PEOPLE v. CIPOLLO

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Andrew John CIPOLLO, Defendant and Appellant.

AO25198.

Decided: October 24, 1985

John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Fiedler & Gardner, Robert Fiedler, San Francisco, for defendant and appellant.

Defendant Cipollo was charged with fraudulently passing a check for $1,613, without sufficient funds (Pen.Code, § 476a).   He had suffered three separate prior felony convictions for grand theft (Pen.Code, §§ 484, 487).   He was found guilty by a jury as charged, and was thereupon sentenced to state prison.   The sentence, however, was suspended and he was placed on probation.   His appeal is from the judgment under which he was sentenced to state prison.

We affirm the judgment.

I. Cipollo first contends that:  “The trial court committed reversible error by ruling that Mr. Cipollo's prior convictions were admissible.”

On a so-called Beagle (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) motion, Cipollo sought to exclude evidence of his three prior grand theft convictions in the event he should take the witness stand on his own behalf.   The trial court, apparently deeming itself bound by the recently adopted (June 8, 1982) state constitutional provision, article I, section 28, sometimes known as “Proposition 8,” denied the motion.   We shall hereafter refer to the constitutional provision as Section 28.

Cipollo did not testify at his trial.

The issue before us concerns the effect of Section 28 upon an unsuccessful Beagle motion where the defendant does not thereafter testify.   And, more particularly, it is whether under Section 28, a defendant situated as was Cipollo, who does not testify, has standing on appeal to complain of such an adverse ruling.

The state Supreme Court's cases, principally relied upon by Cipollo, are People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833, and People v. Fries (1979) 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19.   They have held that since, in cases such as this where the defendant does not testify, there is “no clue as to what [his] testimony would have been had he testified,” the “usual [harmless error] tests for concluding that an error requires a reversal of conviction are not applicable.”

It will thus be seen that under Rist and Fries, an erroneous adverse ruling on a Beagle motion will, at least ordinarily, not be harmless error.   Instead it will require a retrial, or possibly dismissal.

Subsequently to Rist and Fries there appeared a growing practice of knowledgeable counsel, apparently whether or not the defendant intended to testify on his own behalf, to make Beagle motions, hoping upon an adverse ruling thus “to ‘plant’ reversible error in the event of conviction,” and obtain “the windfall of automatic reversal.”  (See Luce v. United States (1984) 469 U.S. ––––, ––––, 105 S.Ct. 460, 464, 83 L.Ed.2d 443, 448.)

It was following Rist and Fries that Section 28 was adopted by the People of California.

Subdivision (f) of Section 28 states:  “Any prior felony conviction of any person in any criminal proceeding, ․ shall subsequently be used without limitation for purposes of impeachment ․ in any criminal proceeding.”  (Our emphasis.)

But subdivision (d) of Section 28 provides that:  “Nothing in this section [i.e., Section 28] shall affect any existing statutory rule of evidence relating to ․ Evidence Code Section ․ 352.”  (Our emphasis.)

Evidence Code section 352 provides:  “The [trial] court in its discretion [our emphasis] may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

It will be seen that an ambiguity existed whether such prior convictions of felony shall be admissible for impeachment without limitation, or whether they were to be limited according to the trial court's Evidence Code section 352 discretion.

The ambiguity had puzzled judges and lawyers generally.   But on March 11, 1985, the state's high court resolved it in People v. Castro, (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 passim, holding that such evidence of prior felony convictions was limited by the trial court's discretion under Evidence Code section 352.   The Castro court further held that since, to be admissible, evidence must be relevant (see Evid. Code, §§ 350, 351), only evidence of prior convictions which concern “moral turpitude” and thus relate to one's “credibility,” were admissible for impeachment under Section 28.   And, the Castro court pointed out that Beagle had “made it clear that we did not intend to establish rigid standards to govern the exercise of [the trial court's] discretion.”   Nevertheless, it said, “we handed down a series of decisions delineating the boundaries of permissible discretion.”   Such restrictive decisions, the court said, included Rist and Fries.   (38 Cal.3d at p. 308, 211 Cal.Rptr. 719, 696 P.2d 111.)  “However [the Castro opinion said] the dissents [of such cases] expressed a minority view that the guidelines of Beagle had, in fact, become rigid limitations on the discretion of the trial court.”

And the Castro court emphasized that:  “[T]here seems to be little doubt that the drafters of section 28 wanted a change and that the voters legislated it.”  (Our emphasis.)

It thus seems manifest that the criticized rules of Rist and Fries, contrary to the later Section 28, placed limitations on the use of evidence of prior felony convictions, involving moral turpitude, for impeachment.   Defendants without any intention of testifying or subjecting themselves to cross-examination, were thereby permitted to create a kind of “windfall” or “planted” error per se.

The United States Supreme Court has also so concluded that rules such as that of Rist and Fries involve improper limitations.   In Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the court had before it Federal Rule of Evidence 609(a), which seemingly, as did Rist and Fries, permitted appellate review of a motion such as here was made, where the defendant did not testify.   The Luce court stated:

 “We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.”  (Our emphasis.)

We quote the court's rationale at length (469 U.S. pp. –––– – ––––, 105 S.Ct. pp. 462–64, 83 L.Ed.2d pp. 447–448):

“It is clear, of course, that had petitioner testified and been impeached by evidence of a prior conviction, the District Court's decision to admit the impeachment evidence would have been reviewable on appeal along with any other claims of error.   The Court of Appeals would then have had a complete record detailing the nature of petitioner's testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury's verdict.

“A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.   This is particularly true under Rule 609(a)(1) [Federal Rules of Evidence], which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant.   To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.

“Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.   The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer.   Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.   On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.

“When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction.   If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

“Because an accused's decision whether to testify ‘seldom turns on the resolution of one factor,’ ․ a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify.   In support of his motion a defendant might make a commitment to testify if his motion is granted;  but such a commitment is virtually risk free because of the difficulty of enforcing it.

“Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error.  ․ Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal;  the appellate court could not logically term ‘harmless' an error that presumptively kept the defendant from testifying.   Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole;  it will also tend to discourage making such motions solely to ‘plant’ reversible error in the event of conviction.”  (The emphasis is ours.)

It is notable that the eight participating justices of Luce unanimously concurred in the opinion.

We are further aided by the recent decision of this state's high court in In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, passim.

The court held that by adopting Section 28 the electorate “did intend to change the law,” and that:  “Faced with a constitutional amendment adopted by initiative, ․ we are obliged to set aside our personal philosophies and to give effect to the expression of popular will, as best we can ascertain it, within the framework of overriding constitutional guarantees.”   The court continued, saying that:  “The people have apparently decided that the exclusion of evidence [by rules of ‘judicial creation’] is not an acceptable means of implementing a [criminally charged defendant's] rights, except as required by the Constitution of the United States.  ․ The express intent of [Section 28] is to ensure that all relevant evidence be admitted.   That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the Constitutions․  Moreover, not only the language of that section but also accepted canons of statutory construction and available ‘legislative’ history confirm our conclusion that the electorate intended to mandate admission of relevant evidence, ․ to the extent admission of the evidence is permitted by the United States Constitution.”   (Our emphasis.)

We observe that the limiting rules of Rist and Fries, and of Federal Rule of Evidence 609(a), were judicially created rules, which were not compelled by the United States Constitution.  (See Beagle, supra, 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1, and Luce, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, passim.)

And evidence of a defendant's prior convictions of grand theft involving moral turpitude was patently relevant, for it bore upon Cipollo's credibility as a witness, were he to testify.

We have been referred to authorities upholding the continued vitality of Rist and Fries on issues such as that instantly before us.   But none of them considered the effect of Luce v. United States, supra.  “[C]ases, of course, are not authority for propositions not there considered.”  (People v. Belleci (1979) 24 Cal.3d 879, 888, 157 Cal.Rptr. 503, 598 P.2d 473;  People v. Ceballos (1974) 12 Cal.3d 470, 481, 116 Cal.Rptr. 233, 526 P.2d 241.)

II. It is next contended that:  “the district attorney committed repeated prejudicial misconduct during his closing argument at appellant's trial.”

Two assignments of such misconduct are made.

 As to the first the prosecutor had said:  “My contention, certainly my belief, is that the evidence shows to you that his intent at that time, at the time he gave that check to Mr. Jella, was to defraud Air Trails of that $1,613.”  (Our emphasis.)   The assignment lacks merit.   It is proper that he be allowed to freely argue his reasonable belief as to what “the evidence shows.”

It has long been the rule that the prosecutor may argue “as to the effect of the evidence, or as to what inferences properly were deducible therefrom.”   (People v. Nolan (1932) 126 Cal.App. 623, 640, 14 P.2d 880.)   The evil guarded against by the law occurs where “a prosecutor express[es] a personal opinion or belief in a defendant's guilt, where there is substantial danger that jurors will interpret this as being based on information at the prosecutor's command, other than evidence adduced at trial.”  (People v. Bain (1971) 5 Cal.3d 839, 848, 97 Cal.Rptr. 684, 489 P.2d 564.)  “It is ‘within the domain of legitimate argument for a prosecutor to state his deductions or conclusions drawn from the evidence adduced at trial, and, more particularly, to relate to the jury that, in his opinion, the evidence shows that the defendant is guilty of the crime charged.’ ”  (People v. Prysock (1982) 127 Cal.App.3d 972, 997, 180 Cal.Rptr. 15;  and see People v. Dale (1978) 78 Cal.App.3d 722, 733, 144 Cal.Rptr. 388;  People v. Calpito (1970) 9 Cal.App.3d 212, 223, 88 Cal.Rptr. 64;  People v. Dillinger (1968) 268 Cal.App.2d 140, 144, 73 Cal.Rptr. 720.)   Indeed, in a proper case, it is the express function of a prosecutor to argue, and to convince the jury if he can, that based on the evidence, the defendant has been proved guilty beyond a reasonable doubt.

The second such assignment springs from this prosecutorial remark:  “You know, at a certain point—I have no question at all, no doubt in my mind, that Mr. Cipollo had, probably still has, a real ability to convince people that an idea might be a good one.”

 Treated alone, the statement appears to be violative of the above-noted rule.   But, we think, in light of the prosecutor's entire argument it becomes patent that he was saying that based on the trial's evidence there was “no doubt in my mind.”   And here we note that no request was made for an appropriate jury admonition which, we opine, would have cured any conceivable prejudice to Cipollo.   In a case such as this, misconduct may not be successfully challenged on appeal unless such an admonition be requested.   (People v. Green (1980) 27 Cal.3d 1, 27–36, 164 Cal.Rptr. 1, 609 P.2d 468.)   And were the matter properly raised in this court and, arguendo, we were to find the claimed misconduct, we should be obliged to conclude that after a review of the entire record we are of the opinion that it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of the misconduct.  (Cal.Const., art. VI, § 13;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

III. Cipollo's remaining contention, “the prosecutor's misconduct requires reversal of Mr. Cipollo's conviction,” is for the reasons pointed out in part II above, also found meritless.

_

The judgment is affirmed.

Although I agree the conviction must be affirmed, I cannot join in the majority's analysis of the Beagle issue.

I

First, I cannot agree with the proposition that defendant's election not to testify deprives him of “standing” to complain about the denial of his motion to exclude his prior felony convictions.1  I do not read Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, to extend beyond its limited holding that under Federal Rule of Evidence 609(a) a defendant must have testified at trial in order to preserve a challenge to the use of a prior state felony conviction for impeachment.  (See conc.opn. of Brennan, J., 83 L.Ed.2d at p. 449.)   That limited federal procedural rule is not binding on us under the holding of In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, as implied in the lead opinion.  In re Lance W. dealt with—and decided—only the admissibility of unlawfully obtained evidence within the context of California Constitution, article I, section 28, subdivision (d), mandating inclusion as “relevant evidence” (id., 37 Cal.3d at pp. 889–890, 210 Cal.Rptr. 631, 694 P.2d 744).   It neither discussed nor determined questions turning on Evidence Code section 352.   (Id., at pp. 885–886, fns. 5 and 6, 210 Cal.Rptr. 631, 694 P.2d 744.)

II

The pre-Proposition 8 cases of People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833 and People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, did not hold Beagle error to be reversible per se when the defendant does not testify.   Those cases involved trials where no defense was offered so the court had no way of knowing what effect the defendant's testimony would have had.   In People v. Rist, supra, 16 Cal.3d at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833, the court noted that “we 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 ․ and the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable.”  (Emphasis added.)   Later in People v. Fries, supra, 24 Cal.3d at pp. 233–234, 155 Cal.Rptr. 194, 594 P.2d 19, the court declared:  “Absent any basis for concluding that [appellant's] testimony would not have affected the result, ‘the court is of the opinion “that it is reasonably probable that a result more favorable to [appellant] would have been reached in the absence of this error” ’ ” citing People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243.   And in People v. Spearman (1979) 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74 the court found the error reversible because the evidence against defendant was not “irrebuttable” and the court had “no basis for concluding that appellant's testimony would not have affected the result of the trial” again citing Watson.  (See also People v. Barrick (1982) 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243 [“This court has no way of knowing what defendant's testimony would have been, thus, we have no basis for concluding that such testimony would not have affected the result.”].)

By expressly applying the Watson test, the Supreme Court left open the possibility that in some cases the defendant's refusal to testify following Beagle error may be harmless.2

Indeed, the error was held so when the defendant offered a defense and there was a basis for concluding defendant's testimony would not have affected the outcome.  (See, e.g., People v. Fisher (1984) 153 Cal.App.3d 826, 200 Cal.Rptr. 683;  People v. Lassell (1980) 108 Cal.App.3d 720, 166 Cal.Rptr. 678;  People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669;  see also People v. Forster (1985) 169 Cal.App.3d 519, 215 Cal.Rptr. 218;  People v. Logan (1982) 131 Cal.App.3d 575, 182 Cal.Rptr. 543;  People v. Betts (1980) 110 Cal.App.3d 225, 167 Cal.Rptr. 768;  People v. Jardine (1981) 116 Cal.App.3d 907, 172 Cal.Rptr. 408.)3

Thus, I believe analysis of the trial court's error in concluding that Proposition 8 removed any discretion to exclude the priors (People v. Castro (1985) 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111) should be undertaken under the conventional harmless error standard.   The question for this court is whether it is reasonably probable that a result more favorable to defendant would have occurred in the absence of the error.4  (Id., 38 Cal.3d at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Rogers (1985) 173 Cal.App.3d 205, 218 Cal.Rptr. 494;  People v. Dossman (1985) 171 Cal.App.3d 843, 849–851, 217 Cal.Rptr. 728;  People v. Stewart (1985) 171 Cal.App.3d 59, 66, 215 Cal.Rptr. 716;  People v. Parrish (1985) 170 Cal.App.3d 336, 351–353, 217 Cal.Rptr. 700;  People v. Williams (1985) 169 Cal.App.3d 951, 957, 215 Cal.Rptr. 612;  People v. Brown (1985) 169 Cal.App.3d 800, 806–808, 215 Cal.Rptr. 494;  see People v. Cavazos (1985) 172 Cal.App.3d 589, 218 Cal.Rptr. 269.)

Such an analysis requires a factual recital (missing from the lead opinion) in determining whether a miscarriage of justice has resulted.

In July 1982 defendant invited four other acquaintances—Len Ledson, Thad Chestnut, Betty Cameron and her husband Ray Cameron—to join with him in forming a small business called Southern Oregon Recycling Center.   Each of the five principals formed a corporation and deposited $100 in a corporate checking account.   Thereafter, in August 1982, three of the “investors” deposited $1,500 each into the account.

The invested funds were used primarily for defendant's travel expenses involving interstate charter flights in business transactions.   Among other things, defendant arranged several charters with Air Trails, Inc. of Salinas, California.   On December 19, 1982, Jack Jella, the president of Air Trails, requested payment from defendant for services rendered to date.   Defendant then gave Mr. Jella a check for $1,613 drawn on the corporation account against insufficient funds.   Defendant assured Mr. Jella that funds were being transferred and the check would be made good the following Monday.

A few days earlier, defendant had unilaterally executed another insufficient funds corporate check for $6,800 to Mr. Bosley of Cleveland Wrecking Company to repay credit advances informing Bosley that funds would be deposited the next day to cover the check.   The check was never made good.

On December 20 defendant gave Air Trails yet another insufficient funds check ($10,000) as an advance payment with similar assurances of “in transit” deposits.   Air Trails has never received payment of the $6,452.99 owed.

Within a day or so thereafter, the remaining directors of Southern Oregon Recycling voted to close the bank account and expelled defendant from the board.

In January 1983 defendant was arrested in Minnesota.   During a telephone conversation with the investigating officer, defendant declared his innocence claiming that other corporation officers had embezzled funds.

At trial defendant did not testify.   Defense counsel conceded defendant signed the checks knowing there were insufficient funds in the account.   Counsel argued that the jury should find defendant had no intent to defraud because he believed money would be placed in the account upon the closing of pending business “deals.”

Defendant's prior convictions for grand theft plainly involved moral turpitude and were prima facie admissible under the standard enunciated in Castro.   Thus, the trial court could have properly admitted such prior felony convictions for purposes of impeachment.   Moreover, as is apparent, the evidence of guilt was strong and convincing.   Despite his absence from the witness box, defendant's version of the events was before the jury through evidence of defendant's statements in negotiating the worthless checks and during the tape-recorded conversation with the Minnesota police officer.   Accordingly, I would find the error harmless under the Watson standard.

FOOTNOTES

1.   I am aware this is one of related issues presently pending before the Supreme Court.  (People v. Collins (Crim. 24784, hg. granted Aug. 30, 1985);  People v. Cruz (Crim. 24785, hg. granted Aug. 30, 1985);  People v. Guillen (Crim. 24809, hg. granted Sept. 9, 1985.)

2.   See footnote 1, ante.

3.   I cannot endorse the suggestion put forth in the lead opinion that defense counsel have developed a “practice” of making Beagle motions in the hope of planting reversible error.   Such a suggestion unfairly maligns the integrity of the criminal defense bar.   I have no doubt that the overwhelming majority of California attorneys will continue to discharge their professional responsibilities consistent with rigorous ethical standards.

4.   In this respect, I join with the majority in rejecting the otherwise unnamed authorities which have found per se reversible error.   (E.g., People v. Navarez (1985) 169 Cal.App.3d 936, 948–949, 215 Cal.Rptr. 519;  People v. Almarez (1985) 168 Cal.App.3d 262, 268–269, 214 Cal.Rptr. 105.)

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.