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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Maria J. CASTRO, Defendant and Appellant.


Decided: January 24, 1984

Edward J. Berman, Berman & Glenn, San Francisco, for defendant and appellant. Quin Denvir, State Public Defender, Jonathan B. Steiner, Chief Asst. State Public Defender, Los Angeles, for defendant and appellant (amicus curiae). John K. Van de Kamp, Atty. Gen., Eugene W. Kaster, David D. Salmon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant was convicted after jury trial of receiving stolen property (Pen.Code, § 496).   Her sole complaint on appeal is that the trial court erroneously denied her pretrial motion to exclude evidence of a prior conviction of possession of heroin (Health and Safety Code, § 11350).

The general principles at issue are familiar.   The California Supreme Court declared in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, that trial courts must exercise discretion under Evidence Code sections 352 and 788 to exclude evidence of prior felony convictions “when their probative value on credibility is outweighed by the risk of undue prejudice.”

But on June 8, 1982, the California electorate enacted Proposition 8, adding, inter alia, section 28 to article I of the California Constitution.   Appellant was charged with committing a crime after Proposition 8 “took effect, and thus its provisions apply to the case before us.”  (People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.)   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 states that “relevant evidence shall not be excluded in any criminal proceeding,” and adds:  “Nothing in this section shall affect ․ Evidence Code, Sections 352, 782 or 1103.” 2

Appellant contends that, contrary to the trial court's conclusion, section 28 does not abrogate the rule of Beagle;  and observes that subdivision (d) of section 28 specifically provides for the continued validity of Evidence Code section 352, upon which the decision in Beagle was based, and which requires a balancing of the probative value of evidence against possible prejudicial effect.   Appellant views subdivision (d) as a more specific statutory provision which, under the doctrine of ejusdem generis, must prevail over the general language contained in subdivision (f).  (See, e.g., People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723.)

 Little study is required to perceive a conflict between the two subdivisions 3 —caused, we surmise, by imprecise, indeed, shoddy drafting (see People v. Jaurez (Dec. 20, 1983) AO 20194 slip opn., p. 8)—which must be resolved by reference to settled principles of statutory construction.

We consider subdivision (f) the more specific of the two provisions.   It addressed the admission of a particular type of evidence:  prior felony convictions.   In contrast, subdivision (d) governs the admission of relevant evidence generally.   Thus, were we to simply give priority to the more specific provision, we would find subdivision (f) of section 28 controlling.  (People v. Juarez, supra, at slip opn., p. 4.)

But the primary goal in construing constitutional amendments is to “avoid absurd results and to fulfill the apparent intent of the framers.”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Education (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   And where, as here, the meaning of the amendment is ambiguous, extrinsic evidence, such as the voter's pamphlet, may be used in interpreting its provisions.  (Amador Valley, supra, at pp. 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281;  State Board of Education v. Levit (1959) 52 Cal.2d 441, 462, 343 P.2d 8.)

The goal of “highest importance” found in the preamble (Cal. Const., art. I, § 28, subd. (a)) to “The Victims' Bill of Rights” is “that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected ․”  The preamble adds that to accomplish this goal, “broad reforms in the procedural treatment of accused persons ․ are necessary and proper.”

According to the legislative analysis found in the voters' pamphlet:  “The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation” for purposes of impeachment.  (Analysis by the Legislative Analysts, Ballot Pamphlet, Proposed Amend. to Cal. Const., Primary Election (June 8, 1982) p. 54.)   In the same document the proponents of Proposition 8 argue that the passage of the initiative will “result in more criminal convictions” and thereby reverse the perceived trend that “our courts and professional politicians in Sacramento have demonstrated more concern with the rights of criminals than with the rights of innocent victims.”  (Id. at p. 34;  see also People v. Juarez, supra, slip opn., p. 5.)

The Attorney General opined that Proposition 8 would overrule the evidentiary basis of Beagle (Attorney General Guide, at p. 245), and in the absence of clear case authority, this opinion is entitled to “serious consideration,” although it is “not binding on this court.”  (In re Quinn (1973) 35 Cal.App.3d 473, 482, 110 Cal.Rptr. 881.)

And an analysis of Proposition 8 distributed by the Assembly Committee on Criminal Justice states that section 28, subdivision (f), would eliminate judicial discretion under People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, to preclude the use of prior felony convictions for impeachment purposes.  (Assem. Comm. on Criminal Justice, Analysis of Proposition 8, The Criminal Justice Initiative (Mar. 24, 1982) pp. 28–30.)   The report explained:  “The purpose of the initiative proposition 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.”  (Id., at p. 30.)   The report added that “[t]he initiative will require the use of prior felony convictions for impeachment even though the probative value is outweighed by the danger of substantial prejudice.”   (Id., at p. 31.)   The minority members of the committee issued a publication in response 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;  see also People v. Juarez, supra, slip opn., pp. 5–6.)

Thus, extrinsic evidence suggests that Proposition 8 was intended by its proponents and understood by the electorate to permit prior convictions to be used for impeachment purposes, thereby overruling Beagle.   Another division of this court recently concluded, after examining the background of the initiative 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.”  (People v. Juarez, supra, slip opn., p. 6.) 4

 Appellant cites Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617, as support for her contention that ambiguity in the law should be resolved favorably to her because she is a criminal defendant.   To the extent that this argument is based upon Keeler, supra, it is flawed for two reasons.   First, section 28, subdivision (f) applies to all witnesses, not just defendants.   More importantly, in Keeler the court dealt with the interpretation of an ambiguous penal code section without the assistance of any clear legislative intent.   Here, in contrast, the objective and intent of the law are less opaque and more easily clarified by reference to extrinsic sources.   The interpretive rule that penal laws must be construed in favor of the defendant applies only where the language of legislation is reasonably susceptible to two constructions and neither legislative history nor any other expression of intent provides clarification.  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186;  Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081;  49er Chevrolet v. New Motor Vehicle Bd. (1978) 84 Cal.App.3d 84, 90, 148 Cal.Rptr. 236.)

 Appellant maintains that to interpret section 28, subdivision (f), as eliminating a court's discretion to exclude irrelevant or unduly prejudicial evidence violates article VI, section I of the California Constitution, which vests judicial power in the courts.   To abrogate such “essential” judicial powers results in a revision of the Constitution, which was not, insists appellant, intended by the electorate and contravenes the separation of powers doctrine.  (U.S. Const., art. III, §§ 1, 2;  Cal. Const., art. III, § 3.)

Our high court has already stated in Brosnahan v. Brown (1982) 32 Cal.3d 236, 260, 186 Cal.Rptr. 30, 651 P.2d 274, that “while Proposition 8 does accomplish substantial changes in our criminal justice system, even in combination these changes fall considerably short of constituting ‘such far reaching changes in the nature of our basic governmental plan as to amount to a [constitutional] revision.’ ”   Appellant cites this language in Brosnahan in support of her claim that subdivision (f) should not be interpreted as eliminating the court's balancing function according to Beagle when determining the admissibility of prior convictions.   But even when so construed, subdivision (f) does not effect a revision of the Constitution or amount to an unwarranted intrusion into judicial authority.   It is within the legislative sphere to formulate the law of evidence to be applied by the courts, as subdivision (f) has done.   The law, even as broadly interpreted, does not infringe upon the constitutionally derived authority of the courts.

 Finally, we consider appellant's suggestion that the phrase “shall be used” in subdivision (f) refers to something other than “admission” of evidence to be ill-founded;  the language of the initiative is not susceptible of so tortured an interpretation.

 We accordingly conclude that subdivision (f) is not limited in its scope by subdivision (d), and extinguishes the rule of People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, thereby removing the balancing of prejudice from consideration when determining admissibility of a prior conviction.

 Appellant also complains that even if subdivision (d) abrogated the rule in Beagle, prior convictions must at least be relevant (Evid.Code, § 210) for impeachment purposes to be admissible.   She argues that the evidence of a prior conviction for possession of heroin or possession of heroin for sale—as was admitted in the case before us—does not, according to our high court, possess the requisite degree of probative value when offered to show a defendant's lack of honesty or veracity to qualify for admission as relevant evidence.  (See People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74.)

But just as Beagle has been overruled by Proposition 8, so has any other impediment—other than those of federal constitutional dimension—to the admission of prior convictions.   The directive of subdivision (f) is that prior convictions are to be admitted “without limitation.”   By enacting Proposition 8, the electorate has decreed that all prior felony convictions indicate lack of honesty or veracity and are thus relevant when offered to impeach a witness in a criminal proceeding.

 Appellant next argues that if section 28, subdivision (f) overrules People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, it violates her constitutional rights to due process and equal protection of law.   Appellant notes that the burden required in criminal cases is “beyond a reasonable doubt” and claims due process under the Fifth and Fourteenth Amendments requires that “integrity of fact finding in criminal cases be, at a minimum, co-extensive with civil cases.”   She contends that since due process requires a more stringent fact-finding process in criminal cases, to overrule Beagle subjects the process to unreliability and thereby denies criminal defendants due process.   She also cites the limited application of section 28, subdivision (f) to only criminal cases as a denial of equal protection.

The due process clause imposes upon the states the obligation to insure that judicial proceedings are fundamentally fair.  (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 33, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640;  Spencer v. Texas (1967) 385 U.S. 554, 563–564, 87 S.Ct. 648, 653–54, 17 L.Ed.2d 606.)   The requirements of due process cannot be reduced to a precise formula, as the relevant facts and circumstances “ ‘․ are susceptible of almost infinite variation․’ ”  (Lassiter, supra, 452 U.S. at p. 32, 101 S.Ct. at p. 2162;  Gagnon v. Scarpelli (1973) 411 U.S. 778, 788, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656.)

 Appellant claims that subdivision (f) denies fundamental fairness to criminal defendants by allowing introduction of unduly prejudicial evidence in contravention of Beagle.   But subdivision (f) has not only done away with Beagle;  under it, all prior convictions are admissible, perhaps even those—most notably convictions for which pardons, certificates of rehabilitation and dismissals have been granted—otherwise specifically excluded by Evidence Code section 788.5  Thus, the issue is whether due process guarantees are compromised by elimination of any restraints or limitations upon the admissibility of prior convictions.

The United States Supreme Court has noted that an important element of due process is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence.  (Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6, 88 S.Ct. 1620, 1625, fn. 6, 20 L.Ed.2d 476;  Blumenthal v. United States (1947) 332 U.S. 539, 559–560, 68 S.Ct. 248, 257–58, 92 L.Ed. 154.)

But in Spencer v. Texas, supra, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, the court upheld, in the face of a due process challenge, the use of prior convictions to prove a habitual criminal enhancement allegation.   Conceding the possibility of prejudice inherent in such evidence, the court concluded:  “To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence.”  (Id., at p. 562, 87 S.Ct. at p. 652.)   The court added:  A state law “ ‘does not run afoul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.’ ”

In United States v. Belt (D.C.Cir.1975) 514 F.2d 837, a statute (14 D.C.Code, § 305 (1973)) making admission of prior convictions mandatory for impeachment purposes—thereby depriving the trial courts of discretion to exclude such evidence which is deemed unduly prejudicial—was found constitutionally valid.   The court noted:  “What Spencer does appear to contemplate is that a legislature may, without impingement upon the Constitution, conclude that the public interest in getting before the jury this evidence bearing upon credibility of the defendant-witness outweights its inescapably prejudicial effect.”  (Id., at p. 849;  see also United States v. Smith (D.C.Cir.1976) 551 F.2d 348, 366.)

And according to pre-Beagle case law, impeachment of a witness with a prior conviction did not violate either the federal or California Constitutions.   (People v. Roberts (1966) 65 Cal.2d 514, 522, 55 Cal.Rptr. 412, 421 P.2d 420;  People v. Pike (1962) 58 Cal.2d 70, 93, 22 Cal.Rptr. 664, 372 P.2d 656;  People v. Harris (1971) 20 Cal.App.3d 534, 538, 97 Cal.Rptr. 883;  People v. Goodman (1970) 8 Cal.App.3d 705, 707, 87 Cal.Rptr. 665.)   In Harris, the court, quoting from Goodman, supra, at page 707, 87 Cal.Rptr. 665, explained:  “ ‘[T]he California Supreme Court has considered this question a number of times, uniformly holding that a defendant who testifies may be impeached by proof of a prior felony conviction, and that such impeachment does not offend the due process clause of either the federal or the state Constitutions.  [Citations.]’ ”  (Id., 20 Cal.App.3d at p. 538, 97 Cal.Rptr. 883.)   And in People v. Beagle, supra, 6 Cal.3d 441, at page 454, 99 Cal.Rptr. 313, 492 P.2d 1, the court opined:  “although there is no constitutional bar to the use of valid prior felony convictions for impeachment purposes, there are limits on the use of such evidence contained within the statutory provisions we have discussed [Evid.Code, §§ 352, 788].”  (Emphasis added.)

We are not unconcerned with the possible prejudicial effects of Proposition 8, but remain unconvinced that the unrestricted use of prior convictions to impeach witnesses makes the criminal fact-finding process so inherently unreliable as to abstractly deny fundamental fairness.  (See State v. Ruzicka (1977) 89 Wash.2d 217, 570 P.2d 1208, 1212–1215;  in accord, People v. Layton (1980) 200 Colo. 59, 612 P.2d 83, 84;  People v. Henry (1978) 195 Colo. 309, 578 P.2d 1041, 1045, appeal dism., 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419;  Johnson v. State (Fla.1979) 380 So.2d 1024, 1026;  Commonwealth v. Sheeran (1976) 370 Mass. 82, 345 N.E.2d 362, 367;  Commonwealth v. Leno (1978) 374 Mass. 716, 374 N.E.2d 572, 573;  State v. Sands (1978) 76 N.J. 127, 386 A.2d 378, 385–386;  but see State v. Santiago (1971) 53 Haw. 254, 492 P.2d 657.)   Accordingly, we find that subdivision (f) does not deny due process.

 Neither, we conclude, are equal protection guarantees compromised by subdivision (f).

The concept of equal protection of the laws means simply that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.  (In re Gary W. (1971) 5 Cal.3d 296, 303–304, 96 Cal.Rptr. 1, 486 P.2d 1201;  In re John R. (1981) 116 Cal.App.3d 940, 946, 172 Cal.Rptr. 387;  Estate of Mears (1979) 90 Cal.App.3d 885, 891, 153 Cal.Rptr. 566.)  “The basic requirement is that all persons within a particular class be treated alike.”  (Miller v. Department of Human Resources Dev. (1974) 39 Cal.App.3d 168, 172, 114 Cal.Rptr. 8.)

 However, neither the Fourteenth Amendment nor the California Constitution (art. I, § 7) require absolute equality.  (People v. Romo (1975) 14 Cal.3d 189, 196, 121 Cal.Rptr. 111, 534 P.2d 1015;  In re Antazo (1970) 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999.)   The constitutional guarantee of equal protection does not, for example, mandate uniform operation of the law with respect to different persons or classes.  (In re Gary W., supra, 5 Cal.3d 296, 303, 96 Cal.Rptr. 1, 486 P.2d 1201;  Georgie Boy Manufacturing, Inc. v. Superior Court (1981) 115 Cal.App.3d 217, 224, 171 Cal.Rptr. 382;  In re Robert D. (1979) 95 Cal.App.3d 767, 777, 157 Cal.Rptr. 339.)   The requirements of equal protection are satisfied when “the law operates on all persons standing in the same category.”  (Miller v. Department of Human Resources Dev., supra, 39 Cal.App.3d at p. 172, 114 Cal.Rptr. 8.)

 “ ‘․ “The Constitution does not require things which are different in fact ․ to be treated in law as though they were the same.”  [Citation.]  Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends․' ”  (Hays v. Wood (1979) 25 Cal.3d 772, 791, 160 Cal.Rptr. 102, 603 P.2d 19.)   Accordingly, the state “may provide for differences as long as the result does not amount to invidious discrimination.”  (People v. Romo, supra, 14 Cal.3d 189, 196, 121 Cal.Rptr. 111, 534 P.2d 1015;  In re Robert D., supra, 95 Cal.App.3d 767, 777, 157 Cal.Rptr. 339.)

Subdivision (f) does not purport to classify or discriminate among individual members of similarly situated groups.   All criminal defendants are treated alike by the law.   A distinction is made between civil and criminal cases, but, in our view, validly so.   Civil litigants have different interests at stake, must satisfy different burdens of proof, and are bound to follow different procedures than parties in a criminal action.   Even the rules of evidence are not uniform in civil and criminal proceedings.6

We conclude that subdivision (f) does not create an impermissible classification.

Appellant's motion to exclude evidence of her prior conviction was properly denied.   The judgment is affirmed.


1.   Section 28, subdivision (f), provides:“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.   According to section 28, subdivision (d):“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.   The conflict between subdivisions (d) and (f) of section 28 was apparent to the Attorney General before Proposition 8 was placed before the voters.  (See Attorney General's Guide to Proposition 8 (June 9, 1982), reprinted in CEB Program Material, “Criminal Practice After Proposition 8” (July 1982) at pages 245–248 [hereinafter cited as Attorney General's Guide];  Assembly Committee on Criminal Justice, “Analysis of Proposition 8:  The Criminal Justice Initiative,” Terry Goggin, Chairman (March 24, 1982) [hereinafter cited as Assembly Committee Analysis].)  The Attorney General maintained then and reiterates here that section 28, subdivision (d) was not meant to apply to subdivision (f).  (See Attorney General's Guide at pp. 245–246.)

4.   We are of course bound to believe for purposes of the present analysis that the voting public read and appreciated arguments for and against the amendment.

5.   Section 788 states:“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).”We of course express no opinion on this issue.

6.   For instance, certain statutorily enumerated physician-patient privileges (Evid.Code, §§ 990–1007) are inapplicable to criminal trials (Evid.Code, § 998).

NEWSOM, Associate Justice.

ELKINGTON, Acting P.J., and HOLMDAHL, J., concur.