PEOPLE v. ALDANA

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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Pablo ALDANA, Defendant and Appellant.

A020052.

Decided: February 10, 1984

Quin Denvir, State Public Defender, Deborah Long, Deputy State Public Defender, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Thomas A. Brady, Charles J. James, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Pablo Aldana was convicted by a jury of violating Vehicle Code section 10851 (auto theft).   He contends (1) the trial court improperly permitted use of a prior robbery conviction for impeachment;  (2) the jury was improperly instructed;  and (3) the trial court erroneously relied on the same factors to impose the upper term and enhance his sentence.   We affirm the judgment.

A woman inadvertently locked her keys inside her car.   She went to get help;  when she returned five minutes later, the car was gone.   An eight-year-old girl saw a man break in the car window with a stick and drive away with two other men.   The man who broke the window had a tattoo that looked like a bird on his arm.

A highway patrolman heard a dispatch about the auto theft.   He spotted the car, with three occupants, on the freeway.   He stopped the car and arrested the men.   Defendant, who has a bird-like tattoo on his arm, was driving.

In his own behalf, defendant testified that he broke into the car to help two acquaintances, who told him the car was theirs.   Because of his help, they agreed to drive him to see a girl friend.   He denied he was driving the car.

Impeachment With Prior Conviction

On June 9, 1982, the initiative measure commonly referred to as Proposition 8 became effective.   Among numerous changes in the state's constitutional and statutory law, the initiative added section 28 to article I of the California Constitution.   Subdivision (f) of section 28 provides:  “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 or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

 The trial court concluded appellant's prior was admissible according to the familiar principles of People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.   However, Proposition 8 is applicable to this case, as appellant's crime occurred on June 19, 1982, after the effective date of the initiative measure.  (People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.)   Defendant contends that notwithstanding Proposition 8, the trial court abused its discretion when it denied his motion to exclude use of his prior robbery for impeachment.

First, defendant contends that Proposition 8 does not preclude the trial court from exercising discretion under Evidence Code section 352 with respect to the admission of prior convictions for impeachment purposes.   In support of that theory, defendant relies on subdivision (d) of section 28, which provides 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․   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․”   Defendant apparently assumes that since the several lettered parts of section 28 are technically subdivisions, not sections, subdivision (d)'s use of the term “section” means that Evidence Code section 352 is applicable to every part of section 28, including subdivision (f).

 We are not persuaded by defendant's argument.   Courts must interpret a constitutional amendment to give effect to the intent of the voters adopting it.  (In re Quinn (1973) 35 Cal.App.3d 473, 483, 110 Cal.Rptr. 881, 35 Cal.App.3d 473, disapproved on other grounds in State of California v. San Luis Obispo Sportsman's Assn. (1978) 22 Cal.3d 440, 447–448, fn. 6, 149 Cal.Rptr. 482, 584 P.2d 1088.)   The rules of construction which apply to legislation generally also apply to constitutional amendments enacted by initiative.  (McMillan v. Siemon (1940) 36 Cal.App.2d 721, 726, 98 P.2d 790.)   Those who enact legislation are presumed to know of existing laws and decisions (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977–978, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394), and changes in wording and phraseology are presumed to have been deliberately made.  (Estate of Simpson (1954) 43 Cal.2d 594, 600, 275 P.2d 467.)   The Beagle court's conclusion that the trial court retained discretion to exclude proof of a felony conviction was based on Evidence Code section 788's use of the permissive word “may” rather than a mandatory word such as “shall.”  (Beagle, supra, 6 Cal.3d at p. 452, 99 Cal.Rptr. 313, 492 P.2d 1.)   Subdivision (f) of section 28 not only substitutes “shall” for “may”;  with a redundant abundance of caution, it also specifies that prior convictions are to be admitted “without limitation.”   As the Supreme Court recently noted, Proposition 8 “․ abolish[ed] all limitations on the use of prior convictions against the defendant for ․ impeachment․”  (People v. Smith, supra, 34 Cal.3d at p. 261, 193 Cal.Rptr. 692, 667 P.2d 149.)   The voters' intent to change prior law and eliminate the trial court's discretion with respect to the admission of prior convictions for impeachment is unmistakable.  (Cf. People v. Woodard (1979) 23 Cal.3d 329, 335, fn. 4, 152 Cal.Rptr. 536, 590 P.2d 391.)

 The use of the term “section” instead of “subdivision” in subdivision (d) does not alter our conclusion.   Once a particular legislative intent has been ascertained, it must be given effect even though not consistent with the strict letter of the statute.  (Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661, 672, 126 Cal.Rptr. 415.)   Words must be construed in context, in light of the nature and obvious purpose of the statute where they appear.  (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659, 147 Cal.Rptr. 359, 580 P.2d 1155.)   We note that subdivision (b) of section 28 proclaims that all persons who suffer losses as a result of criminal activity shall have the right to restitution, and directs the Legislature to adopt provisions to implement “this section during the calendar year following adoption of this section.”  (Emphasis added.)   Certainly the only reasonable meaning of “section” in subdivision (b) is “subdivision.”   Accordingly, it seems equally reasonable to conclude that “section” should also be read as “subdivision” in subdivision (d).

 Furthermore, wherever possible, we must construe constitutional provisions in a way to reconcile potential conflict and give effect to each.  (People v. Anderson (1972) 6 Cal.3d 628, 637, 100 Cal.Rptr. 152, 493 P.2d 880, cert. den., California v. Anderson (1972) 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344.)   Reading subdivision (d) as defendant proposes would result in conflict, rather than reconcilation between the two provisions, as subdivision (f) states unequivocally that any prior conviction shall be used “without limitation” for purposes of impeachment.   Finally, our conclusion is consistent with the rule that special provisions control more general provisions, and that general and special provisions operate together, neither working the repeal of the other.  (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723.)   While subdivision (d) deals generally with relevant evidence, subdivision (f) deals specifically with the admissibility of evidence for impeachment purposes and must be controlling with respect to such evidence.

 Defendant also contends that the trial court is still required to conduct an initial inquiry into the relevance of a prior conviction offered for impeachment.   We disagree.   Prior to 1972, appellate courts in the state were generally in agreement that under Evidence Code section 788, the trial court had no discretion to exclude evidence of a prior felony conviction for impeachment purposes, regardless of the nature of the conviction.  (See Beagle, supra, 6 Cal.3d at p. 451, 99 Cal.Rptr. 313, 492 P.2d 1 and cases cited therein.)  Beagle, of course, changed that rule.   In People v. Woodard, supra, 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391, a post-Beagle case, the court further circumscribed section 788 when it held that even before exercising discretion under section 352 with respect to a prior, the trial court had a threshold duty to determine whether the prior was relevant to truthfulness;  if not, the prior was to be excluded as irrelevant, rather than on section 352 grounds.  (Id., at p. 335, 152 Cal.Rptr. 536, 590 P.2d 391;  see also People v. Barrick (1982) 33 Cal.3d 115, 123, 187 Cal.Rptr. 716, 654 P.2d 1243.)   The Woodard court rejected the dissent's argument that in California all priors were deemed relevant on the issue of credibility by section 788, noting that the Legislature had consistently rebuffed attempts to overrule the court's “holding that section 788 was not intended to be an exception to the ‘general evidentiary provisions' of the Evidence Code.”  (People v. Woodard, supra, 23 Cal.3d at pp. 335–336, fn. 4, 152 Cal.Rptr. 536, 590 P.2d 391.)   With the enactment of Proposition 8, however, it is apparent that the voters have accomplished what the Legislature did not, and that they have rejected the view that some felony convictions do not reflect on one's honesty or veracity.   In short, under article I, section 28, subdivision (f) of the California Constitution, in criminal proceedings, all prior felony convictions are deemed relevant to credibility, and the trial court has no discretion to exclude them under Evidence Code section 352.   Provided an appropriate limiting instruction is given, such a rule does not violate a defendant's due process rights.  (McGautha v. California (1971) 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711;  Spencer v. Texas (1967) 385 U.S. 554, 562–565, 87 S.Ct. 648, 652–654, 17 L.Ed.2d 606;  People v. Beagle, supra, 6 Cal.3d at pp. 453–454, 99 Cal.Rptr. 313, 492 P.2d 1.)

 Defendant also contends that section 28, subdivision (f), constitutes a denial of equal protection because it applies only in criminal proceedings, whereas in civil proceedings, a prior conviction is still admissible for impeachment only if the trial court has exercised its discretion according to Beagle guidelines.  (See Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 980, 164 Cal.Rptr. 118.)   We disagree.   Equality guaranteed by the equal protection clause is equality under the same conditions, and among persons similarly situated.  (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645;  People v. Wilson (1982) 135 Cal.App.3d 343, 355, 185 Cal.Rptr. 498;  People v. Karsai (1982) 131 Cal.App.3d 224, 243–244, 182 Cal.Rptr. 406;  People v. Hughes (1980) 112 Cal.App.3d 452, 458–459, 169 Cal.Rptr. 364.)   Defendant has failed to establish that he is similarly situated to a party or other witness in a civil proceeding;  he cites no authority for the proposition that equal protection principles compel the use of identical rules of evidence in criminal and civil matters.

 We recognize, of course, that the trial court denied defendant's motion to exclude his prior not because of Proposition 8, but because it concluded the prior was admissible under Beagle.   However, the fact that the ruling was based on analysis which was no longer appropriate cannot determine the question of its propriety.   A ruling which is legally correct will not be disturbed on appeal merely because it may have been given for the wrong reason.  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)

Jury Instructions

The jury was instructed with a modified version of CALJIC No. 2.15 (possession of stolen property).1  Defendant contends the second paragraph of the instruction should not have been given, as there was no evidence that he made a false or contradictory statement about the automobile.

 Before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.  (People v. Saddler (1979) 24 Cal.3d 671, 681, 156 Cal.Rptr. 871, 597 P.2d 130.)   The portion of the instruction to which defendant objects assumes that a defendant has made statements explaining his possession of stolen property.  (People v. Peters (1982) 128 Cal.App.3d 75, 85, 180 Cal.Rptr. 76;  People v. Rubio (1977) 71 Cal.App.3d 757, 768, 139 Cal.Rptr. 750, overruled on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 439, 149 Cal.Rptr. 396, 584 P.2d 533.)   In Peters, a defendant denied knowledge of the presence of stolen goods which had been found in his car.   That testimony was not an account of how he acquired the property;  thus it was error to instruct with the bracketed paragraph of CALJIC No. 2.15, which is similar to the instruction at issue here.

 In this case, defendant did testify with an explanation of his possession of the car.   According to his version of the events, he broke into the car as a favor to his friends, who then offered him a ride;  one of his companions drove.   No evidence was introduced that he had ever offered a different explanation.   The prosecution's evidence, however, was that after defendant broke into the car, he invited his companions to go for a ride, and drove the car himself.   That evidence, if believed by the jury, was sufficient to support the inference that his own explanation was false.   Defendant is correct, however, in his assertion that there was no evidence to support an inference that he had made contradictory statements.   Nevertheless, we note that the jury was instructed with CALJIC No. 17.31 to disregard instructions which they considered not to fit within the facts.  (See People v. Peters, supra, 128 Cal.App.3d at p. 87, 180 Cal.Rptr. 76.)   We do not think it reasonably probable that a result more favorable to defendant would have been reached absent the improper reference to a contradictory statement in the jury instructions.  (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The court also instructed the jury in the language of CALJIC No. 3.00 as follows:  “The persons concerned in the commission of a crime who are regarded by law as principals in the crime thus committed and equally guilty thereof include:  One, those who directly and actively commit the act constituting the crime;  or two, those who, with knowledge of the unlawful purpose of the person who directly and actively commits the crime, aid and abet in its commission.”   The court did not instruct the jury with CALJIC No. 3.01, which defines aiding and abetting.   Defendant contends the court's omission was prejudicial error.   We disagree.

 It is true that generally when instructions are given to the effect that one may be convicted if he or she aids and abets the criminal act, the words “aid” and “abet” should be clearly defined.  (People v. Ponce (1950) 96 Cal.App.2d 327, 331, 215 P.2d 75.)   However, the giving of an erroneous instruction is not reversible error unless it results in a miscarriage of justice;  that is, when it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error.  (People v. Epps (1973) 34 Cal.App.3d 146, 168, 109 Cal.Rptr. 733.)   Here the prosecution's theory was that defendant directly and actively committed the criminal act himself, not that he aided and abetted its commission.   Under the circumstances, whether the court erred by instructing with CALJIC No. 3.00 in the first place, or by failing to supplement CALJIC No. 3.00 with No. 3.01, the error was not prejudicial.   In light of our conclusion, we need not consider defendant's contention that the jury should have been instructed consistent with People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875.2

Dual Use of Facts

 Defendant was sentenced to the upper term of three years because his offenses were “escalating”;  in addition, he received a one-year enhancement for his prior robbery conviction.

Defendant's record indicates an arrest for illegal entry and a 1977 theft conviction, in addition to the 1979 robbery conviction.   He argues that since his current vehicle theft conviction is no more serious than the 1977 theft conviction, the court was referring to the robbery prior in concluding that his offenses were escalating;  this reference, according to defendant, constituted an improper dual use of facts.

We disagree.   The court was not relying on the fact of defendant's prior conviction in imposing the upper term;  rather, it was relying on the relationship between his previous offenses.  (See People v. Pinon (1979) 96 Cal.App.3d 904, 911, 158 Cal.Rptr. 425.)

Judgment is affirmed.

Respectfully, I find that I can only concur in the judgment.   My colleagues (at p. 160 of the maj. opn.) write “[i]n short, under article I, section 28, subdivision (f) of the California Constitution, in criminal proceedings, all prior felony convictions are deemed relevant to credibility, and the trial court has no discretion to exclude them under Evidence Code section 352.   Provided an appropriate limiting instruction is given, such a rule does not violate a defendant's due process rights.  (McGautha v. California (1971) 402 U.S. 183, 215 [91 S.Ct. 1454, 1471, 28 L.Ed.2d 711];  Spencer v. Texas (1967) 385 U.S. 554, 562–565 [87 S.Ct. 648, 652–654, 17 L.Ed.2d 606];  People v. Beagle, supra, 6 Cal.3d at pp. 453–454 [99 Cal.Rptr. 313, 492 P.2d 1].”

My colleagues' analysis, it appears, does not leave any room for dissent.   And yet questions growing out of a hypothetical case continue to nag me.   I assume that if it can ever be proven (after Proposition 8, Cal. Const., art. I, § 28) that a jury convicted a defendant solely because evidence proving a prior conviction of a felony caused “lay jurors to believe that ‘if he did it before he probably did so this time’ ” (People v. Beagle (1972) 6 Cal.3d 441, at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1), all courts would agree that there was a miscarriage of justice and reverse the conviction.  (See Cal. Const., art. VI, § 13.)

True, for both pragmatic and legal reasons, I hypothesize the well nigh impossible case.   But if the unlimited “use” of any prior felony conviction for impeachment purposes gives rise to the possibility of such a belief by lay jurors, instructions to the contrary notwithstanding, isn't the “right to a reliable factfinding process” to some extent jeopardized?  (See People v. Geiger (1984), 35 Cal.3d 510 at –––, 199 Cal.Rptr. 45, 674 P.2d 1303.)   That “section 28” gives rise to the “possibility” would appear to be irrefutable.   Chief Justice Wright reasoned in Beagle, (id., 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1) that the “possibility” existed in the year 1972, and I am not aware of any environmental change affecting human behavior so as to effectively eliminate the possibility in the year 1984.   And if, as in my hypothetical, the court's constitutional function is to right the miscarriage of justice, why isn't it equally the court's function to avoid a miscarriage before the fact?   Presently, it is my view that in a proper case, not the one at bench, we will be required to address anew the question of whether the People mandate requiring use of prior convictions for impeachment “without limitation” is or is not itself subject to a constitutional limitation, i.e., “due process.”

FOOTNOTES

1.   “Now, the mere fact that a person was an occupant of a motor vehicle is not enough to justify his conviction of the crime charged in the Information.   It is, however, a circumstance to be considered in connection with other evidence.   To warrant a finding of guilty, there must be proof of other conduct or circumstances tending of themselves to establish guilt.“In this connection you may consider the defendant's false or contradictory statements, if any, and any other statements he may have made with reference to the property, or, in this case, with reference to the automobile.”

2.   In People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, the Supreme Court agreed with the Yarber court that CALJIC No. 3.01 does not adequately inform a jury of the criminal intent required to convict a defendant as an aider and abettor.   However, nothing in Beeman alters our conclusion that any instructional errors in this case were harmless.   In that case, the instructional error was prejudicial because the heart of Beeman's defense was that although he knew of the criminal plans of his friends, and although his actions in fact aided their criminal enterprise, he did not act with the intent of encouraging or facilitating that enterprise.  (Id., at pp. ––– – –––, 199 Cal.Rptr. 60, 674 P.2d 1318.)   In contrast, in this case appellant's defense was not that he acted with knowledge of the criminal activity of others but without the intent to help them;  rather, his claim was that he acted as he did because he thought the car belonged to his friends.   The jury obviously did not believe appellant.   It is true that in light of the instructions given, the jurors could have convicted appellant because they believed either that he himself stole the car, or that he broke its window with the knowledge that his companions intended the theft.   Even if the latter is what they believed, the instructional error is harmless, as the only reasonable inference from that act, with that knowledge, is that appellant had the requisite criminal intent.

SCOTT, Associate Justice.

FEINBERG, J., concurs.