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PEOPLE v. ROLLO

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Michael ROLLO, Defendant and Appellant.

Cr. 7743.

Decided: July 21, 1976

Roger Agajanian, Santa Ana, for defendant and appellant. Evelle J. Younger, Atty. Gen., and Patricia D. Benke, Deputy Atty. Gen., for plaintiff and respondent.

The defendant was charged with receiving stolen property. He had suffered a recent conviction of soliciting to commit a murder. A Beagle1 objection was made to the use of this prior felony for impeachment purposes. The court found that revealing the nature of the crime would be prejudicial under Evidence Code, § 352. We agree. The finding that the probative value of this evidence was outweighed by its prejudicial effect comes well within the trial court's exercise of discretion. However, in attempting to comply with the mandate of Beagle, the trial court ruled that the defendant could be asked if he had been convicted of a felony and its date but that he could not be questioned concerning the nature of the felony. With due respect to the sincere efforts of an outstanding trial judge in a very difficult area, we must respectfully disagree and hold that this ruling was error. In so doing, as we shall point out, we part company with some of our brethren on the Courts of Appeal who have, by way of dicta, intimated their approval of this procedure.

The impeachment of a criminal defendant by the use of a prior felony conviction has become something of a mini-nightmare to the trial bench of this state. Prior to Beagle, the law was simple and clear. Evidence Code, § 788, said that the prior could be used and a long line of Court of Appeal decisions had held that the trial court had no discretion to exclude such evidence when the lawfulness of the prior was either established or uncontested.

This is not to say that the pre-Beagle procedure was either right or just. Far from it. The use of a prior felony for impeachment purposes had been frequently criticized and many lawyers and judges were surprised when it survived the adoption of the new Evidence Code in 1965. (See People v. Stewart, 240 Cal.App.2d 1, 50 Cal.Rptr. 26, Witkin, California Evidence (2d ed.) § 1243, pp. 1145–1146.) However, the current situation is succinctly summarized in Jefferson, California Evidence Benchbook in which the author says at page 448: ‘Although the logic of Evidence Code section 788 is open to serious question, it represents a legislative determination of a rule of evidence that the courts are bound to follow.’

However, Evidence Code, § 788, does not say that the prior must be used. It says that it may be used. So the Supreme Court in Beagle held that a trial court should exercise its discretion under Evidence Code, § 352, before admitting a prior. In establishing appropriate standards, the Supreme Court adopted the language of Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 94–941, an opinion written by a then somewhat obscure judge of an intermediate court who has since gone on to higher and better things.

Beagle established four standards by which the trial court was to exercise its discretion:

(1) A conviction for dishonest conduct relates to credibility and thus may be admissible. However, convictions involving violent or assaultive crimes generally do not relate to credibility and should be excluded.

(2) Even if the conviction does involve dishonesty rather than violence if it is remote in time and has been followed by a legally blameless life, it generally should be excluded.

(3) Convictions for the same crime as the charged offense should be used sparingly because of the ‘If he did it before, he probably did it this time’ syndrome.

(4) Even if the prior meets all of the above tests, the trial court may still decide that it is more important for the jury to hear the defendant's version of the case than it is to have him remain silent for fear of impeachment and thus may, on this ground alone, exclude the prior.

However, as to the latter, the court dropped a word of caution: ‘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.’ (Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. at p. 320, 492 P.2d at p. 8.)

So far, so good. The rules made sense, guidelines were established and discretion was afforded the trial court.

Then along came People v. Antick, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43 and People v. Rist, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833.

Antick is an interesting case. The charge was murder and the case was obviously taken over to clear up some misconceptions regarding the felony-murder rule which had arisen from the language of Taylor v. Superior Court, 3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131 and People v. Taylor, 12 Cal.3d 686, 117 Cal.Rptr. 70, 527 P.2d 622. Then, almost as a dropped line, the court found an abuse of discretion in the admission for impeachment purposes of two old forgery convictions—17 and 19 years of age. While agreeing that the offenses involved dishonesty, that they reflected on the defendant's veracity and integrity, that the defendant had subsequently led a far from blameless life, and that the jury did hear defendant's version of the case, the Supreme Court concluded that the trial court had abused its discretion in permitting the use of those priors because the ‘case was close’ and the ‘risk of prejudice and confusion was obvious.’

Then in Rist the court almost said, ‘Never use a similar prior.’ Rist was a robbery prosecution; the prior used for impeachment was a recent robbery conviction. The Supreme Court found an abuse of discretion in admitting this similar prior. Two tiny escape hatches keep Rist from being a total proscription of the use of similar priors. In Rist there were other dissimilar priors available which the trial court could have used but did not and, in addition the Supreme Court said it really doubted that the trial court actually exercised any discretion at all. The dissent in Rist complained, as it had in Antick, that the discretion granted to the trial courts in Beagle had been supplanted by rigid standards.

Sandwiched between Antick and Rist is People v. Lent, 15 Cal.3d 481, at page 485, 124 Cal.Rptr. 905, at page 907, 541 P.2d 545, at page 547, in which the court, in another context, said: ‘Indeed, the current trend is toward refinement and limitation of the use even of prior felonies for impeachment.’

By this time it should be obvious to the most obtuse observer that the Supreme Court of this state takes a very dim view of the use of prior felonies of a criminal defendant for impeachment. After Antick every judge should realize that he walks on eggs when, in the exercise of his discretion, he allows the use of any prior, and, after Rist it would be a foolhardy trial judge indeed who would allow impeachment by a similar prior.

Faced with these controlling authorities and the burning desire of prosecutors to use priors for impeachment, trial courts find themselves constantly wrestling with this difficult problem.2

The procedure followed by the trial judge im this case, i. e., using an unidentified prior, has surfaced three times in the reported opinions of the Courts of Appeal.

In People v. Taylor, 46 Cal.App.3d 513, 120 Cal.Rptr. 762, the defendant was charged with burglary. He had suffered a prior burglary. When he lost a Beagle motion, he chose not to testify. On appeal, the court found no abuse of discretion in denying the Beagle motion, but observed that it might have been preferable for the court to have denied defendant's motion on condition that the precise nature of the prior not be revealed to the jury. However, as the court noted, that observation was ‘. . . made from the unassailable position of appellate hindsight.’ (Taylor, supra, at p. 536, 120 Cal.Rptr. at p. 777.)

In People v. Obie, 41 Cal.App.3d 744, 116 Cal.Rptr. 283, the charge was murder. On cross-examination the defendant was asked if he had suffered a prior felony conviction and he answered that he had. At this point a Beagle objection was made and overruled. The prior involved theft was of fairly recent origin, and was not similar to the offense with which defendant was being charged. The matter was then dropped. In Obie the defendant was never asked the nature of the felony. On appeal, the court held that the prior passed the Beagle test and that the court's ruling was proper. Thus, the court simply held that the trial court did not err in having the defendant admit the prior felony. However, there was no ruling by the trial court that an unidentified felony could be used. The defendant was simply not questioned as to the precise felony.

In People v. Roberts, 57 Cal.App.3d 782, 129 Cal.Rptr. 529, a defendant was charged with robbery. He was impeached by the use of a prior robbery. On appeal, it was held that under Rist this was error. Then the court suggested that the trial court might have allowed the disclosure of an unidentified felony to deny the defendant the ‘false aura of veracity’ described in Beagle. It opined that the procedure would protect the defendant against prejudice arising out of the similarity of offenses and that the danger of jury speculation as to the unidentified offense could be obviated by allowing the defendant at his election to require specification of the crime, or in the absence of such specification, by admonishing the jury not to speculate that any particular felony was involved.

The statements of the respective courts on this subject in Taylor, Obie and Roberts are dicta. As indicated, we respectfully disagree with those dicta and with the ruling made by the trial court in this case. That disagreement is based upon who grounds, one conceptual and the other pragmatic.

First, we discuss the conceptual basis for our ruling.

The only acceptable theory on which a prior can be used for impeachment is that it bears on the witness' credibility. Under the legislative determination set forth in Evidence Code, § 788, every conviction of every felony has relevance on this issue. This may or may not be logical. The Legislature has spoken. It is the law. Since the Legislature made no exception to this rule, this legislative determination must have been based on the concept that something is seriously wrong with the moral fiber of a person convicted of a crime serious enough to be classified as a felony. In other words, a person who commits a serious breach of the moral code on one occasion is more likely to violate his oath than one who has not done so. Certainly, no one could seriously argue that every conviction of a felony indicates that the defendant has developed a habit of untruthfulness. Nevertheless, under the legislative fiat of section 788 even a heat of passion murder has some relevance on the issue of credibility, i. e., it reflects in some way on the moral soundness of the individual. However, the doubtful relevance of such evidence is obviously outweighed by its prejudicial effect and under Beagle we keep it out. But, we keep it all out, not just part of it. Once the trial court has determined that relevance outweighs prejudice, the whole, identified felony must come in. If that prior is to have any probative value to the jury, that body must know the precise offense the defendant committed which bears on his credibility. What specifically did this defendant do which affects his truth and veracity? The jury must know the precise offense so it can use that knowledge in its evaluation process. The more detail the jury has, the more discriminating its judgment will be. The existence of ‘a’ felony is meaningless to a jury. So, from a conceptual standpoint, the jury must be made aware of the precise felony in order that it may properly consider this information in the evaluation process by which it weighs the defendant's credibility. This, it cannot do with an unspecified prior.

The pragmatic basis for our ruling is that allowing impeachment by an undescribed prior simply leaves the jury groping. What is that terrible thing lurking in the defendant's past? Is he a mass murderer, a gang rapist, a child molester, a heroin peddler? Such things simply cannot be left dangling. The trial court must decide whether a specified prior can or cannot be used and once the determination is made that defendant may be impeached by the prior, the jury should be advised as to the nature of the prior and not left to speculate or guess as to what it might be.

We cannot accept Roberts' suggestion that the defendant be given the Hobson's choice of specifying the prior or in the absence of such specification that the judge instruct the jury not to speculate as to the felony involved While we have the greatest faith in the integrity of the jury system and the intelligence and common sense of the average juror, there is a limit to just how far we should go in unnecessarily testing the mental discipline of jurors.

To but the matter as succinctly as possible, the trial judge simply has to bite the bullet. It is either a good prior a la Beagle, or it isn't. There is no middle ground.

The remaining question is whether this ruling was of prejudicial proportions. However, before we reach that issue we must discuss the facts of the case and an instructional error which occurred.

Defendant was convicted of receiving stolen property (Penal Code, § 496).

David Chow, a director of the Kung Fu Television show, owned some Samurai swords valued at $25,000. Defendant, a Karate expert, contacted Mr. Chow about a job on the Kung Fu show. He went to Mr. Chow's home in regard to employment, but did not secure the job. Thereafter, Chow's home was burglarized and the swords taken. The defendant then sold the swords to one Fumio Demura for $400, saying he had won them in a poker game. While he had Demura leave blank the payee line on the $400 check, he indicated that the check stub should contain the name, address and telephone number of one Tom Cross. Tom Cross and his brother Jim later admitted the burglary of the Chow residence. Tom Cross and the defendant had gone to the bank together to cash Demura's check for the swords.

The defendant testified. He admitted the sale of the swords, but denied knowing that they were stolen. He said he got them from Cross who appeared to be an affluent collector of ‘all kinds of things.’ Cross asked him if he knew of anyone who might buy the swords. He knew Demura and eventually sold the swords to him. The defendant didn't know how much the swords were worth or that they were stolen.

Thus, the defendant presented a plausible explanation for his sale of these swords. If believed, his testimony would not only create a reasonable doubt, it would exonerate him.

We now turn to the instructional error.

The court quite properly gave CALJIC 2.233 as the limited purpose for which a prior felony may be used. (People v. Mayfield, 23 Cal.App.3d 236, 100 Cal.Rptr. 104.) However, the court also gave CALJIC 2.504 regarding evidence of the commission of a crime other than that for which the defendant is being tried. This was apparently in response to the district attorney's contention that the defendant might have actually participated in the burglary itself. Thus, the jury was faced with an unidentified prior felony, an instruction that a felony may be used only for impeachment purposes, another instruction that evidence had been received tending to show that the defendant had committed a crime other than that for which he was on trial, and as to that offense that this evidence could be considered on the subjects of intent and knowledge. At about this stage of the proceedings this jury must have been more than a little confused as to just what was going on.

CALJIC instructions are properly abstract and objective. However, sometimes they need a little help from the judge. In a case such as this, assuming a proper impeachment by a prior, and assuming proof of another crime which is to be used as circumstantial evidence, the trial judge in giving CALJIC 2.23 and CALJIC 2.50 should specify the evidence to which each instruction relates. This is simply a matter of indentifying the prior crimes discussed in these two instructions.

Thus, the defendant was improperly impeached by the use of an unidentified prior felony. Then the jury was given confusing instructions as to the purpose for which prior crimes could be used. When we combine the two, the defendant simply didn't have a fair shake insofar as his credibility evaluation was concerned. His explanation was plausible. In view of the type op errors and their probable impact on the jury, we conclude that after an examination of the entire record, it is reasonably probable that a result more favorable to the defendant would have been reached sans these errors. (People v. Watson, 46 Cal.2d 818, 299 P.2d 243.)

Judgment reversed.

FOOTNOTES

1.  People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.

2.  The frequency with which this issue is presented is a discomfiting commentary on the effectiveness of the administration of criminal justice. We just keep trying the same people over and over.

3.  ‘The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness' credibility. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.’

4.  ‘Evidence has been received tending to show that the defendant committed a crime other than that for which he is on trial.‘Such evidence was not received and may not be considered by you to prove that he is a person of bad character or that he has a disposition to commit crimes.‘Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show:‘. . .‘3. The existence of the intent which is a necessary element of the crime charged;‘4. That the defendant had knowledge of the nature of things found in his possession;‘5. That the defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged;‘. . .‘For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case.‘You are not permitted to consider such evidence for any other purpose.’

GARDNER, Presiding Justice.

TAMURA and MORRIS, JJ., concur.

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