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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Alphaeus T. JOHNSON, Defendant and Appellant.

No. E014812.

Decided: February 15, 1996

Patrick J. Hennessey, Jr., San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle B. Davis, Supervising Deputy Attorney General, and Larissa Karpovics, Deputy Attorney General, for Plaintiff and Respondent.


A defendant appeals from his conviction of first-degree burglary, claiming that the trial court committed evidentiary and sentencing errors.   We affirm.


On May 20, 1993, Mrs. Nancy Pauper was home alone in her house.   Her front door was open;  an outer screen door was shut but unlocked.   She heard the screen door being opened.   Upon investigating, she discovered the defendant in her bedroom with his hand on the strap of her purse which was hanging from the doorknob.   When she asked him what he was doing there, he answered, “ ‘You said come in.’ ”   She demanded that he leave, and he started toward the front door.   She followed him to the door and outside, hitting him on his shoulder as he went.   He then said, “ ‘I thought you said come in.’ ”

The defendant was charged with one count of first-degree burglary (Pen.Code, §§ 459 & 460, subd. (a)) and numerous enhancements for prior convictions and prior prison terms.   The defendant pleaded not guilty by reason of insanity.   The trial was bifurcated into a guilt phase, a prior phase, and a sanity phase.   The jury found him guilty as charged, found all the priors to be true as alleged, and found him to be not insane.

The trial court imposed the upper term of six years (Pen.Code, § 461, subd. 1), four five-year consecutive enhancements for prior convictions of serious felonies (Pen.Code, § 667, subd. (a)), and one one-year consecutive enhancement for a prior prison term (Pen.Code, § 667.5, (subd. (b)), for a total of 27 years.


The defendant contends that the trial court erred (1) by permitting the introduction of evidence of statements made during plea negotiations, (2) by admitting evidence of the circumstances of one of his prior burglary convictions, and (3) by imposing the upper term.   We find no reversible error.



 At the guilt phase of the trial, the defendant conceded that he was guilty of trespass as a lesser related offense.   His sole defense to the burglary charge was that, as a result of mental illness, he was incapable of forming the specific intent required for the greater offense.   Accordingly, the only witness called by the defense was Dr. Kent Franks, a clinical psychologist.

Under direct examination by defense counsel, Dr. Franks testified that the defendant was suffering from long-term undifferentiated schizophrenia at the time he entered Pauper's house.   He opined that the defendant did not enter the house with the intent to commit larceny or a felony, but rather because of auditory hallucinations which led him to believe that it was his mother's house.

Dr. Franks based his opinions, in part, upon conversations with the defendant during which the defendant told Franks that since he had been released from prison he had been disoriented, and would frequently find himself walking down streets, unaware of his surroundings.   The defendant told Dr. Franks that, on the date of the offense, he “came to a house, and he was experiencing auditory hallucinations at the time.   He indicated that he heard a voice call out his name, and it seemed to derive from a specific house.   He thought it was his mother's house, and he went inside the house as a result.”

On cross-examination, the People sought to discredit Dr. Franks' opinion concerning the defendant's alleged lack of felonious intent by impeaching the statements upon which that opinion was based.   In particular, the People offered evidence that, in the course of an interview with a probation officer preparing a pre-plea probation report, the defendant had said that he entered the victim's house and was ready to take the victim's purse in order to support his cocaine habit.   The trial court admitted that evidence over the defendant's objections.

The defendant contends that his prior statements to the probation officer were made for the purpose of plea negotiations, and should not have been admitted except for the purpose of contradicting testimony by the defendant.   In response, the People argue that the statements were not made during plea negotiations, that they were offered to impeach statements by the defendant, and that any error was harmless.   We hold that, even assuming that they were made in the course of plea negotiations, evidence of the prior statements was admissible.

 In order to promote the candor conducive to the settlement of criminal cases, this court has held that admissions and other incriminating statements made or revealed to the People in the course of plea bargaining negotiations can not be used by the People during their case-in-chief.  (People v. Tanner (1975) 45 Cal.App.3d 345, 349–352, 119 Cal.Rptr. 407.)   However, more recently we explained that “[t]hat rule does not prevent the prosecution from using evidence of those statements for the limited purpose of impeaching the defendant regarding testimony which was elicited either during the direct examination of the defendant or during cross-examination which is plainly within the scope of the defendant's direct examination.”  (People v. Crow (1994) 28 Cal.App.4th 440, 452, 33 Cal.Rptr.2d 624.)   We reasoned that the policy favoring settlements does not justify the preclusion of impeaching evidence necessary to preserve the integrity of the truth-seeking process of the criminal trial.  (Ibid.)

Here, the evidence of the defendant's prior statements was not used to contradict any direct testimony of the defendant.   Instead, it was admitted to contradict evidence of statements made by the defendant to a defense witness and testified to by that witness.   While the defendant urges this as a basis upon which to distinguish this case from Crow, there is no reason to do so.

Whether a defendant testifies directly to the jury or indirectly through a witness called by the defendant to relate the defendant's out-of-court statements, the People's ability to use the defendant's prior inconsistent statements to impeach that testimony is the same.   The public policy in favor of the settlement of criminal cases without the necessity of a trial “ ‘cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ ”  (Crow, p. 451, 33 Cal.Rptr.2d 624, quoting from Harris v. New York (1971) 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1, 5.)

James v. Illinois (1990) 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676, is distinguishable from, and thus not inconsistent with, the case before us.   There, a narrowly divided United States Supreme Court held that the rule permitting the use of illegally seized evidence to impeach the defendant's testimony should not be expanded to permit that evidence to be used to impeach the testimony of other defense witnesses.  (Id. at p. 313, 110 S.Ct. at p. 652.)   That case involved a different exclusionary rule, protecting different interests, and thus the balancing of those interests against the interest of promoting the truth-seeking function of a criminal trial is understandably different from that reached here.

Moreover, in James the defense witness was testifying as to her own observations.  (Id. at p. 310, 110 S.Ct. at p. 650–51.)   By contrast, here Dr. Franks testified as to what the defendant had told him.   In that situation, “the defendant himself is the real witness.   As the Advisory Committee Note to [Federal Rules of Evidence, rule] 806 aptly observes, ‘the declarant of a hearsay statement which is admitted in evidence is in effect a witness.   His credibility should in fairness be subject to impeachment ․ as though he had in fact testified.’ ”  (U.S. v. Trzaska (E.D.N.Y.1995) 885 F.Supp. 46, 49.)   Accordingly, despite James, illegally obtained evidence may be used to rebut an out-of-court statement of the defendant to which a defense witness testifies on direct examination.  (Trzaska at p. 50.)

 For the same reasons, the prosecution may introduce evidence of prior statements of a defendant made or revealed during plea negotiations to impeach evidence of other statements of the defendant introduced through the direct examination of defense witnesses.   The trial court did not err by doing so in this case.1




The judgment is affirmed.


1.   Because the evidence at issue here fell outside of the scope of the rule of Tanner as we have limited it, we do not reach the question of whether that rule survived the truth-in-evidence provision of Proposition 8.  (Cal. Const., art. I, § 28, subd. (d).)Nor do we decide a question mentioned but not pursued by the defendant:  whether his statements to the probation officer “were inadmissible under ․ Fifth Amendment grounds․”  Since that contention is not thereafter supported by either authority or argument, it need not be resolved.  (People v. Stanley (1995) 10 Cal.4th 764, 793, 42 Cal.Rptr.2d 543, 897 P.2d 481.)

FOOTNOTE.   See footnote *, ante.

McKINSTER, Associate Justice.

HOLLENHORST, Acting P.J., and RICHLI, J., concur.

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