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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. David MOSES, Defendant and Appellant.

Cr. 17309.

Decided: April 30, 1971

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant-appellant. Evelle J. Younger and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Blanche C. Bersch, Deputy Atty. Gen., for plaintiff-respondent.

In November 1968 David Allen Smith (Smith), an undercover officer having experience as such with the Bakersfield Police Department and the State Narcotics Bureau, was under contract to the City of Pomona during a so-called ‘buy program’ which had started about the 1st of September and was to run to the end of December 1968.

On Friday, November 22, 1968, Smith indicated to his superiors that he believed he could make a buy at the Broadside Bar. The inference to be gained from the record is that the buy would be from a man whose identity and name (Dave) and inclination to sell had been made known to Smith. Smith was authorized to proceed and was furnished $10 in city money.

At about 10 p. m. on the 22nd, in pursuit of the indicated buying project, Smith went to the Broadside Bar. Just outside the entrance he met Charley Curtis (Curtis), inferentially the party who had given Smith the lead. Curtis pointed an individual out to Smith as the person in mind. (Later defendant was arrested as being that person, which he disputed.) The lighting was dim where defendant was in the bar. Smith went up to defendant, learned that his name was Dave, and, in the proper jargon, inquired if he could purchase $10 worth of Seconal. Defendant indicated in the affirmative and left for the parking lot. Smith went to the rear entrance of the bar and waited for him. Defendant returned, and, in exchange for the $10, gave Smith a plastic container of red pills which later analyzed out as Seconal. Thereafter, Smith promptly turned the container and its contents over to his superior who was about a mile away.

There was no surveillance of Smith's transaction with defendant by back-up officers. It was not the custom of the Pomona police to do this, although state narcotic officers did institute surveillance when they were acting in concert with local police and state funds were being used.

About one hour later that day Smith made out a written report of the incident which was submitted to his superiors. The report contained a description of the seller and a summary of the transaction.1

On December 27, 1968, defendant was arrested, apparently along with other suspects in the finale of the ‘buy program’. Smith did not participate in the arrest. As previously indicated, defendant's position became, in effect, that the police had arrested the wrong man.

The issuing of a complaint, the holding of defendant to answer after a preliminary hearing, the filing of an information, and the entering of a plea of ‘not guilty’ followed.

At the trial, which was before a jury, Smith testified for the People. On cross-examination he agreed that in ‘buy programs' a big issue in the ensuing trials is identity, and he stated that he had made it a point in his activity to record correctly. He was then asked, ‘Has [sic] there been any occasions where you have made a buy where you misidentified a person?’ The trial court requested Smith not to answer, and the deputy district attorney indicated that the question introduced an area that court and counsel had previously agreed to take up in chambers, thus implying an objection to the question at that point. A conference at the bench, inaudible to the jury, then ensued at the end of which the deputy district attorney announced for all that he withdrew his objection to the question. Smith then answered it in the negative. The cross-examiner then went on to other matters, and it is evident, from later developments, that it had been agreed that the question of whether defense counsel might proceed further in some manner into the critical area was postponed for consideration at a later time.

However, shortly thereafter, in recross-examination, after testimony by Smith on redirect examination that there was no doubt in his mind that defendant was the one from whom he had purchased the dangerous drugs, defense counsel asked Smith if, in his ‘buy program’, he had ever made a purchase of a narcotic and indicated what had been purchased and then turned over a different quantity to his superior. An objection by the deputy district attorney, not on the basis that this was in the postponed area, but on the ground that it was immaterial and beyond the scope of redirect, was sustained.2 Defense counsel asked to be heard. The trial court advised that it would take the matter up out of the presence of the jury, which it did during the noon recess.

Defense counsel told the trial court how he planned to impeach Smith with respect to the first question which had been answered, with respect to the second question if an answer were permitted, and apparently, with respect to certain other questions which might be asked. Defendant's attorney first made reference to the grand jury proceedings regarding one McColeman. The indication was that defense counsel wanted to present the testimony of Smith given at that hearing which implicated McColeman in a narcotic transaction and then to establish, by the testimony of McColeman's attorney as to when he had secured McColeman's release from custody through a bail bond, that McColeman was in jail at the time Smith supposedly had been dealing with him. He further proposed to show, evidently through the admission into evidence of a report from Smith to the police, that at the same time as he was turning over contraband obtained from one Carpenter (11:40 p. m.) he purportedly was making a buy from another person he identified as Doc One. Apparently, defendant's attorney also intended to introduce part of the transcript of the preliminary hearing of one Cavanaugh (who, seemingly, had been arrested also) wherein Smith, when confronted with his report on Cavanaugh (to the effect that Cavanaugh said he had only two pills left which he would sell for $1), admitted that it was inaccurate.3 Finally, he proposed to show that a synopsis of Smith's reports as to one Billman indicated a purchase of a ‘baggie’ of marijuana, the analysis of which showed a cigarette present as well; and he proposed to prove that, as to a purchase of one tablet of LSD from a person by the name of Cates, Smith's report showed two tablets turned over to the police. After hearing arguments, the trial court sustained a prosecution objection to all points raised by the defense and to the offer of proof. The trial then proceeded on the basis of this ruling.

Defendant and five witnesses presented the alibi that at the concerned time defendant was at his home and giving a party.

The deputy district attorney, by way of impeachment of defendant's credibility, elicited from him that eight years previously he had been convicted of robbery, a felony.

The only contentions made by defendant on appeal are: (1) that the trial court abused its discretion in permitting impeachment of defendant's credibility by proof of eight-year old robbery felony on the basis that it was remote in time and not related to the trait of untruthfulness; and (2) that the trial court erred prejudicially in restricting cross-examination (and, possibly, in precluding impeachment) of Smith on the subject of misidentification and inaccuracy in his ‘buy’ program.

As to the first contention, defendant urges that the trial court, under the provisions of section 352 of the Evidence Code,4 had the right to rule that the probative value of the conviction by way of impeachment of credibility was outweighed by the probability that its admission would create a substantial danger of undue prejudice to defendant (indication of criminal disposition of the accused). Of course, section 788 of the Evidence Code specifically provides for impeaching the credibility of a witness by proof of conviction of a felony without limit as to the time of and nature of the conviction; and section 352 does not, by any of its wording, limit the scope of section 788. There are several decisions which have held that a trial court has no discretion under section 352 to disallow impeachment by proof of conviction of a felony under section 788. (People v. House, 12 Cal.App.3d 756, 762–763, 90 Cal.Rptr. 831; People v. Romero, 272 Cal.App.2d 39, 45–46, 77 Cal.Rptr. 175; People v. Sneed, 8 Cal.App.3d 963, 966, 88 Cal.Rptr. 32; People v. Kelly, 261 Cal.App.2d 708, 712–713, 68 Cal.Rptr. 337.) However, the record in the instant case does not indicate that the court thought it had no discretion.

People v. House, supra, 12 Cal.App.3d at page 763, 90 Cal.Rptr. at page 834, quotes the explanation for this position given in Kelly derived from the legislative reaction to the proposal of the California Law Revision Commission. The quotation is as follows:

‘When our Evidence Code was in process of enactment, the California Law Revision Commission proposed limiting impeachment to proof of a crime in which ‘an essential element’ is ‘dishonesty or false statement.’ [Citations.] But the Commission's recommendations did not meet with legislative approval, and section 788 as enacted simply restates the rule expressed by former Code of Civil Procedure section 2051, under which any felony conviction is admissible to impeach the defendant's credibility if he takes the stand.'

Although some prejudicial effect of this type of evidence is recognized in leading decisions, it has been held in those same decisions that the use of such evidence, when accompanied by an instruction limiting its use to the determination of credibility, is not violative of any constitutional right. (People v. House, supra, 12 Cal.App.3d 756, 763–764, 90 Cal.Rptr. 831; People v. Aulisi, 264 Cal.App.2d 149, 152, 70 Cal.Rptr 220; People v. Knighton, 250 Cal.App.2d 221, 231, 58 Cal.Rptr. 700.)

It appears that the chief object of defendant at trial, insofar as the witness Smith was concerned, was to show, through proof of specific instances, that Smith had an inherent incapacity for acuity in observation, fidelity in mental recording, and accuracy in relating, with the incidental effect of throwing his credibility into question. We note that the two questions which were asked on cross-examination which elicited objection on the part of the prosecution only was withdrawn, went to two points of logic; (a) Episodes of misidentification in his undercover work would indicate that Smith had a weak capacity for observing and recollecting points of identity of human beings which, in turn, would support the inference that Smith had made a misidentification in the Broadside Bar incident. (3A Wigmore, Evidence, § 876, p. 644 (Chadbourne rev. 1970); see footnote 6, infra.) and (b) specific episodes of inaccuracy in reporting the quantity or type of contraband involved would indicate that Smith had a trait of infidelity in reporting observations of physical objects from which it might be inferred that he was also weak in capacity to observe and recollect points of identification of people, giving rise to the second inference of misidentification of defendant. We also note that all the episodes included in the offer of proof (except one) related to one or the other of these points of logic.5

Two incidents pertained to the factor of weakness in ability to observe points of identification in people; (a) the McColeman matter wherein McColeman's jail status allowed the inference that Smith wrongfully identified him as the pepetrator; (b) the Cavanaugh situation wherein the inference was that Smith wrongfully tagged Cavanaugh as the one who had said that he could only give a couple of pills for $1 because Smith, after attributing this to Cavanaugh in his report, did not inculpate him at the preliminary hearing. The intimation is made that the alleged inaccuracy of the report was that Cavanaugh had so spoken.

The remaining two incidents related to the asserted incapacity of Smith to accurately report observations of physical objects (type or quantity of contraband): (a) as to Billman, Smith reported only a ‘baggie’ of marijuana, but a cigarette also showed up; (b) as to Cates, Smith reported only one LSD tablet, whereas two were analyzed.

Generally, without now focusing on California law, it is considered that it should be discretionary with the trial court to admit evidence of specific incidents which point to the existence of certain traits of a witness which would bear upon the likelihood or unlikelihood of his giving accurate information to the fact finder, particularly if this is done through the medium of cross-examination. We turn to Wigmore as a recognized and venerated authority for this concept. (References are from Volume 3A of his work on Evidence, Chadbourne revision, 1970.)

‘If [a witness] is required to have certain [opportunities and capacities] for observing the facts * * * and to be able to recollect them * * * and to narrate them intelligently * * *, then the degree of his capacities in those respects will affect the weight of his testimony.’

(Italics by author. Sec. 989, p. 921.) Wigmore points out that the assertion of a witness may be incorrect because the assertor has some defect in capacity, organic or experiential, to observe, recollect or narrate. (Sec. 876, p. 644.)

‘[T]hese qualities, as detracting from credit, can seldom be directly testified to as * * * abstract qualities. * * * The demonstration of these qualities must usually be made by particular circumstances, sometimes consisting in particular acts of conduct.'6

(Italics by author. Sec. 989, p. 921.) The means of proof is what has given the courts concern. Wigmore says:

‘[S]o far as proof by cross-examination is concerned, the logical use of particular instances to evidence incapacity and to lessen thereby the weight of testimony is amply illustrated in the precedents.

‘* * *

‘On cross-examination * * * these particular instances may be brought out by questions to the witness himself subject to the trial court's discretion in restricting an examination too trivial or too lengthy.

‘Proof by other witnesses of such particular instances of error is generally regarded as inadmissible. * * *’ (This is for reasons of auxiliary policy: confusion of issues; introduction of trivial subordinate controversy: unfair surprise.7)

(Italics by author. Secs. 989, 991; pp. 922, 924.)

Wigmore points out that the avoidance of the undesirable results indicated by the auxiliary policy factors above specified usually is attainable by the simple expedient of cutting off extrinsic testimony. ‘The effect * * * of the constant applicability of this expedient is to produce a sharp distinction, in the use of discrediting evidence, between the extraction of this evidence by cross-examination and the presentation of it by extrinsic testimony.’ (Sec. 878, p. 647.) He states that evidence of this sort (specific instances)8 ‘is only worth receiving when it comes through the simple and limited source of cross-examination or when it deals with a fact which could have been shown in any case, i. e., is not collateral.’ (Sec. 879, p. 649.)

An examination of California law as set out in the Evidence Code suggests that California does not subscribe to the Wigmore view of discretion for the trial court as to the admission of specific instance evidence, even through the use of cross-examination. Section 787 states that subject to section 788 (impeachment by felony conviction), ‘evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack * * * the credibility of a witness.’ (The Law Revision Commission comment refers to Sharon v. Sharon, 79 Cal. 633, 673–674, 22 P. 26, 131.)

Even if California law allowed inquiry into specific instances by cross-examination, subject to the trial court's to restrict an examination too trivial or too lengthy (Wigmore, § 991, p. 922), there would be no error in the instant record. There is no indication that defendant's attorney desired to persist with cross-examination in an effort, say, to get Smith to change the negative answer he had given to the first question, and which counsel obviously expected he would give to the second question, and to make some admission as to a display of incapacity for observation and mental recordation of points of identification for people. What defense counsel was proposing to do was to present extrinsic documentary evidence by way of transcripts and written reports supplemented with the testimony of third parties. It is not proper for defendant to urge on appeal, for the first time, that the trial court disallowed a process of inquiry into specific incidents which might show incapacity for sound identification by means of cross-examination only, a method defendant had not asked to be allowed to pursue, except for the two questions, one of which was allowed him by withdrawal of objection, but the other of which was denied him by the sustaining of an objection based on irrelevance.

Even if a fair interpretation of defendant's position is that there was included in his offer-of-proof a desire to proceed by cross-examination if his primary request to present extrinsic evidence was denied, we could not say that the trial court improperly exercised its right to curtail the inquiry. Although the referenced specific episodes allegedly took place in the Pomona ‘buy program’, there was no foundational indication of points of similarity. The instances relating to inaccuracy of report as to quantity or type of contraband were not sufficiently relevant (the necessity to move from inference to inference to inference made it too weak in probative value). The factors involved were cumulative; there was already before the jury an instance of faulty reporting (it had been shown that Smith had given two different versions as to the size of defendant) and there already was before the court a possible instance of faulty observation (Smith had testified as to his estimate of the size of defendant, and counsel's intimation is that the jury could see that defendant was not that size). Finally, an excursion by defendant into the specific episodes by cross-examining Smith about the transcripts and reports, which unquestionably would have been followed by rehabilitative redirect examination, such as showing how many buy transactions Smith had engaged in without any inaccuracies or indications of misidentification, would have involved unnecessary time and the danger of confusing the jury.

Further, it is to be noted that there was one factor in the identification area which would not have been subject to weakening by any course of proof proposed by defendant, and that is that defendant had been made known to Smith as Dave, he had acknowledged to Smith that he was Dave, and, in truth, his name was Dave.

The judgment is affirmed. The purported appeal from the order denying motion for new trial is dismissed.


1.  Smith's account of the transaction in the report was confusing because, as explained by Smith on cross-examination, he started at the point where defendant came back to him from the parking lot with the pills at the rear of the bar and then went forward in time and dealt with the conversation which led up to the buy.

2.  It may be that if the deputy district attorney had not had immateriality and scope in mind, he would not have objected to this question, consistent with his withdrawal of his objection to the prior question concerning misidentification. However, it is true that the subject matter of the second question was not as directly relevant to the issue of identification of defendant as was the former question. It would seem that the deputy district attorney, with respect to the first question at least, was operating under the concept that a limited amount of cross-examination with respect to Smith's identification procedures in other ‘buy’ transactions, with the defense being bound by the answer elicited, was not improper.

3.  In what respect is not made exactly clear.

4.  Evidence Code, section 352 reads in part as follows:‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admiission will * * * (b) create substantial danger of undue prejudice * * * or of misleading the jury.’

5.  The one episode constituting an exception was that involving the alleged overlapping of activities on the part of Smith with Carpenter (whose merchandise Smith assertedly had turned over to his superior at a given time) and with ‘Doe One’ (from whom Smith assertedly made a purchase at the identical time). The point of going into this incident appears to be only to make an attack on the veracity of Smith, the suggestion being that he was willing to fabricate the incident. Of course, this is not a permissible method of attack against the honesty of a witness (People v. Arrighini, 122 Cal. 121, 126, 54 P. 591 [overruled on other grounds in People v. Zerillo, 36 Cal.2d 222, 228–229, 223 P.2d 223]; Coleman v. Southern Pac. Co., 141 Cal.App.2d 121, 133–134, 296 P.2d 386), and it is clear that the trial court was correct in not permitting defendant to produce evidence as to this occurrence.

6.  ‘Thus, instead of a single inference—from the defective quality to the assertion's incorrectness—we shall resort to two inferences * * * i. e., from some other circumstance to the existence of the defective quality, and from that to our original objective, the assertion's incorrectness.’ (Sec. 876, p. 644.)

7.  I. e., contriving and charging upon a witness any error of any kind at any time or place.

8.  Nonetheless, Wigmore concludes that proof of such instances by other witnesses ‘may often be most effective evidentially, and the possible disadvantages may not always be present. The trial court should therefore have the discretion to permit this mode of proof when it seems useful.’ (Sec. 991, p. 924.)

REPPY, Associate Justice.

KAUS, P. J., and AISO, J., concur.