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

The PEOPLE, Plaintiff and Respondent, v. Lionel NORWOOD, Defendant and Appellant.

Crim. B002803.

Decided: November 14, 1985

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Richard Avila, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., and Norman H. Sokolow and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

Defendant, Lionel Norwood, was charged with one count of burglary (Pen.Code, § 459), and one count of assault “by means of force likely to produce great bodily injury and with a deadly weapon” (Pen.Code, § 245, subd. (a)).   Four prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4), and two prior convictions within the meaning of Penal Code section 667.5, subdivision (b), were also alleged.   An initial trial resulted in a hung jury.

Following a second jury trial, defendant was found guilty of the burglary count and not guilty of the assault count.   He then waived jury trial as to the priors.1  The trial court found the four convictions true for Penal Code section 1203, subdivision (e)(4) purposes, but found only one of the Penal Code section 667.5 subdivision (b) allegations true.

Probation was denied.   On October 26, 1983, defendant was sentenced to the upper limit term of three years on the burglary.   An additional one-year enhancement was imposed pursuant to Penal Code section 667.5, subdivision (b).   Defendant was awarded presentencing credits of 552 days, which included 187 days of good time/work time credits.


Defendant's conviction resulted from his entry into a Dodge van which was parked in the parking lot of the Hollywood Tropicana night club.   Thomas Nagy (Nagy), a security guard at the night club, testified that he arrived at the location on a motorcycle, between 7 and 7:30 p.m. on October 27, 1982, in the company of Kenny Schwartzkopf (Schwartzkopf), another guard.   Nagy intended to put his motorcycle helmet and a down jacket into a van owned by Anthony O'Neil (O'Neil), another of the security guards at the Hollywood Tropicana.   As he approached O'Neil's van, Nagy saw that the passenger door was open and that the wind-wing window on the passenger door was also open.   He observed defendant standing on the stepping well of the van and leaning inside, reaching toward the location of the radio.

Nagy identified himself as a security guard and pulled defendant out of the van.   The inside of the van had been ransacked.   Nagy held defendant up against the side of the van while Schwartzkopf went into the night club to get O'Neil.   While Schwartzkopf was gone, defendant told Nagy that the van was his, then changed his story and said that it belonged to a friend of his and that he had permission to enter it.

Nagy noticed a shopping cart about five to seven feet from the van.   Inside the cart were some items of clothing which Nagy recognized as O'Neil's.   There were also some grocery items in the cart, underneath the clothing.

About 45 seconds after Nagy apprehended defendant, Schwartzkopf returned to the parking lot with O'Neil.   As they approached, defendant broke free of Nagy's hold and started running, grabbing the shopping cart as he did so and pushing it for about 10 feet.   O'Neil and Schwartzkopf chased defendant.

O'Neil testified that he parked the van on the lot at about 6:45 p.m., October 27, 1982, and locked all the doors and windows, including the wind wings.   O'Neil did not know that Nagy was planning to put his helmet and jacket in the vehicle.   Nagy had put his belongings in the van before, in O'Neil's presence.

When Schwartzkopf came and got him on October 27, 1982, O'Neil went to the parking lot where he observed that the passenger door of his van was open.   Defendant was up against the side of the van.   Defendant broke away from Nagy and started running.   O'Neil started chasing defendant, who stopped about five feet from O'Neil, turned around with a knife in his hand, and swung the knife at O'Neil.   O'Neil waited until defendant's arm was down, then grabbed him, forced him to the ground and disarmed him.   O'Neil held defendant on the ground briefly until a pair of handcuffs was obtained from the manager of the Hollywood Tropicana.   Defendant was handcuffed and kept on the ground until the police arrived some two and one-half to three hours later.   Both O'Neil and Nagy testified that while defendant was on the ground he was moaning and groaning.   They also both testified that defendant appeared to be under the influence of drugs and that his speech was slurred.

Robert Cleaves (Cleaves) was called as a prosecution witness.2  He testified that he lived across the street from the Hollywood Tropicana parking lot.   On the evening in question, while in his front yard, Cleaves observed a black man walking on La Mirada toward Western.3  The man was walking normally.   He was not pushing a shopping cart.   Cleaves did not recall the man carrying anything, but he might have had something in his right hand.

Cleaves noticed the man because Cleaves was the co-captain of his neighborhood watch program and the man was a stranger.   He saw the man walk onto the Hollywood Tropicana parking lot and disappear behind a van.   No more than three or four seconds later, Cleaves saw a man come out of the night club and go to the front of the van.   Immediately after that, Cleaves heard moaning and groaning noises.   Cleaves went across the street to the parking lot to get a better view.   He saw clothes scattered on the ground.   Then he went and called the police.   After that he asked a neighbor, who was his neighborhood watch co-captain, to accompany him back to the parking lot because he wanted a witness and he wanted some protection from the security guards.   When Cleaves returned to the parking lot, he observed the black man he had previously seen walking along the street handcuffed and on the ground.   There was a puddle of urine beside the man.4  Cleaves never got a good look at the man's face and could not identify him as the defendant.

Officer Patrick Maloney (Maloney) of the Los Angeles Police Department testified that he arrived at the Hollywood Tropicana parking lot at about 10:15 p.m. on the night in question.   He observed defendant handcuffed and on the ground.   Fire department paramedics were examining him, but they did not take defendant from the scene.

Although he had never before testified as an expert, Maloney had been a police officer for two and one-half years and had observed people under the influence of heroin some 30 to 40 times.   He had also received training on the subject at the police academy and from his training officers.   Maloney was of the opinion that defendant was under the influence of heroin or some other opiate.   He based his opinion on defendant's demeanor (slow, lethargic, stuporous attitude, sleepy appearance, pupilary sensitivity to light), and upon the officer's observation of what appeared to be a fresh needle mark on defendant's arm.

When Maloney took defendant into custody, defendant asked him what the police were going to do about his food.   O'Neil had earlier testified that the groceries in the shopping cart were not his.   At the time of his arrest defendant had an identification card belonging to a Joaquin Vasquez in his wallet.

Prior to commencement of trial, defendant requested the trial court to exercise its discretion under Evidence Code section 352 to exclude evidence of defendant's prior convictions for purposes of impeachment.   When the court denied the motion, defense counsel told the trial court that defendant “has been advised by me not to testify, should the Court rule that he may be impeached by the prior convictions.   There are many things that he can tell in his defense, and, therefore, the jury would be foreclosed from hearing the whole story ․”   Defendant personally never expressed a desire to testify, and made no explicit offer of proof as to what his testimony might have been.   The defense rested without presenting any evidence.


Defendant contends:  (I) It was error for the court to rule that defendant's four prior convictions would automatically be admissible for impeachment purposes under article I, section 28, subdivision (f) (People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111);  (II) the court should have given a sua sponte instruction that the corpus delicti had to be proved independently of defendant's admission;  (III) the court was obliged to give a sua sponte instruction on the lesser included offense of attempted burglary;  (IV) it was error to permit introduction into evidence of the identification card found in defendant's wallet;  (V) it was error to admit Maloney's testimony regarding defendant's heroin intoxication;  (VI) the court should have given a sua sponte instruction on the limited application of prior crime evidence;  (VII) it was error not to instruct on diminished capacity;  and (VIII) the trial court erred in imposing the upper limit sentence.



In 1972, the California Supreme Court held that trial judges are obliged to exercise their discretion under Evidence Code section 352 in determining whether or not to allow use of a defendant's prior convictions for impeachment purposes.  (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.)   Thereafter, in a lengthy series of cases, the Court restricted trial judges' discretion under Evidence Code section 352 by prohibiting the use of prior convictions for impeachment purposes in a variety of situations.  (People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43;  People v. Rist (1976) 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;  People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.)

In 1982, the voters of California adopted a ballot measure (Proposition 8) which amended the California Constitution to provide that all relevant evidence is admissible in criminal trials,5 but that trial judges retain their discretionary powers under Evidence Code section 352 to exclude evidence whose prejudicial effect outweighs its probative value.  (Art. I, § 28, subd. (d).)  Proposition 8 further provided that evidence of a witness' prior convictions could be used “without limitation” for purposes of impeachment.  (Art. I, § 28 subd. (f).)

In People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, in a lead opinion authored by Justice Kaus, the Supreme Court held that article I, section 28, subdivision (d) applies to article I, section 28, subdivision (f), that it was not the intent of Proposition 8 to abrogate the holding of People v. Beagle, supra, but rather that the target of the initiative measure was the post-Beagle line of cases which had restricted trial court discretion, and that full discretion under Evidence Code section 352 has now been restored to trial judges with respect to any prior conviction involving moral turpitude.6

In Castro, the defendant had testified despite the trial court's ruling that her prior convictions were then automatically admissible for impeachment purposes.   The Supreme Court had no difficulty reviewing the complete record thus presented and determining that the error resulting from the trial court's failure to exercise its discretion under Evidence Code section 352 was not prejudicial.  (People v. Castro, supra, 38 Cal.3d 301, 319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Our task is somewhat different.   We must decide how, or whether, to assess prejudice when the defendant does not testify, following the trial court's ruling that prior convictions are automatically admissible, and the somewhat narrower, but no less crucial question, of whether Castro, supra, should apply retroactively to such a nontestifying defendant.

B. Standard of Review

In People v. Rist, supra, 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833, the Court held that since it could not “presume to know what defendant's testimony might have been had he testified ․” it was not possible to determine the degree of prejudice defendant had suffered.   The Court therefore ordered a new trial.   A similar result was reached in People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, People v. Spearman, supra, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, and People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.

Castro's recognition that Proposition 8 invalidated Rist, Fries, Spearman and Barrick, insofar as those decisions restricted trial court discretion under Evidence Code section 352, did not necessarily signal a change of policy by the Supreme Court with respect to assessing the prejudicial effect of Beagle error as to nontestifying defendants.   Nonetheless, in the wake of Castro, the courts of appeal have been considering the issue afresh.   The resulting profusion of opinions, few of which have achieved finality, have variously decided:

That Rist and its progeny are no longer applicable and that a defendant who does not testify has no standing to claim prejudice on appeal (People v. Cipollo (1985) 173 Cal.App.3d 1175, 219 Cal.Rptr. 281;  People v. Graser (1985) 170 Cal.App.3d 534, 216 Cal.Rptr. 262 rehg. granted August 30, 1985;  People v. Collins (1985) 168 Cal.App.3d 839, 214 Cal.Rptr. 388, rev. granted August 30, 1985);

that the reversal per se rule of Rist no longer applies and that on appeal the court must assess prejudice on a Watson standard despite not knowing what the defendant's testimony would have been (People v. Ortiz (1985) 170 Cal.App.3d 1024, 216 Cal.Rptr. 847 rehg. granted September 3, 1985;  People v. Guillen (1985) 169 Cal.App.3d 349, 215 Cal.Rptr. 174, rev. granted, September 12, 1985;  People v. Parrish (1985) 169 Cal.App.3d 1173, 215 Cal.Rptr. 759, mod. 170 Cal.App.3d 336, 217 Cal.Rptr. 700, time for granting or den. rev. extd. to November 15, 1985;  People v. Stewart (1985) 171 Cal.App.3d 59, 215 Cal.Rptr. 716, rev. den. October 17, 1985;  People v. Bynum (1985) 169 Cal.App.3d 992, 215 Cal.Rptr. 639, rev. granted October 17, 1985;  People v. Brown (1985) 169 Cal.App.3d 800, 215 Cal.Rptr. 494);

that a defendant who does not testify has no standing and alternatively that a Watson standard should be employed (People v. Brewer (1985) 169 Cal.App.3d 1114, 215 Cal.Rptr. 736, rev. den., opinion ordered nonpublished October 3, 1985;  People v. Mink (1985) 170 Cal.App.3d 121, 215 Cal.Rptr. 622, rev. den., opinion ordered nonpublished October 17, 1985);

that the Rist rule of per se reversal has survived Castro and Proposition 8 (People v. Almarez (1985) 168 Cal.App.3d 262, 214 Cal.Rptr. 105); 7

that reversal per se is called for absent an offer of proof, but that if an offer of proof is made, a Watson test should be employed (People v. Kelly (1985) 171 Cal.App.3d 277, 217 Cal.Rptr. 296, rehg. granted September 12, 1985);

that based upon the defendant's offer of proof, prejudice had been shown (People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519, rev. den. October 17, 1985);

that the matter should be remanded to the trial court to determine how that court would have exercised its discretion under Evidence Code section 352 and for such further proceedings as the section 352 hearing warranted (People v. Brazil (1985) 169 Cal.App.3d 889, 215 Cal.Rptr. 499, rev. den., ordered nonpublished September 25, 1985;  People v. Reardon (1985) 169 Cal.App.3d 110, 215 Cal.Rptr. 88, rev. granted September 27, 1985).   Surprisingly, none of the above cited cases has addressed the question of the retroactivity of the Castro decision;  they simply assume its applicability.

Given this overwhelming legal morass, it would be tempting to simply declare discretion the better part of valor and await an authoritative ruling from the Supreme Court.   Unfortunately, experience teaches the lack of wisdom in such a course.   We have no way of knowing when such a ruling will be forthcoming, and the long list of post-Castro decisions just cited, plus the several cases presenting the issue now before us, make it patently clear that any effort to await Supreme Court guidance would lead to an accumulated backlog of cases it might well take years to clear up.   Therefore, we plunge ahead, drawing whatever guidance we can from the past and offering whatever insight we can for the future.

As it happens, this court is no stranger to the problems of assessing Beagle error as to nontestifying defendants, or to the shortcomings of the Rist solution.   In People v. Kyllingstad (1978) 85 Cal.App.3d 562, 570–571, 149 Cal.Rptr. 637, written when Rist was indisputably controlling, the future author of Castro, then serving on this court, made the following observations:  “While we must follow the Rist rule of virtually automatic reversal when defendant does not testify and makes no offer of proof, we might point out that the rule makes a mockery out of the Supreme Court's statement in Beagle that it did ‘not propose to encourage or countenance a form of blackmail by defendants' who threaten not to testify unless impeachment is restricted in accordance with their motion.   The crux of the problem is a casual statement in Rist that while an offer of proof as to defendant's proposed testimony may be helpful, it is ‘not a sine qua non to the court's duty to evaluate probative value against prejudicial effect ․’   Why not?   Two court of appeal decisions cited in Rist without disapproval (People v. Jackson (1974) 37 Cal.App.3d 496, 499 [112 Cal.Rptr. 411] and People v. Stewart (1973) 34 Cal.App.3d 244, 248–249 [109 Cal.Rptr. 826] ) had expressly stressed the importance of an offer of proof to help the trial court exercise its discretion.   Why should the trial court be deprived of the ability to make an informed evaluation of the effect on the administration of justice, should the defendant elect not to testify?   The result of all this is that a defendant, burdened with a truly impressive string of prior convictions, who has no intention of testifying and whose offer of proof would, under the circumstances, only amuse, can smuggle an automatic reversal into the record just by goading the trial court into an erroneous ruling on his Beagle motion.   Unless the true purpose of the criminal trial is to test the trial court's ability to field Beagle problems, something is wrong.”

Recently, the United States Supreme Court, in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, expressed similar concerns, but opted for an even more stringent solution when it stated:  “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), 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.  [Footnote 5 provides:  “5. Requiring a defendant to make a proffer of testimony is no answer;  his trial testimony could, for any number of reasons, differ from the proffer.”]

“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,’ New Jersey v. Portash, 440 US 450, 467, 59 L Ed 2d 501, 99 S Ct 1292 (1979) (Blackmun, J., dissenting), 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.   See generally United States v. Hasting, 461 US 499, 76 L Ed 2d 96, 103 S Ct 1974 (1983).   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.”  (Luce v. United States, supra, 469 U.S. ––––, –––– – ––––, 105 S.Ct. 460, 464, 83 L.Ed.2d 443, 447–448;  fn. 4 omitted.)   The Court held, without dissent, “that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.”  (469 U.S. at p. ––––, 105 S.Ct. at p. 464, 83 L.Ed.2d at p. 448.)

Luce v. United States, supra, is particularly pertinent to our current inquiry because, like the instant case, it involved not an abuse of discretion, but rather the trial court's failure to make “an explicit finding that the probative value of the prior conviction outweighed its prejudicial effect.”  (469 U.S. at p. ––––, 105 S.Ct. at p. 463, 83 L.Ed.2d at p. 447.)

We are thus one step removed from Rist and its progeny in which the Supreme Court found that the trial court had abused its discretion in ruling prior convictions admissible for impeachment purposes.   Ergo, it would appear that the more fruitful initial inquiry in evaluating Castro error would not be speculation as to whether defendant would have testified and what his testimony might have been, but rather what would have been the likely result of an appropriate exercise of discretion by the trial court.   True, this is also a speculative endeavor, but it is one in which declared public policy and the record on appeal provide a measure of guidance.

Although the Court's struggle in Castro to reconcile the seemingly conflicting provisions of article I, section 28, subdivision (d) and section 28, subdivision (f) resulted in the conclusion that subdivision (d) controls, it cannot be gainsaid that article I, section 28, subdivision (f) obviously expresses a strong public policy in favor of admitting evidence of prior convictions for impeachment purposes.   Trial courts exercising their discretion in the wake of Castro should do so in the light of that policy and of the much earlier admonition of Beagle that “[n]o ․ defendant who elects to testify in his own behalf is entitled to a false aura of veracity.”  (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)  Castro declares that any prior felony conviction involving moral turpitude is prima facie admissible.  (38 Cal.3d at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.)   Since a trial court should not exercise its discretion under Evidence Code section 352 in an arbitrary fashion, absent some factual basis for excluding a prior conviction, the logical assumption is that it should be admitted.   It follows that absent some factual basis for its having excluded a prior, a trial court's failure expressly to weigh probative value against prejudicial effect would be harmless.

C. Retroactivity

This factor is particularly important to our narrow inquiry into the retroactive application of Castro to nontestifying defendants.   In deciding whether to apply a decision retroactively, California courts undertake a two-step inquiry:  The threshold step is determining “whether the decision established new standards or a new rule of law.   If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises.  [Citations.]   Neither is there any issue of retroactivity when we resolve a conflict between lower court decisions, or address an issue not previously presented to the courts.   In all such cases the ordinary assumption of retrospective operation [citations] takes full effect.”  (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36–37, 196 Cal.Rptr. 704, 672 P.2d 110.)

While we have no quarrel with this general proposition, our factual situation does not fit neatly within its four corners.   Viewed narrowly, Castro certainly was the first authoritative interpretation of the meaning and limitations of article I, section 28, subdivision (f), and as such it did “address an issue not previously presented to the courts.”  (Donaldson v. Superior Court, supra, at p. 37, 196 Cal.Rptr. 704, 672 P.2d 110.)

On the other hand, as the list of post-Beagle cases cited in Castro makes clear, the broader issue of trial court discretion vis-a-vis prior convictions offered for impeachment purposes had been before the courts and received “authoritative” decision all too often.   As Castro also makes clear, the purpose of enacting article I, section 28, subdivision (f) was to alter the prevailing rules which had been established by the Antick-Rist line of cases.   Viewed from this broader perspective, Castro is more properly categorized as a case which establishes a new rule or standard, than as one which decides an issue not previously presented to the courts.   Such categorization would make prospective application appropriate.

We, therefore, move to the second stage of the necessary inquiry, which has been defined by the Supreme Court as follows:  “Following this initial inquiry, California courts employ a tripartite test derived from Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967] to determine the retroactive effect of a decision.   Under this test, the court considers three factors:  ‘(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards.’  (Stovall v. Denno, supra, 388 U.S. 293, 297 [18 L.Ed.2d 1199, 1203];  People v. Kaanehe (1977) 19 Cal.3d 1, 10 [136 Cal.Rptr. 409, 559 P.2d 1028].)  The three factors, however, are not of equal weight:  ‘the factors of reliance and burden on the administration of justice are of significant relevance only when the question of retroactivity is a close one after the purpose of the new rule is considered.’  (In re Johnson (1970) 3 Cal.3d 404, 410 [90 Cal.Rptr. 569, 475 P.2d 841].)  Under the tripartite test, when the purpose of a new rule is to deter future misconduct, or to define procedural rights collateral to a fair determination of guilt or innocence, the rule generally does not receive retroactive effect.  (Donaldson v. Superior Court, supra, 35 Cal.3d 24, 38, 39 [196 Cal.Rptr. 704, 672 P.2d 110].)  On the other hand, when a decision goes to the integrity of the fact finding process (People v. Kaanehe, supra, 19 Cal.3d 1, 10 [136 Cal.Rptr. 409, 559 P.2d 1028] ), or ‘implicates questions of guilt and innocence’ (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 258 [158 Cal.Rptr. 330, 599 P.2d 636] ), retroactivity is the norm.”  (People v. Garcia (1984) 36 Cal.3d 539, 548–549, 205 Cal.Rptr. 265, 684 P.2d 826;  fn. omitted.)

The “purpose” of Castro was to resolve the ambiguity created by the juxtaposition of article I, section 28, subdivision (d) and section 28, subdivision (f).   The result of the decision was to overturn the Antick-Rist line of cases, and to put an end to the post-Proposition 8 practice, of many trial judges, of automatically admitting all prior convictions.   Although the Supreme Court has declared:  “Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim ․”  (People v. Garcia (1984) 36 Cal.3d 539, 549, 205 Cal.Rptr. 265, 684 P.2d 826), this declaration seems wholly inapplicable to a situation where the policy in question bestows discretion on the trial court, the record on appeal establishes no desire by the trial court to exercise that discretion in the defendant's favor, and its exercise in a manner adverse to the defendant would not be an abuse of discretion.

Furthermore, because a defendant's decision not to testify prevents the appellate court from making any informed decision as to the effect of the in limine ruling on the fact-finding process (People v. Kyllingstad, supra;  Luce v. United States, supra ), in limine rulings as to priors should properly be regarded as affecting only “procedural rights collateral to a fair determination of guilt or innocence,” rather than “a decision [which] goes to the integrity of the fact finding process [citation] or ‘implicates questions of guilt or innocence’ [citation]․”  (People v. Garcia, supra.)   If we are correct in our analysis of the “purpose” of the Castro decision, that purpose does not compel its retroactive application to nontestifying defendants.

As for the probable effect on the administration of justice of retroactive application, the many cases already before the appellate courts indicate that, for nearly three years, a significant number of trial judges operated on the premise that article I, section 28, subdivision (f) took precedence over section 28, subdivision (d).   Full retroactivity of Castro would therefore impose a tremendous burden on our trial courts.   Query, to what purpose?

The public policy enunciated in article I, section 28, subdivision (f), coupled with elimination of the restraints imposed by the Antick-Rist line of cases, would combine to make an exercise of discretion in defendant's favor unlikely in most cases.   Even in those cases where the trial court did exercise its discretion in defendant's favor, there is no guarantee that the defendant would testify, let alone that his testimony would in any way alter the result of the trial.   Common sense dictates that retroactive application of Castro at least be limited to those cases where the record demonstrates that it might make a difference.

D. Holding

 The myriad of cases, cited above, which the courts have already confronted, and the variety of factual permutations likely to present themselves in the innumerable Castro cases yet to be decided, dictate that we strictly confine our ruling herein to the precise situation before us.

We therefore hold that:  (a) absent a factual basis for concluding that the trial court desired to exclude potentially admissible prior convictions, but felt constrained by article I, section 28, subdivision (f) not to do so;  and (b) absent a legal basis for concluding that it would have been an abuse of discretion under the standards enunciated in Castro to admit the priors, defendants who came to trial between the passage of Proposition 8 and the filing of Castro, and who did not testify nor make an offer of proof as to what their testimony would have been, are not entitled to a reversal of their conviction merely because the trial court failed to exercise its discretion under Evidence Code section 352.

We leave to the Supreme Court, the question of what standard of review to apply to nontestifying defendants tried post-Castro should a trial court have failed to heed Castro's mandate.8

E. Application

 In the case before us defendant did not testify, made no promise to testify if the priors were excluded and made no offer of proof as to what his possible testimony might be.9  Furthermore, the record strongly supports the conclusion that the trial court had no inclination to exclude the priors.

In urging exclusion on Evidence Code section 352 grounds, defendant argued that the 1977 conviction for possession of drugs in prison, camp or jail (Pen.Code, § 4573.6) was irrelevant on the issue of credibility, was too remote and informed the jury that he had previously been in a penal institution;  that a 1977 petty theft with a prior petty theft was too remote;  and that two 1982 convictions, one for receiving stolen property, the other another petty theft with prior petty theft, were prejudicial because too similar to the current charges.   He also challenged use of the petty thefts with prior petty thefts because they informed the jury not of two priors, but of at least three.

In responding to defendant's motion, the trial court made the following remarks:  “Very well.   On this issue of prejudice, Proposition 8 makes it very plain that it may be used for impeachment without limitation, and I intend to follow that, as long as it is the law.  [¶]  I am also mindful of the fact that if the defendant hadn't done these things, he wouldn't have these priors.   He has brought this on himself, so your request with respect to impeachment is denied.”  (Italics added.)

The court's use of the (italicized) word “may” suggests not that it felt itself constrained to admit the priors, but that it felt free to ignore their prejudicial effect.

To say that use of prior convictions is prejudicial is merely to state the obvious.   The question, under Evidence Code section 352, is whether the prejudicial effect is outweighed by the probative value of such evidence.   If article I, section 28, subdivision (f) and Castro are to have any meaning at all, then in order to overcome probative value, prejudicial effect must consist of something more than the fact that a prior conviction was five years old at the time the new offense was committed, or that the prior was a conviction for some form of theft and the defendant is presently charged with some form of theft.   Otherwise, we will simply develop a post-Castro line of cases to parallel the post-Beagle line which Proposition 8 did away with, according to Castro.

The felony petty thefts and the receiving stolen property priors, crimes of dishonesty, obviously involved moral turpitude.  (People v. Castro, supra, 38 Cal.3d 301, 315, 316, 211 Cal.Rptr. 719, 696 P.2d 1.)  The “possession of drugs in prison” prior, with its inherent potential for corrupting others and disrupting a penal institution, more closely resembles possession for sale than simple possession, and thus should also be considered a crime involving moral turpitude.10  (People v. Castro, supra, 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 1.)   Therefore, it would not have been error, under Castro standards, for the trial court to have admitted any one of the priors.   In fact, had it excluded all of them, it would have provided defendant with an unwarranted “false aura of veracity.”  (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)  We need not consider whether, under Castro, it would have been an abuse of discretion for the trial court to have admitted them all, since defendant does not contend that he would have testified if less than all were admitted.

The trial court's failure to exercise discretion according to the standards enunciated in Castro does not require reversal of defendant's conviction.


Defendant contends that it was error for the court not to give a sua sponte instruction that the corpus delicti must be proved independent of the defendant's admission.  (CALJIC No. 2.72.)   The admission to which he refers is the testimony of Maloney that defendant asked the officer what the police were going to do with his food.

 Defendant confuses proof of the corpus delicti of the crime with proof of the identity of the perpetrator.   Once the former is proved, the latter can be proved by the defendant's admissions, as CALJIC No. 2.72 itself states.11  (People v. Blalock (1971) 20 Cal.App.3d 1078, 1084, 98 Cal.Rptr. 231.)

 In the case at bar, it was undisputed that a burglary had taken place, and that fact was proved without reference to defendant's admission.   The only issue was whether defendant was the burglar.   The court did not err in failing to give the instruction.


Defendant contends that the jury should have been given a sua sponte instruction on the lesser included offense of attempted burglary.   He asserts that Cleaves' testimony established that defendant would not have had time to remove the items from the van and stack them in the shopping cart, and that the jury therefore should have been instructed to consider whether defendant's entry into the van constituted an attempt as opposed to the completed crime.

 Burglary consists of an unlawful entry into a structure or vehicle with the intent to commit a felony.   It is the entry, with the unlawful intent, that constitutes the crime.   Commission of the intended felony is not necessary.  (People v. Bard (1968) 70 Cal.2d 3, 5, 73 Cal.Rptr. 547, 447 P.2d 939.)

The jury, herein, was instructed on the specific intent necessary to commit a burglary.   Defendant was not entitled to an instruction that entry into the vehicle, with the requisite intent, was only an attempt.12


 When defendant was arrested an I.D. card in the name of Joaquin Vasquez was found in his wallet.   The card bore a photograph of an individual who appeared to be of Hispanic descent.   During booking, when asked his name, defendant said that it was Joaquin Vasquez.   Because defendant had not been “Mirandized” before booking, the trial court excluded evidence of defendant's booking statements.  (People v. Rucker (1980) 26 Cal.3d 368, 162 Cal.Rptr. 13, 605 P.2d 843.)   The court refused to exclude the I.D. card, however.

Defendant contends that admission of the I.D. card violated the rule enunciated in Rucker.   The argument misinterprets Rucker, which represented an effort to accommodate both the need of jail officials to obtain routine identification information from arrestees and the Fifth Amendment rights enunciated in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   Seizure of the I.D. card occurred in a lawful search of defendant's person incident to his arrest.   It did not implicate defendant's Fifth Amendment rights.   Seizure of the card preceded defendant's booking statements and was not the fruit of any Miranda violation.   Thus, use of the card was not prohibited by People v. Rucker, supra.

 Defendant also contends that it was error to admit the I.D. card because, absent his statement claiming to be Vasquez, the card was irrelevant.   The trial court recognized that it was only minimally relevant, yet allowed it in evidence.

Had defendant been “Mirandized” prior to booking, evidence that he falsely identified himself would have been admissible to show consciousness of guilt.   Defendant virtually concedes that the card performed a similar function by his contention that admission of the card was prejudicial because the jury might have deduced from it that defendant carried the card with him to shield his true identity.

Defendant cannot have it both ways.   Either the card was irrelevant, in which case its admission was nonprejudicial, or it was minimally probative of a consciousness of guilt, in which case it was admissible.   We opt for the latter conclusion.   True, the probative value of the card alone was not as great as would have been the card coupled with the statement.   Nonetheless, the card having been lawfully seized, the People should not have been deprived of its use merely because they could not use the statement.


 Defendant contends that it was error to admit Maloney's testimony that defendant appeared to be intoxicated through recent injection of heroin because Maloney was not qualified as an expert witness.   We would note, preliminarily, that Maloney's testimony was corrobative of Nagy's and O'Neil's, about which defendant does not complain.

Before allowing Maloney's testimony, the trial court required foundational evidence as to his background and experience.   That experience included observation of people under the influence of heroin on 30 to 40 occasions, eight hours of general training and two hours of specific training on opiates at the police academy, and six months on-the-job training by two officers who were “court-qualified narcotic experts” and who taught him what they knew about “narcotics, heroin and drugs in general,” including determining the age of injection marks.

The mere fact that Maloney had not previously qualified as an expert in court did preclude his testifying as to his observations of defendant's demeanor and behavior.   Nor, in light of the officer's background, did the trial court abuse its discretion in permitting him to testify about the opinion he formed based on those observations.  (Evid.Code, § 800.)   The jury, having been advised of that background, and of his lack of previous qualification as an expert, was fully capable of determining the weight to be accorded that testimony.

 Defendant further contends that because Maloney's testimony emphasized defendant's commission of an uncharged offense, its prejudicial effect outweighed its probative value and it therefore should not have been admitted.13  The evidence was relevant because it provided an explanation of why defendant was moaning and groaning while on the ground and refuted the clear implication inherent in Cleaves' testimony that defendant had somehow been assaulted by one of the security guards.   There was no abuse of discretion in allowing the testimony.


 Defendant contends that if the I.D. card and the evidence regarding heroin intoxication were properly admitted, he was entitled to a sua sponte instruction that the jury might consider such evidence only for the limited purpose of establishing intent.  (CALJIC No. 2.50.)   As noted above, the relevance of the evidence of heroin intoxication was not to establish intent, but to refute any notion that defendant had been gratuitously assaulted.   CALJIC No. 2.50 would have been inappropriate to accomplish that purpose.

Neither was the I.D. card offered to prove intent.   Moreover, while defendant enumerates a number of offenses which possession of the card might have indicated (Pen.Code, §§ 134, 485, 496, 529), no evidence was introduced to establish that defendant was guilty of any of them.   For all the jury knew, defendant's possession of the card might have been innocent, and a sua sponte instruction, such as defendant now calls for, would likely have been more prejudicial than beneficial to defendant's cause.   There was no error in failing to give it.


 Defendant contends that the evidence of his intoxication required a sua sponte instruction on diminished capacity.   The argument totally ignores Penal Code section 25, subdivision (a), enacted as part of Proposition 8, which abolished the diminished capacity defense.   The instruction petitioner seeks not only was not required, but would have constituted error.


Defendant's probation report documented a history of adult convictions extending back to 1963.   It alleged as aggravating circumstances that:  “1.  Defendant has engaged in a pattern of conduct which clearly indicates that he is a danger to society.  [¶]  2.   His prior convictions as an adult are numerous.  [¶]  3.   The defendant has served prior prison terms.  [¶]  4.  Defendant was on probation when the crime was committed.”   It listed no factors in mitigation.   The upper limit term was recommended.

In imposing sentence the trial court stated:  “It appears to the Court that in the probation report his record covers about six pages, that the defendant has been supporting himself by his wits.   A good many of these were reduced to misdemeanors.   Hardly a year goes by that he does not have two or three of them.   Many of these priors are felony offenses [which] were either made misdemeanors by sentence or were reduced, and it seems to me that the defendant is a danger to society and I am sorry he has a drug problem, but that does not permit him from [sic] going out and stealing and hit-and-run driving and possession of drugs.

“I think that this time we should be protected from Mr. Norwood for a period of time.   I think society should be protected from Mr. Norwood for a period of time.

“Accordingly, there being no legal cause why sentence should not now be pronounced, probation is denied.   The defendant is sentenced to the high term of three years on the burglary of second degree, plus one year for the prior.”

Incredibly, defendant contends that the trial court did not adequately state its reasons for imposing the upper term.   We cannot imagine a clearer statement of why the court did what it did, and reject the contention out of hand.

 Defendant next contends that the court erred in imposing the upper limit term because one of the four aggravating factors listed in the probation report, and cited by the trial court (a pattern of conduct constituting a danger to society), did not conform to rule 421 of the California Rules of Court which cites a pattern of violent conduct as an aggravating factor.   First, we would note that the factors enumerated in rule 421 are only illustrative, not exclusive.   Other factors may be considered.  (People v. Berry (1981) 117 Cal.App.3d 184, 193, 172 Cal.Rptr. 756, fn. 4;  rule 408, Cal.Rules of Court.)   A pattern of even nonviolent criminal behavior constituting a continuing danger to society is certainly an appropriate circumstance for consideration.

Second, the concept of “danger to society” is an inherent component of an extensive history of prior convictions and prior prison terms.   The fact that it was separately articulated by the probation officer and the court in no way infringed upon defendant's sentencing rights.

 Third, even if the trial court should not have separately articulated that factor, defendant concedes that the three remaining aggravating factors were appropriate under rule 421.   Since even one aggravating factor is sufficient to justify imposition of the upper limit term (People v. Covino (1980) 100 Cal.App.3d 660, 670, 161 Cal.Rptr. 155), and since reliance on an improper circumstance is harmless if, as here, the record indicates that no different result would have occurred had the improper circumstance not be considered, remand for resentencing would not in any event be called for.  (People v. Belmontes (1983) 34 Cal.3d 335, 348, 193 Cal.Rptr. 882, 667 P.2d 686, fn. 8;  People v. Smith (1984) 155 Cal.App.3d 539, 546, 202 Cal.Rptr. 259;  People v. Coulter (1983) 145 Cal.App.3d 489, 494, 193 Cal.Rptr. 476.)

Finally, defendant argues that the probation report's failure to cite defendant's drug intoxication, and the trial court's failure to consider it, as a mitigating circumstance necessitates resentencing.   The court's quoted comments establish, however, that the court did consider defendant's drug problem and concluded, as it had discretion to do, that it was not an adequate reason for not imposing the upper limit term.

The judgment is affirmed.


1.   Trial of the alleged priors had been bifurcated from trial on the balance of the information to prevent the jury from learning of defendant's record of convictions.

2.   At defendant's first trial, Cleaves had been called as a defense witness.   Also, Nagy had not testified at defendant's first trial, but Schwartzkopf had.   Schwartzkopf had left the state and was unavailable at the time of the second trial.

3.   The Hollywood Tropicana was at the corner of La Miranda and Western.

4.   Nagy had testified that the parking lot always smelled of urine because it was regularly used as a pissoir by customers of the night club and others who traversed the neighborhood.   Cleaves testified that he was familiar with the chronic odor of urine in the parking lot.

5.   Subject of course to exclusion on the higher mandate of the United States Constitution.

6.   Justice Kaus uses the terms “moral turpitude” and “readiness to do evil” interchangeably but otherwise expressly declines to list or define such offenses (38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111), except to indicate that crimes involving dishonesty clearly involve moral turpitude.  (38 Cal.3d at pp. 315, 316, 211 Cal.Rptr. 719, 696 P.2d 111.)

7.   A petition for review in People v. Almarez, supra, was received one day late by the Supreme Court, which therefore did not file it.

8.   We also leave to others faced with the problem the task of deciding whether to apply the rule we have adopted herein in pre-Castro cases in which the trial court expressed a desire to exclude priors, or in which a defendant made an offer of proof, or in which it would have been an abuse of discretion to admit the priors.

9.   The present record provides an excellent example of the imponderability, adverted to in Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, of attempting to assess a causal connection between a ruling that priors are admissible and a defendant's failure to testify.The record reveals that while the jury was being impaneled for the first trial, defendant behaved in an unruly fashion which caused the court to admonish him to desist or face being shackled and gagged.   Given her client's history, and the essentially favorable testimony of Cleaves, defense counsel might well have made a strategic decision not to call defendant, even if the priors had been excluded.

10.   It is perhaps noteworthy in this regard, that the offense is found in the Penal Code, not in the Health and Safety Code.

11.   CALJIC No. 2.72 states as follows:  “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession or] admission made by him outside of this trial.  [¶]  The identity of the person who is alleged to have committed a crime is not an element of the crime․   Such identity ․ may be established by an admission [or confession].”

12.   Presumably the jury discounted at least that portion of Cleaves' testimony that indicated that defendant was apprehended by the guard immediately after entering the parking lot, or they would have acquitted him.

13.   Again, defendant raises no such objection to the similar testimony of Nagy and O'Neil.

FEINERMAN, Presiding Justice.

ASHBY and EAGLESON, JJ., concur.

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