PEOPLE v. SALAS

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. John Torres SALAS, Defendant and Appellant.

No. C017200.

Decided: November 23, 1994

Richard Power, Shingle Springs, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Michael J. Weinberger and Thomas Y. Shigemoto, Deputy Attys. Gen., for plaintiff and respondent.

Defendant John Torres Salas appeals from a conviction on five counts of lewd and lascivious conduct upon or with a child under the age of 14 (Pen.Code, § 288, subd. (a)), with whom he occupied a position of special trust as a household member (Pen.Code, § 1203.066, subd. (a)(9)).   Defendant admitted a prior serious felony conviction for rape.  (Pen.Code, §§ 667, subd. (a), 1203.066, subd. (a)(5).)   On appeal defendant contends the trial court improperly (1) excluded evidence that the victim, Stephanie P., made prior false accusations of molestation against another person, (2) excluded evidence that Stephanie P. had sexual knowledge from other sources before reporting molestation by defendant;  (3) admitted evidence about post-molest symptoms;  (4) allowed defendant to be impeached with a 25–year–old felony conviction;  and (5) used three improper factors to impose the upper term in sentencing.   We shall conclude the judgment must be reversed due to erroneous (1) exclusion of evidence of Stephanie's prior accusations against others, and (2) use of defendant's 25–year–old prior conviction for impeachment.   We shall address defendant's other evidentiary contentions for the guidance of the parties and the trial court upon remand.

FACTUAL AND PROCEDURAL BACKGROUND

A first trial in this case, charging defendant with four counts of lewd and lascivious acts, ended with a hung jury in March 1993.

The amended information, filed in June 1993, charged defendant with five counts of committing lewd and lascivious acts upon Stephanie P., a child under the age of 14, between 1986 and 1988, in violation of Penal Code section 288, subdivision (a).   Defendant was alleged to occupy a position of special trust as a household member.  (Pen.Code, § 1203.066, subd. (a)(9).)   Appended to each count was an allegation that the offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(6).   It was further alleged defendant was previously convicted of rape in 1968, within the meaning of Penal Code section 1203.066, subdivision (a)(5).   He was also alleged to have suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).

At the second trial, which is the subject of this appeal, the following evidence was adduced:

Stephanie P., was born in December 1974 and was 18 years old at the time of trial.

She testified she met defendant in 1980 or 1981, when she was about six or seven years old.   She was then living in Fremont with her younger siblings and her mother, a drug-user and former topless dancer.   Defendant came to the house to visit Stephanie's mother.   Stephanie was in the bedroom with her cousin Kim, who is three years older than Stephanie.   Defendant, who had been drinking, came into the room, shut the door, and in the dark “touched” Stephanie on the arm and Kim on the leg.   The girls screamed but no one heard them over loud music.   Stephanie told her mother what happened shortly after defendant left.   The mother said she would stop seeing defendant but then continued to date him.   Stephanie did not want defendant in her life anymore because he scared her.

In 1983, Stephanie's family moved to El Dorado County.

In the spring of 1984, defendant moved in with Stephanie's family.   He and Stephanie's mother frequently fought—sometimes violently—about the mother's drug use.   In 1985, the household moved to mobile home property owned by defendant.

Stephanie testified the first molestation incident occurred one night in the autumn of 1986, when she was 11, almost 12.   Defendant came into her dark bedroom, pulled down her pants, rolled her on her back, touched her legs and vaginal area for 15 to 20 minutes, and licked her vaginal area.   She kept still and stared at the clock.   She was too embarrassed and scared to tell her mother.

The second incident occurred one night during the winter of 1987–88, when Stephanie was 13, while she was in bed and her younger brother was asleep in the same room.   Defendant pulled down her pants, then touched and licked her vaginal area.   Defendant left the room but returned a short time later, pulled down his pants and exposed his penis.   He asked her “to touch it and to rub it.”   When she did not do so, he took her hand, placed it on his erect penis, and rubbed her hand up and down his penis for several minutes.

The third incident occurred in the spring of 1988, when Stephanie was 13.   Defendant came into her room, knelt by the bed, and asked her to touch his penis.   He took her hand and rubbed it up and down his penis for about five minutes.   Defendant then touched her bare breasts beneath her shirt.   He pulled her pants off and licked her vaginal area.   He then semi-reclined over her and “kind of had intercourse” with her.   She felt his penis enter her vagina.   He moved his penis in and out of her for a short time.

In addition to these three incidents, Stephanie said there were other incidents, because the molestations occurred week after week, but she could not recall the details.

On a later date, defendant came into her bedroom again and tried to touch her, but Stephanie kicked him in the chest.   She felt angry and decided she was not going to take it anymore.   There were no further incidents of molestation.

During the time period when the incidents were happening, Stephanie related them to only one person—her cousin Kim—when Stephanie was about 12 years old.

Stephanie testified there was frequent violence in the home.   On one occasion defendant threatened Stephanie's mother with a gun.   On other occasions, the mother pulled a gun and a knife on defendant.   Defendant sometimes hit Stephanie's brother and once hit her.   Defendant tried to order Stephanie to do chores, but she ignored him.   However, Stephanie denied resenting defendant for his mistreatment of her family.   She also denied having any reason to fabricate the molestation.

Stephanie's mother hit her frequently.   When Stephanie was 15, she ran away from home several times and stayed with friends.   She was interviewed at school by a Child Protective Services (CPS) worker concerning a black eye inflicted by her mother.   Stephanie accepted CPS's offer to place her in a foster home due to her allegations that her mother abused her.

By the time Stephanie left her home, defendant was no longer living with Stephanie's family all the time but was “in and out.”

After living with the foster family for a year, Stephanie ultimately reported the incidents of molestation by defendant to the foster mother.   She had grown comfortable in the foster home and “something happened that made me feel something and it reminded me of it and I just started talking about it.”

Stephanie's cousin, Kim, who was 21 at the time of trial, testified she first met defendant in the early 1980's on the night he scared the girls in the bedroom in Fremont.   Kim said when she was about 13 and Stephanie was about 10 years old, Stephanie related that defendant was molesting her.1  “Stephanie just mentioned that [defendant] touched her and did stuff to her that she didn't want him to do to her․  [H]e basically forced himself on her and touched her breasts or parts of her that she didn't want him to touch.”   He “touched her breasts and touched her inside her pants.”   Stephanie also reported that defendant “put himself inside of her․  His penis.”   Stephanie said she was afraid to tell anyone and did not want Kim to tell anyone.   In 1987 or 1988, Stephanie told Kim the molestations were still occurring.

Stephanie's brother testified he was never aware of defendant entering the children's bedroom at night, but he is a sound sleeper.

Stephanie's mother testified Stephanie related being frightened by defendant in her bedroom in Fremont.   The mother indicated she would stop seeing defendant but did not do so.   The mother admitted to drug use and a “fairly violent” home environment in El Dorado County.   The mother said she made defendant move out in 1989, but he continued coming around because he owned the property and was the father of two of the younger children.   She was unaware that any molestation was occurring in the home, but she worked nights and was a sound sleeper.

The foster mother testified that when Stephanie first arrived at the foster home in the summer of 1990, she did not take good care of herself physically, did not comb her hair or shower, and “just kind of wandered around.”   After a couple of days, Stephanie was given chores and responsibilities.   She adjusted and became helpful around the house.   When school started, she began taking better care of her appearance.   She was a little “standoffish” at first but grew to be friendly with the other children in the home.   She seemed to be most comfortable with the foster mother.   She was not as comfortable with the foster father.   One day, after Stephanie had been in the foster home about a year, she and the foster father bumped into each other in a narrow passageway.   He told her to walk around him.   She became angry and went to her room crying.   When the foster mother went to speak with her, Stephanie made the disclosure that led to the report of molestation being made to the Sheriff's Department in October 1991.

Dr. William McGunnigle, a clinical psychologist and licensed clinical social worker, testified for the prosecution as an expert on child sexual abuse accommodation syndrome, or “the area and topic of child sexual abuse reactions of children to the acts of the sexual abuse.”   He did not interview Stephanie.   He said sexually abused girls between the ages of 10 and 14 commonly feel confusion, anxiety and disassociation.   Symptoms may linger, and a triggering factor—a word, a touch, a voice tone—may bring reactions to the surface.   Children by and large do not report molestation due to confusion or intimidation.   Delay in reporting molestation is common, and the report is often made to someone outside the family, because the molest does not get reported until the child feels she is in a safe environment.

The defense presented their own expert witness, Dr. Peter Chambers, a clinical psychologist, as an expert in dysfunctional families and true and false cases of molestation.   He stressed the child sexual abuse accommodation syndrome, which identifies factors consistent with molestation, is not a diagnostic tool to determine whether or not molestation has occurred.   It is a therapeutic tool, and the role of the therapist is not to ascertain truth but to accept and validate the patient.   The syndrome purports to recognize specific behavior as being consistent with molestation, but does not conclude that the converse of that behavior is inconsistent with molest.   Thus, for example, under the syndrome, “acting out” in a child is consistent with molestation, but passivity or compliance in a child is also consistent with molestation.   Dr. Chambers also testified about dysfunctional families and said that false allegations may be made in an attempt to banish someone from the family unit.

Defendant testified in his own defense.   He is a resident of Guam, trained as a marine machinist with security clearance to work on nuclear ships.   He admitted he scared Stephanie and her cousin in Fremont by waving his arms around in the dark bedroom, though he did not recall making contact with either girl.   He initially testified the incident was a Halloween prank.   Cross-examination refreshed his recollection that the incident occurred in July, not October.   He could not recall his reason for trying to scare the girls.

Defendant moved to El Dorado County to live with Stephanie's family after he was placed on disability for a work-related injury.   He frequently fought with the mother about her drug usage.   He admitted he once pointed a gun in the mother's direction.   On other occasions, she shot a gun at him.

Defendant testified he and Stephanie never got along.   She frequently defied his attempts to set rules.   He would yell at her to do her chores, but she would not do them.   She told him she did not want him around.   Defendant testified he never touched Stephanie's breasts or vaginal area, never had intercourse with her, never orally copulated her, and never molested her in any way.   Defendant, age 46 at the time of trial, admitted pleading guilty to an unspecified felony when he was 21.

The jury returned a verdict finding defendant guilty on all counts and found true the allegation that he held a position of trust.   Outside the presence of the jury, defendant admitted the prior serious felony conviction of forcible rape in 1968.   Defendant was sentenced to a total unstayed term of 21 years.

Additional facts appear in our discussion.

DISCUSSION

I. Prior Accusations Against Others

Defendant contends the trial court abused its discretion and violated his constitutional right to present a defense by refusing to allow him to present evidence that Stephanie made prior accusations of molestation by others before she met defendant.   Defendant sought to use the evidence in various ways.   He sought to show Stephanie's prior accusation against one individual was false, which would impeach her credibility.   He sought to use the accusations, whether true or false, to show Stephanie had a motive for fabricating the charges against defendant because she knew from past experience she could get rid of people she disliked by accusing them of molestation.   Defendant also sought to use the prior accusations to show Stephanie had prior sexual knowledge about the types of sexual activity forming the instant charges, thereby rebutting any inference that she learned about the sex acts through experiences with defendant.

We will conclude the trial court abused its discretion under Evidence Code section 352 by excluding the evidence, and reversal is required.

A. Facts

Defendant filed a motion in limine seeking to introduce evidence that before she met defendant Stephanie accused two boys of molesting her.

Defendant's motion stated the prior accusations were reflected in notes taken by a CPS worker.2  According to the CPS notes, Stephanie said that before she entered the first grade her stepbrother put his hands under her panties, and “stuck his fingers and tongue inside (vagina).”   The CPS notes also reflect a second accusation in that Stephanie said that when she was five or six years old the teenage son of her mother's employer abused her by fondling her genitals, penetrating her with his finger, licking and touching her nude body, masturbating in front of her, trying to get her to touch his penis, and attempted intercourse.

The People objected that the constitutional right to present a defense is subject to reasonable restriction, and the trial court retains authority under Evidence Code section 352 to exclude evidence on a remote matter which would require undue consumption of time and confuse the issues for the jury.3  The trial court deferred ruling on the matter.

Later during trial, the court held a hearing outside the presence of the jury pursuant to section 782,4 at which the following evidence was adduced:

Stephanie testified about two prior sets of molestation which occurred before she met defendant.

The first molestation occurred when she was five years old and living with her father and stepmother.   She testified she was “molested” 5 by her stepbrother, Guy L., who was several years older than she.   Guy's brother, Nick, watched.   Stephanie later moved back with her mother and related the molestation to her.

The second set of molestations occurred while Stephanie and her mother lived in the home of the mother's female employer.   Stephanie, who was then age six or seven, was molested by the employer's son, B.J., who was several years older than she.   On several occasions, B.J. touched her vaginal area, placed his finger inside her vagina, licked her vaginal area, tried to get her to touch his penis, and attempted to have sexual intercourse with her.   Stephanie told her aunt, who told Stephanie's mother, who told B.J.'s mother, who denied that her son would ever commit such acts.   Stephanie's family moved out.

Guy L. testified, pursuant to subpoena, that he is a private security guard in another state.   He and Stephanie lived in the same house when he was nine or ten years old.   He denied ever inserting his tongue or finger into Stephanie's vagina and was unaware of any accusation against him until a few months before his testimony.

Nick L. testified he was currently incarcerated in another county for probation violation on an original charge of assault with a deadly weapon.   He was somewhere between the ages of seven and ten when he lived in the same house as Stephanie.   He never saw his brother stick his tongue or finger into Stephanie's vagina.   He was unaware of the accusation until a few months before his testimony.

Defense counsel was unable to locate B.J.

The trial court heard further argument.   As to admissibility of evidence of Stephanie's prior sexual knowledge to rebut any inference that she learned about the sexual acts from defendant, defense counsel pointed out the similarity between the acts described in Stephanie's prior accusations and the acts she attributes to defendant, as reflected in the trial testimony of Stephanie and her cousin Kim.   Defense counsel also referred to the trial testimony of the prosecution's expert witness, Dr. McGunnigle, who had testified as follows:

“․ You would not expect children in general to have detailed sexual knowledge that borders on pornography, so to speak, unless they have been exposed to that knowledge.

“Q. And the exposure to such knowledge could come in the form of either actual observations or sex education in school, that sort of thing?

“A. I am not sure you are going to get that in sex education in the school.   You may get it in a pornographic movie.   You may get it, particularly the child who is ten or 11, they may get that from their friends.   You may also get it from the experience of molestation.”

The trial court excluded the evidence under section 352, noting the prior incidents were remote and occurred when Stephanie was only five to seven years old.

B. Analysis

1. Prior Sexual Knowledge

 Defendant argues the evidence of Stephanie's prior accusations against Guy L. and B.J. (regardless of their truth or falsity) should have been admitted in order to show she had prior knowledge of the sexual acts of which she accused defendant.   He contends that because Stephanie was only age 10 or 12 when she first described specific sex acts allegedly committed by defendant, evidence of her prior sexual knowledge should have been admitted to rebut any inference that Stephanie must have acquired knowledge of such acts through experiences with defendant.   Defendant also contends the evidence was relevant to show a motive for fabrication, in that Stephanie knew an accusation of molestation could result in removal of the accused from her life.   We agree.

In People v. Daggett (1990) 225 Cal.App.3d 751, 275 Cal.Rptr. 287, the defendant was charged with child molestation after a 13–year–old boy, who was charged in unrelated juvenile court proceedings with molesting younger children, told police he himself had been molested at age 11 by the defendant.  (Daggett, supra, 225 Cal.App.3d at p. 754, 275 Cal.Rptr. 287.)   The trial court excluded the defendant's proffered evidence that the child told a mental health worker he had been molested by other children when he was five years old.  (Id. at p. 757, 275 Cal.Rptr. 287.)   The appellate court reversed the conviction, holding the trial court erred in failing to hold a hearing to determine whether the acts of prior molestation were similar to the charged offenses, and the prosecutor compounded the error by arguing the child must have learned about sexual behavior from being molested by the defendant.   (Daggett, supra, 225 Cal.App.3d at p. 757, 275 Cal.Rptr. 287.)

 “A child's testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts.   This is because knowledge of such acts may be unexpected in a child who had not been subjected to them.   In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant.   Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.”  (Daggett, supra, 225 Cal.App.3d at p. 757, 275 Cal.Rptr. 287.)

Although Daggett refers to a “child's testimony,” we disagree with the People that Daggett applies only when the victim is still a child at the time of trial.   Here, Stephanie was 18 at the time of trial, but she was 10 or 12 when she first reported to her cousin Kim that defendant was molesting her.   The sex acts Stephanie described at trial were the same acts she reported at age 10 or 12.   The sex acts Stephanie reported at ages five and six regarding Guy L. and B.J. were similar to the acts of which she accused defendant in her first report to her cousin at age 10 or 12.

The jury would naturally assume that when Stephanie first reported molestation by defendant at age 10 or 12, she would not have had knowledge of the explicit sexual acts she described in the absence of molestation, which would lead to a conclusion she had been molested by defendant.   The prosecution's expert testified children acquire knowledge of “pornographic” sexual activity from being molested, though children of age 10 or 11 might also learn from other sources, such as hearing about it from friends.   The People point to no evidence presented to the jury to show Stephanie had prior knowledge of the sexual activity she attributed to defendant from any source other than defendant.   The People argue any implication that Stephanie learned about sex acts from defendant was diluted by evidence of her family background—her mother was a topless dancer and a drug user, and both parents lived with persons of the opposite sex.   However, the People cite no evidence that Stephanie was exposed to sexual activity through either parent.

Contrary to the People's contention, this inference—that the complaining witness must have learned of sexual acts through the defendant—arises even though the prosecutor never urges the jurors to draw the inference.  Daggett itself suggested as much by finding that the trial court erred in excluding the evidence (without holding a hearing to determine the similarity of the sexual experiences), and the error was compounded by the prosecutor's argument to the jury that the victim must have learned about sexual behavior from the defendant.  (Daggett, supra, 225 Cal.App.3d 751, 757, 275 Cal.Rptr. 287.)   We thus agree with those jurisdictions which have expressed the view that where the victim is a child when she first reports molestation, a jury would naturally draw the inference that the child's knowledge of sexual acts was obtained in the molestation.  (See e.g., State v. Jacques (Me.1989) 558 A.2d 706, 708, and cases cited therein.)

 We conclude evidence of accusations against B.J. and Guy L. was highly relevant on the issue of Stephanie's prior sexual knowledge.   The evidence was also relevant on the defense theory of Stephanie's motive for fabrication of charges against defendant—that Stephanie knew an accusation of molestation would have the effect of removing defendant from her life.

The question, then, is whether exclusion of the evidence was a proper exercise of trial court discretion under section 352.   We conclude it was not.   The issue of prior sexual knowledge presented no danger of undue consumption of time or confusing the jury.   Whether or not Stephanie's prior accusations against Guy L. and B.J. were true is immaterial to the question of her prior sexual knowledge.   What matters is that she made the accusations, thereby displaying knowledge about these specific sexual activities before she met defendant and before she reported being molested by him.

We conclude the trial court abused its discretion in excluding the evidence of Stephanie's prior sexual knowledge.6

Before determining whether reversal is required, we will consider whether additional evidentiary error occurred in exclusion of evidence of prior false accusations by Stephanie.

2. Prior False Accusation (Against Guy L.) 7

 As indicated, in the trial court and on appeal defendant has advanced two theories of admissibility for the evidence of a prior false accusation by Stephanie against Guy L:  (1) to impeach Stephanie's credibility by showing a character trait of dishonesty, and (2) to show Stephanie's motive to lie about defendant because that is how she gets rid of people she dislikes.

Under section 782 (fn. 4, ante ), evidence of a victim's sexual conduct is admissible if it is relevant to the victim's credibility under section 780 8 and its probative value is not outweighed by the danger of undue prejudice under section 352.

Evidence of a prior false accusation may be relevant to impeach a complaining witness's credibility, by showing a character trait for dishonesty.  (§§ 780 [fn. 8, ante ], 782 [fn. 4, ante ].)   Additionally, section 1103 9 allows evidence of a character trait of the victim to prove conduct of the victim in conformity with such trait.

“[A] prior false accusation of sexual molestation is ․ relevant on the issue of the molest victim's credibility.”  (People v. Franklin (1994) 25 Cal.App.4th 328, 335, 30 Cal.Rptr.2d 376 [trial court erred in excluding evidence that complaining witness falsely accused person other than defendant of molesting her, though error was harmless];  People v. Adams (1988) 198 Cal.App.3d 10, 243 Cal.Rptr. 580 [trial court erred in excluding evidence that rape victim falsely accused others of rape;  section 787's restriction on use of specific instances of conduct on issue of credibility was abrogated by Proposition 8's truth-in-evidence provision];  see also People v. Burrell–Hart (1987) 192 Cal.App.3d 593, 237 Cal.Rptr. 654 [trial court abused its discretion in excluding evidence of rape victim's prior false accusation against another, though error was harmless];  People v. Varona (1983) 143 Cal.App.3d 566, 192 Cal.Rptr. 44 [conviction of rape and oral copulation reversed, where trial court abused its discretion in excluding evidence that complaining witness was on probation for prostitution];  People v. Randle (1982) 130 Cal.App.3d 286, 181 Cal.Rptr. 745 [in prosecution of off-duty police officer for sexual assault at nightclub, trial court erred in denying new trial based on newly discovered evidence that on two prior occasions at same club complaining witness had falsely claimed to be victim of purse snatch and kidnapping].)

We conclude the evidence was highly relevant to impeach the prosecuting witness's credibility.   We also conclude the evidence was relevant to support the defense theory of motive—that Stephanie knew an accusation of molestation would have the effect of removing defendant from her life.

The real question is whether the trial court could properly exclude the evidence, despite its relevance, as an exercise of the court's discretion to control the admission of evidence which would “necessitate undue consumption of time” or “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”  (§ 352.)

The People suggest the evidence was properly excluded because the value of the evidence depended on the falsity of the prior accusation, which would require the parties to litigate this collateral issue.   However, the People fail to demonstrate the presentation of this evidence would be excessively time consuming or disruptive.   The in camera presentation of evidence does not appear to have been unduly time-consuming.   The People made no showing that any additional witnesses or evidence would be required.

The People cite People v. Bittaker (1989) 48 Cal.3d 1046, 259 Cal.Rptr. 630, 774 P.2d 659, a case involving the rape-murder of teenage girls, which upheld the trial court's exclusion of impeachment evidence that a witness had previously made false charges of sexual molestation against persons other than the defendant.  (Bittaker, supra, 48 Cal.3d at p. 1097, 259 Cal.Rptr. 630, 774 P.2d 659.)   The witness was not a victim.   She testified to admissions made by the defendant after the crimes.   She also testified the defendant made sexual advances toward her, pulled a gun when she rejected his advances, and remarked she would not decline if he pulled the trigger.  (Bittaker, supra, 48 Cal.3d at p. 1097, 259 Cal.Rptr. 630, 774 P.2d 659.)   The Supreme Court said the value of the evidence as impeachment depended upon proof the prior charges were false, which meant the parties would have to consume considerable time litigating remote, uncharged allegations, which would divert the jury from the case at hand.  (Bittaker, supra, 48 Cal.3d at p. 1097, 259 Cal.Rptr. 630, 774 P.2d 659.)

However, Bittaker is distinguishable because there the witness was not a victim, the impeachment was collateral, and there was a wealth of other evidence against the defendant.   Here, the excluded evidence was central to the case because it was highly probative to impeach the credibility of the sole complaining witness, who presented the sole direct evidence against defendant.

In People v. Burrell–Hart, supra, 192 Cal.App.3d 593, 237 Cal.Rptr. 654, the appellate court held the trial court abused its discretion under section 352 in excluding evidence of a rape victim's prior false accusations against another man, though the error was harmless.  (192 Cal.App.3d at p. 599, 237 Cal.Rptr. 654.)   The defendant in that case was a nightclub manager who proffered evidence that the complaining witness had previously told a nightclub employee that a specific customer had raped her.  “Although the proffered evidence here was conflicting with respect to whether [the complaining witness] had even accused [the customer] of having tried to rape her, and there was at least some dissimilarity in the incidents since [the complaining witness] never reported [the customer's] incident to the police, the evidence of prior allegedly false accusations is highly relevant.   Moreover, since the evidence was to be presented by the testimony of three witnesses, two of whom testified anyway, the presentation of said evidence would not consume an undue amount of time.   Nor would the jurors necessarily be confused or misled if they were given the opportunity to compare the circumstances of this case with the [customer's] incident to determine if the victim lied and would do so again in similar circumstances.   Accordingly, since the trial court's discretion should ‘favor the defendant in cases of doubt’ [citation], the trial court properly should have admitted this evidence.”  (Burrell–Hart, supra, 192 Cal.App.3d at pp. 599–600, 237 Cal.Rptr. 654.)

Here, as we have noted, the People made no showing that evidence regarding Guy L. would require any additional witnesses other than the victim, Guy L. and Nick.   We believe the evidence carried sufficient probative value to outweigh the modest amount of additional court time its admission would command.   At most, an additional day or two would have been expended in a case that resulted in defendant's being sentenced to 21 years in prison.

We conclude the trial court abused its discretion in excluding evidence of the prior false accusation by Stephanie against Guy L.

We turn now to the question whether the errors in excluding evidence of Stephanie's prior sexual knowledge and prior false accusation require reversal of the judgment.

3. Prejudicial Effect of Exclusion

 Evidentiary error under section 352 requires reversal if the reviewing court believes that absent the error, it is reasonably probable a result more favorable to the defendant would have been reached.  (§ 354;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  Burrell–Hart, supra, 192 Cal.App.3d at p. 600, 237 Cal.Rptr. 654 [reversal not required where case did not rest solely on credibility contest, and substantial corroboration, including physical evidence, supported complaining witness's story];  Adams, supra, 198 Cal.App.3d at pp. 18–19, 243 Cal.Rptr. 580.)

This was a close case.   A first trial resulted in a hung jury.   The case boiled down to a credibility contest between Stephanie and defendant.   There was no physical evidence, since the alleged molestation occurred years before it was reported to the authorities.   Nor was there any other substantial evidence, other than Stephanie's word, to corroborate that any molestation by defendant actually took place.   It is reasonably probable a result more favorable to defendant would have been obtained in the absence of the errors.

We conclude the cumulative effect of the erroneous exclusion of evidence of Stephanie's prior accusations against B.J. and Guy L. was prejudicial and requires reversal.   Additionally, as we discuss in part III, post, defendant was improperly impeached with a 25–year–old prior felony conviction, a consequence which supplies additional prejudice.

We conclude reversal of the judgment is required due to the trial court's abuse of discretion under section 352.   We therefore have no need separately to consider defendant's constitutional claims.

For the guidance of the parties on remand, we address defendant's other evidentiary contentions.

II. Post–Molest Symptoms

 We next consider, for the guidance of the parties on remand, defendant's contention that he was denied a fair trial by the admission of irrelevant evidence concerning alleged “post-molest symptoms.”   He argues the testimony of the foster mother was improperly used along with the testimony of the prosecution's expert to prove the molestation occurred.   We disagree.

In People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, our Supreme Court considered the admissibility of evidence of “rape trauma syndrome,” which the court defined as “an ‘umbrella’ concept, reflecting the broad range of emotional trauma experienced by clients of rape counselors.”   (Bledsoe, supra, 36 Cal.3d at p. 250, 203 Cal.Rptr. 450, 681 P.2d 291.)   The court noted that prior cases had sanctioned the use of rape trauma syndrome to explain a delay in reporting a rape.  (Bledsoe, supra, 36 Cal.3d at p. 247, 203 Cal.Rptr. 450, 681 P.2d 291.)   However, the court concluded evidence of rape trauma syndrome was not admissible to prove a rape had occurred.   (Bledsoe, supra, 36 Cal.3d at p. 251, 203 Cal.Rptr. 450, 681 P.2d 291.)

The courts of appeal have uniformly applied Bledsoe's rule to test the admissibility of evidence of “child molest syndrome” or “child sexual abuse accommodation syndrome.”  (See People v. Jeff (1988) 204 Cal.App.3d 309, 330, 251 Cal.Rptr. 135;  In re Sara M. (1987) 194 Cal.App.3d 585, 590, 239 Cal.Rptr. 605;  People v. Gray (1986) 187 Cal.App.3d 213, 217–218, 231 Cal.Rptr. 658;  People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097, 215 Cal.Rptr. 45;  see also People v. Patino (1994) 26 Cal.App.4th 1737, 32 Cal.Rptr.2d 345.)

Here, defendant filed a motion in limine to “exclude post-molest symptoms of the alleged victim as an improper ‘predictive.’ ”   The trial court deferred ruling on the matter but ultimately allowed testimony by the foster mother and a prosecution expert.

On appeal defendant's point is unclear.   He appears to complain that the foster mother testified about certain behavior in Stephanie, and the expert testified the behavior is consistent with molestation, thereby improperly using post-molest symptoms to prove a molestation occurred.   According to defendant, the foster mother's testimony, followed by the prosecution expert's testimony, created a “tag-team approach” to get around the prohibition on having an expert rely on the facts of the case at hand to explain trauma, and therefore that a molest occurred.

However, defendant's opening brief on appeal fails to cite to the record to illustrate his point, and his reply brief merely makes a blanket reference to his summary of the witnesses' testimony in the statement of facts portion of his opening brief.   Having reviewed the testimony of the foster mother and the psychologist, we see no impropriety.

The expert's testimony about symptoms of anxiety, confusion, and disassociation, did not match or “tag-team” the foster mother's testimony.   The foster mother merely indicated Stephanie was unkempt and unmotivated when she first arrived but soon adjusted.   The one area where the testimony of the two witnesses meshed was in the area of delayed reporting.   The foster mother indicated Stephanie reported the molestations after she became comfortable in the foster home, on the day she got upset when she bumped into the foster father and he told her to walk around him.   The expert testified molest victims as a class often delay reporting until they feel safe, and a triggering factor such as a word or tone of voice may bring reactions to the surface.

Thus, the evidence was not introduced to prove a molest occurred but to rebut any inference that delayed reporting to authority figures was inconsistent with molestation.   The evidence was properly admissible for that purpose.   (People v. Bledsoe, supra, 36 Cal.3d at pp. 247–248, 203 Cal.Rptr. 450, 681 P.2d 291;  People v. Gray, supra, 187 Cal.App.3d at p. 218, 231 Cal.Rptr. 658 [expert testimony that it is common for child victims to delay reporting abuse is admissible to rebut inference that the alleged victim is being untruthful as shown by her delay in reporting].)

Thus, this case is distinguishable from defendant's cited authority, People v. Jeff, supra, 204 Cal.App.3d 309, 251 Cal.Rptr. 135.   In that child molestation case, the prosecutor told the jury in opening statement that the victim's treating therapist would describe the child's symptoms, and an expert witness “will tell you what these symptoms mean.”  (Jeff, supra, 204 Cal.App.3d at p. 338, 251 Cal.Rptr. 135.)   The therapist described symptoms in great detail, including matters such as specific nightmares of the child.   (Jeff, supra, 204 Cal.App.3d at p. 335, 251 Cal.Rptr. 135.)   That testimony was followed by the expert who had not interviewed the child, who was asked “hypothetical” questions incorporating the exact same facts and details as related to the jury by the therapist, and who explained to the jury that the emotions, fears, and reactions exhibited by the child were symptoms exhibited by child molest victims.  (Jeff, supra, 204 Cal.App.3d at p. 338, 251 Cal.Rptr. 135.)   The Fifth District decried this subterfuge improperly to use expert testimony to prove a molestation occurred.  (Jeff, supra, 204 Cal.App.3d at pp. 338–339, 251 Cal.Rptr. 135.)

Here, the evidence was used to counteract the defense theory, pursued in cross-examination of prosecution witnesses, that Stephanie's long delayed report of molestation was a fabrication designed to get rid of a stepfather she disliked.   Moreover, there was no match-up of hypothetical facts to specific facts described by the foster mother.   Thus, Jeff, supra, 204 Cal.App.3d 309, 251 Cal.Rptr. 135, is inapposite.

We conclude the trial court properly admitted evidence of the victim's post-molest symptoms.

III. Prior Felony Conviction

 Defendant contends he was improperly impeached with a 25-year-old prior conviction, which should have been excluded as too remote.   We agree.

California Constitution, article I, section 28(f), states in part:  “Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment ․ in any criminal proceeding.”

 However, People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, held this constitutional provision contained in Proposition 8 is (1) limited to felonies involving moral turpitude and (2) does not abrogate section 352.  (Castro, supra, 38 Cal.3d at pp. 312–313, 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   In assessing a prior conviction's admissibility under section 352, the trial court should be guided, though not bound, by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.  (People v. Collins (1986) 42 Cal.3d 378, 391, 228 Cal.Rptr. 899, 722 P.2d 173;  People v. Castro, supra, 38 Cal.3d at pp. 307–313, 211 Cal.Rptr. 719, 696 P.2d 111.)   The Beagle factors are:  (1) Whether the prior conviction reflects adversely on an individual's honesty or veracity;  (2) the nearness or remoteness in time of a prior conviction;  (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense;  and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.  (Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)

“The nearness or remoteness of the prior conviction is ․ a factor of no small importance.   Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.”  (Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1, quoting Gordon v. United States (D.C.App.1967) 383 F.2d 936, 940–941 [opinion by Burger, J.].)

 In determining whether a prior conviction should be excluded as remote, the trial court should consider (1) the length of time that has elapsed since the conviction, (2) the length of sentence served on the prior conviction, (3) the nature of the conviction, (4) the age of the defendant at the time the previous crime was committed, and (5) the defendant's conduct subsequent to the prior conviction.  (People v. Burns (1987) 189 Cal.App.3d 734, 738, 234 Cal.Rptr. 547 [trial court erred in failing to exercise its discretion with respect to excludability of 20–year–old prior conviction for impeachment purposes].)

 Here, defendant's prior conviction was for forcible rape, which is a crime of moral turpitude.  (People v. Bonilla (1985) 168 Cal.App.3d 201, 205, 214 Cal.Rptr. 191.)   However, defendant was convicted of that offense in 1968, when he was 21 years old, 25 years before the trial of this case.   He was paroled in 1972 and discharged in 1975.   Thereafter, he was convicted of no felonies but only the following misdemeanors:  (1) petty theft in 1975, and (2) driving under the influence and carrying a loaded firearm in a public place in 1981.10

The trial court allowed use of the felony conviction, over defendant's objection, stating:  “I am disposed only as to credibility that the felony conviction be allowed, even though it's considered very remote.   The Court finds, though, that because of the nature of his conduct, and I take it other facts would be entered, the Court would allow the felony conviction, but I am disposed not to allow the petty theft.”   As we have indicated, the jury was not told the nature of the prior conviction but was only told defendant had been convicted of a felony in 1968.

 We find no published post-Beagle California case approving admission of a prior conviction more than 20 years old.11  The People cite various cases upholding admission of prior convictions dating back several years, but considerably less than 25 years.  (People v. DeCosse (1986) 183 Cal.App.3d 404, 411–412, 228 Cal.Rptr. 114 [12 years];  People v. McFarland (1980) 108 Cal.App.3d 211, 215, 166 Cal.Rptr. 429 [seven and nine years];  People v. Benton (1979) 100 Cal.App.3d 92, 97, 161 Cal.Rptr. 12 [13 years].)   The stalest conviction cited by the People occurred in People v. Massey (1987) 192 Cal.App.3d 819, 237 Cal.Rptr. 734, which held a 19–year–old conviction was not too remote for impeachment.   There, however, the defendant also had a 12–year–old prior felony conviction, which was also admitted into evidence for impeachment.   Thus, the 19–year–old conviction did not stand in remote isolation, as does defendant's 25–year–old conviction in the case before us.   Though not cited by the People, a similar situation obtained in People v. Muldrow (1988) 202 Cal.App.3d 636, 248 Cal.Rptr. 891, where the court admitted a series of prior felony convictions, the oldest having occurred some 20 years earlier.

Here, the trial court found the prior conviction was “very remote” but decided to allow its use “because of the nature of his conduct.”

It is not clear whether the trial court was referring to the nature of the conduct for which defendant was previously convicted or the nature of his conduct since the prior conviction.   In either case, the nature of the conduct does not weigh in the balance favoring admissibility of the prior despite its remoteness.

 Thus, the purpose of the inquiry into the nature of the prior conviction is to assess the extent to which the prior conviction implicates credibility.   Although any crime of moral turpitude has some “ ‘tendency in reason’ [ ] to shake one's confidence” in the witness's honesty (Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111), crimes bearing on honesty and integrity will weigh more heavily in the balance favoring admissibility than crimes not involving honesty or integrity.   (Castro, supra, 38 Cal.3d at pp. 315–316, 211 Cal.Rptr. 719, 696 P.2d 111.)   As explained in Burns, supra, 189 Cal.App.3d 734, 234 Cal.Rptr. 547, “conviction of a crime involving dishonesty is more probative of veracity than, say, a crime of violence.”  (Burns, supra, 189 Cal.App.3d at p. 738, 234 Cal.Rptr. 547 [robbery bears on credibility].)   If a prior conviction involves a crime of moral turpitude, “it is prima facie admissible, subject to the exercise of trial court discretion.   Naturally, the more tenuous the court finds the connection between the moral defect shown by the conviction and the only defect directly relevant—dishonesty—the more likely it is to disallow impeachment.” 12  (Castro, supra, 38 Cal.3d at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.)

Here, defendant contends that although rape is a crime of moral turpitude, it is less probative of veracity than crimes involving dishonesty.   The People make no response on this issue, and we believe defendant's point has merit.  (People v. Rist (1976) 16 Cal.3d 211, 221, 127 Cal.Rptr. 457, 545 P.2d 833 [dictum:  forcible rape conviction does not bear significantly on honesty];  People v. Nelson (1976) 63 Cal.App.3d 11, 22, 133 Cal.Rptr. 552 [forcible rape bears little relationship to dishonesty].)

 We conclude the nature of defendant's prior conviction does not weigh in the balance in favor of admission despite the conviction's remoteness.13

If the trial court was referring to the nature of defendant's conduct after the prior conviction, that conduct does not justify admission of the prior conviction.

 Defendant was convicted of misdemeanors in 1975 and 1981.   In appropriate circumstances, a subsequent misdemeanor conviction may be used to support admission of a prior felony for impeachment.  (See, e.g., People v. Campbell (1994) 23 Cal.App.4th 1488, 1496, 28 Cal.Rptr.2d 716 [convictions for driving under the influence].)   However, “In general, a misdemeanor ․ is a less forceful indicator of immoral character or dishonesty than is a felony.”  (People v. Wheeler (1992) 4 Cal.4th 284, 296, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   Here, defendant's misdemeanor convictions were, respectively, 18 and 12 years old.   These misdemeanor convictions were simply too old to permit the reasonable inference that, at the time of trial, defendant manifested a “general readiness to do evil,” which is the requisite logical premise for admission of a prior conviction for impeachment.14  (See People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)

The People appear to believe defendant's interim conduct should be measured in relation to the date when the alleged molestation of Stephanie began (1986), rather than the 1993 trial date.   However, the dispositive date is the time of trial, because the issue here is defendant's credibility when he testified at trial.   Defendant's conduct, for which he is on trial, cannot itself be used to justify admission of the prior, because the very purpose of the trial is to determine whether he engaged in that conduct.

We conclude that, considering all circumstances, defendant's prior felony conviction, a quarter of a century old, did not constitute relevant evidence bearing on defendant's credibility.   The trial court abused its discretion in failing to exclude use of defendant's prior conviction for impeachment.

We have previously discussed why evidentiary error (including the erroneous admission of defendant's prior) requires reversal.

In light of our conclusion that the judgment must be reversed, we need not address defendant's contention that the trial court improperly imposed the upper term.

DISPOSITION

The judgment is reversed.

I concur in the judgment and in the opinion of the majority except for Part III, as to which I dissent.   In my view, the trial court did not abuse its discretion in permitting defendant to be impeached with his 1968 felony conviction sanitized to omit reference to the fact it was for rape.   Of the four factors identified in People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1 as relevant to admissibility of a prior felony conviction for impeachment, only remoteness is at issue here.   The Beagle court cautioned that evidence of a remote felony conviction should be excluded only if it has been followed by a “legally blameless life.”  (Ibid.)  Defendant has not led a legally blameless life since his 1968 rape conviction.   In 1975 he was convicted of petty theft and in 1981 of driving under the influence and of carrying a loaded firearm in a public place.   In 1984 defendant was convicted of reckless driving.1

In People v. Campbell (1994) 23 Cal.App.4th 1488, 28 Cal.Rptr.2d 716, we concluded the defendant had not led a legally blameless life where, since the prior felony conviction, he had been twice convicted for driving under the influence and once for driving an unregistered vehicle.  (23 Cal.App.4th at pp. 1496–1497, 28 Cal.Rptr.2d 716.)

Similarly, the recurrent pattern of defendant's lawlessness since the 1968 conviction neutralizes remoteness as a factor tending toward exclusion of the evidence.   This pattern of criminal convictions will support the inference that the credibility of the defendant as a witness at trial is the same as the credibility of the defendant who committed the 1968 felony.

FOOTNOTES

1.   As indicated, Stephanie believed she was 12 when she confided in Kim.   The first specific incident of molestation to which Stephanie testified occurred when she was 11, almost 12.

2.   We note the citation to the record shows only a single page of handwritten notes of unidentified origin and defense counsel's declaration referring to these notes as those of a CPS worker.   However, the People do not dispute that the notes were written by a CPS worker concerning Stephanie and were apparently made in connection with investigation of this case against defendant.

3.   Further undesignated statutory references are to the Evidence Code.Section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

4.   Section 782 provides in part:  “(a) In any prosecution under Section [ ] 288 [ ], if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780 [credibility generally], the following procedure shall be followed:  [¶] [motion, offer of proof, and hearing outside presence of jury] [¶] (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted.   The defendant may then offer evidence pursuant to the order of the court․”

5.   In her testimony in camera, Stephanie did not specify the nature of the acts.

6.   At oral argument, the People noted that, in the first trial, Stephanie's father had testified she had made allegations of molestation against him.   According to the People, the father was available to testify at the trial under review, thereby obviating the need for other testimony on the point.   We see no warrant for compelling defendant to choose one witness rather than another in the prosecution of defendant's case.

7.   Defendant does not contend Stephanie's prior accusation against B.J. was false.

8.   Section 780 provides in part:  “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to [ ]:  [ ] (e) His character for honesty or veracity or their opposites.   [¶] (f) The existence or nonexistence of a bias, interest, or other motive.  [ ]”

9.   Section 1103 provides in part:  “(a) In a criminal action, evidence of the character or a trait of character (in the form of [ ] evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 [character evidence inadmissible to prove conduct] if the evidence is:  [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character․”

10.   On appeal, the Attorney General adds that defendant was convicted of reckless driving in 1984.   However, that conviction was not asserted in the People's written motion to introduce the prior rape conviction, and the People fail to cite to the record to show the 1984 conviction was brought to the trial court's attention in connection with the motion to introduce the rape conviction.   We therefore disregard the 1984 conviction.

11.   Defendant cites cases upholding a trial court's exclusion of remote prior convictions.  (E.g., People v. Clair (1992) 2 Cal.4th 629, 655, 7 Cal.Rptr.2d 564, 828 P.2d 705 [upheld trial court's exclusion of prosecution witness's 22–year–old prior conviction as too remote for impeachment];  People v. Von Villas (1992) 11 Cal.App.4th 175, 226–228, 15 Cal.Rptr.2d 112 [upheld trial court's exclusion of prosecution witness's prior convictions dating back more than 20 years].)   However, the conclusion in those cases—that the trial court did not exceed the bounds of reason by excluding the evidence—does not assist us in resolving the question whether the trial court abused its discretion under the circumstances of this case.   We recognize the Clair court said in dictum:  “Surely, another court might have concluded otherwise.”   (Clair, supra, 2 Cal.4th at p. 655, 7 Cal.Rptr.2d 564, 828 P.2d 705.)   However, that dictum does not mean admission of the conviction in this case is within the bounds of reason, particularly since Clair involved impeachment of a prosecution witness rather than a defendant.   The prejudice side of the balance weighs more heavily when the witness being impeached is the defendant.  (People v. Woodward (1979) 23 Cal.3d 329, 337, 152 Cal.Rptr. 536, 590 P.2d 391.)

12.   We note our Supreme Court recently declined to reexamine Castro's moral turpitude standard of relevance, which the court indicated was not solely a constitutional rule but a matter of defining “the outer limit of logical pertinence to credibility.”  (People v. Wheeler (1992) 4 Cal.4th 284, 296, 14 Cal.Rptr.2d 418, 841 P.2d 938, fn. 6 [constitutional basis for moral turpitude test has been cast in doubt by recent federal authority].)   We also recognize the viability of state statutory restrictions on Proposition 8 has been questioned.  (People v. Ballard (1993) 13 Cal.App.4th 687, 691–695, 16 Cal.Rptr.2d 624.)   However, we are bound by the decisions of our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

13.   An additional purpose of the inquiry into the nature of the prior conviction is to see whether it is similar to the currently charged offense.  (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   Here, the prior rape, as a sex offense, was similar to the current section 288 charges.   However, similarity of offenses weighs in favor of exclusion because of the danger that the jury will reason “ ‘if he did it before he probably did so this time.’ ”  (Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   That danger is not at issue in this appeal, since the jury was not told the nature of the prior conviction.

14.   We emphasize we are not discussing whether misdemeanor conduct could, in and of itself, be used to impeach defendant.   No such argument was proffered in the trial court.   We consider only whether the misdemeanor convictions could revive the ancient 1968 felony conviction.   We conclude they cannot.

1.   The majority chooses to ignore the reckless driving conviction because it was not brought to the trial court's attention.   Since we reverse on other grounds, our opinion on the felony impeachment issue is merely advisory, but it is reasonable to assume the 1984 reckless driving conviction will be raised on retrial.   I do not regard the reckless driving conviction as the decisive factor favoring admissibility of defendant's prior felony conviction.   But on retrial the trial judge can only speculate whether the reckless driving conviction would have inclined the majority towards admissibility.

SIMS, Associate Justice.

DAVIS, J., concurs.

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