PEOPLE v. ORTIZ

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Enrique ORTIZ, Defendant and Appellant.

A026064.

Decided: August 05, 1985

Phillip Pennypacker, Conflicts Administrator, Court-Appointed Counsel, Conflicts Administration Program, San Jose, Clifford Gardner, Court-Appointed Counsel, Fiedler & Gardner, San Francisco, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Eugene W. Kaster, Deputy Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

 In part I, we hold that it is error not to exclude evidence of a felony that does not involve moral turpitude and not to exercise discretion in admitting identical prior felonies.   Such error is not reversible per se if the defendant does not testify when the error is harmless under the standards of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.

Defendant Enrique Ortiz was convicted by a jury of two separate instances of first degree burglary (Pen.Code, § 459).   He was sentenced to the upper base term of six years on both counts, the sentences to be served concurrently.   The court found defendant had sustained two prior convictions for residential burglary and also found prior convictions for burglary and escape to be true (Pen.Code, § 4532, subd. (b)).  An additional consecutive term of five years was imposed for one of the prior residential burglary convictions (Pen.Code, § 667).   The court struck the punishment for the other two prior burglary convictions.   At trial on November 22, 1983, defendant made an unsuccessful Beagle motion (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) to exclude use of all his prior burglary and escape convictions for impeachment.   The trial court denied the motion relying on article I, section 28, subdivision (f) of the California Constitution, enacted by the voters as Proposition 8.   Defendant did not testify.   On appeal, defendant contends that (1) the court committed prejudicial error in allowing these prior convictions to be used for impeachment purposes;  (2) the prosecutor committed Griffin error;  and (3) his sentence was improperly enhanced under Penal Code section 667.   We affirm with modifications.

I

In support of his first contention, defendant asserts, (1) that California Constitution, article I, section 28, subdivision (f) did not eliminate the trial court's discretion under Evidence Code section 352 to exclude evidence of prior convictions;  (2) it did not repeal the requirement that a prior conviction must be relevant to the issue of defendant's credibility;  and (3) the admission of these priors denied him due process and equal protection of the law.

A

California Constitution, article 1, section 28, subdivision (f) 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.”

The People argued below and on appeal that the phrase “without limitation for purposes of impeachment” means that any prior felony conviction may be used for impeachment purposes, without regard to its bearing on the issue of credibility.   This identical argument was rejected in the recent case People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.   There, our Supreme Court reviewed the history of Evidence Code section 352 as interpreted in the Beagle line of cases and the effect California Constitution, article 1, section 28, subdivision (f) has on this body of law.   The court concluded (1) that section 28, subdivision (f) did not abolish the trial court's discretion with respect to felony-impeachment evidence under Evidence Code section 352 (id., at pp. 306–312, 211 Cal.Rptr. 719, 696 P.2d 111);  and (2) the language is limited by the due process clause of the Fourteenth Amendment to permit only relevant prior convictions;  i.e., those which have a tendency to disprove the witnesses' credibility.  (Id., at pp. 313–315, 211 Cal.Rptr. 719, 696 P.2d 111.)

 The information charged defendant with three prior burglary convictions and one escape conviction.   In his Beagle motion, defendant moved to exclude admission of the escape conviction on the ground it has no relevance to defendant's credibility.   The trial court disagreed, relying on the expansive language of California Constitution, article 1, section 28, subdivision (f), permitting the admission of any felony conviction “without limitation” for impeachment.   Under the Castro decision this was error.   The trial court offered no analysis of whether the escape was relevant to the defendant's veracity.   The information merely charged defendant with escape as defined by Penal Code section 4532, subdivision (b).   The statute makes escape from any city or county jail or prison a crime and imposes a greater sentence if the escape was accomplished by force or violence.   On its face, the statute has no bearing on truthfulness.  (People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391.)   Nor can we say that the crime, as defined by the statute, involves moral turpitude from which one may infer dishonesty or lack of integrity.  (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)   Accordingly, evidence of it should have been excluded.   Whether this constituted prejudicial error will be discussed later.

B

Next, defendant argues that the trial court retained discretion to exclude identical prior convictions under Evidence Code section 352 even after passage of Proposition 8.   Relying on People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19 and People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, he contends that it was error to admit evidence of prior identical burglary convictions to impeach defendant who was also accused of burglary.   In allowing evidence of defendant's prior burglary convictions, the court believed that the purpose of Proposition 8 required all the priors to be admissible so as not to give defendant a “false aura about his testimony.”   But he also exercised his discretion under Evidence Code section 352 and admitted the priors.

 To answer this question, the Castro court reviewed subdivision (d) along with subdivision (f) of California Constitution, article 1, section 28.   Subdivision (d) provides in pertinent part:  “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.”   Giving the language of the initiative its plain meaning, the court concluded that “the initiative itself expressed continued trust in the discretion of the trial courts;  despite the mandatory admonitions, that discretion under section 352 was expressly retained.”  (People v. Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   The court also reviewed the relevant ballot literature and found no extrinsic evidence which indicated a contrary intent to abolish the trial court's discretion.  (Id., at pp. 310–313, 211 Cal.Rptr. 719, 696 P.2d 111.)   Rather, the court reasoned that “[t]he intention of the drafters of the initiative was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the Antick line of decisions.”  (Id., at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111, emphasis added.)   In sum, it is no longer error, per se, to admit a relevant but identical prior conviction to impeach a defendant charged with the same crime.   The trial court retains the discretion under Evidence Code section 352 to rule on the admissibility of such convictions.

The question remains whether the trial court abused its discretion in this instance.   We are aided in our analysis by the Beagle guidelines.   The Beagle court listed several factors to aid the trial court in the exercise of its discretion.   These are:  (1) the relevance of the prior conviction to veracity and credibility;  (2) the nearness or remoteness in time to the present offense;  (3) whether introduction would cause undue consumption of time or confuse the jury;  and (4) the effect on the jury's understanding of the case if defendant should not testify.  (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Castro, supra, 38 Cal.3d at p. 307, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Fries, supra, 24 Cal.3d at pp. 226–229, 155 Cal.Rptr. 194, 594 P.2d 19.)

 Convictions for burglary are less relevant on the issue of credibility than, for example, convictions for perjury, and are entitled to less weight.  (People v. Fries, supra, 24 Cal.3d at p. 229, 155 Cal.Rptr. 194, 594 P.2d 19.)   The record discloses that two of the prior burglaries occurred at separate times in 1977, and the remaining burglary was committed in 1979.   Although the burglaries are relatively close in time, the limited impact they have on defendant's credibility makes their probative value less than compelling.   Balanced against the limited relevance is the substantial risk of undue prejudice when a prior conviction is used to impeach a defendant charged with the same crime.   Even when the judge gives limiting instructions on the use of the prior conviction, the “ ‘jury ․ will inevitably feel pressure to conclude that if an accused committed the prior crime he likely committed the crime charged.’  [Citation.]”  (Id., at p. 230, 155 Cal.Rptr. 194, 594 P.2d 19.)   As a result, identical prior convictions should be admitted sparingly.  (Ibid.)  The second factor favoring exclusion is the possibility that had defendant testified, his testimony might have contributed to the jury's understanding of the case since no other witness testified to a defense version of the facts.  (Id., at p. 231, 155 Cal.Rptr. 194, 594 P.2d 19.)   Concededly, this last factor is of limited weight in light of the physical evidence and eyewitness observations establishing defendant's guilt.   Considering all these factors, we find that the limited probative value of the prior burglary convictions is outweighed by the prejudice likely to result if the identical offenses were used.   We conclude that the trial court abused its discretion permitting defendant to be impeached with the prior burglary convictions.

C

The question remains whether the errors were prejudicial.  (People v. Castro, supra, 38 Cal.3d at p. 318, 211 Cal.Rptr. 719, 696 P.2d 111.)

The Diebert Burglary:  Deputy Sheriff Daniel Corley testified that on the morning of July 2, 1983, a neighbor called his attention to the Diebert residence at 2251 Bikini Avenue, San Jose, a few doors from Deputy Corley's home.   The deputy noticed a Chevrolet Monte Carlo parked nearby which did not belong to anyone in the neighborhood.   Within five minutes, San Jose Police Officer Michael George arrived and proceeded to the rear of the house.   He observed defendant standing inside a greenhouse attached to the house.   He watched as defendant threw a rock at the master bedroom window, breaking the glass.   Defendant then reached inside the window, unlocked it and opened it.   He placed one foot inside the bedroom, at which point Officer George arrested him.   The owner, Donna Diebert, testified that she did not give defendant permission to enter her house.

The Rowers' Burglary:  Joan Rowers testified that on the morning of June 8, 1983, she left her house at 810 Vintage Way, San Jose.   The windows and doors were locked.   When she returned about one hour later, she noticed that her front door was opened and that the inside of the house had been disturbed.   A kitchen window was broken by a rock which she found in her sink.   She also observed that the window was now open.   She testified that numerous items were missing.   A piece of glass from the broken window was discovered on the ground outside the house.   Fingerprints lifted from the piece of glass matched defendant's left middle finger and thumb.

 In cases where a defendant has refused to testify because of Beagle error, our Supreme Court held this to be reversible error.  (See People v. Barrick (1982) 33 Cal.3d 115, 129–130, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Spearman, supra, 25 Cal.3d at p. 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;  People v. Rist, supra, 16 Cal.3d at pp. 222–223, 127 Cal.Rptr. 457, 545 P.2d 833.)   In each instance, the court used the familiar Watson harmless error test (People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243), and reversed because they had no basis for concluding that such testimony would not have affected the result.  (People v. Barrick, supra, 33 Cal.3d at p. 130, 187 Cal.Rptr. 716, 654 P.2d 1243;  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;  People v. Rist, supra, 16 Cal.3d at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833.)   By expressly applying the Watson test, the Supreme Court has left open the possibility that in some cases, defendant's refusal to testify following Beagle error may be held to be harmless error.1  This is such a case.   Unlike the Supreme Court decisions just mentioned, we do have some idea as to what defendant's defense would have been.   At the Marsden hearing, held prior to the Beagle motion, defense counsel stated that there would be no defense for either offense “other than the People could not meet their burden.”   As this took place before the Beagle motion, it is reasonable to assume that defendant had no intention of testifying no matter what the court ruled.   At trial, the defense presented no witness, and no argument was presented to the jury contradicting the People's version of the crimes.   Not only are the facts supporting defendant's guilt overwhelming, but, as the record demonstrates, defendant had no testimony to offer.   Under this set of facts, we find it extremely unlikely that a more favorable result would have been reached in the absence of the error.  (Cal.Const., art. VI, § 13;  People v. Castro, supra, 38 Cal.3d at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)   We conclude that the error in allowing the prior burglary and escape convictions to be used as impeachment was harmless.  (See People v. Fisher (1984) 153 Cal.App.3d 826, 833–837, 200 Cal.Rptr. 683;  People v. Anjell (1979) 100 Cal.App.3d 189, 199, 160 Cal.Rptr. 669.)

Defendant's subsidiary arguments that California Constitution, article 1, section 28, subdivision (f) deprived him of due process and equal protection were raised and rejected in People v. Castro, supra, 38 Cal.3d at page 317, 211 Cal.Rptr. 719, 696 P.2d 111.

II–III**

The trial court is directed to amend the abstract of judgment in accordance with the views expressed herein.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   We reject the view that when defendant refuses to testify because of Beagle error, it is reversible per se.

FOOTNOTE.   See footnote *, ante.

LOW, Presiding Justice.

KING, J., concurs. HANING, J., concurs in the result.