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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Samuel Leon WOODARD, Defendant and Appellant.

Cr. 16781.

Decided: January 23, 1978

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. Public Defender, Philip M. Brooks, Janet M. Lande, Deputy Public Defenders, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Ann K. Jensen, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Samuel L. Woodard appeals from an order by which he was admitted to probation after a jury found him guilty of robbery (Pen. Code, s 211). Appellant and Jimmy Johnson waylaid Florence Spencer as she left her place of business in Richmond after closing up for the evening. Appellant grabbed the victim's purse and made away with it. The victim had known appellant all his life. She testified that she had no doubt of appellant's identity as one of the robbers.

Johnson testified for the defense, claiming that appellant had not been present when the robbery occurred and that the victim's purse had been snatched by some other person. Over a defense objection the prosecutor was permitted to impeach the witness by a showing that he had previously been convicted of two felonies: voluntary manslaughter and possession of a firearm by a felon.

Appellant contends, citing People v. Carr (1973), 32 Cal.App.3d 700, 108 Cal.Rptr. 216, that the court should have exercised discretion under Evidence Code section 352 to preclude use of the two prior felony convictions for the purpose of impeachment. The argument is that, under the standards enunciated by the California Supreme Court in People v. Beagle (1972), 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, the convictions did not manifest dishonest conduct which had a bearing on credibility. In Carr, it was held that there was no abuse of discretion where the trial court precluded impeachment of a prosecution witness where the questions asked by defense counsel “were not in proper form.” (32 Cal.App.3d at p. 705, 108 Cal.Rptr. 216.) We have found no decision holding that it is an abuse of discretion to permit impeachment of a witness (not the defendant) by proof of a prior felony. Evidence Code section 788 is in effect a legislative declaration that all felony convictions are relevant “for the purpose of attacking the credibility of a witness.” That proposition is not challenged by the Beagle decision, which pointed out that under Evidence Code section 352 the trial judge has a responsibility to exercise discretion for the purpose of excluding some evidence in the interests of justice even though it may have some relevance.

In Beagle, the Supreme Court pointed out practical factors which weigh against the admission, for the purpose of impeaching a defendant who testifies as a witness, of certain types of prior convictions. Those factors have no application to a witness who is not a defendant. A nondefendant witness may not decline to testify for fear of impeachment, and the proof of a prior conviction cannot operate to incline the jury's mind toward convicting him again where he is not under charge. In the absence of a compelling showing that for some reason the evidence should have been excluded under Evidence Code section 352, it cannot be said that it was an abuse of discretion to permit the prosecutor to impeach Johnson.


CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RATTIGAN, J., concur.