PEOPLE v. BURNS

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Herbert BURNS, Defendant and Appellant.

B007046.

Decided: November 07, 1985

Joseph F. Walsh, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gary R. Hahn, Supervising Deputy Atty. Gen., and Patra Woolum, Deputy Atty. Gen., for plaintiff and respondent.

The sole issue on appeal is whether, after Proposition 8, the trial court retains discretion to exclude evidence of a remote prior conviction offered to impeach the testimony of a witness in a criminal trial.1

We hold the trial court does retain such discretion.   Because the trial court understandably, but erroneously, failed to exercise its discretion and because defendant did not testify, we are remanding the case to the trial court for exercise of its discretion.

FACTS AND PROCEEDINGS BELOW

In 1983, defendant, Herbert Burns, was apprehended in the vicinity of an apartment break-in.   Jewelry belonging to the owner of the apartment was found in Burns' possession.   Burns was convicted of one count of burglary after a jury trial.

Prior to commencement of trial, Burns moved to exclude any evidence of his 1963 robbery conviction for impeachment purposes should he chose to testify.   Burns argued in judging the veracity of his testimony the probative value of a 20-year-old conviction was slight compared to its prejudicial effect on the jury.   The prosecution countered with the argument the term “without limitation” means just what it says, and the People may impeach with any prior felony conviction regardless of its age.   The trial judge ruled that even after Proposition 8 the prior felony has to have some relation to credibility.   If the conviction meets that test it must be allowed in, even though it is remote.   The trial court found robbery has a strong bearing on credibility and, for that reason alone, ruled Burns' prior conviction admissible.2

DISCUSSION

A.  AFTER PROPOSITION 8, REMOTENESS REMAINS A FACTOR TO CONSIDER IN DETERMINING WHETHER TO ADMIT EVIDENCE OF A PRIOR FELONY CONVICTION

 In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, our Supreme Court concluded the term “without limitation,” in section 28, subdivision (f) did not abrogate the discretion conferred on the trial court under Evidence Code section 352 to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice.  (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)   Section 28, subdivision (f) did change California law in two respects.   It “restore[d] trial court discretion as visualized by the Evidence Code and ․ reject[ed] the rigid, black letter rules of exclusion which [the Supreme Court] had grafted onto the code by the [People v.] Antick [ (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43] line of decision.” 3  (Id., at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   Second, subject to Evidence Code section 352, “[it] authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.”  (Id., at p. 306;  and see pp. 313–316, 211 Cal.Rptr. 719, 696 P.2d 111.)

As a result of section 28, subdivision (f), People v. Antick, supra, no longer compels the trial court to exclude evidence of a prior conviction relevant to credibility solely because of its remoteness in time.  (15 Cal.3d at pp. 98–99, 123 Cal.Rptr. 475, 539 P.2d 43.)

There is nothing in Castro, however, to indicate remoteness is no longer a factor to be considered by the trial court in exercising its discretion under Evidence Code section 352.   Although remoteness was not an issue in Castro, the plurality opinion expressed strong doubt the framers of Proposition 8 intended the trial court was to be powerless to prevent impeachment with ancient offenses.  (See 38 Cal.3d at p. 309, 211 Cal.Rptr. 719, 696 P.2d 111.)   The opinion also notes Proposition 8 does not affect the trial court's ability to exclude “marginally relevant” but prejudicial matter.  (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)   Indeed, if the trial court is to exercise discretion over the admissibility of crimes involving moral turpitude, remoteness of the conviction is an obvious subject of consideration.   In one post-Castro case, People v. Almarez, (1985) 168 Cal.App.3d 262, 214 Cal.Rptr. 105 the conviction was reversed because the trial court erroneously ruled it had no discretion to exclude prior felony convictions.   The opinion noted that had the trial court exercised discretion it might well have excluded defendant's 13-year-old forgery conviction as too remote.  (Id., at p. 268, 214 Cal.Rptr. 105.)

In determining whether a prior conviction should be excluded because of its remoteness there are a number of factors the court may consider.   These include:

(1) The Length of Time That Has Elapsed Since the Conviction

There is no consensus among courts as to how remote a conviction must be before it is too remote.  (See Annotation, “Right To Impeach Credibility Of Accused By Showing Prior Conviction, As Affected By Remoteness In Time Of Prior Offense.”  (1975) 67 A.L.R.3d 824 at §§ 2–4.)   In light of section 28, subdivision (f) as interpreted in Castro, there may be no conviction that is per se too remote to be used for impeachment.   On the other hand, a conviction that is twenty years old, as in the case at bar, certainly meets any reasonable threshold test of remoteness.

(2) The Length of Sentence Served on the Prior Conviction

The fact the prior conviction occurred 26 years ago loses most of its impact if the defendant served a 25-year sentence and was arrested for the instant offense a year after his release.   Here, defendant was sentenced on his robbery conviction in 1963 and paroled in 1969, fourteen years before the offense alleged in this case.

(3) The Nature of the Conviction

Despite the fact that a conviction need only involve moral turpitude to be admissible, it is undeniable conviction of a crime involving dishonesty is more probative of veracity than, say, a crime of violence.  (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)   All else being equal, a 20-year-old conviction for battery would seem a stronger candidate for exclusion than a 20-year-old conviction for larceny.   Defendant's crime, robbery, bears on credibility.  (See fn. 2, supra.)

(4) The Age of the Defendant at the Time the Previous Crime Was Committed

It would seem reasonable to consider the defendant's age at the time the previous crime was committed.   Again, while not determinative, a conviction for a crime committed twenty years ago when the defendant was a minor may be weighed less heavily than a crime committed twenty years later when the defendant was middle-aged.  (See Anno., supra, 67 A.L.R.3d at pp. 847–848, § 8.)   The defendant in the case at bar was 29 years of age when he committed the robbery.

(5) The Defendant's Conduct Subsequent to the Prior Conviction

A number of courts have considered the defendant's subsequent conduct a relevant consideration when the defendant seeks to exclude a prior conviction on the basis of remoteness.  (See, e.g., People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1;  Gordon v. United States (1967) 383 F.2d 936, 940–941 (opinion by Judge, now Chief Justice, Burger.)   Presumably, the robbery conviction was defendant's last felony conviction.

B. WHERE THE TRIAL COURT, ABJURING ANY DISCRETION, RULES A PRIOR FELONY CONVICTION ADMISSIBLE AND THE DEFENDANT DOES NOT TESTIFY THE PROPER REMEDY IS REMAND TO ALLOW THE COURT TO EXERCISE ITS DISCRETION

 People v. Castro does not address itself to the proper remedy where the trial court, believing it had no discretion, ruled a defendant's prior felony conviction admissible for impeachment purposes and the defendant did not testify.   In our view, the proper remedy in such a case is to remand the matter to allow the trial court to exercise its statutorily conferred discretion.   If the trial judge determines the prior felony conviction must be excluded the defendant receives a new trial.   If the trial judge determines the prior conviction is admissible, retrial is unnecessary.   Below we explain our reasons for adopting the remand remedy.   We then explain our reasons for rejecting other possible dispositions.

Our primary reason for choosing remand over outright reversal is common sense, a faculty which is not suspended, contrary to the belief of some, when a person ascends the bench.

We see no reason why the taxpayers should pay the cost of prosecution, defense, the court's time, jury and witness fees simply to retry the case on the basis of the same evidence available to the parties the first time.   It appears to us totally unjust to reverse a conviction where the ruling on the disputed evidence would still be the same, and would not otherwise affect an error-free trial.  (See People v. Memro (1985) 38 Cal.3d 658, 708–709, 214 Cal.Rptr. 832, 700 P.2d 446 (Grodin, J., conc. & dis.)

The procedure we adopt here has been used in numerous analogous situations.   See, e.g., People v. McCoy (1983) 147 Cal.App.3d 638, 644, 195 Cal.Rptr. 285 (trial court failed to exercise discretion;  remanded for hearing on speedy trial issue);  People v. Ingram (1978) 87 Cal.App.3d 832, 843, 151 Cal.Rptr. 239 (remand for in camera hearing to determine if informant's evidence could exonerate defendant);  People v. Minor (1980) 104 Cal.App.3d 194, 200, 163 Cal.Rptr. 501 (remand for hearing on whether defendant's application for new counsel should have been granted);  People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 407, 132 Cal.Rptr. 30 (remand for hearing on photographic identification procedures).

Contrary to the view of the court in People v. Almarez, supra, we do not believe People v. Rist, compels an outright reversal.  Rist pertains to the situation where the trial court exercised discretion but, in the view of the appellate court, exercised it wrongly.  (16 Cal.3d at pp. 215, 220–221, 127 Cal.Rptr. 457, 545 P.2d 833.)   In the present case, the trial court failed to exercise discretion.   When the trial is free of prejudicial error, as it was here, and the appellant prevails on a challenge which establishes only the existence of an unresolved question but not its resolution (which may or may not vitiate the judgment) common sense and precedent, happily, coincide to direct remand so the trial court can exercise its discretion.

The dissent concludes the failure of the trial judge to exercise discretion in the case before us was harmless error.  (See, dissent, infra, p. 821.)   This conclusion is based on a characterization of the evidence against defendant as “overwhelming” and “insurmountable.”  (See, dissent, infra, pp. 822, 822–823.)   But, our Supreme Court has warned against relying on the “mute record” in determining prejudice in cases where the defendant did not testify.

“ ‘Many factors may affect the probative value of testimony, such as age, sex, intelligence, experience, occupation, demeanor, or temperament of the witness.   A trial court or jury before whom witnesses appear is at least in a position to take note of such factors.   An appellate court has no way of doing so.   It cannot know whether a witness answered some questions forthrightly but evaded others.   It may find an answer convincing and truthful in written form that may have sounded unreliable at the time it was given.   A well-phrased sentence in the record may have seemed rehearsed at the trial.   A clumsy sentence in the record may not convey the ring of truth that attended it when the witness groped his way to its articulation.’ ”  (People v. Spearman, supra, 25 Cal.3d at pp. 118–119 [157 Cal.Rptr. 883, 599 P.2d 74] quoting, Traynor, The Riddle of Harmless Error (1970) pp. 20–21.)

It is not our office to declare we know what the defendant's testimony would have been and it is not reasonably probable the defendant would have obtained a more favorable result if he had testified.   Were we to do so, we would be speculating not only as to the content of the non-existent testimony but its effect on the jury as well.   To do this would violate the very clear instructions to the contrary in People v. Barrick (1982) 33 Cal.3d 115, 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;  and People v. Rist, supra, 16 Cal.3d at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833.   We note in particular the Court's statement in Spearman, 25 Cal.3d, at pp. 118–119, 157 Cal.Rptr. 883, 599 P.2d 74:

“Whether the jury would have believed [defendant's] testimony calls for speculation beyond the powers of this appellate court.  ․   For this court to reject the possibility that the jury might have believed appellant would involve not only a high degree of presumption, but also, in certain respects, an invasion of the province of the jury.   By refusing to indulge in speculation, this court preserves the right of every accused person to present his version of the case to the jury.”

In the case before us, the People appear, on paper, to have made out a strong, albeit circumstantial, case against the defendant.   The evidence was not, however, irrebuttable.  (Cf. People v. Spearman, supra, 25 Cal.3d at p. 118, 157 Cal.Rptr. 883, 599 P.2d 74.)   No one actually saw the defendant or anyone inside the victim's apartment.   The defendant's fingerprints were not found in the apartment.   The defendant might have testified he was exercising his dog when he encountered the police.   This would be consistent with the fact the defendant was running toward the apartment building, not away from it, when first seen by the police.   Perhaps the defendant was nothing more than an early-morning jogger with any number of possible reasons for wanting to avoid contact with the police.  (See Dawkins v. City of Los Angeles (1978) 22 Cal.3d 126, 129–132, 148 Cal.Rptr. 857, 583 P.2d 711.)   As to the jewelry allegedly belonging to the victim found in defendant's possession:  defendant may have purchased the jewelry from the victim or bought it at a store.   The victim testified he had previously been a jewelry salesman.   He could not remember the last time he had seen the items allegedly stolen by defendant.   There was nothing particularly identifiable about the jewelry.   Other pieces of jewelry remained in the same location that had been occupied by the pieces allegedly stolen by the defendant.

If these suggested defenses appear “unreasonable in light of the evidence”, as the dissent suggests, (dissent, infra, p. 823) it must be remembered the light of the evidence in this case shines only on the prosecution's side.   We are in the dark when it comes to the defendant's side.   As to the reasonableness of a defense being mounted in this case, we need look no farther than the “Twinkie” defense asserted in the Moscone-Milk murder case for an example of what may appear reasonable to a jury.

We recognize the erroneous admission of a prior felony conviction is not reversible per se and that the Watson standard applies.  (People v. Castro, supra, 38 Cal.3d at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111.)   However, in cases where the defendant did not testify the Supreme Court has applied a reverse-Watson or Watson -with-a-twist analysis.   The court has said where the defendant has not testified the court “has no basis for concluding [the defendant's] testimony would not have affected the result of the trial.”  (People v. Spearman, supra, 25 Cal.3d at p. 119, 157 Cal.Rptr. 883, 599 P.2d 74;  italics added.)  “Absent any basis for concluding that such testimony would not have affected the result, ․ ‘․ it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of this error.’ ”  (People v. Fries, supra, 24 Cal.3d at pp. 233–234, 155 Cal.Rptr. 194, 594 P.2d 19;  see also People v. Barrick, supra, 33 Cal.3d at p. 130, 187 Cal.Rptr. 716, 654 P.2d 1243.)   In other words, there is a rebuttable presumption of prejudice which can only be overcome by a finding the defendant could give no evidence which, if believed, could have resulted in acquittal or conviction of a lesser offense.  (People v. Spearman, supra, 25 Cal.3d at p. 118, 157 Cal.Rptr. 883, 599 P.2d 74.)   It is difficult to imagine such a circumstance arising.   Thus, as Justice Kaus observed when on the appellate court, reversal is virtually automatic when the defendant does not testify.  (People v. Kyllingstad (1978) 85 Cal.App.3d 562, 570, 149 Cal.Rptr. 637.)

We also disagree with the Attorney General's assertion a defendant who does not testify has no standing on appeal to challenge erroneously admitted evidence of prior convictions.   This lack-of-standing argument relies on Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443.   In Luce, the United States Supreme Court held that in the federal courts a defendant must testify in order to raise on appeal the claim of improper impeachment with a prior conviction under Federal Rules of Evidence 609(a).  (469 U.S. at p. ––––, 105 S.Ct. at p. 463, 83 L.Ed.2d at p. 448.)   Undoubtedly the United States Supreme Court can make such a rule with respect to federal appeals.   It cannot make such a rule for state appeals nor can it overrule our Supreme Court's decisions on standing to raise issues on appeal.

Our Supreme Court has never ruled a defendant must testify in order to argue a motion to exclude prior felony convictions was erroneously denied.   To the contrary, the Court has made it quite clear the defendant need not testify or make an offer of proof in order to challenge the trial court's ruling on appeal.  (People v. Fries, supra, 24 Cal.3d at p. 232–233, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Rist, supra, 16 Cal.3d at p. 222, 127 Cal.Rptr. 457, 545 P.2d 833.)

Even assuming our Supreme Court's statements on this subject are not holdings and we were free to adopt a testify-or-waive-it rule we would not do so.

Defendant may well have relied on Fries and Rist in deciding not to testify.   We would be subject to legitimate criticism if we defeated defendant's reasonable reliance on two Supreme Court opinions by repudiating the procedure approved therein on the ground the procedure was approved in mere dicta.  (See, Hartman v. Santamarina (1982) 30 Cal.3d 762, 765, 180 Cal.Rptr. 337, 639 P.2d 979.)

Of more fundamental concern, a criminal defendant's right to take the stand or to remain silent is firmly secured by the Constitution.  (Harris v. New York (1971) 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1.)   Requiring a defendant to forego his constitutional right not to take the stand as the price for preserving error on appeal would raise troublesome constitutional issues.   If the defendant does testify and is impeached by means of a prior felony conviction, he risks conviction upon the current charge simply because the jury thinks defendant is a bad person.  (See discussion in People v. Fries, supra, 24 Cal.3d at pp. 227–228, 231–232, 155 Cal.Rptr. 194, 594 P.2d 19.)   Similar problems arise if the court were to insist on an offer of proof from the defendant in order to preserve the impeachment issue for appeal.  (Id., at p. 233, 155 Cal.Rptr. 194, 594 P.2d 19.)

It has been argued the defendant should be required to testify in order to prevent the defendant from making a motion to exclude prior convictions merely to “plant” reversible error in the record.   We find this argument unpersuasive.

In the first place, a defendant's primary goal is to obtain an acquittal;  not to plant seeds for a possible appeal.   Effective defense counsel will be diligent in preserving a record for appeal but not to the detriment of the client's chances for acquittal.   A defendant will always be more reluctant to take the stand when the prosecution has obtained a ruling permitting prior felony convictions to be revealed to the jury.

Second, Proposition 8 has greatly expanded the kinds of felonies that can be used for impeachment and cut back the court-made rules of exclusion.   (Castro, supra, 38 Cal.3d at pp. 306, 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   This greatly reduces the chances of a calculating defendant bluffing the trial court into reversible error.

Third, we doubt the danger of manufacturing reversible error is, or ever was, the problem some courts have suggested.   After all, it is not the defendant who goads the trial court into an erroneous ruling but the prosecutor whose proposal to introduce evidence of prior convictions triggers the proceeding.4

The argument defendants must be prevented from sowing the seeds of reversible error would carry more weight if prosecutors were judicious in the use of prior convictions for impeachment.  (Cf. Luce v. United States, supra, 469 U.S. at p. ––––, 105 S.Ct. at p. 463, 83 L.Ed.2d at p. 448.)   They are not, as evidenced by the numerous reported opinions.  (See People v. Kyllingstad, supra, 85 Cal.App.3d at p. 569, 149 Cal.Rptr. 637, for just one example.)   Rather than the defendants sowing the seeds of reversible error, it may be the prosecutors who are sowing the seeds.

Finally, we find no support for the argument Proposition 8 overruled Fries, Spearman, and Barrick on the subject of prejudicial error or Fries and Rist on the subject of standing to challenge the denial of a motion to exclude prior felony convictions for impeachment purposes.   We have previously observed that because Proposition 8 made a change in the substantive law it does not follow it made a change in the procedures related to implementation of the law.  (People v. Tipton (1984) 160 Cal.App.3d 853, 855–856, 206 Cal.Rptr. 821.)

There is absolutely nothing in the language of the initiative itself referring to prejudicial error or standing.  (See, fn. 1, supra, at p. 821.)   It is true the Castro court found article I, section 28 was drafted to “counter the Antick line of cases” (38 Cal.3d at p. 309, 211 Cal.Rptr. 719, 696 P.2d 111) and labeled Rist, Fries, Spearman and Barrick as part of the “Antick line”.  (38 Cal.3d at pp. 307–308, 211 Cal.Rptr. 719, 696 P.2d 111.)   But, this finding of legislative intent must be read in context.   What the Court said about the legislative intent was this:

“The 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;  italics added.)

There can be no doubt the “rigid ․ rules of exclusion” to which the Court referred were the findings of abuse of discretion in admitting prior convictions (id., at p. 308, 211 Cal.Rptr. 719, 696 P.2d 111) not the accompanying holdings on prejudicial error.   It is also true the Court, in Castro, applied a “pure” Watson test in determining the prejudicial effect of the trial court's error.  (Id., at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111.)   But, again, this must be taken in context.   In Castro, the defendant testified.  (Id., at p. 318, 211 Cal.Rptr. 719, 696 P.2d 111.)   In the case before us we are ruling only on the situation where the defendant did not testify.   The importance of this distinction has been discussed earlier in this opinion and need not be repeated here.  (See pp. 823–824, supra.)

DISPOSITION

This case is remanded with directions the trial court determine whether defendant's prior conviction for robbery should be excluded under the provisions of Evidence Code section 352.   If the court determines, in the exercise of its discretion, the prior conviction would be admissible to impeach defendant's testimony, the court shall rearraign defendant for judgment and pronounce judgment on the verdict.   If the court determines, in the exercise of its discretion, the prior conviction would not be admissible to impeach defendant's testimony the court shall order a new trial.

I respectfully dissent.   I would affirm the judgment.

I agree with the majority opinion that, having found that robbery “affects credibility,” 1 the trial court had the duty to, but did not, exercise its discretion in accord with Evidence Code, section 352 in admitting the prior robbery conviction (People v. Castro, 38 Cal.3d 301, 315, 211 Cal.Rptr. 719, 696 P.2d 111), and that this was error.2  However, in my view the error, subject to the Watson (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243) standard of prejudice (People v. Castro, 38 Cal.3d 301, 319, 211 Cal.Rptr. 719, 696 P.2d 111), is harmless and did not result in a miscarriage of justice.  (Cal.Const., art VI, § 13;  People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)   I would affirm the judgment for the reasons stated below.

FIRST, the evidence of guilt is overwhelming.   In the early morning hours of November 20, 1983, the apartment (# 2) of Clarence Gamble, who had left for work at 4 a.m. securely locking his screens, windows and doors, was forcibly entered by removal of a window screen;  various items of ladies' and mens' jewelry were stolen.

About 4:45 a.m. Ms. Sinigal, who with Norris Penn occupied apartment # 1 (next door to Gamble), heard a dog scratching;  she looked outside but could see nothing;  a few minutes later she heard the dog scratch a second time whereupon she opened her front door and saw Gamble's living room window open, the screen down on the ground and a dog on Gamble's porch scratching on the screen door trying to get inside.   Ms. Sinigal recognized the dog as one she had seen for the last five months accompany defendant who lived across the street.   Having heard Gamble leave at 4 a.m. she became suspicious and told Penn someone was in Gamble's apartment, then stood in her own doorway and said very loudly, “Whoever is in there, this dog has to know him,” and “Someone might have to spend Christmas in jail.”   Sinigal went over to apartment # 3 to call police but could raise no one in that apartment at that hour;  she then walked out on the lawn to see who would come out of Gamble's apartment;  soon she saw defendant walk along the north side of apartment # 1 and proceed across the street northbound toward Hoover, followed by his dog.

Fifteen minutes later, Sinigal noted that someone had reentered Gamble's apartment;  his front door “was crack” and, standing in her own doorway, she heard someone in Gamble's apartment walk around from living room to bedroom;  meanwhile the occupant in apartment # 3 had awakened, and Sinigal called police;  while waiting for the officers she remained in front to see who would come out of Gamble's apartment;  inasmuch as a rear window was the only other way out of Gamble's apartment, Penn watched the back.

When Officer Sanchez and his partner, responding to Sinigal's call, approached the apartment complex a male (Penn) leaning out of the window of Sinigal's apartment shouted, “There he goes, there he goes,” and pointed down to a dirt walkway that runs along the rear of the building, then he saw defendant running at the side of the building and pursued him on foot;  when he lost sight of him after defendant jumped a four foot chain link fence, he and Sergeant Kinard searched the yeard and found him lying face down in the tall grass with small pieces of wood and bits of debris on his back.   Defendant jumped up and tried to run but Sergeant Kinard ordered him to stop and struck his rear with the baton.   The officers patted down defendant for weapons and found in a pocket a 4 inch switchblade knife entwined with various pieces of women's jewelry—gold neck chains—and in another pocket other items of men and women's jewelry.

The jewelry found on defendant belonged to and was identified at the police station by Gamble.   Gamble testified that in 1979 he sold jewelry, but had sold none since;  when he left his apartment in the early morning of November 20, 1983, to go to work, the various items of jewelry were in a jewelry tray on his dresser and in a box at his bedside;  there were other jewelry items in the tray that were not taken;  he gave no one permission to take any of the jewelry.

Defendant did not testify and offered no witnesses.

SECOND, the record does not support appellant's present claim that it was fear of impeachment by a 20-year-old robbery conviction that prevented him from taking the stand;  to the contrary, it readily supports his failure to testify because he had no defense to the charge.   The evidence of defendant's guilt was insurmountable.   One wonders what the defense possibly could have offered.   Of necessity, it would have had to explain away defendant's possession of Gamble's jewelry, some of which were entwined around a 4 inch switchblade knife, at 4:45 in the morning while in flight from Gamble's apartment building within minutes of someone having gained entry through a window to, and been in Gamble's apartment.   What defense could he have raised?   He has never told us or the trial court, and, to my mind, there is good reason—he was caught “red handed.”   From defendant's motion to exclude the prior, the prosecution evidence, cross-examination by the defense and defense counsel's closing jury argument, it is clear to me that at no time had defendant any intention of offering an affirmative defense.   A careful reading of the record lays to rest the possible defenses conjured up by my colleagues in the majority opinion—defenses that to me seem unreasonable in light of the evidence.   It is highly questionable that fear of impeachment was half as potent a force in his decision not to testify as the obvious fact that he simply had no defense to a “dead bang” case against him.   At no time in, what may be loosely described as, his motion to exclude the prior did defendant represent to the court that he intended to testify, or would do so if the prior was excluded, or the nature of any such defense;  and, while he advised the court after the prosecution rested its case that he chose not to testify, he gave no reason for making that choice.3  Based on the entire record, it is my conclusion that defendant had no defense and never intended to testify.

If one were to adopt the federal rule of Luce v. United States (1984) 469 U.S. ––––, ––––, 105 S.Ct. 460, 462, 83 L.Ed.2d 443, 447, appellant would be foreclosed to challenge the error as prejudicial because he failed to commit himself to testify in the trial court if it excluded the prior conviction, or to make an offer of proof as to what his testimony would be, or to take the stand in his own behalf.   I do not rest this dissent on the reasoning of Luce or the cases cited, for the issue and that concerning the standard for assessing prejudice when defendant declines to testify after the trial court fails to exercise discretion in admitting prior convictions for impeachment, are presently pending in the California Supreme Court, petitions for review having been granted in People v. Collins, 168 Cal.App.3d 839, 214 Cal.Rptr. 388, People v. Cruz, Crim. 24785 (unpub.) and People v. Guillen, 169 Cal.App.3d 349, 215 Cal.Rptr. 174.   However, it seems to me, the majority opinion notwithstanding, that not to require a commitment to testify or an offer of proof, would permit a defendant who has no defense and no real intention of testifying, by simply making a motion to exclude a prior conviction, to “plant” reversible error in the record in the event of conviction.   It was precisely this sort of built in reversal the Castro court held Proposition 8 was designed to abrogate.

THIRD, when viewed in the light of the prosecution's evidence, the fact that defendant chose not to testify, for whatever reason, does not alter my opinion that the trial court's error in failing to exercise its discretion was harmless.  People v. Castro, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 uses a pure Watson test in determining the prejudicial effect of the trial court's error.  (P. 319, 211 Cal.Rptr 719, 696 P.2d 111.)   While the defendant in Castro did testify, Castro makes no distinction between testifying and nontestifying defendants.   Where defendant has refused to testify, the critical inquiry, as in determining if Beagle (People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) error is prejudicial, is whether the court can glean from the record a “basis for concluding that appellant's testimony would not have affected the result of the trial.”   (People v. Spearman, 25 Cal.3d 107, 119, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Barrick, 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Fries, 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19.)   Defendant's decision not to testify does not compel a reversal, notwithstanding People v. Almarez, 168 Cal.App. 3d 262, 214 Cal.Rptr. 105, nor does it compel a remand as ordered by the majority.   The determination whether prejudice stems from the court's error seems to hinge on one of several factors—under the particular facts of the case there is clearly a basis for concluding defendant's testimony could not have affected the result of the trial;  or defendant made an offer of proof to the trial court;  or the evidence against the defendant is so airtight and convincing that it is all but obvious that any testimony by the defendant would not have affected the outcome of his trial.   The instant case falls squarely within the latter, for the direct and circumstantial evidence offered by the proseuction unerringly points to defendant's guilt;  it is not just overwhelming, it is virtually insurmountable.   Any argument here that prejudice was established because defendant had no opportunity to present his version of the events and that in the absence of his testimony it is hard to evaluate what his testimony would have been, is not persuasive.

After a review of the entire record it is my opinion that the error is harmless, that it is not reasonably probable that a result more favorable to defendant would have resulted in the absence of the error.  (People v. Castro, 38 Cal.3d 301, 319, 211 Cal.Rptr. 719, 696 P.2d 111.)   Defendant was fairly tried and justly convicted.   I would affirm the judgment outright.   On the record before us and in all of the circumstances of this case, I can see no necessity for remanding this cause to the superior court for further proceedings.

FOOTNOTES

1.   Proposition 8, adopted by the People of California through the initiative process added section 28, subdivision (f) to article I of the state Constitution, providing:  “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․”

2.   Defendant does not dispute that robbery bears on credibility.   (See People v. Rist (1976) 16 Cal.3d 211, 219–220, 127 Cal.Rptr. 457, 545 P.2d 833.)

3.   The cases the Court was referring to are People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43;  People v. Rist, supra, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391;  People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74;  and People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.  (Id., at pp. 307–308, 211 Cal.Rptr. 719, 696 P.2d 111.)

4.   If the prosecutor is so convinced the defendant does not intend to testify and is merely trying to “plant” reversible error in the record, the prosecutor should call the defendant's bluff and withdraw the prior convictions.

1.   Robbery is a crime that bears on defendant's integrity and veracity (People v. Rist, 16 Cal.3d 211, 220, 127 Cal.Rptr. 457, 545 P.2d 833), and involves “moral turpitude” (In re Rothrock, 16 Cal.2d 449, 454, 106 P.2d 907) which our Supreme Court in People v. Castro, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 equates with “ ‘readiness to do evil’ ” (p. 314, 211 Cal.Rptr. 719, 696 P.2d 111, original emphasis).

2.   Assuming it had no discretion under Proposition 8, the trial court admitted the prior robbery conviction for the purpose of impeachment because it affects credibility even though it recognized it was remote in time.

3.   Counsel told the court, “I have fully advised my client as to the nature of his defense, and also as to the intent of the prosecution to impeach him with his 1964 felony prior.   He at this time chooses not to testify and we are going to rest at this time and I want the record to reflect that.”   Whatever this may imply, it cannot be denied that defendant did not expressly tell the court that he chose not to testify because of the possibility of impeachment with a 20-year-old prior.

JOHNSON, Associate Justice.

THOMPSON, J., concurs.

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