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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Xavier Allen HARRISON, Defendant and Appellant.

Cr. 12656.

Decided: January 20, 1984

Donald A. Primavera, Sacramento, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Gregory W. Baugher and Wanda Hill Rouzan, Deputy Attys. Gen., for plaintiff and respondent.

In this case we consider and reject challenges to subdivision (f) of section 28 of article I of the California Constitution, the “Use of Prior Convictions” section of “The Victims' Bill of Rights” enacted by Proposition 8 at the June 1982 Primary Election.   We also interpret Penal Code section 667, the habitual criminal statute also enacted by that initiative measure.

Defendant Xavier Allen Harrison appeals from a judgment sentencing him to a total unstayed prison term of eight years after he was convicted of one count of attempted robbery with a finding that he personally used a deadly weapon in the commission of that crime.  (Pen.Code, §§ 211/213, 12022, subd. (b).)  The trial court found the allegation that defendant had previously been convicted of a serious felony within the meaning of Penal Code section 667 to be true.   On appeal defendant contends the trial court erred in:  (1) imposing an enhancement to his sentence due to his prior conviction;  (2) denying his motion to exclude the use of his prior felony conviction for impeachment purposes in the event he testified;  (3) refusing to instruct the jury on lesser included offenses of grand and petty theft and battery;  and (4) denying his motion for a mistrial on the charge that he had suffered a prior conviction for robbery.   We reject these contentions and shall affirm the judgment.


On the evening of September 15, 1982, Thomas Parker Moore, then 61 years old, was walking on the K Street Mall in Sacramento.   He was met by two young men, one of whom asked whether he had change for a dollar.   Moore identified defendant as one of the young men.   When Moore said he did not have change and attempted to pass, defendant grabbed him by the shirt and threatened him with a knife.   Defendant said:  “Come up with your change,” and “Where is it;  I want your change.”   While defendant held the knife on Moore, his cohort went behind him and put his arm around his neck, and searched his pockets.   Moore broke away and ran but was caught within a few steps.   The attackers finished searching him and then defendant pushed him and said “Go on.”   Moore apparently did not have any property taken by the attackers, but he lost his bus schedules and comb, and his glasses were broken.

After he was released Moore walked down the street until he met two police officers.   They drove him around until he identified two persons as his attackers.   Defendant and his companion were then arrested and a knife was discovered on defendant's person.



 Defendant's crime was committed in September 1982, several months after the passage of Proposition 8.   The provisions of that initiative measure therefore apply to defendant.  (People v. Smith (1983) 34 Cal.3d 251, 257–258, 193 Cal.Rptr. 692, 667 P.2d 149.)   Proposition 8 enacted Penal Code section 667, set out in full in the margin, which provides for enhancement of prison sentences for those convicted of serious felonies who have previously been convicted of serious felonies.1  The term “serious felony” is defined in Penal Code section 1192.7.   Included in that statutory definition are the crimes of robbery, any crime in which a deadly or dangerous weapon is personally used by the defendant, and any attempt to commit a listed crime other than an assault.  (Pen.Code, § 1192.7, subds. (c)(19), (c)(23) and (c)(25).)   Defendant stands convicted of attempted robbery in which he personally used a dangerous or deadly weapon, and it has been found as true that he suffered a prior conviction of robbery.2  Accordingly, his sentence was enhanced by a five-year term under Penal Code section 667.

 Defendant contends that the imposition of the five-year enhancement for a prior conviction which occurred before the effective date of Penal Code section 667 would constitute an ex post facto law and is therefore impermissible.   We disagree.   A long and unbroken line of decisional authority has rejected this same contention under identical circumstances.  (See e.g., In re Rosencrantz (1928) 205 Cal. 534, 540, 271 P. 902;  People v. Coleman (1904) 145 Cal. 609, 612, 79 P. 283;  Ex Parte Gutierrez (1873) 45 Cal. 429, 432;  People v. Calderon (1962) 205 Cal.App.2d 566, 572, 23 Cal.Rptr. 62.)   Nor does such enhancement violate principles of double jeopardy, equal protection, or due process of law.   (Ibid.)

 Defendant contends, however, that it is improper to enhance his current sentence for his prior conviction because at the time he entered a plea of guilty to the prior charge he was not informed of the possibility of such an extended enhancement in the event of future convictions.   Initially, we note that the claim that proper advice was not given before a plea was entered is an attack upon the validity of the prior conviction and the defendant must raise the issue by appropriate procedure in the trial court.  (People v. Reeves (1981) 123 Cal.App.3d 65, 68–69, 176 Cal.Rptr. 182;  People v. McFarland (1980) 108 Cal.App.3d 211, 220, fn. 3, 166 Cal.Rptr. 429;  People v. Davis (1980) 103 Cal.App.3d 270, 275, 163 Cal.Rptr. 22;  Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 1027, 119 Cal.Rptr. 98.)   Defendant did not challenge the validity of his prior conviction in the trial court, nor has he sought to withdraw that plea.   He is precluded from doing so for the first time on appeal.   In any event, the failure to advise a defendant of the possibility of an increased punishment upon a subsequent conviction does not render a plea invalid.  (Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527, fn. 1, 145 Cal.Rptr. 636;  People v. Flores (1974) 38 Cal.App.3d 484, 487–488, 113 Cal.Rptr. 272;  Hartman v. Municipal Court (1973) 35 Cal.App.3d 891, 893, 111 Cal.Rptr. 126.)

Defendant next argues that Penal Code section 667 must be construed in such a manner as to preclude the imposition of an enhancement based upon a prior conviction entered on a guilty plea.   He notes that the language of the section provides that an enhancement can only be imposed for “each [such] prior conviction on charges brought and tried separately.”   Defendant argues that since he pleaded guilty in the prior proceeding he was not “tried” and consequently his prior conviction cannot be used to enhance his current sentence.

 We reject defendant's argument.   The language utilized in Penal Code section 667 is not new to this state.   Under the former indeterminate sentencing law a defendant could be adjudicated an habitual criminal on the basis of two or more prior convictions “upon charges separately brought and tried.”  (former Pen.Code, § 644.)   In People v. Ebner (1966) 64 Cal.2d 297, at page 304, 49 Cal.Rptr. 690, 411 P.2d 578, the defendant contended he had not been “tried” on his prior conviction because he had pleaded guilty rather than undergo a trial on the merits.   The Supreme Court rejected the contention, stating:  “The term ‘tried,’ as used in the context of the statutory phrase, ‘charges separately brought and tried,’ signifies that the two prior felony proceedings [before trial] must be totally separate, not only during proceedings before trial but also as to those leading to the ultimate adjudication of guilt.  [Citation.]  Past decisions draw no distinction between an adjudication of guilt based on a plea of guilt [sic ] and that predicated on a trial on the merits.  [Citation.]”  In other words, as the Court of Appeal later noted in Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 153, 139 Cal.Rptr. 121, “[t]he tendering of a guilty plea pursuant to a plea bargain, followed by acceptance of the plea by the judge, is the functional equivalent of a trial ․”  Defendant must be regarded as having been “tried” for his prior robbery despite the fact that his guilty plea obviated the need for a jury trial.3

 Defendant next contends that Penal Code section 667 is vague and ambiguous.   He asserts that if it does not mean that the prior charges must have been actually “tried,” then it must mean that the enhancing allegations must be tried separately from the charges in the current information.   Since, in defendant's view, one cannot determine which of these constructions is proper, there is no notice of what is prohibited.4  In view of our earlier discussion, we must reject this contention as well.  Penal Code section 667 utilizes time-honored and judicially construed terminology.   There is no doubt as to its meaning.

In any event, we do not perceive an ambiguity in Penal Code section 667 when it is read as a whole.   Under prior determinate sentencing provisions a prison term was enhanced for each prior separate prison term served by the accused.  (Pen.Code, § 667.5.)  Section 667 was enacted by the People to increase the length of the enhancement for serious felonies, and to require the imposition of the enhancement whether or not a commitment or incarceration had been imposed for the prior conviction.   The language “brought and tried separately” was clearly intended as a limiting factor:  to permit only one enhancement as the result of each prior proceeding which resulted in conviction of a serious felony, regardless of the actual number of convictions obtained in the prior proceeding.

We conclude that defendant's prior conviction for robbery, by guilty plea, comes within the clear provisions of Penal Code section 667 in this prosecution for attempted robbery with the personal use of a deadly or dangerous weapon.   The imposition of a five-year enhancement due to the prior conviction does not violate any constitutional proscription.   Accordingly, the trial court did not err in imposing the enhancement.5


Prior to trial defendant moved to exclude the use of his prior robbery conviction for impeachment purposes in the event he testified.   The trial court denied the motion to exclude the prior for impeachment, but did “sanitize” it;  the court ruled that the prosecutor could only inquire whether defendant had been convicted of a prior felony involving theft.   Defendant did not testify.   On appeal he contends the court erred in denying his motion and permitting the use of his prior conviction in a sanitized form for impeachment purposes in the event he testified.

Evidence Code section 788, with exceptions not relevant here, provides that for purposes of attacking the credibility of a witness it may be shown that he has been convicted of a felony.6  Prior to People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, the Supreme Court took for granted the right of a party to impeach a witness with a felony conviction.  (See In re Ferguson (1971) 5 Cal.3d 525, 534, 96 Cal.Rptr. 594, 487 P.2d 1234;  People v. McClellan (1969) 71 Cal.2d 793, 809, 80 Cal.Rptr. 31, 457 P.2d 871.)   Indeed, the court had approved the practice of unlimited impeachment by prior felony conviction at least since 1875.  (People v. Amanacus (1875) 50 Cal. 233, 234–235.)   Numerous Court of Appeal decisions held that a trial judge had no discretion to exclude evidence of a felony conviction when offered for impeachment.  (See the decisions disapproved in People v. Beagle, supra, 6 Cal.3d at pp. 451–452, 99 Cal.Rptr. 313, 492 P.2d 1.)

In Beagle the Supreme Court considered the relationship between Evidence Code section 788 and section 352, which permits a trial court to exclude otherwise admissible evidence where its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.7  The Court noted that section 788 authorizes the use of a felony conviction with the permissive word “may” rather than the mandatory word “shall”, and held that construed together sections 352 and 788 provide a trial court with discretion to exclude such evidence.  (6 Cal.3d at pp. 452–453, 99 Cal.Rptr. 313, 492 P.2d 1.)

Although the Court in Beagle did not purport to establish rigid standards for the exercise of a trial court's discretion, in the decade between that decision and Proposition 8 that discretion became progressively more circumscribed in favor of exclusion.   In a long line of decisions the Court reversed criminal convictions either because the trial courts failed to consider the proper factors in balancing probative value against prejudice, or, having done so, abused their discretion.  (See e.g., People v. Antick (1975) 15 Cal.3d 79, 98, 123 Cal.Rptr. 475, 539 P.2d 43;  People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Rollo (1977) 20 Cal.3d 109, 116–117, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Woodward (1979) 23 Cal.3d 329, 338–339, 152 Cal.Rptr. 536, 590 P.2d 391;  People v. Fries (1979) 24 Cal.3d 222, 231, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman (1979) 25 Cal.3d 107, 115–116, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Barrick (1982) 33 Cal.3d 115, 126–127, 187 Cal.Rptr. 716, 654 P.2d 1243.)   Among other things the court held that some felonies are not as probative on credibility as others and are thus entitled to less weight;  and some felonies are not probative on credibility at all and may not be admitted.  (People v. Spearman, supra, 25 Cal.3d at p. 115, 157 Cal.Rptr. 883, 599 P.2d 74.)   An offense is not probative on credibility, the Spearman court declared, merely because it shows a “disrespect for the law,” or a “character trait of willingness to do anything,” nor even because it is morally heinous.  (Ibid.)  The court further held that a prior conviction should not be admitted if it is similar to the accusation being tried.   (People v. Fries, supra, 24 Cal.3d at pp. 230–231, 155 Cal.Rptr. 194, 59 P.2d 19.)   In this process the court has indicated a strong preference for impeachment through “piercing cross-examination” rather than the use of prior felony convictions.  (Id., at p. 231, 155 Cal.Rptr. 194, 59 P.2d 19.)

Proposition 8 added section 28 to article I of the California Constitution.   Subdivision (f) of section 28 now provides:  “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.”   Although this provision appears absolute and mandatory in its terms, defendant argues that it must be read in harmony with subdivision (d) of the same section, the “Right to Truth-In-Evidence” provision of Proposition 8.   Subdivision (d), it is claimed, must be read to retain the Beagle line of cases.   This is so, argues defendant, because subdivision (d) provides that “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.”   Since Beagle and its progeny were based upon Evidence Code section 352, defendant contends they were not affected by Proposition 8.

 We must reject this contention.   The language used in subdivision (f) of section 28 is too clear and unambiguous for there to exist any doubt as to its meaning.  “Clear statutory [or constitutional] language no more needs to be interpreted than pure water needs to be strained.”  (Holder v. Superior Court (1969) 269 Cal.App.2d 314, 317, 74 Cal.Rptr. 853.)   If the intent of a provision is clear from the language used there is no room for judicial interpretation.  (Skivers v. State of California (1970) 13 Cal.App.3d 652, 655, 91 Cal.Rptr. 707.)

 The fundamental rule of statutory construction, to which all other such rules are subordinate, is that the court should ascertain the intent of the lawmakers in order to effectuate the purpose of the law.   (Sand v. Superior Court (1983) 34 Cal.3d 567, 571, 194 Cal.Rptr. 480, 668 P.2d 787, and cases cited there.)   This controlling principle of statutory construction applies with equal force to initiative measures adopted by the electorate.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   In ascertaining that intent, the analysis by the Legislative Analyst in the ballot pamphlet “presented to the voters in connection with a particular measure ‘may be helpful in determining the probable meaning’ of constitutional amendments adopted by the initiative process.  [Citation.]”  (People v. Frierson (1979) 25 Cal.3d 142, 185, 158 Cal.Rptr. 281, 599 P.2d 587;  accord, Carlos v. Superior Court (1983) 35 Cal.3d 131, 143, 197 Cal.Rptr. 79, 672 P.2d 862.)   That analysis irrefutably establishes that Proposition 8 was intended to overrule Beagle and its progeny.   The analysis reads:  “Prior Convictions.   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.”   (Ballot Pamp., Proposed Amends. to Cal. Const., with analysis by the Legislative Analyst, Primary Elec. (June 8, 1982) p. 54, emphasis added.)   As this ballot explanation and the constitutional language itself make clear, prior convictions to impeach credibility are to be used without limitation.   To declare emphatically that this language is wholly inconsistent with any construction which would perpetuate the limited use of prior convictions under the Beagle line of cases is only to recite the obvious with gusto.   When subdivision (f) of section 28 is read in conjunction with the long line of cases following Beagle it cannot be doubted that it was intended to abrogate those decisions.   To hold that the retention of Evidence Code section 352 in subdivision (d) resurrected that line of authority would be to render subdivision (f) mere ineffective surplusage.   Such a construction must be avoided.  (Smith v. Trapp (1967) 249 Cal.App.2d 929, 938, 58 Cal.Rptr. 229;  County of Los Angeles v. Emme (1940) 42 Cal.App.2d 239, 242, 108 P.2d 695.)

Moreover, “[i]t is well settled ․ that a general provision is controlled by one that is special, the latter being treated as an exception to the former.   A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.”  (Rose v. State (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505.)   We have no doubt that the People, in enacting Proposition 8, intended to retain a trial court's discretion over the admission of evidence generally.   However, with regard to the exclusion or limitation of the use of prior felony convictions for impeachment they expressly withdrew discretion in subdivision (f) of section 28.   The specific provision must be held to control the general, and we conclude that a trial court does not have the discretion to exclude prior felony convictions for use as impeachment.

Defendant next contends that the introduction of prior felony convictions that are irrelevant to the character trait of truthfulness, or that are similar or identical to the crime charged, denies him the right to a fair trial and therefore due process of law under the Fourteenth Amendment of the federal Constitution.   He first argues that the indiscriminate admission of prior felony convictions which are unrelated to dishonesty so prejudices the jury that an impartial trial cannot be had.   He further argues that prior convictions which relate to dishonesty but which are similar or identical to the charged crime are, in effect, too relevant and also deny him a right to a fair trial.   We find those arguments unpersuasive.

Impeachment of a witness, including a defendant who testifies on his own behalf, with evidence of conviction of a felony has long been permitted in California.  (People v. Chin Mook Sow (1877) 51 Cal. 597, 600–601;  People v. Crowley (1893) 100 Cal. 478, 483, 35 P. 84.)   This has been the majority rule in the United States.  (See Annot.—Cross-Examination—Previous Prosecution, at 6 A.L.R. 1608, supplemented at 25 A.L.R. 339, 103 A.L.R. 350, and 161 A.L.R. 233.)   Our earlier decisional law did not distinguish between various types or classes of felony convictions for this purpose.  (People v. Braun (1939) 14 Cal.2d 1, 7, 92 P.2d 402;  People v. King (1939) 13 Cal.2d 521, 528, 90 P.2d 291;  People v. David (1939) 12 Cal.2d 639, 646–647, 86 P.2d 811.)   The only limitation was that the examiner was not permitted to go into the details of the crime;  he was limited to the fact of conviction and the nature of the offense.  (Id., at p. 646, 86 P.2d 811.)

“When our Evidence Code was in the process of enactment, the California Law Revision Commission proposed limiting impeachment to proof of a crime in which ‘an essential element’ is ‘dishonesty or false statement.’  (See Cal.Law.Revision Com., Recommendation proposing an Evid.Code, § 788, based on Code Civ.Proc., § 2051;  see also Witkin, Cal. Evidence (1958) § 1243, pp. 1145–1146.)   But the commission's recommendations did not meet with legislative approval, and section 788 as enacted simply restates the rule expressed by former Code of Civil Procedure section 2051, under which any felony conviction is admissible to impeach the defendant's credibility if he takes the stand.  [Citation.]”  (People v. Kelly (1968) 261 Cal.App.2d 708, 712–713, 68 Cal.Rptr. 337, disapproved on another point in People v. Beagle, supra, 6 Cal.3d at p. 452, 99 Cal.Rptr. 313, 492 P.2d 1.)

At the time when our courts had held that any felony conviction was admissible without limitation for impeachment, the rule was consistently upheld against attack on constitutional grounds.  (See People v. Roberts (1966) 65 Cal.2d 514, 522, 55 Cal.Rptr. 412, 421 P.2d 420, rejecting due process argument;  People v. Harris (1971) 20 Cal.App.3d 534, 538, 97 Cal.Rptr. 883, same;  People v. Goodman (1970) 8 Cal.App.3d 705, 707, 87 Cal.Rptr. 665, same;  People v. Knighton (1967) 250 Cal.App.2d 221, 230–231, 58 Cal.Rptr. 700, same.   And see Adamson v. California (1946) 332 U.S. 46, 57, 67 S.Ct. 1672, 1678, 91 L.Ed. 1903, 1911–1912.)   For example, in People v. House (1970) 12 Cal.App.3d 756, 90 Cal.Rptr. 831, the defendant similarly attacked the validity of Evidence Code section 788 on constitutional grounds.  “The first facet of this constitutional attack,” the court noted, “is that the section permits the introduction of non-relevant matters not probative of whether the truth is being spoken and highly prejudicial, thus violating fundamental standards of fair trial.”  (Id., at p. 763, 90 Cal.Rptr. 831.)   Rejecting that attack, the Court of Appeal held that “the use of prior felony convictions for the purposes of impeachment with an instruction that the evidence is to be considered only for the limited purposes of impeachment meet [s] the requirements of the Sixth and Fourteenth Amendments of the federal Constitution․”  (Id., at p. 764, 90 Cal.Rptr. 831.)   In reaching that holding, the court relied upon Spencer v. Texas (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606.   At issue there, the House court explained, “was the question whether a state procedure permitting the introduction of evidence of prior felony convictions for purposes of enhancing punishment under a recidivist penal provision, at the same time as the trial on the issue of guilt or innocence on a current charge, violated fundamental fairness under the Fourteenth Amendment.   In holding no violation, the court stated on pp. 563–564 [87 S.Ct. at p. 653–654, 17 L.Ed.2d at p. 614]:  ‘Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.   See e.g., Tumey v. Ohio, 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749] ․;  cf. Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] ․;  see Estes v. Texas, 381 U.S. 532 [85 S.Ct. 1628, 14 L.Ed.2d 543] ․;  Sheppard v. Maxwell, 384 U.S. 333 [86 S.Ct. 1507, 16 L.Ed.2d 600] ․;  cf. Griffin v. Illinois, 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed. 891]․  But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.   And none of the specific provisions of the Constitution ordains this Court with such authority.   In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the ․ procedure is rendered unconstitutional under the Due Process Clause․’ ”  (Id., 12 Cal.App.3d at p. 763, 90 Cal.Rptr. 831.)

 Under Spencer, then, a defendant's prior conviction may be introduced with appropriate instructions at the guilt-determination stage of trial for the purposes of sentence enhancement without offending the Due Process Clause of the federal Constitution.8  Since that procedure does not pose a sufficient danger of unfairness to the defendant to offend that clause, it necessarily follows that the use of a prior felony conviction for the more limited purpose of impeachment also does not violate that clause's guarantee of a fair trial.

 Moreover, as we shall demonstrate, the People were entitled to conclude that prior felony convictions not involving dishonesty may rationally relate to a witness' credibility and to enact that conclusion into law.   In Beagle the Supreme Court held that a trial court has discretion to exclude evidence of prior felony convictions, but it did so as a matter of statutory construction rather than upon a constitutional basis.   In subsequent decisions the Court defined the factors to be considered and how they should be weighed.   In enacting Proposition 8 the People rejected those decisions, and withdrew discretion from the trial court on the matter of impeachment by felony conviction.   By adding section 28, subdivision (f) to article I of the Constitution, the People necessarily determined that valid felony convictions of any nature are relevant on the issue of a witness's credibility.

By statute, “ ‘[r]elevant evidence’ means evidence, including evidence relevant to the credibility of a witness ․ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)   An inference is statutorily defined as “a deduction of fact that may logically and reasonably be drawn from another fact or group of fact found or otherwise established in the action.”   (Evid.Code, § 600, subd. (b).)  The permissive inference which may be deduced under subdivision (f) is that a prior felony conviction may have a tendency to disprove the truthfulness of a witness' testimony.  (See Evid.Code, § 780, CALJIC Nos. 2.20 (1980 Rev.), 2.23 (4th ed. 1979).)

The constitutional principles to be applied to permissive inferences in a criminal case were addressed by the United States Supreme Court in the context of an element of the crime in Ulster County Court v. Allen (1979) 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777.   Those principles were recounted by the California Supreme Court in People v. Roder (1983) 33 Cal.3d 491, 497–498, 189 Cal.Rptr. 501, 658 P.2d 1302:  “In the past two decades the Supreme Court has repeatedly grappled with the problems raised by the use of presumptions in criminal cases.  (See, e.g., United States v. Gainey (1965) 380 U.S. 63 [85 S.Ct. 754, 13 L.Ed.2d 658];  United States v. Romano (1965) 382 U.S. 136 [86 S.Ct. 279, 15 L.Ed.2d 210];  Leary v. United States (1969) 395 U.S. 6 [89 S.Ct. 1532, 23 L.Ed.2d 57];  Turner v. United States (1970) 396 U.S. 398 [90 S.Ct. 642, 24 L.Ed.2d 610];  Barnes v. United States (1973) 412 U.S. 837 [93 S.Ct. 2357, 37 L.Ed.2d 380].   See also Tot v. United States (1943) 319 U.S. 463 [63 S.Ct. 1241, 87 L.Ed. 1519].)   In Ulster County —the most recent attempt to formulate general constitutional principles in this area—the court explained:  ‘Inferences and presumptions are a staple of our adversary system of factfinding.   It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an “ultimate” or “elemental” fact—from the existence of one or more “evidentiary” or “basic” facts.  [Citations.]  The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently.   Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity remains constant:  the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.   See In re Winship [ (1970) ] 397 U.S. 358, 364 [90 S.Ct. 1068, 1072, 25 L.Ed.2d 368];  Mullaney v. Wilbur [ (1975) ] 421 U.S. [684,] 702–703, n. 31 [95 S.Ct. 1881, 1891–1892, n. 31, 44 L.Ed.2d 508].’  (Italics added.)  (442 U.S. at p. 156, 99 S.Ct. at p. 2224, 60 L.Ed.2d at pp. 791–792.)  [¶]  In determining whether a particular evidentiary device meets this baseline standard, however, the Ulster County court emphasized that a sharp distinction must be drawn between two different types of devices:  (1) ‘[an] entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant’ (id., at p. 157, 99 S.Ct. at p. 2224, 60 L.Ed.2d at p. 792] ), and (2) ‘[a] mandatory presumption ․ [which] tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.’  (Original italics.)   (Ibid.)  [¶]  With respect to a permissive inference, the court reasoned that ‘[b]ecause this [type of device] leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.’  (Ibid.)  ‘[O]nly in that situation,’ the court concluded, ‘is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.’  (Ibid.)”

Those same principles should also apply in determining the validity of a permissive inference which may be drawn from the fact of a prior conviction.   Given these principles, the question then is whether there is any rational connection between the conviction of a felony and a witness' credibility.  “The theory of relevancy of a witness' commission of a felony and his conviction therefor to attack his credibility is that commission of a felony is a specific instance of a witness' conduct that establishes a character trait, which has some tendency in reason to disprove the truthfulness of his testimony.”  (2 Jefferson, Cal. Evidence Benchbook (2d ed, 1982) Witnesses, § 28.8, p. 924.)   The premise of this inference is that “former criminals are less trustworthy in narration than other persons ․”  (5 Jones, Commentaries on Evidence (2d ed. 1926) Examination of Witnesses, § 2372, p. 4656.)   In the words of Justice Holmes, prior convictions are relevant to credibility because they tend to show that the witness “is of [general] bad character and unworthy of credit,” and hence possesses a “general readiness to do evil ․”  (Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78.)   From this premise the jury may infer that the witness has a “readiness to lie in the particular case, and thence that he has lied in fact.”  (Ibid.)

In our view, it is not irrational to permit a fact finder to draw the inference that a witness who has disregarded society's most stringent penal prohibitions by committing a felony may also be more likely than others to disregard an oath to tell the truth.   If it is rational to conclude that a felon who has committed a crime of dishonesty in the past will lie in the future, then it is surely also rational to conclude that other felons may also be untruthful.9  It is difficult to understand why the character of one class of felons is inherently better than that of another.   Indeed, a rule which permits the testimony of a one-time check kiter to be impeached by a prior felony conviction for passing a worthless check, but not that of a professional assassin for the crime of murder, borders on the schizophrenic.

Under these principles we are unable to hold that it was beyond the power of the People to determine that a prior felony conviction is relevant for purposes of determining credibility.10  It has long been held permissible in this country to use evidence of general character for impeachment in the absence of a statutory or judicial policy determination against the use of such evidence.  (See Wigmore on Evidence, Vol. IIIA, (1970) §§ 923, 980, 987, pp. 728–734, 828–835, 862–912.)   We cannot say that there is no rational connection between a prior felony conviction and credibility of a witness, and thus we may not interfere with the People's determination that such evidence is relevant.   In short, we conclude, as did the California Supreme Court in Beagle, that “there is no constitutional bar to the use of valid prior felony convictions for impeachment purposes, ․”  (6 Cal.3d at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.)

 Defendant further contends subdivision (f) of section 28 of article I of the constitution purports to permit the utilization of any prior felony conviction for impeachment purposes, and would thus permit the use of constitutionally invalid prior convictions.   For this reason defendant contends that subdivision (f) is unconstitutional.   We do not doubt that the use of constitutionally invalid prior convictions for impeachment purposes would be error of federal constitutional dimension.  (See Loper v. Beto (1972) 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374;  People v. Coffey (1967) 67 Cal.2d 204, 218–219, 60 Cal.Rptr. 457, 430 P.2d 15.)   The question then is whether the phrase “[a]ny prior felony conviction,” as used in subdivision (f) of section 28, may reasonably be construed in a manner consistent with the due process clause of the Fourteenth Amendment.   We conclude that it may.  “It has long been a cardinal rule, of course, that if a provision of the California Constitution is ‘capable of two constructions, one of which would cause a conflict with the federal Constitution, the other must be adopted.’   [Citation.]”  (Otsuka v. Hite (1966) 64 Cal.2d 596, 606–607, 51 Cal.Rptr. 284, 414 P.2d 412.)   In obedience to that rule we construe the word “conviction” to mean a constitutionally valid conviction.   Defendant did not contend in the trial court, nor does he in this appeal, that his prior conviction was somehow constitutionally defective.   Consequently, the application of subdivision (f) to defendant does not offend the federal Constitution.

 Defendant finally contends that the introduction of evidence of prior felony convictions tends to establish a bad character or a disposition for the commission of crime and thus denies the defendant a fair trial.   We disagree.   While the use of prior convictions for the purpose of establishing a disposition to commit criminal acts is improper, the use of such convictions to impeach a witness's credibility, including that of a testifying defendant, does not deny a defendant a fair trial.  (People v. Roberts, supra, 65 Cal.2d at p. 522, 55 Cal.Rptr. 412, 421 P.2d 420;  People v. House, supra, 12 Cal.App.3d at pp. 763–764, 90 Cal.Rptr. 831, disapproved on other grounds in People v. Beagle, supra, 6 Cal.3d at pp. 453, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Knighton, supra, 250 Cal.App.2d at pp. 230–231, 58 Cal.Rptr. 700.)

Having concluded that defendant could properly have been impeached by the prior robbery conviction, we turn to the propriety of “sanitizing” that conviction.   In People v. Moultrie (1979) 99 Cal.App.3d 77, 160 Cal.Rptr. 51, defendant was charged with several counts of robbery and had previously been convicted of attempted robbery.   He moved under People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, to prohibit his impeachment for attempted robbery.   The trial court denied the motion but restricted the prosecutor's impeachment to the question, “Have you ever been convicted of a felony involving theft?”  (Id., 99 Cal.App.3d at p. 86, 160 Cal.Rptr. 51.)   Affirming the conviction, the Court of Appeal for the Second District approved this sanitizing technique, holding that “the manner of handling by the trial court in the instant case properly allows impeachment by reference only to the relevant theft-related aspect of a robbery while not inviting the jury to speculate that the prior was more serious than it was or portraying defendant as a career robber while denying defendant a false aura of veracity.”  (Id., at pp. 87–88, 99 Cal.Rptr. 51.)   Two years later, in People v. Madaris (1981) 122 Cal.App.3d 234, 175 Cal.Rptr. 869, the Court of Appeal for the First District also approved this procedure in proving defendant's status as a felon in a prosecution for violation of Penal Code section 12021, possession of a concealable firearm by a felon.   In People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, the Supreme Court expressly disapproved Moultrie and Madaris and held that “the technique of ‘sanitizing’ the prior felony is ineffective to dispel the prejudice in admitting evidence of the prior conviction.”  (Id., at p. 120, 187 Cal.Rptr. 716, 654 P.2d 1243.)

 Although we agree that the trial court erred in sanitizing the prior conviction, that error arose because of Proposition 8 rather than Barrick.   In our view, Barrick has no continuing validity in trials for crimes committed on or after June 9, 1982, the effective date of Proposition 8.

Barrick disapproved this sanitizing technique for two reasons.   First, “the technique only increased the possibility that the jury would assume that the undisclosed prior offense was indeed identical to the crime charged.”   (Id., at p. 127, 187 Cal.Rptr. 716, 654 P.2d 1243.)   Under subdivision (f), however, all prior felony convictions are admissible for impeachment, whether or not they are similar or identical to the charged offense.   Consequently the use of this technique for post-Proposition 8 crimes does not increase the prejudice to defendant, it lessens any prejudice.   Second, “Beagle teaches that the trial court must also consider in the balancing equation the effect if the defendant does not testify out of fear of being prejudiced because of impeachment by prior conviction.”  (Id., at p. 129, 187 Cal.Rptr. 716, 654 P.2d 1243.)   As we have explained, subdivision (f) overruled Beagle and its progeny and there is no longer any “balancing equation;”  prior felony convictions are now admissible for impeachment purposes without regard to prejudice.   Thus the doctrinal underpinings of Barrick have been removed and, as to post Proposition 8 crimes, the case can no longer stand.  “When the reason for a rule ceases, so should the rule itself.”  (Civ.Code, § 3510.)

 Nevertheless, the trial court erred in sanitizing the prior felony conviction.   This is because the technique necessarily limits the full admission of prior felony convictions in contravention of the constitutional mandate that such convictions “shall ․ be used without limitation.”  (Cal. Const., art. I, § 28, subd. (f).)  The error, however, benefitted defendant and hence furnishes no grounds for the reversal of his conviction.


 Defendant contends the trial court erred in refusing to instruct the jury on the lesser included offenses of grand and petty theft, and larceny.   Larceny is theft, and thus instructions on both theft and larceny would have been redundant.  (See Pen.Code, § 484.)   Theft is a lesser included offense within a charge of robbery, and thus the question is whether the court erred in failing to instruct the jury on theft.  (See People v. Cole (1982) 31 Cal.3d 568, 582, 183 Cal.Rptr. 350, 645 P.2d 1182.)

 The rule is that a defendant is entitled to instructions on lesser included offenses which the evidence tends to support, but is not entitled to these instructions when there is no evidence from which a jury could conclude the offense was less than that charged.  (People v. Noah (1971) 5 Cal.3d 469, 478–479, 96 Cal.Rptr. 441, 487 P.2d 1009;  see also People v. Groce (1971) 18 Cal.App.3d 292, 295, 95 Cal.Rptr. 688.)   It is clear that defendant was not entitled to instructions on petty theft.   Theft from the person is grand theft regardless of the value of the property taken.   (Pen.Code, § 487, subd. (2).)  We also conclude that defendant was not entitled to instructions on grand theft.   The only evidence presented showed that the victim was grabbed by the shirt, threatened with a knife, and money was demanded.   While one perpetrator threatened the victim with a knife, the other held him by the throat and searched his pockets.   Under the state of the evidence if the jury found defendant to have been the perpetrator the only possible verdicts were robbery in the event it found property to have been taken, or attempted robbery.   A verdict of mere theft was not suggested by the evidence.

 Defendant also contends the trial court erred in failing to instruct the jury on battery as a lesser included offense within the charge of robbery.   We disagree.   In People v. Wolcott (1983) 34 Cal.3d 92, at pages 98 through 102, 192 Cal.Rptr. 748, 655 P.2d 520, the Supreme Court held that assault with a deadly weapon is not a lesser included offense within the charge of robbery with the use of a deadly weapon.   The Court noted:  “In short, because a defendant can commit robbery without attempting to inflict violent injury, and without the present ability to do so, robbery does not include assault as a lesser offense.”  (Id., at P. 100, 192 Cal.Rptr. 748, 655 P.2d 520.)   This reasoning applies equally to battery and it is thus clear that battery is not a lesser included offense within the charge of robbery.   Defendant's argument is based upon the fact that the evidence did not establish that in fact he obtained property from the victim.   In such a case, however, the offense would be attempted robbery, which was the jury's finding, and not battery.   In any event, there is not a scintilla of evidence in the record by which the jury could have concluded that the offense was less than attempted robbery.


The prior conviction charged against defendant in the information was “robbery—having used a firearm.”   It appears in the probation report that in fact a charge of the use of a firearm in the prior proceeding was dismissed pursuant to a plea bargain.   As we have noted above, the court bifurcated the trial of the charges in the information from the allegation of a prior conviction.   When the jury returned its verdicts the court then read the allegation of a prior conviction to the jury in order to commence that stage of the proceedings.   At that time the prosecutor moved to amend the information to strike the allegation of the use of a firearm in the prior offense.

Defense counsel objected to the amendment of the information.   He asserted that he was prepared to defend on the charge of a prior robbery with firearm use, and that defendant had the right to have it submitted to the jury.   The trial court indicated it would permit amendment of the information, and defense counsel moved for a mistrial on the matter.   When the court denied the mistrial motion, defendant waived a jury trial, the prosecutor submitted evidence to the court, and defendant was found to have suffered a previous conviction for robbery.

 Defendant contends the trial court erred in denying the motion for a mistrial.   A motion for a mistrial is directed to the sound discretion of the trial court and it may be properly denied where the court is satisfied that no injustice has resulted from the matter of which the defendant complains.  (People v. Gulliebeau (1980) 107 Cal.App.3d 531, 548, 166 Cal.Rptr. 45.)   A motion for a mistrial presupposes error of incurable prejudice.  (Ibid.)  We find no error in the denial of a mistrial, because we find no error in the trial court's decision to permit amendment of the information.   It is clear that a trial court may permit an amendment of the information at any stage of proceedings.  (People v. Witt (1975) 53 Cal.App.3d 154, 164–166, 125 Cal.Rptr. 653;  People v. Spencer (1972) 22 Cal.App.3d 786, 799, 99 Cal.Rptr. 681.)   The policy of the law particularly favors amendment to charge a prior conviction.  (Pen.Code, § 969a.)   In this case the amendment did not add a previously uncharged prior conviction;  it merely permitted an untrue and unnecessary phrase to be stricken.   Such an amendment was well within the discretion of the trial court.

 Defendant's claim of prejudice results from the loss of his opportunity to escape enhancement of his prison sentence on a technicality.   In short, the charge of a prior conviction with the use of a firearm was not true, and if the jury had been required to determine the truth of such an allegation, it would have been forced to find the allegation untrue.   On the other hand, it was clear that defendant had suffered a prior conviction for robbery, and, as noted by defense counsel, if the amendment were permitted the jury would find the allegation true.   Prejudice, however, arises where the defendant is deprived of the opportunity to defend himself, or there is a risk of an erroneous determination;  it does not arise merely because the jury is permitted to find the truth of an appropriate allegation.  (See People v. Garringer (1975) 48 Cal.App.3d 827, 833–834, 121 Cal.Rptr. 922.)

 Defendant now contends that the motion for a mistrial should have been granted because of delayed discovery.   It is true that when the prosecutor moved to amend the information defense counsel indicated that he had just received a copy of the transcript of the taking of defendant's prior plea.   However, he did not move for a continuance, nor did he base his motion for a mistrial upon denied discovery.   When a defendant contends that a violation of a discovery order is a basis for reversal, he bears the burden of demonstrating that he was prejudiced by delayed discovery.  (People v. Sewell (1978) 20 Cal.3d 639, 646, 143 Cal.Rptr. 879, 574 P.2d 1231.)   We find nothing in the record to support a claim of prejudice to defendant.   Accordingly we find no basis for a reversal of the finding of a prior conviction for robbery.

The judgment is affirmed.


1.   Penal Code section 667 provides:  “(a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.“(b) This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this section to apply.“(c) The Legislature may increase the length of the enhancement of sentence provided in this section by a statute passed by majority vote of each house thereof.“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.“(e) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”

2.   The information charged that in February 1982 defendant had been convicted of robbery, a serious felony offense within the meaning of Penal Code section 667.   Prior to trial defendant moved to strike the allegation.   The trial court refused to strike the allegation, but exercised its discretion to order that the trial of the prior would be bifurcated from the trial on the main charges.   After the jury found defendant guilty of attempted robbery with the use of a knife, defendant waived a jury trial on the question of the prior.   The People submitted proof of the prior conviction, and the trial court found the allegation to be true.

3.   The construction of Penal Code section 667 urged by defendant would be contrary to both state and federal law, which prohibits the government from penalizing a defendant for exercising the right to a trial, jury or otherwise.  (See In re Lewallen (1979) 23 Cal.3d 274, 279, 152 Cal.Rptr. 528, 590 P.2d 383.   See also United States v. Jackson (1968) 390 U.S. 570, 582–583, 88 S.Ct. 1209, 1216–1217, 20 L.Ed.2d 138, 147.)   Since we do not believe section 667 can be reasonably construed in the manner urged by defendant, we need not confront the questionable validity such a law would have.

4.   Defendant asserts that the trial court adopted the latter construction in granting a bifurcated trial on the prior conviction.   In fact, the trial court made it clear that it granted the bifurcated trial out of an abundance of caution for defendant's rights, and in the exercise of judicial discretion, and even though it believed that Proposition 8 may direct otherwise.   The court did not construe Penal Code section 667 to require the bifurcated proceeding.

5.   In People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27, the Court of Appeal held that a trial court retains power under Penal Code section 1385 to strike allegations of a prior conviction of a serious felony and thus to avoid the imposition of a five year enhancement under Penal Code section 667.   Defendant does not contend the trial court failed to consider whether to exercise such discretion, and indeed such a contention would be without merit.   Although the trial court indicated a belief that the imposition of an enhancement under section 667 is mandatory, it expressly stated that if it were not considered to be mandatory the court “wouldn't be interested” under the circumstances presented.   We thus need not consider whether the court could have striken the allegation under section 1385.

6.   Evidence Code section 788 provides:  “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 unless:  [¶] (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.  [¶] (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.  [¶] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.  [¶] (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”

7.   Evidence Code section 352 reads:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

8.   Spencer v. Texas was recently reaffirmed by the United States Supreme Court in Marshall v. Lonberger (1983) ––– U.S. ––––, ––––, footnote 6, 103 S.Ct. 843, 853, footnote 6, 74 L.Ed.2d 646, 661, footnote 6.

9.   As one commentator noted, “the difference in probity between crimes of ‘dishonesty and false statement’ and other crimes seems minimal.   At best, convictions for forgery, embezzlement, and even perjury, do no more than negative the possible assumption of some jurors that the particular witness could not lie with a straight face.   A record of crimes of deceit does not tell any more about the accused's willingness to lie when faced with punishment than does a record containing other kinds of crimes.   The possibility that crimes of deceit may be slightly more probative of a general propensity to lie seems irrelevant, for it would appear that, under the pressures of trial and facing a conviction, most guilty defendants will acquire such ‘propensities' quite readily.”  (Note, Other Crimes Evidence at Trial:  Of Balancing and Other Matters (1961) 70 Yale L.J. 763, 778, fn. omitted.)

10.   Legal commentators have often been extraordinarily critical of the rule which permits unlimited impeachment of witnesses, particularly criminal defendants, with prior felony convictions.  (See e.g., Wigmore, Evidence (3d ed. 1940) §§ 193–194;  McCormick, Evidence (1954) § 43, pp. 93–94;  Borchard, Convicting the Innocent (1932) pp. 158–164;  Spector, Impeachment through Past Convictions:  A Time for Reform (1968) 18 De Paul L.Rev. 1;  Ladd, Credibility Tests—Current Trends (1940) 89 U.Pa.L.Rev. 166.)   The issue here, however, is not whether the state ought to adopt the rule but whether it is constitutionally barred from doing so.

SPARKS, Associate Justice.

PUGLIA, P.J., and REGAN, J., concur.