PEOPLE v. JUAREZ

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Conrado Tony JUAREZ, Defendant and Appellant.

A021583.

Decided: December 20, 1983

John K. Van De Kamp, Atty. Gen., State of Cal., Ronald E. Niver, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Albie B. Jachimowicz, Christenson, Butler, O'Keefe & Garvey, San Jose, for defendant and appellant.

 In this case we hold that California law restricting impeachment of a defendant by evidence of a prior felony conviction has been changed by the enactment of the 1982 initiative commonly known as Proposition 8, even if the crime for which he was previously convicted is identical to that with which he is presently charged.

Conrado Tony Juarez was charged with sale of heroin (Health & Saf.Code, § 11352), occurring on September 15, 1982, and was alleged to have served a prior prison term for a 1977 heroin sale conviction (Pen.Code, § 667.5, subd. (b)).  At the outset of trial he made a motion to preclude use of his prior conviction for impeachment purposes, relying upon the holding of People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.   The court denied the motion, ruling that under Proposition 8 “evidence of prior convictions of felonies may be used for purposes of impeachment.”   Juarez subsequently testified in his own behalf and admitted the prior conviction on direct examination.   A jury found him guilty and found the prior prison term allegation to be true.

The California Supreme Court declared in People v. Beagle, supra, 6 Cal.3d at pp. 452–453, 99 Cal.Rptr. 313, 492 P.2d 1, that trial courts have discretion under Evidence Code sections 352 and 788 to exclude evidence of prior felony convictions for purposes of impeachment “when their probative value on credibility is outweighed by the risk of undue prejudice.”   The Supreme Court subsequently noted in People v. Fries (1979) 24 Cal.3d 222, 230, 155 Cal.Rptr. 194, 594 P.2d 19 that the risk of prejudice “is far greater when the prior conviction is similar or identical to the crime charged.”  (See also, People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   As a result, trial judges in California have refused to allow evidence of a conviction of any prior identical felony for the purpose of impeaching a defendant, recognizing that to do so would be to invite a reversal of any resulting conviction.

On June 8, 1982, the California electorate enacted Proposition 8, adding, inter alia, section 28 to article I of the California Constitution.   Subdivision (f) of section 28 provides in pertinent part:  “Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” 1  Subdivision (d) of section 28 provides in pertinent part:   “Nothing in this section shall affect ․ Evidence Code, Sections 352, 782, or 1103.” 2

Juarez contends that the rule of People v. Beagle remains intact after Proposition 8.   His sole argument is that despite the provision in subdivision (f) that prior felony convictions “shall subsequently be used without limitation for purposes of impeachment,” subdivision (d) expressly preserves Evidence Code section 352 and therefore Beagle, and prevails over subdivision (f) under the doctrine of ejusdem generis (where specific statutory language conflicts with general language the specific language prevails).  (See, e.g., People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723;  People v. Hernandez (1978) 90 Cal.App.3d 309, 315, 155 Cal.Rptr. 1.)

The trial court properly rejected appellant's ejusdem generis argument.   Subdivision (d) addresses admission of relevant evidence generally, stating that “relevant evidence shall not be excluded in any criminal proceeding” but adding that the relevancy provisions of Evidence Code section 352 are unaffected.   Subdivision (f) addresses admission of a specific type of evidence—that of prior felony convictions—deemed by the electorate to be relevant for purposes of impeachment.   To the extent there is any conflict between the two subdivisions, the more specific of the two, subdivision (f), prevails.  (Cf. United States v. Kiendra (1st Cir.1981) 663 F.2d 349, 354 [Rule 609(a)(2) of Federal Rules of Evidence, pertaining to impeachment with evidence of prior crimes involving dishonesty, held more specific than Rule 403 of Federal Rules of Evidence, pertaining to exclusion of relevant evidence on grounds such as unfair prejudice].)

Our review, however, cannot end with rejection of Juarez's ejusdem generis argument.   Although appointed private counsel for Juarez has chosen to limit the appeal to a single sub-issue of the question whether Beagle survives Proposition 8, the Attorney General's brief addresses additional subissues, which we now address.

First, as additional support for the ultimate conclusion that Beagle does not survive Proposition 8, the Attorney General cites the ballot analysis and certain public commentaries in connection with the initiative.   Such sources may be helpful in determining the probable meaning of uncertain language where enactment follows voter approval.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 246–247, 149 Cal.Rptr. 239, 583 P.2d 1281;  California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 177, 148 Cal.Rptr. 875, 583 P.2d 729.)

The Legislative Analyst stated in the ballot pamphlet:  “The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation to discredit the testimony of a witness, including that of a defendant.   Under current law, such information may be used only under limited circumstances.”  (Analysis by the Legislative Analysts, Ballot Pamp., Proposed Amends. to Cal. Const., Prim.Elec. (June 8, 1982) p. 54;  emphasis added.)

An analysis of Proposition 8 distributed by the Assembly Committee on Criminal Justice stated that section 28, subdivision (f), eliminated judicial discretion under Beagle to preclude the use of prior felony convictions for impeachment purposes.  (Assem.Com. on Criminal Justice, Analysis of Proposition 8, The Criminal Justice Initiative (March 24, 1982) pp. 28–30.)   The report stated:  “The purpose of the initiative proposal is to require use of prior felony convictions against a criminal defendant if he chooses to testify․  The initiative requires use of prior felony convictions no matter how remote, whether or not the crime is related to truthfulness and regardless of whether the offense has since been decriminalized or reduced to a misdemeanor.”  (Assem.Com. on Criminal Justice, Analysis of Proposition 8, The Criminal Justice Initiative (March 24, 1982) p. 30.)   In response to this analysis, the minority members of the committee issued a publication stating that subdivision (f) “will end the abuse of justice associated with the prohibition against presenting to the jury felony records of witnesses․”  (In Defense of the Victims of Crime, An Analysis of Proposition 8, The Criminal Justice Initiative (March 24, 1982, p. 18.)

This background suggests that to whatever extent the electorate understood the finer points of Proposition 8, the voters intended the initiative to require prior felony convictions to be used without limitation for impeachment purposes, contrary to the rule of Beagle.

Second, the Attorney General addresses the use of the word “section” in subdivision (d), which states that “Nothing in this section shall affect ․ Evidence Code, Sections 352․”  (Emphasis added.)   Because subdivision (d) is technically a subdivision rather than a section, it might be argued that Evidence Code section 352 (and therefore Beagle ) was intended to be retained as a limitation on all of section 28, including subdivision (f).   The Attorney General contends that the plain meaning of the initiative and the ballot analysis and public commentaries discussed above demonstrate that the voters intended the word section to apply solely to subdivision (d).

 The ballot analysis and public commentaries do support this position.   Further, the retention of Evidence Code section 352 by subdivision (d) is logically inapplicable to five of the seven subdivisions of section 28, which have nothing to do with admission of evidence.3  Literal construction of the word section as referring to those five subdivisions would be absurd and is to be avoided.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)

A similar conclusion ensues with regard to use of the word section elsewhere in section 28.   The provision for restitution for crime victims (subdivision (d) of section 28) directs the Legislature to “adopt provisions to implement this section during the calendar year following adoption of this section.”  (Emphasis added.)   The implementation directive could logically refer only to the restitution subdivision, not all of section 28.

 Thus the word section in subdivision (d) does not appear to have been used in a technical sense.   The voters must be deemed to have used it in its natural and ordinary meaning, i.e., as referring only to subdivision (d) itself.  (Ibid;  Pugh v. City of Sacramento (1981) 119 Cal.App.3d 485, 489, 174 Cal.Rptr. 119;  cf. People v. Pacini (1981) 120 Cal.App.3d 877, 890, 174 Cal.Rptr. 820 [phrase “this section” in Penal Code section 1026.5, subdivision (a)(2), held to refer only to subdivision (a)(2) and not to another subdivision in statute].)  To conclude otherwise would essentially nullify subdivision (f), contrary to the rule of construction that, if possible, related constitutional provisions are to be harmonized (without distorting their apparent meaning) to give apparent effect to the scheme as a whole.   (Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241.)

 One possible shortcoming of the initiative process is that the drafting of propositions may, at worst, be sloppy and, at best, not be carried out with the precision expected in legislative enactments.   Our review of Proposition 8 in general, and those portions of it referred to in this opinion specifically, leads us to conclude that its draftsmanship leaves much to be desired.   Poor draftsmanship, however, is no reason to refuse to follow the clearly expressed will of the people of the State of California in passing this initiative measure.

The judgment is affirmed.

FOOTNOTES

1.   Section 28, subdivision (b), provides in full:“Use of Prior Convictions.   Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

2.   Section 28, subdivision (d), provides in full:“Right to Truth-in-Evidence.   Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782, or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

3.   These subdivisions include section 28, subdivision (a) [preamble];  subdivision (b) [restitution for crime victims], subdivision (c) [right to safe schools], subdivision (e) [public safety bail], and subdivision (g) [definition of serious felony].

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.

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