Reset A A Font size: Print

Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elrader BROWNING, Jr., Defendant and Appellant.

Crim. 44366.

Decided: February 06, 1985

Edward J. Horowitz, Los Angeles, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Edward T. Fogel, Jr. and Patra C. Woolum, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Elrader Browning, Jr. appeals from a judgment after jury trial convicting him of arson (Pen.Code, § 451), possession of a destructive device (Pen.Code, § 12303.3), and shooting at an inhabited dwelling (Pen.Code, § 246) and finding true special allegations that a principal was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a) and that defendant had been previously convicted of a felony within the meaning of Penal Code section 667.5, subdivision (b).   Defendant challenges his conviction on the grounds that the trial court committed prejudicial error in (1) ruling that defendant's previous murder conviction would be admissible as impeachment evidence under article I, section 28(f) of the California Constitution, (2) failing to grant defendant a new trial after the jury heard hearsay testimony concerning defendant's alleged motive for attacking the victims, and (3) pursuant to Penal Code section 1102.5 allowing the prosecution access to certain defense investigator notes of witness interviews.   We have concluded that the trial court's finding that defendant could be impeached by his previous murder conviction requires reversal and consequently do not reach defendant's two remaining contentions.

Statement of Facts

Defendant was charged with attacking a home belonging to Ora and Charles McFartherlorn, the aunt and uncle of Pancho Barnes.   The prosecution's theory was that the attack was motivated by competition between defendant and Barnes in the illicit drug business.   Barnes occasionally dwelled at the McFartherlorn residence;  and several of his relatives including Alvin Jenkins and Beatrice Oties, lived across the street.

During the week of May 4, 1982, defendant met with Barnes at a hotdog stand in Pasadena to discuss their rivalry.   Jenkins, who was also involved with drugs, escorted Barnes to the meeting because he felt Barnes was endangered by defendant.   Although Jenkins did not overhear the conversation at that meeting, he was initially allowed to testify that defendant had conveyed to Barnes an ultimatum—either buy drugs through defendant or pay defendant $500 per week in tribute.1  Later that day, while driving, Barnes and Jenkins were chased by defendant and a second person in a black Cadillac.   One of the two persons in the Cadillac shot at them, and they returned fire.   Jenkins and Barnes then went to Jenkins' home;  and Jenkins, “knowing the type of person” he was dealing with, made preparations, including evacuation of his family and obtaining more armament.   Approximately one half-hour later, a number of persons including defendant drove by Jenkins' home in three cars and fired their weapons.   Again Jenkins shot back.

On May 11, 1982 between 7:00 and 7:10 p.m., a red Cadillac containing four men was observed circling the block of the McFartherlorn residence.   Two men got out of the car, walked to the front of the residence, threw two Molotov cocktails, which scorched the porch area, and fired several shots into the house.

At trial only one percipient witness, Beatrice Oties, identified defendant as being one of the perpetrators.   She indicated that she and her friend, Myra Andrews, had been drinking liquor for an hour or two when through her front window she observed defendant, whom she recognized, approach the McFartherlorn residence carrying a big jar containing liquid and a white rag.   At that point Oties ran toward the back of her house and heard gunshots.

Although no other percipient witnesses could identify defendant at trial, three witnesses attributed an identification of defendant to Andrews.   Oties testified that at the time of the incident she heard Andrews say, “There is Ray-Ray [defendant's nickname].”  Two officers of the Pasadena Police Department testified that on the night of the incident Andrews indicated that defendant was present, and was responsible for the fire bombing and shooting.   Both officers testified that Andrews did not appear intoxicated at the time.

At trial, through testimony of witnesses other than himself, defendant presented an alibi that at all pertinent times he was in the company of Charles Taliaferro while engaging in an extensive philosophical conversation and picking up his children at a local theatrical school.   Taliaferro testified that he and defendant met near his (Taliaferro's) home at about 6:15 or 6:20 p.m. and commenced a lively discussion.   At about 6:45, he drove defendant to the theatrical school where they arrived just before 7:00 p.m.   After conversing for a few more minutes, defendant went into the school and retrieved his children, at which point Taliaferro drove them back to their residence.   Defendant took his children inside his home and then returned to continue the discussion with Taliaferro for another 12 or 13 minutes.   At that point Taliaferro left defendant and reached his own home at about 7:30 p.m.   Cross-examination of Taliaferro focused on the lapse of months before he came forward as a witness and his admitted antipathy to the Pasadena Police Department.   Van Johnson and Vernee Watson, the co-owners of the school, both testified that defendant routinely picked up his children at 7:00 p.m. after class and that they saw defendant actually pick up his children at about that time on the night in question.   Despite the prosecutor's attempts on cross-examination to get Johnson and Watson to admit that their testimony was based on defendant's routine practice, they both insisted on independent recollection.

The jury deliberated for about one day before returning guilty verdicts on all three counts.   Thereafter, upon a finding that the enhancement allegations were true, the trial court sentenced defendant to ten years in state prison.

Beagle Error

 On defendant's contention that he is entitled to a reversal because he was threatened with improper impeachment, the dispositive issue is one of prejudice.   The trial court failed to adhere to the analysis prescribed by People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, but instead reasoned, as it turns out incorrectly, that Proposition 8, codified within article I, section 28 of the California Constitution, applies retroactively to crimes committed before its enactment.   Since the People concede, as they must in the face of People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, that the trial court was wrong on the issue of retroactivity, we proceed to analyze the issue of prejudice.

Initially, there is a question whether the defendant made an adequate showing of the impact of the trial court's decision on his desire to testify.   Although the record is silent on this subject, defendant argues that his joint motion for bifurcation of the trial of the enhancements and for a Beagle determination effectively communicated to the trial court the impact of its decision.

Although pre-Proposition 8 authorities universally required some sort of showing on the record that denial of a Beagle motion would have an effect on a defendant's decision whether to testify (see, e.g., People v. Fries (1979) 24 Cal.3d 222, 232, fn. 11, 155 Cal.Rptr. 194, 594 P.2d 19), such requirement would appear to be inapposite when a trial court relies on Proposition 8 since under that constitutional provision, prejudice to a defendant is not a consideration.2  In this regard we are persuaded by People v. Broder (1983) 147 Cal.App.3d 572, 195 Cal.Rptr. 264, a case similar to the one at bench where the trial court incorrectly found that Proposition 8 was retroactive.   There as here the question of prejudice was dispositive.   The court reasoned as follows:

“Here, the trial court unequivocally indicated that the Beagle balancing test was inapplicable and that the prior could be used for impeachment without qualification under Proposition 8.   There was consequently no reason for the defense to alert the court to the effect of the trial court's ruling on the defendant's decision to testify, because that information was irrelevant to the trial court's decision.”  (Id., 147 Cal.App.3d, at p. 577, fn. omitted, 195 Cal.Rptr. 264.)

Likewise, in the instant case, the trial judge stated his opinion that Proposition 8 unequivocally required the requested impeachment.3  In other words, as far as he was concerned, prejudice and impact upon defendant were irrelevancies.   Thus, the purported impediment to review on appeal derives from defendant's omission to engage in a futile exercise.   We cannot accept such an obstacle to appellate review and consequently conclude that the issue of prejudice should be resolved on the merits.

 Going to the hub of the matter, we must determine whether the error was prejudicial within the meaning of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and its progeny.   Defendant seems to argue that cases such as People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, and People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, essentially establish that Beagle error followed by a defendant's refusal to take the stand is per se prejudicial.   However, scrutiny of these and other cases reveals that the California Supreme Court has endorsed a case-by-case approach, requiring independent analysis of each record.

For example, in People v. Spearman, supra, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, the court found that “[a]fter consideration of the evidence and the state of the record in this case, it cannot be concluded the error was harmless” (Id., 25 Cal.3d, at p. 118, 157 Cal.Rptr. 883, 599 P.2d 74) and then proceeded to note the following:

“ ‘[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.’  [Citation omitted.]  A conviction under such circumstances is a ‘miscarriage of justice’ within the meaning of article VI, section 13 of the California Constitution.”  (Id., 25 Cal.3d at p. 119;  emphasis added, 157 Cal.Rptr. 883, 599 P.2d 74.)

Immediately following this statement the court cited People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Gainer (1977) 19 Cal.3d 835, 855, 139 Cal.Rptr. 861, 566 P.2d 997;  and People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243, each of which endorses examination of the facts in order to discern prejudice.  People v. Watson, supra, of course, is the seminal case on such review;  and in People v. Gainer, supra, the court declined to adopt a per se rule in the context of review of certain jury instructions.   Most recently the Supreme Court's continued adherence to Spearman was expressed in People v. Barrick (1982) 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243.

In short, there does not appear to be any authority to support a rule of per se prejudice suggested by defendant.   However, the above line of cases also counsels that speculation is unreliable and cannot substitute for a clear showing of harmlessness.

Turning to the record in the instant case, defendant's alibi as presented by his witnesses was flawed.   Mr. Taliaferro, the man who claimed to have been with defendant at all relevant times, was elderly and testified out of order due to an impending operation.   The jury may well have discounted Mr. Taliaferro's testimony due to his delay in coming forward to tell his story and his conceded animosity towards the police.   Alternatively, the jury might have concluded that Mr. Taliaferro testified in good faith but that he was simply incorrect about the date he was in defendant's company.   The other two alibi witnesses, Mr. Johnson and Ms. Watson, were likewise susceptible to disbelief.   Although both on the face of the record testified rather adamantly that they had seen defendant on the night in question, the jury could reasonably have believed that they confused independent recollection with knowledge of defendant's routine practice.   Hence, it is difficult to conclude that defendant's testimony would have had no effect on the eventual outcome of the trial.

Moreover, the prosecution's case was considerably less than ironclad.   Only one witness, Beatrice Oties, positively identified defendant as being at the scene.   Extended cross-examination of Oties and the prosecutor's own remarks during argument reveal that Oties was not a compelling witness.   The record is replete with her simple-mindedness and failures to understand questions posed.   Indeed, the prosecutor, himself, during closing argument described her as handicapped.4

The only other testimony tying defendant to the scene of the crime came in the form of hearsay statements of Myra Andrews.   At trial Andrews persistently testified that she did not see defendant and that she could not recall ever stating otherwise.   Thereafter, two police officers testified that on the evening in question Andrews indicated she saw defendant in the vicinity of the victim's house carrying a revolver and a jar of liquid.   Oties also ascribed to Andrews an excited utterance identifying defendant.

Both the eyewitnesses, Oties and Andrews, had been drinking for some time, although the two police officer witnesses indicated that Andrews did not appear intoxicated.

The balance of the case against defendant was circumstantial, to wit, his meeting with Barnes followed by two gun battles in which he participated.   We, of course, have no way of knowing how defendant would have responded, if at all, from the witness stand to Alvin Jenkins' testimony concerning these events.   As the record stands these assertions were unrebutted;  and cautionary instructions notwithstanding, the jury may have interpreted defendant's silence as an admission of prior aggressive behavior towards his victims.  (People v. Barrick, supra, 33 Cal.3d 115, 129, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Fries, supra, 24 Cal.3d 222, 228–229, 155 Cal.Rptr. 194, 594 P.2d 19.)

“[The jury] will expect the defendant to present all the evidence he can to escape conviction, and it will naturally infer that his failure to explain or deny evidence against him when the facts are peculiarly within his knowledge arises from his inability to do so.  ‘Such an inference is natural and irresistible.   It will be drawn by honest jurymen, and no instruction will prevent it.’ ”  (People v. Modesto (1965) 62 Cal.2d 436, 452 [fn. omitted], 42 Cal.Rptr. 417, 398 P.2d 753.)

 In a case closely on point, People v. Fisher (1984) 153 Cal.App.3d 826, 200 Cal.Rptr. 683, our sister division held that Beagle error was harmless where a defendant put on a complete alibi defense without testifying.   We decline to follow that decision for two reasons.   First, the reasoning in that case appears to be flawed in that it applied an erroneous measure of prejudice, namely whether there is a basis in the record for concluding the error was harmless.

“Under the particular facts of the case at bench there is clearly a basis, as previously described, for concluding that defendant Fisher's testimony could not have affected the result of the trial and the error was not prejudicial.”   (Id., 153 Cal.App.3d, at p. 837, 200 Cal.Rptr. 683.) 5

The correct test of prejudice, first enunciated in People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243, is as follows:

“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”

The two tests are not the same:  There may be “a basis” for concluding the error was harmless, yet a reviewing court could conclude that prejudice is “reasonably probable.”   Thus, it would appear the Fisher court focused on the wrong question, namely whether one could rationally conclude the error was harmless as opposed to the controlling question whether the court finds in all probability the appellant was prejudiced.

 Second, the instant case is distinguishable on its facts.   Unlike Fisher,6 defendant's alibi defense was defective.   In this regard we find People v. Kyllingstad (1978) 85 Cal.App.3d 562, 570, 149 Cal.Rptr. 637 (per Kaus, P.J.) persuasive.   In that case this court found prejudice where a defendant was prevented from testifying by Beagle error, and his alibi witnesses could not account for his whereabouts during the entire relevant time period.   Similarly, in this case the testimony of alibi witnesses, though substantially accounting for defendant's whereabouts, presented vulnerabilities easily exploited by the prosecution.

Further, in contrast to Fisher, defendant did not put on a “complete” defense in that the assertions of Jenkins concerning his assaultive behavior one week previous to the incident went unrebutted.   The most logical witness to respond to those assertions would have been defendant, himself;  yet he could have done so only at the peril of having the jury learn of his prior murder conviction.

Lastly, the closeness of the evidence and the existence of sharp conflicts in the testimony herein are additional factors to be weighed in determining prejudice.  (People v. Anderson (1978) 20 Cal.3d 647, 651, 143 Cal.Rptr. 883, 574 P.2d 1235;  People v. Underwood (1964) 61 Cal.2d 113, 125–126, 37 Cal.Rptr. 313, 389 P.2d 937.)   In Fisher the prosecution case was quite strong, consisting of the victim's testimony corroborated by two additional eyewitnesses—one to events immediately before the crime and the other to events just after.   The notable weaknesses in the prosecution evidence herein, particularly the lack of highly credible eyewitness testimony, render this case considerably closer.

Thus, on the facts of this record and for the reasons stated above, we conclude that there is a reasonable likelihood defendant would have attained a more advantageous result but for Beagle error at trial.

Defendant's convictions are reversed, and the matter is remanded for a new trial consistent with this opinion.



1.   This hearsay testimony, later stricken, was the basis of defendant's motion for new trial, which was denied.

2.   Article I, section 28(f) of the California Constitution provides in pertinent part:  “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 ․ in any criminal proceeding.”

3.   THE COURT:  “Whether it is wise or unwise or whether a body of law has developed here, and even in federal cases, interpreting Federal Evidence Code, utilizing 352 requires a balancing act.   Where there is a constitutional amendment, returning this to the law which predated Beagle, it seems to me I am bound by that constitutional amendment.   As this is a matter of evidentiary interpretation, I feel that the use of the prior for murder for impeachment purposes is usable by the People unless I'm told otherwise by appellate court.”

4.   “If anything, this lady has a handicap.   Bea has a handicap.   She's probably not as smart as you and I.”

5.   The test utilized in Fisher closely resembles the test for sufficiency of the evidence:  “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

6.   See Justice Dalsimer's dissent, 153 Cal.App.3d at pages 839–840, 200 Cal.Rptr. 683.

SMERLING, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

THOMPSON, Acting P.J., and JOHNSON, J., concur.

Copied to clipboard