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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Mark BARRICK, Defendant and Appellant.

Cr. 12444.

Decided: October 19, 1981

Michael C. Bourbeau, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., and Peter Quon, Jr., Deputy Atty. Gen., for plaintiff and respondent.


Defendant was convicted of theft and unlawful driving or taking of a vehicle (Veh.Code, s 10851), and was acquitted of the charge of receiving stolen property (Pen.Code, s 496). He admitted two prior felony convictions which the prosecution had charged as sentence enhancements (Pen.Code, s 667.5(b)) and to preclude probation (Pen.Code, s 1203(e)(4)). Because the trial court erroneously ruled that one of the prior felony convictions could be used to impeach the defendant, we reverse.


Riverside County Deputy Sheriff Bennallack testified that on May 29, 1980, at about 8:30 p. m., he was flagged down by a citizen who reported seeing an unconscious man lying in a car in the Rubidoux courthouse parking lot. Approaching the car, Bennallack saw the man, later identified as the defendant, lying across the front bucket seats. Bennallack called to the defendant and rocked the car, but failed to wake him. Defendant was finally awakened when Bennallack opened the car door and shook him. In response to questioning, defendant told Bennallack that he was waiting for a friend and that he had become tired and pulled over to sleep. Defendant said that the car belonged to a friend, but was unable to give the friend's name. Defendant told Bennallack that his name was Steven Johnson, but did not have any identification.

Bennallack returned to his patrol car to run a radio record check on the car and on the name that defendant had given. To verify the name, Bennallack went back to the defendant and asked him to spell his name. Defendant responded, “B-a-r-r-i-c-k.” Smelling alcohol, Bennallack asked him whether he had been drinking. Defendant said that he had two and a half beers and two and a half marijuana cigarettes at a party in Riverside. He also told Bennallack that he thought that the marijuana had been “sprayed with something.” Bennallack then returned to his car to get the results of the record check. He was informed that the car in which defendant was found had been stolen. It had been reported stolen at 7 a. m. that morning. Defendant was placed under arrest.

Defendant did not testify, but the defense did present as a witness a friend who testified to having been at the party in Riverside with defendant. According to the friend's testimony, defendant was drinking beer and smoking cigarettes of a marijuana and PCP mixture. When defendant left the party at 5:30 or 6 p. m. that evening he was weaving and stumbling.


The prosecution alleged, and defendant admitted, that on October 30, 1978, in Colorado, defendant was convicted of auto theft and escape, which are both felonies. Prior to trial, the prosecution stated that it wanted to use the auto theft conviction to impeach defendant if he should testify at trial. Although the trial judge recognized that the auto theft conviction was “very close” to the charged offense, he approved the prosecution's suggestion, which was based on the case of People v. Moultrie (1979) 99 Cal.App.3d 77, 160 Cal.Rptr. 51, that defendant could be asked whether he had ever been convicted of a felony involving theft. Defendant's counsel then told the court that he was advising defendant not to testify because of the ruling.

Evidence Code section 788 states, “For the purpose of attacking the credibility of a witness, it may be shown that he has been convicted of a felony ” In People v. Beagle (1972) 6 Cal.3d 441, 452-453, 99 Cal.Rptr. 313, 492 P.2d 1, however, the Supreme Court held that such prior convictions are not automatically admissible, but, because of Evidence Code section 352, should be excluded “when their probative value on credibility is outweighed by the risk of undue prejudice.” (Id., at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) Although Beagle purported to leave the admissibility decision to “the sound exercise of judicial discretion” (id.), subsequent Supreme Court cases have developed rather strict rules to be followed by trial courts in determining whether a criminal defendant-witness may be impeached by a prior felony conviction. (See People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771; People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43.)

The customary Beagle analysis considers four factors: (1) whether the crime of which the defendant was previously convicted is relevant to show a lack of credibility, (2) the nearness in time of the prior conviction to the present trial, (3) whether the prior conviction is for the same or similar conduct for which the defendant is on trial, and (4) the effect of the defendant's failure to testify for fear of being prejudiced by the admission into evidence of the prior conviction. (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)

In the present case, the first two factors are satisfied. Theft offenses are relevant on the issue of credibility, although they are somewhat less relevant than crimes such as perjury. (People v. Fries, supra, 24 Cal.3d at p. 229, 155 Cal.Rptr. 194, 594 P.2d 19.) And, defendant's prior conviction occurred less than two years before this trial. (Cf. People v. Antick, supra, 15 Cal.3d at pp. 96-99, 123 Cal.Rptr. 475, 539 P.2d 43.)

The third factor, however, strongly indicates exclusion. The Supreme Court has warned that a prior conviction should practically never be admitted if it is similar or identical to the crime charged. (People v. Fries, supra, 24 Cal.3d at p. 230, 155 Cal.Rptr. 194, 594 P.2d 19, see also People v. Spearman, supra, 25 Cal.3d at p. 116, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Rist, supra, 16 Cal.3d at p. 219-220, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) Although prior convictions are admissible only for the purpose of casting doubt on the defendant's credibility as a trial witness, “(a) jury which is made aware of a similar prior conviction will inevitably feel pressure to conclude that if an accused committed the prior crime he likely committed the crime charged.” (People v. Rist, supra, 16 Cal.3d at p. 219, 127 Cal.Rptr. 457, 545 P.2d 833.) This “inevitable” improper use of the prior conviction by the jury is why “the risk of undue prejudice (while) substantial when any prior conviction is used to impeach the credibility of a defendant-witness, is far greater when the prior conviction is similar or identical to the crime charged.” (People v. Fries, supra, 24 Cal.3d at p. 230, 155 Cal.Rptr. 194, 594 P.2d 19.) Thus, trial courts must exercise “extreme caution in deciding whether to admit a similar prior conviction since the risk of undue prejudice is so great.” (Id. )

A related legal principle was established in People v. Rollo, supra, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771. There, defendant was on trial for receiving stolen property and had been previously convicted of soliciting another to commit murder. The trial court permitted the prosecution to ask the defendant whether he had ever been convicted of a felony, but did not allow any inquiry into the nature of the felony. The Supreme Court held the procedure to be error. Because different felonies have varying degrees of relevance to the issue of credibility, “(t)he jury manifestly cannot weigh the probative value of the defendant's particular prior offense unless it knows what that offense was.” (Id., at p. 119, 141 Cal.Rptr. 177, 569 P.2d 771, original emphasis.) Moreover, “(n)ormal human curiosity will inevitably lead to brisk speculation on the nature of (the) conviction.” (Id.) The likely speculative theories mentioned by the court were: that the prior conviction was similar or identical to the charged crime, that the conviction involved some type of heinous conduct, or that the conviction was for an offense especially damaging to the defendant's credibility, such as perjury. (Id. )

As they did at trial, the People here rely on People v. Moultrie, supra, 99 Cal.App.3d 77, 160 Cal.Rptr. 51 to overcome the obvious problem of using a prior auto theft conviction to impeach a defendant on trial for “theft and unlawful driving or taking of a vehicle.”1 In Moultrie, defendant was on trial for robbery and had previously been convicted of attempted robbery. The trial court there, like the trial court in this case, ruled that the defendant could be asked, “Have you ever been convicted of a felony involving theft?” The defendant did not testify. The Court of Appeal affirmed. It was held that “the trial court's handling was a reasonable and available alternative to the approach rejected in Rollo and not at odds with Fries.” (Id., at p. 87, 160 Cal.Rptr. 51.)2 We disagree and decline to follow Moultrie.

The method of impeachment approved in Moultrie and used in the present case does not avoid the harm of admitting a similar or identical prior conviction. No matter how it is described to the jury, when such a prior conviction is used, the undue prejudice remains.

Fries instructs that fully identifying a prior conviction as similar or identical to the crime for which the defendant is on trial creates a great risk of undue prejudice, while Rollo exposes the evils of merely informing the jury that the defendant has previously been convicted of some undisclosed felony. Moultrie purports to tread an acceptable path between Fries and Rollo. In reality, no such route exists.

One of the evils discussed in Rollo is that the jury might speculate that the unidentified prior felony was similar or identical to the charged crime, which, Fries and Rist tell us, leads “inevitably” to the improper use of the prior conviction as a means of determining the likelihood of defendant's guilt in the trial at hand. When the prior felony is in fact similar or identical to the charged crime, this particular harm can never be cured; indeed, it can only be enhanced. For if the danger of such speculation exists in the Rollo “undisclosed felony” situation when there are alternate speculative theories to choose from (e. g., that the prior felony involved heinous conduct or perjury), then that danger will surely increase as the number of those alternate theories is diminished by more fully describing the nature of the prior similar or identical conviction. The more the jurors are told, the more certain they will become that the prior conviction is identical to the crime charged, the very circumstance proscribed by Fries. (See also People v. Betts (1980) 110 Cal.App.3d 225, 230-231, 167 Cal.Rptr. 768.)

Even if we were to accept Moultrie in theory, we could not justify its application to the present case. Whatever purpose might be served by describing a prior attempted robbery conviction as one involving theft when defendant is on trial for robbery, no benefit is derived from referring to a prior auto theft conviction as one involving theft, especially when defendant is accused of theft and unlawful driving or taking a vehicle.3

The fourth Beagle factor also supports the exclusion of the prior conviction. In Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1, it was stated, “ ‘Even though a judge might find that the prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant's version of the case than to have the defendant remain silent out of fear of impeachment.’ ” In the present case, defendant's testimony could have been valuable, since the evidence against him was circumstantial and no other witness offered exculpatory evidence. (See People v. Spearman, supra, 25 Cal.3d at p. 118, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d at p. 228, 155 Cal.Rptr. 194, 594 P.2d 19.) We conclude that the court abused its discretion under Evidence Code section 352 in allowing the similar prior to be used to impeach.4

Since we have no way of determining what defendant's testimony would have been and, therefore, cannot say that it would not have affected the result of the trial, the trial court's error in refusing to grant defendant's Beagle motion cannot be deemed harmless. (People v. Spearman, supra, 25 Cal.3d at pp. 118-119, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d at pp. 233-234, 155 Cal.Rptr. 194, 594 P.2d 19.)

The judgment of conviction is reversed.

I dissent.

Preliminarily, I should make one thing clear I consider Evidence Code s 788 to be an abomination. I was disappointed when the Legislature carried the concept of impeachment by prior felony over into the new Evidence Code. Had I been in the Legislature, I would have voted against it. Were I now in the Legislature, I would attempt to have the section repealed. Impeachment by prior felony is unfair and irrational. I know of no empirical studies which indicate that there is a higher percentage of liars among 100 convicts than among 100 judges or 100 tuba players. Also, it is grossly unfair to impeach a one-time burglar who commits a burglary to support his family and at the same time not impeach a professional thief convicted of 40 different petty thefts. Conceptually, the law cannot be defended.

However, I am of that almost extinct school of judicial philosophy which believes that the wisdom of legislation is no business of the judiciary and once a law is enacted, it is the court's duty to support it, not think up ways to avoid or circumvent it just because judges do not agree with it.

Since Beagle, the Supreme Court has embarked on a program which, as Justice Richardson pointed out in his dissent in Fries, indicates a “lamentable trend toward the total demolition” of Evidence Code s 788. The majority opinion fits this pattern perfectly. While I would like to see section 788 “demolished,” I would submit that is a legislative prerogative, not a judicial one. However, I must say, with a certain degree of grudging admiration, that the majority in this case has done more to “demolish” section 788 than has the Supreme Court in all the cases following Beagle. Now the criminal specialist can testify with that “false aura of veracity” described in Beagle 6 Cal.3d at page 458, 99 Cal.Rptr. 313, 492 P.2d 1. Criminals, like the rest of us, are creatures of habits. Robbers rob. Burglars burgle. Con men do con jobs. Just as long as they stay in their chosen fields now all may testify without fear of impeachment by priors since they cannot be impeached by similar priors. It is only the careless criminal who slips from the path of conformity and carelessly commits an out of character felony who may now be impeached.

Two cases People v. Moultrie, 99 Cal.App.3d 77, 160 Cal.Rptr. 51, with which the majority disagrees, and People v. Madaris, 122 Cal.App.3d 234, 175 Cal.Rptr. 869 have specifically approved the procedure followed by the trial court in this case. Each held that this procedure was in full accord with Beagle. Each noted that this procedure removed the basic vice of section 788 proof of conviction of a similar offense which gives rise to the if-he-did-it-before-he-probably-did-it-again syndrome. I agree with Moultrie and Madaris.

The majority gets all discombobulated because the defendant chose not to testify. This is exactly the form of blackmail warned against in Beagle. Based on a good many years in the trial court as a defense attorney, a prosecutor and a trial judge, it is my educated guess that this defendant never had any intention of testifying. What is he going to say? Is he going to say that by some amazing coincidence of all the thousands of cars in Riverside that evening, he just happened to take a nap in one that had been stolen that morning? Of course, if he does choose to testify, he is going to have to explain the statement to the officer that he had become tired and just pulled over to take a nap. He then has to explain his cockamamie story that the car belonged to a friend whose name he was unable to remember. I am almost seventy years old. I have driven numerous cars belonging to friends. However, I have never driven the car of a friend whose name I couldn't remember. No, Mr. Barrick had no intention of testifying.

The court's ruling was proper. The majority simply does not like Evidence Code s 788 and is using this as a vehicle to further undermine it.

Even if I were to agree with the majority that this method of impeachment was improper, I would still not reverse. By no stretch of the imagination can I conceive of a jury coming in with a different verdict whether or not the defendant testified and whether or not he was impeached if he did testify. As I have indicated, his story is as transparent as glass and as phony as a nine dollar bill. Any jury is going to see through it. I refuse to hold that it is reasonably probable that a different result would have ensued had the court made a contrary ruling.

I would affirm the judgment of the trial court.


1.  There is no doubt that defendant's prior out-of-state auto theft conviction is similar to the charged violation of Vehicle Code section 10851. (People v. Buss (1980) 102 Cal.App.3d 781, 162 Cal.Rptr. 515.)

2.  The Moultrie court also found it “extremely doubtful” that the trial court's ruling kept the defendant from testifying (99 Cal.App.3d at p. 86, 160 Cal.Rptr. 51) and held that, even if there was Beagle error, “the evidence of guilt was so overwhelming” that the error was harmless (id., at p. 88, 160 Cal.Rptr. 51).

3.  People v. Madaris (1981) 122 Cal.App.3d 234, 175 Cal.Rptr. 869, relied on by the dissent, did not involve the use of a similar felony. Madaris was charged with a violation of Penal Code section 12021 (possession of a concealable firearm by one previously convicted of a felony). His prior conviction was of robbery. The ruling that he might be impeached by proof of his prior conviction of a “felony involving theft” simply kept from the jury the inherent violence of Madaris' robbery conviction. We have no quarrel with Madaris. However, referring to auto theft as a felony involving theft has no such salutary effect.

4.  The colorful and inflammatory language of the dissent vividly illustrates the prejudice likely to result from the introduction into evidence of a similar prior conviction. Juries are also likely to believe that, “Robbers rob. Burglars burgle. Con men do con jobs,” and, because they may not have the objectivity of our distinguished colleague, they may conclude that if an accused committed the prior crime, he likely committed the crime charged. That is precisely what the Supreme Court sought to avoid in Beagle, Fries, Rist and Rollo.We too respect the legislative prerogative. However, in Evidence Code section 352, the Legislature quite clearly placed upon the courts the ultimate responsibility for determining when the probative value of any evidence “is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice.” In this opinion, not only are we faithful to Evidence Code section 352, but we are faithful to the decisions of the California Supreme Court which we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

MORRIS, Associate Justice.

TAMURA, J., concur.

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