch. 299, § 2, pp. 1318-1319.)

 Ordinarily, a judgment offered to prove the truth of the matter determined by the judgment is hearsay evidence.  (People v. Wheeler, supra, 4 Cal.4th at pp. 298, 299, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   Hence, section 788 constitutes an exception to the hearsay rule (id., at p. 298, 14 Cal.Rptr.2d 418, 841 P.2d 938) premised on the Legislature's determination that use of a felony conviction for impeachment reliably establishes the witness committed the corresponding criminal acts underlying the conviction.   (Id., at p. 297, fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

 Although section 788 states that the conviction of “a felony” may be proved to attack a witness's credibility, principles of due process limit the statute's application to felonies which show “ ‘readiness to do evil’-moral turpitude, if you will” from which the readiness to lie as a witness may be inferred.  (People v. Castro (1985) 38 Cal.3d 301, 314, 211 Cal.Rptr. 719, 696 P.2d 111;  accord People v. Wheeler, supra, 4 Cal.4th at p. 296, fn. 6, 14 Cal.Rptr.2d 418, 841 P.2d 938.) Principles of due process similarly constrain Article I, section 28, subdivision (f), which provides in pertinent part:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment․”  (Italics added.)  “[T]he due process clause of the Fourteenth Amendment necessarily cuts into the ‘without limitation’ language of subdivision (f),” and limits impeachment with felony convictions to those that show a readiness to do evil, and thus imply a readiness to lie.   (People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)

 Felony convictions that show a readiness to do evil, and thus imply a readiness to lie, are not limited to those which require dishonesty as an element of the offense.  (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)   For example, possession of heroin for sale is a crime of moral turpitude showing a readiness to do evil, even “though the trait involved is not dishonesty but, rather, the intent to corrupt others.”  (Id., at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111;  fn. omitted.)

Section 788 constitutes a legislative determination that a conviction for a felony that, in the abstract, shows a readiness to do evil, and therefore involves moral turpitude, is relevant for the purpose of attacking a witness's credibility because the conviction reliably establishes the witness committed a criminal act which, as a matter of law, has a tendency in reason to prove that the convicted person has a readiness to lie, i.e., is dishonest.

 Therefore, subject to the trial court's discretion under Evidence Code section 352, a witness's prior felony conviction is admissible for impeachment “if the least adjudicated elements of the conviction necessarily involve moral turpitude.”  (People v. Castro, supra, 38 Cal.3d at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111;  accord People v. Wheeler, supra, 4 Cal.4th at p. 297, fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938.) In other words, it is the elements of the felony conviction in the abstract, rather than the particular circumstances of the witness's commission of that felony, which dictate whether the conviction shows a readiness to do evil and thus involves moral turpitude.

 Stated another way, it is the fact of the conviction, not the particular circumstances of its commission, that constitutes the evidence “relevant” to the “disputed fact [the witness's credibility] that is of consequence to the determination of the action.”  (Evid.Code, § 210.)   The fact of the conviction does not necessarily destroy the witness's credibility;  rather, it is a fact the jury may consider in determining the believability of the witness.  (CALJIC No. 2.23.)

 Because the conviction establishes the relevant fact relating to the witness's credibility (§ 788), the particular circumstances of the commission of the felony underlying the conviction are of no jural consequence.  (Cf. People v. Hill, supra, 3 Cal.App.4th at pp. 28-30; , 4 Cal.Rptr.2d 258 1 Witkin, Cal. Evidence (3rd ed.   1986) Circumstantial Evidence, § 286, pp. 255-256.)   It is the commission of the felony involving moral turpitude in the abstract, not the way in which the witness committed the felony, that implies a readiness to lie.

As it is the conviction which tends to prove the disputed fact (the witness's readiness to lie) regardless of the way in which the felony was committed, the circumstances of the witness's commission of the crime do not have “any tendency in reason” to prove or disprove that disputed fact.  (Evid.Code, § 210.)   Accordingly, the particular circumstances underlying a witness's conviction of a felony involving moral turpitude are not relevant evidence within the meaning of Evidence Code section 210 and section 28(d) and, thus, are not admissible.1

Defendant is wrong in asserting that a contrary result is compelled by People v. Wheeler, supra, 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938, which held that section 28(d) “abrogates the felony-convictions-only rule in criminal cases” and allows impeachment with evidence of a witness's misdemeanor conduct involving moral turpitude, “proven by direct evidence of the acts committed.”  (Id., at pp. 288, 293, 295, 297, fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

Wheeler makes clear that the manner of proving misdemeanor conduct bearing on a witness's credibility differs from the manner of proving felony conduct for the purpose of impeachment.

Whereas evidence of a felony conviction implying a readiness to lie is admissible as an exception to the hearsay rule to attack a witness's credibility, a statutory hearsay exception does not exist for impeachment with a misdemeanor conviction involving moral turpitude.  (People v. Wheeler, supra, 4 Cal.4th at p. 298, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   Therefore, “a misdemeanor conviction itself is inadmissible hearsay when offered as evidence that a witness committed misconduct bearing on credibility.”  (Id., at p. 297, 14 Cal.Rptr.2d 418, 841 P.2d 938;  italics omitted.)

Because section 28(d) permits impeachment with evidence of a witness's misdemeanor misconduct involving moral turpitude, but the witness's conviction for such conduct is not admissible, it is necessary to allow the conduct to be established in other ways, including “direct evidence of the acts committed.”   (People v. Wheeler, supra, 4 Cal.4th at 297, fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938.) The evidence of specific acts is admissible not to show the manner in which the misdemeanor was committed (its purported “degree of dishonesty”), but to establish that the witness did in fact commit a misdemeanor the least adjudicated elements of which involve moral turpitude, i.e., a misdemeanor which, in the abstract, implies a readiness to lie.

 Unlike with a misdemeanor, it is never necessary to introduce evidence of the specific acts underlying a felony conviction based upon conduct involving moral turpitude.  Section 788 specifies that such conduct is proven conclusively by a felony conviction which, in the abstract, involves moral turpitude.  (See discussion, ante.)

People v. Wheeler reiterates the principle that, in assessing the admissibility of a felony conviction for impeachment, the trial court “must determine moral turpitude solely from the ‘least adjudicated elements' of the conviction.”  (4 Cal.4th at p. 297, fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938;  italics added.)   Therefore, Wheeler supports our conclusion that evidence of the particular conduct underlying the witness's felony conviction is irrelevant and inadmissible.

 There also is no merit in defendant's suggestion that our conclusion is inconsistent with the protections afforded by the Sixth and Fourteenth Amendments.   Prohibiting a defendant from introducing irrelevant evidence to impeach a witness does not violate either the right of confrontation or the right to due process of law.  (Cf. Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679, 106 S.Ct. 1431, 1434-1435, 89 L.Ed.2d 674, 682-683.)

The trial court properly excluded as irrelevant defendant's proffered evidence of the circumstances underlying prosecution witness Edmerson's felony conviction for vehicle theft.

II-V †

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

1.   It matters not whether the proponent of the evidence seeks to use the circumstances underlying the witness's felony conviction to further impeach the witness, as in this case, or to mitigate the seriousness of the conviction, thereby rehabilitating the witness.

FOOTNOTE.   See footnote *, ante.

SCOTLAND, Associate Justice.

PUGLIA, P.J., and SIMS, J., concur.

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