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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert KELLY, Defendant and Appellant.


Decided: August 20, 1985

John K. Van De Kamp, Atty. Gen., Ann K. Jensen, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. David McNeil Morse, San Francisco, for defendant and appellant.

In this case we hold that a court's failure to exercise its post-Proposition 8 discretion to admit or exclude prior felony convictions for impeachment purposes is ordinarily reversible per se if the defendant did not testify, but is to be reviewed under the usual test for prejudice if the record indicates what the defendant's testimony would have been had he testified.   Robert Kelly appeals from a judgment of conviction for robbery and attempted robbery (Pen.Code, §§ 211, 664).   We affirm.

On October 28, 1983, at around 2:30 p.m., Kelly approached George Clough and Alice Sims as they left a food stamp office at Eddy and Larkin Streets in San Francisco.   Kelly was sweating and shaking.   He asked Clough and Sims if they wanted to sell their food stamps.   They said no and kept walking.   Kelly followed them.

At the next intersection Sims jaywalked through a red light.   Clough waited for the light to change.   Kelly chose this moment to accost Sims.   He put pressure on her back, said he had a knife, and threatened to kill her if she did not do what he said.   He forced her into an apartment building and up the stairs.   Clough ran up the stairs behind them.   Kelly forced them both into an apartment.

Inside the apartment Kelly threatened to stab Clough if he did not give Kelly money or food stamps.   Clough protested that it was “disgusting” to rob someone on food stamps.   Kelly became enraged and hit Clough in the face with a 32-ounce cooking oil bottle.   A second man appeared and grabbed Clough's arms, but then let go.   Kelly again hit Clough in the face with the bottle, knocking Clough's sunglasses across the room, and took Clough's wallet.   Kelly took $30 from the wallet.   He tried to take Sims's purse, but she resisted.

At this point a woman entered the apartment, saw what was happening, and burst into tears.   Clough and Sims both screamed that they were being mugged.   The woman struck Kelly and screamed, “How can you do this in my apartment?”   Clough grabbed Sims and they ran out of the apartment to a nearby police station, where they reported the incident.

An information charged Kelly with the robbery of Clough, the attempted robbery of Sims, and personal use of a dangerous or deadly weapon in the Clough robbery (Pen.Code, § 12022, subd. (b)), plus kidnapping for the purpose of robbery (Pen.Code, § 209) and aggravated assault (Pen.Code, § 245, subd. (a)(1)).   The information alleged a 1977 automobile burglary conviction and a 1971 grand theft conviction under Penal Code section 667, subdivision (b) [one-year enhancement for prior prison term], and a 1978 robbery conviction under both Penal Code section 667, subdivision (b), and Penal Code section 667 [five-year enhancement for prior serious felony conviction].

The court dismissed the kidnapping count pursuant to a motion under Penal Code section 995.   At the close of trial the court granted the prosecutor's motion to dismiss the aggravated assault count as redundant.   A jury convicted Kelly of robbery and attempted robbery and found the personal use allegation to be true.   After the verdict Kelly admitted the prior conviction allegations.

The court sentenced Kelly to a prison term of twelve years and eight months, consisting of the upper term of five years for robbery, a consecutive subordinate eight-month term for attempted robbery, a one-year enhancement for personal use of a weapon, a one-year enhancement under Penal Code section 667.5, subdivision (b), and a five-year enhancement under Penal Code section 667.


At the outset of trial defense counsel moved under People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 to prohibit use of Kelly's three prior felony convictions for impeachment purposes should Kelly decide to testify.   The court denied the motion as to the 1977 and 1978 priors, stating it was bound by a recent Court of Appeal decision holding that Beagle was superseded by Proposition 8.   The court reserved ruling on the 1971 prior, expressing concern over its remoteness.   After a lunch break the court added that even absent the recent appellate decision, Kelly “would not be denied a fair trial under the 14th Amendment of the United States Constitution by use of his prior felony convictions for the purpose of impeachment․”

Immediately following the Beagle motion the prosecutor moved to preclude defense counsel from cross-examining Sims regarding her history of drug addiction and alcoholism, arguing that these points were irrelevant absent proof that drugs were involved in the case.   Defense counsel then made the following offer of proof:  “My client has indicated to me in his defense that these two victims Miss Sims and Mr. Clough approached him, in fact, to buy—or they got together somehow to buy some drugs and that he was going to supply them with those drugs, and that they went with him to the apartment voluntarily.   And his testimony would be to that effect.”   The court denied the prosecutor's motion.

Kelly declined to testify.   At the close of trial defense counsel stated for the record that Kelly did so at his own request, not at the suggestion of counsel.

 The California Supreme Court has held in a plurality decision that after Proposition 8, prior felony convictions not involving moral turpitude are inadmissible for impeachment purposes, but priors that do involve moral turpitude are “prima facie admissible, subject to the exercise of trial court discretion.”  (People v. Castro (1985) 38 Cal.3d 301, 316, 211 Cal.Rptr. 719, 696 P.2d 111.)   The prior felonies in the present case involved dishonesty and hence moral turpitude.   They were therefore admissible, subject to the trial court's exercise of discretion.   Kelly contends the court erred under Castro by failing to exercise this discretion, determining instead that it was compelled by Proposition 8 to permit impeachment.

It is not entirely clear whether the court exercised discretion in finding the 1977 and 1978 priors to be admissible.   On the one hand the court characterized the recent appellate decision it relied on as holding trial courts have a “duty” under Proposition 8 to permit impeachment;  the court said it was “bound” by this decision.   On the other hand the court also said that even absent the recent appellate decision, Kelly would not be denied a fair trial by the use of his priors for impeachment.   This later statement, together with the court's reservation of a ruling on the remote 1971 prior, suggest the court was exercising discretion to admit the 1977 and 1978 priors.

 We need not decide, however, whether the trial court failed to exercise discretion, because any error was harmless.  (See People v. Castro, supra, 38 Cal.3d at pp. 318–319, 211 Cal.Rptr. 719, 696 P.2d 111.)

Under normal circumstances Kelly's decision not to testify would have presented us with a difficult problem unresolved by Castro.   Pre-Castro decisions found Beagle error to be reversible per se where the defendant chose not to testify following the erroneous denial of the Beagle motion:  “[W]e cannot presume to know what defendant's testimony might have been had he testified․  It is thus not possible for us to determine on the record before us the degree of prejudice suffered by defendant because of the court's error in failing to grant his motion, and the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable.”   (People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833;  accord, People v. Fries (1979) 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman (1979) 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74.)   In contrast, a recent United States Supreme Court decision held that a claim of improper denial of a motion to exclude priors for impeachment purposes is not cognizable on appeal if the defendant chose not to testify.  (Luce v. United States (1984) 469 U.S. ––––, ––––, 105 S.Ct. 460, 463, 83 L.Ed.2d 443, 448.)   The California Supreme Court held in Castro that Proposition 8 rejected “the rigid, black letter rules of exclusion” created by the progeny of Beagle.  (38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   Is the reversible per se rule stated in the post-Beagle cases one of the rejected rules of exclusion?   If so, are we now bound by or free to follow Luce?

 In our view the reversible per se rule survives Castro.   The rule is not one of the “rigid, black letter rules of exclusion” created by the post-Beagle cases for use of priors to impeach, but is a general rule of reversible error applicable in a variety of situations.  “[E]rrors at a trial that deprive a litigant of the opportunity to present his version of the case ․ are ․ ordinarily reversible, since there is no way of evaluating whether or not they affected the judgment.”  (Traynor, The Riddle of Harmless Error (1970) p. 68, quoted in People v. Spearman, supra, 25 Cal.3d at p. 119, 157 Cal.Rptr. 883, 599 P.2d 74.)   This rule of reversible error applies, for example, “when ․ an appellant has been deprived of the opportunity to summon witnesses” and “when he has been denied the opportunity to cross-examine witnesses against him․”  (Traynor, op. cit. supra, at pp. 68–69.)   Similarly, the rule logically applies where Castro error causes the defendant not to testify and thereby prevents knowledge of what the defendant's testimony might have been.   Indeed, we believe that Rist, Fries and particularly Spearman adopt this rule as one of general application, so that the appellate courts are bound to apply it in post-Proposition 8 cases.   (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   The rule stated in Luce makes some sense, but it is only a federal rule of appellate procedure.   The Luce approach has not been followed in California state courts, and it should not (and we believe cannot) be followed after Castro absent contrary direction from the California Supreme Court.

 Strangely enough, however, in the present case we can “presume to know what defendant's testimony might have been had he testified․”  (People v. Rist, supra, 16 Cal.3d at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833.)   Although in making the Beagle motion Kelly was not obligated to give an offer of proof as to what his testimony would have been (People v. Fries, supra, 24 Cal.3d at pp. 232–233, 155 Cal.Rptr. 194, 594 P.2d 19), he did make such an offer of proof in opposition to the prosecutor's motion to restrict defense counsel's cross-examination of Sims.   Thus we know that if Kelly had testified he would have claimed that Clough and Sims had gone to the apartment voluntarily to buy drugs.   Consequently the usual test for prejudice can be applied here.

Kelly's testimony would have done nothing to undermine the People's case;  it answered only the charge of kidnapping, which had already been dismissed.   In contrast, the evidence of robbery, attempted robbery, and weapon use was overwhelming.   Both victims testified at length.   Their testimony was amply corroborated.   Kelly's fingerprints were found on the cooking oil bottle in a configuration indicating it was held as a weapon.   The police officer on duty when Clough and Sims ran to the police station testified that they seemed very agitated and alarmed and that Clough had a laceration by his lip and redness by his jaw.   Clough's sunglasses were found on the floor in the apartment where the offenses occurred.  (Cf. People v. Tassell (1984) 36 Cal.3d 77, 89, 201 Cal.Rptr. 567, 679 P.2d 1 [erroneous admission of other crimes evidence to prove common plan held harmless where victim's testimony corroborated by physical evidence of assaultive conduct].)

 Because we know that testimony by Kelly would not have materially affected the People's case, we can conclude that it is not reasonably probable that a result more favorable to him would have occurred had the court precluded use of the priors for impeachment.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)


The judgment is affirmed.


1.   See footnote *, ante.

KING, Associate Justice.

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