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

The PEOPLE, Plaintiff and Respondent, v. Albert SPEARMAN, Defendant and Appellant.

Cr. 28847.

Decided: February 28, 1977

Byron E. Countryman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Ann Rushton, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals the judgment entered following a jury trial that resulted in his convictions for possessing heroin for sale (Health & Saf.Code, § 11351) and transporting heroin (Health & Saf.Code, § 11352). He admitted one prior felony conviction. He contends: ‘The trial court committed prejudicial error in admitting the defendant's prior Felony conviction.’

The evidence established that on April 22, 1975, Pasadena Police Officer Christopher Martin, while executing a warrant authorizing searches of appellant's person and of the red Cadillac he was then driving, discovered two United States Treasury checks, seven Los Angeles County checks, a sack containing 13 1/2 grams of heroin and another package containing lactose, secreted in holes in the rear bumper of the vehicle. A traffic citation issued to appellant and a notice of intention to issue a warrant for his arrest were found in the trunk of the vehicle.

In the course of a subsequent interview with Special Agent Dwight Colley of the United States Secret Service, appellant stated that he had received the United States Treasury checks from one Larry Brooks, known to the agent as a person who had possessed a number of such items. According to Officer Martin, Brooks has also been a user of heroin. Appellant admitted to Agent Colley that he had secreted the checks in the rear bumper of the automobile.

The Cadillac was registered to one James Bluett, a user of heroin, who was in custody at the time of appellant's arrest. Officer Martin saw Bluett driving the vehicle on a number of occasions in the latter months of 1973. Officer John Prodonovich saw Bluett driving it on several occasions three to four months prior to appellant's arrest. Prodonovich also saw Larry Howard, who had in the past been a user of heroin, driving the vehicle a week or two prior to appellant's arrest. Both officers frequently observed the Cadillac parked in the vicinity of Howard's residence, and Officer Martin twice observed Howard riding as a passenger in the vehicle. Appellant, who did not appear to be a present user of heroin although he stipulated to his past use of the narcotic, was observed driving the automobile during the period from January to April, 1975.

After admitting his 1973 conviction for possessing heroin for sale, appellant moved to exclude evidence thereof on the ground that it could not properly be used for the purpose of impeaching him. The motion was denied, and appellant indicated that he would not testify because of his fear of impeachment by the prior conviction for an offense identical to one of those with which he was charged.

In People v. Beagle, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 320, 492 P.2d 1, 8, our Supreme Court concluded that when Evidence Code sections 7881 and 3522 ‘are read together they clearly provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice.’ The court went on to indicate ‘the more important factors that must be considered by trial courts' in exercising this discretion. Those factors include the degree to which the prior conviction relates to credibility, the nearness or remoteness of the prior conviction, the similarity of the conduct upon which the prior conviction was based to that for which the accused is on trial, and the effect of the defendant's election not to testify out of fear of being prejudiced because of impeachment by prior convictions.

The Beagle court cautioned: ‘We do not propose to encourage or countenance a form of blackmail by defendants. No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity. The general rule is that felony convictions bearing on veracity are admissible.’ The court concluded ‘that although there is no constitutional bar to the use of valid prior felony convictions for impeachment purposes, there are limits on the use of such evidence contained within the statutory provisions we have discussed. A reviewing court, however, should always give careful consideration to an exercise of a trial court's discretion in both the ruling and the timeliness of its ruling on the admissibility of the prior convictions.’ Id., pp. 453–454, 99 Cal.Rptr. pp. 320–321, 492 P.2d pp. 8–9.

Appellant's prior conviction for possessing heroin for sale is relevant to the issue of his credibility (see People v. Hughes, 50 Cal.App.3d 749, 752–753, 123 Cal.Rptr. 767) and there was no problem of temporal remoteness. (Cf. People v. Antick, 15 Cal.3d 79, 99, 123 Cal.Rptr. 475, 539 P.2d 43.) However, the identity of the offense for which appellant was previously convicted is the same as one of those charged here, and effected appellant's election not to testify in the face of impeachment by such a prior.

In People v. Rist, 16 Cal.3d 211, 220–221, 127 Cal.Rptr. 457, 545 P.2d 833, the court held that the trial court abused its discretion in ruling admissible for impeachment purposes the defendant's prior conviction for an identical offense, where other convictions for dissimilar crimes also bearing on the defendant's credibility were available to the prosecution. Respondent correctly contends that Rist is distinguishable, in that dissimilar priors were not here available. We also note that the record in Rist ‘indicated that the [trial court's] ruling was based upon the practice of the court and not upon an exercise of discretion.’ Id., p. 223, 127 Cal.Rptr. p. 465, 545 P.2d p. 841, emphasis added. Here, it is clear that the trial court did exercise its discretion under Evidence Code section 352, and that counsel for appellant did urge the prejudicial effect of evidence that he had been previously convicted for possessing heroin for sale upon the very issues before the jury in this case.

The closer the case, the more likely it is that the jury, despite limiting instructions, would consider evidence of a prior conviction for the same offense for the improper purpose of determining whether the accused is the type of person who would engage in criminal activity. (People v. Antick, supra, 15 Cal.3d 79, 97, 123 Cal.Rptr. 475, 539 P.2d 43.) Evaluation of the fourth factor, i. e., the adverse effect on the administration of justice should a defendant elect not to testify for fear of impeachment, must also ‘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 this case. (People v. Rist, supra, 16 Cal.3d 211, 222, 127 Cal.Rptr. 457, 465, 545 P.2d 833, 841.)

In the instant proceedings appellant was stopped while driving an automobile in which a large quantity of heroin was secreted in the rear bumper. He admitted his possession of United States Treasury checks which were concealed in the same area. He also stipulated to his familiarity with heroin, and his past use of the substance. The registered owner of the vehicle was in custody at the time of appellant's arrest. The prosecution's case was not demonstrably weakened by the fact that an additional person had also used the vehicle a week or two prior to appellant's arrest.

We are satisfied that the trial court exercised discretion within the bounds of reason. (In re Cortez, 6 Cal.3d 78, 85, 98 Cal.Rptr. 307, 490 P.2d 819; People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)

The judgment is affirmed.


1.  Section 788 provides, in pertinent part: ‘For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . .’

2.  Section 352 provides in part: ‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’

STEPHENS, Associate Justice.

KAUS, P. J., and HASTINGS, J., concur.