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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. James Paul FRIES, Defendant and Appellant.

Cr. 2651.

Decided: February 28, 1977

Jackson S. Wallace, Pacific Grove, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Richard L. Adams, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


On February 4, 1976, appellant, James Paul Fries, was convicted by a jury of second degree robbery (Pen.Code, § 211). He appeals from the judgment, arguing that the trial court committed reversible Beagle (People v. Beagle (1972), 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) error in ruling, after a hearing outside the presence of the jury, that if appellant should testify the prosecution would be permitted to show as impeachment that appellant had suffered a conviction for robbery some 19 months before the current trial. Appellant did not testify.

Between 8 and 9 p. m. on November 9, 1973, Bill Burrell was robbed in the parking lot of the Red Fox Bar in Modesto. Immediately prior to the robbery the victim, who had been consuming considerable quantities of alcoholic beverages, had left the bar and was followed into the parking lot by two men.

The victim remembered little of the incident. He recalled leaving the bar and when he was midway across the parking lot someone grabbed him. He was rendered unconscious by a blow on the head. His money and wallet were gone when he regained consciousness.

Several witnesses identified appellant as one of two men who were with Burrell in the bar during parts of the evening and who followed Burrell out of the bar, Burrell returning about 5 to 10 minutes later with a gash and blood on his head.

At approximately 8:30 p. m. witness Andrew Haines was seated at a table in the bar with appellant and his companion, Richard Dean Nystrom. Nystrom rose from the table, went to the bar, talked to the victim, and both returned to the table. When they left the bar, Nystrom picked up the money from the bar which had been in front of Burrell and gave it to appellant when he arrived at the table with Burrell. Burrell promptly proceeded to fall out of his chair onto the floor as he was quite drunk. Thereupon he went into the bathroom. Nystrom remarked to appellant, ‘He is loaded,’ meaning that Burrell had a lot of money on his person, and appellant replied, ‘Let's get it.’ Appellant then followed Burrell into the bathroom.

A few minutes later appellant came out of the bathroom and Nystrom went over to the wall near the bathroom and talked with appellant. Nystrom and appellant then returned to the table and appellant said to Nystrom, ‘Let's get him to go with us.’ When Burrell came out of the bathroom and returned to the table, appellant and Nystrom talked him into leaving with them. The three men then arose from the table and left the bar.

The California Supreme Court in People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, for the first time held that Evidence Code section 788, permitting the use of prior felony convictions to impeach a defendant who takes the stand in his own behalf, is to be tempered with Evidence Code section 352, which provides the trial court with discretion in excluding evidence the potential prejudice of which outweighs its probative value. (People v. Beagle, supra, 6 Cal.3d 441, 451, 99 Cal.Rptr. 313, 318, 492 P.2d 1, 6.) ‘Among the factors which the court must weigh in deciding whether a witness' prior felony conviction should be admitted for the purpose of impeachment, are the conviction's bearing on honesty and integrity, the temporal propinquity or remoteness of the conviction, and the similarity between the conduct upon which the prior conviction rested and the conduct for which the accused is on trial when he is the witness whose impeachment is sought. [¶] . . . A final consideration . . . is the desirability in a particular case that the jury hear the defendant's version of the conduct charged as criminal.’ (People v. Rist (1976), 16 Cal.3d 211, 218–219, 127 Cal.Rptr. 457, 462, 545 P.2d 833.)

Although continuing to couch its discussion in the usual standard of appeal associated with section 352 of the Evidence Code, to the effect that the trial court has broad discretion in determining whether to exclude such evidence, the California Supreme Court has been consistently moving in the direction of limiting that discretion by setting forth and solidifying a series of guidelines for the proper balancing of the factors set forth above.

In People v. Rist, supra, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, the defendant, on trial for robbery, was impeached by a recent prior robbery conviction. Defendant did not testify at trial and was convicted. The court reversed, holding the failure of the trial court to prevent impeachment use of his prior robbery conviction was an abuse of discretion. In doing so the court expressly disapproved two Court of Appeal decisions which had approved the admission of a prior felony conviction against a defendant for impeachment where the prior felony conviction was similar to the charge at the time of trial. These decisions were People v. Hayden (1973), 30 Cal.App.3d 446, 106 Cal.Rptr. 348 (prior armed robbery conviction when the defendant was charged with armed robbery) and People v. Delgado (1973), 32 Cal.App.3d 242, 108 Cal.Rptr. 399 (recent priors of forcible rape and attempted forcible rape where the defendant was charged with assault with intent to rape and attempted forcible rape). Rist also disapproved of the progeny of those cases, which presumably includes People v. Stewart (1973), 34 Cal.App.3d 244, 109 Cal.Rptr. 826; People v. Jackson (1974), 37 Cal.App.3d 496, 112 Cal.Rptr. 411, and People v. Wingo (1973), 34 Cal.App.3d 974, 110 Cal.Rptr. 448, in each of which the Court of Appeal affirmed the trial court rulings permitting impeachment by proof of convictions of the same or similar crimes to the one charged.

Thus, in Rist, without explicitly stating an absolute rule, the court virtually eliminated a trial court's discretion in excluding a prior armed robbery conviction when offered to impeach a defendant in a present armed robbery proceeding.

Valuable insight into the proper application of the Rist and Beagle formula can be derived by the court's observations in these cases. In Rist the court observed:

‘As a general rule, convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity. Nor do prior convictions which are dissimilar to the crime charged weigh as heavily in the balance favoring exclusion as those which are the same as or similar to the crime charged. The temporal nature of the prior conviction may affect the balance either for or against admissibility—a recent conviction of a dissimilar crime grounded on a dishonest act would add weight in favor of admissibility, but a recent conviction of a similar, assaultive crime would add weight in favor of exclusion as the prejudicial effect would therefore be even greater.

‘Perhaps the most difficult to evaluate of the Beagle factors is the adverse effect on the administration of justice should a defendant elect not to testify for fear of impeachment. Such an evaluation must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant's guilt in the unique circumstances of the particular case.’ (16 Cal.3d at p. 222, 127 Cal.Rptr. at p. 464, 545 P.2d at p. 840.)

Again, in Beagle the court quotes with approval from Gordon v. United States (1967), 127 U.S.App.D.C. 343, 383 F.2d 936, 940–941:

“. . . A special and even more difficult problem arises when the prior conviction is for the same or substantially similar conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe ‘if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly. . . . [Par.] . . . One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. Even though a judge might find that the prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant's version of the case than to have the defendant remain silent out of fear of impeachment.' (Fns. and citations omitted.)' (6 Cal.3d at p. 453, 99 Cal.Rptr. at p. 320, 492 P.2d at p. 8.)

Applying the language from Rist above quoted, the first three of the four Beagle factors appear to have been already weighed for this court by the Supreme Court and favor exclusion. The prior conviction of armed robbery is ‘a recent conviction of a similar, assaultive crime’ and therefore ‘add[s] weight in favor of exclusion as the prejudicial effect [is] even greater.’ The fact that armed robbery is not purely an assaultive crime, but does involve an element of honesty and veracity (that is, the theft aspect) tends to detract somewhat from the pressure toward exclusion provided by the three factors summarized in the foregoing quoted material. Nonetheless, on these three factors alone, it is difficult to distinguish the situation here from People v. Hayden, supra, 30 Cal.App.3d 446, 106 Cal.Rptr. 348, which the Supreme Court disapproved because the Court of Appeal approved the admission of an armed robbery conviction in an armed robbery trial.

Adverting to the fourth factor, the jury did not in fact hear defendant's version of the conduct charged as criminal. In attempting to give proper weight to the various factors mentioned, it appears to us that the Supreme Court both in Beagle (see 6 Cal.3d p. 453, 99 Cal.Rptr. 313, 492 P.2d 1, quoted supra) and in Rist (see 16 Cal.3d p. 222, 127 Cal.Rptr. 457, 545 P.2d 833, quoted supra) placed heavy emphasis upon the importance of the jury's hearing the appellant's side of the charged offense and the probability that a defendant will not testify when the prior conviction is recent and for the same crime charged. This is so because of the inevitable pressure on the jury to convict, not because of the facts presented, but because defendant is a person who has a predisposition to commit this kind of offense. It is particularly important to hear a defendant's version of the charged criminal conduct in a case where the evidence does not point unerringly to the defendant's guilt. Such is the situation here. The prosecution's case is thoroughly grounded upon circumstantial evidence. Therefore, should the appellant have taken the stand to explain his version of the alleged incident and to deny that incident, and have been convincing to the jury, he could have been thoroughly exonerated. He was, in fact, the only person in the courtroom who knew from his own perception whether or not he committed the crime charged.

Some importance can also be accorded to the fact that appellant was tried for this same offense on two prior occasions, one ending on February 4, 1974, and one ending May 3, 1974. The first, wherein appellant testified, ended in a mistrial by reason of the jury not being able to agree on a verdict, and the second resulted in a conviction.1 The robbery conviction which the People intended to use in the third trial for impeachment did not weigh in those decisions as it was not entered until June 6, 1974, a date after the date of the two former trials.

The respondent argues that since the record does not expressly show that appellant abstained from testifying due to fear of impeachment, appellant has not shown that the threat of impeachment was the cause of his not taking the stand. Aside from whatever inference that may be drawn from the fact appellant made the motion to exclude the use of the prior and that he did not testify when the motion was denied, the record here is silent as to whether the threat of impeachment caused appellant not to take the stand. However, the fourth factor is not couched in terms of whether or not the defendant will be deterred from testifying but rather seems to assume that in fact he will be so deterred by the possibility of impeachment with the prior conviction and seeks to determine the effect upon the administration of justice if the jury is denied the opportunity to hear the defendant's side of the story. (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.) Thus, there is a direct analogy to the failure of the defendant to make an offer of proof as to matters to which he would testify should the motion to exclude be granted and the failure to affirmatively show on the record that the denial of the motion was the cause for his not taking the stand. In Rist, the Supreme Court said that ‘. . . such an offer [of proof], although doubtless helpful to the court, is not a sine qua non to the court's duty to evaluate probative value against prejudicial effect and where as in the instant case the other Beagle factors dictate the exclusion of a prior conviction or convictions because their prejudicial effect manifestly overbalances their probative value it is an abuse of discretion to deny the motion to exclude. [Citations.]’ (16 Cal.3d at p. 222, 127 Cal.Rptr. at p. 465, 545 P.2d at p. 841; fn. omitted.) This is persuasively consistent with our conclusion that the defendant has no burden to affirmatively show that the threat of impeachment is the reason he stayed off of the stand.2

Apparently the trial judge, who had also presided at the second trial, at which appellant did not testify, concluded that because appellant did not testify at the second trial and the impeaching felony conviction was not then available, the threat of impeachment in the third trial did not cause him to stay off the stand. That conclusion is, of course, speculative. One could more persuasively speculate that because there was a hung jury in his first trial, wherein he did not testify, and a guilty verdict in the second trial, wherein he did testify, that he would have testified in the third trial absent the threat of impeachment posed by the prior felony conviction. We decline to agree that appellant's fundamental rights can be diluted by such speculation.

Under the compulsion of Beagle and Rist, we conclude that the trial court committed reversible error in its ruling that should appellant take the stand he could be impeached by a prior felony conviction of robbery. As the court said in Rist:

‘Although in the instant case Carol's testimony constitutes substantial evidence of defendant's guilt of the robbery as charged, we cannot presume to know what defendant's testimony might have been had he testified, as might well have happened had the court excluded his conviction for robbery. It is thus not possible for us to determine on the record before us the degree of prejudice suffered by defendant because of the court's error in failing to grant his motion, and the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable. [Citation.] Defendant is entitled to a new trial at which the disposition of his Beagle motion, if any, will accord with the views expressed herein.’ (16 Cal.3d at p. 223, 127 Cal.Rptr. at p. 465, 545 P.2d at p. 841; fn. omitted.)

The judgment is reversed.


1.  The judgment in the latter case was reversed by this court on unrelated grounds.

2.  Of course, if it affirmatively appears that there is no possibility a defendant would testify anyway, then there could be no adverse effect upon the administration of justice as a result of a ruling that the prior felony convictions could be sued for impeachment purposes. Any effect on the administration of justice would in such a case be the result of a defendant's tactical choice not to testify on grounds independent of the impeachment possibility.

GEO. A. BROWN, Presiding Justice.

FRANSON and HOPPER, JJ., concur.