PEOPLE v. KELLY

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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.

A027165.

Decided: October 30, 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.

Robert Kelly appeals from a judgment of conviction for robbery and attempted robbery (Pen. Code, §§ 211, 664).   We affirm.

On October 28, 1983, Kelly accosted George Clough and Alice Sims on a city street and forced them into a nearby apartment.   There Kelly hit Clough in the face with a bottle and took $30 from Clough's wallet.   He tried to take Sims's purse, but she resisted.

A jury convicted Kelly of the robbery of Clough and the attempted robbery of Sims, and found that Kelly personally used a dangerous or deadly weapon in the Clough robbery (Pen. Code, § 12022, subd. (b)).  After the verdict Kelly admitted a 1977 automobile burglary conviction and a 1971 grand theft conviction alleged under Penal Code section 667, subdivision (b), and a 1978 robbery conviction alleged under both Penal Code section 667, subdivision (b), and Penal Code section 667.

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.

I.

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as to the 1977 and 1978 priors, stating it was bound by a recent Court of Appeal decision holding that Beagle was superseded by Proposition 8.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 the use of his prior felony convictions for the purpose of impeachment․”  Kelly declined to testify.

 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.

The record suggests the court exercised discretion in finding the 1977 and 1978 priors to be admissible.   The court initially 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.   Subsequently, however, 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.

 Even if the trial court failed to exercise discretion, no error is cognizable on appeal.   We choose to follow Luce v. United States (1984) 469 U.S. ––––, ––––, 105 S.Ct. 460, 464, 83 L.Ed.2d 443, 448, which held that an appellant cannot challenge the denial of a motion to exclude priors for impeachment purposes if he chose not to testify at trial.   To properly exercise its discretion to allow or preclude the use of a prior felony conviction involving moral turpitude to impeach a defendant, the court, under Evidence Code section 352, must weigh the probative value of admitting the prior against the prejudicial effect of its admission.   The trial court cannot make a truly informed and thoughtful decision of how to exercise its discretion until the defendant has testified.   Additionally, unless the defendant has testified, the appellate court is left to pure conjecture as to whether the trial court abused its discretion.   When the defendant has the ability to establish a record upon which the appellate court can determine whether an abuse of discretion has occurred and fails to do so, the defendant has failed to preserve the issue for appellate review.   Because Kelly did not testify he cannot challenge the propriety of the court's ruling on his impeachment motion.  (The effect of a defendant's failure to testify after making an unsuccessful Castro motion is presently before the California Supreme Court in People v. Collins, 40 Cal. 41, 219 Cal.Rptr. 1, 706 P.2d 1135 (1985) and other cases.)

II.

Kelly contends the court erred by imposing the five-year enhancement under Penal Code section 667 without considering discretionary alternatives such as imposing a one-year enhancement under Penal Code section 667.5 or striking the enhancement entirely.   He also argues that the court should have stated reasons for imposing the five-year enhancement rather than some lesser alternative, relying on People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686.

 In an opinion which is not yet final, our Supreme Court has held that courts retain discretion to strike enhancements under section 667.   (People v. Fritz (Oct. 28, 1985, Crim. 23838) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833.)   In the present case, however, the record discloses no error.   Kelly did not request the court to consider any discretionary alternatives, and in sentencing Kelly the court gave no indication that it believed the five-year enhancement was mandatory.   Kelly thus has not sustained his burden of showing error.  (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 373, p. 4345.)

Even if the court believed the five-year enhancement was mandatory, the error was harmless.   At sentencing the court noted that Kelly had been to prison 10 times since 1971, had “a remarkable record of increasingly serious crimes starting from 1969,” and had committed the current “particularly disagreeable” offenses against “very vulnerable” victims only a few months after being paroled.   The court said, “Your previous convictions as an adult are not only numerous, but they amount to a pattern of life in prison on the installment plan.   Every time you get out of prison, you commit a new crime.   Your prior performance on parole and probation has been enormously unsatisfactory.   I can think of no circumstances at all in mitigation.”   It is not reasonably probable that the court would have exercised discretion to choose anything other than the five-year enhancement.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

 Additionally, the court was not required to state reasons for declining to strike the five-year enhancement.   Courts need not state reasons for rejecting the option to strike enhancements, but only for exercising that option.  (People v. Langevin (1984) 155 Cal.App.3d 520, 525, 202 Cal.Rptr. 234;  see Pen. Code, § 1385 [stating only that court must give reasons for ordering a dismissal].)

The judgment is affirmed.

The argument advanced by the majority appeals to me for the simple reason that if the trial court is to exercise its discretion wisely and properly, it should have all possible evidence before it, including the defendant's version of the facts, prior to making its ruling.   Whether an offer of proof or an in-camera hearing will suffice need not be decided at this time, however.

The majority impose such a requirement ex post facto to defeat appellate review, when no prior decision of which I am aware alerted the defendant that he was obligated to make such a record.   This, I submit, is improper.

However, since the trial court indicated it would have admitted the priors if it was within its discretion to do so, and there was no abuse of discretion if that was its ruling, I would affirm under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.   For these reasons, I concur in the result.

KING, Associate Judge.

LOW, P.J., concurs.