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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard A. APPLEBY, Defendant and Appellant.


Decided: October 29, 1985

Frank O. Bell, Jr., State Public Defender, Neil Rosenbaum, Deputy State Public Defender, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Linda Ludlow, Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant and appellant Richard Allen Appleby appeals from the judgment of the Superior Court of Sonoma County entered after a jury found him guilty of robbery (Pen. Code, § 211) and misdemeanor assault (Pen. Code, § 240).   Appellant contends on appeal that the trial court erred in allowing the prosecution to impeach him with a prior conviction for mayhem and in failing to exercise its discretionary power to grant immunity to a defense witness.1



Robert Holt was visiting his friend, Diane Lyon.   He was asleep on the couch in her house, and was either wearing or covering himself with his leather jacket to keep warm.   Holt woke up at approximately 3 a.m. when Lyon returned home with five others, namely, appellant, Terry Knight, Tom Farrahy, Cheryl Hutchings and Sherry Heywood.   At or about 3:30 a.m., Lyon and Cheryl Hutchings left the house to go to a 7–11 store.   When they returned, there were police cars outside the house.

Holt testified that during the time the girls were gone, he heard one of the strangers demand his leather jacket and seconds later he felt a sharp blow to his mouth.   Holt relinquished his jacket, left the house, and contacted the sheriff's department.

Appellant's version of the facts is that Lyon gave him the leather jacket as collateral for a $50 loan.   He stated that he draped the jacket over the back of his chair.   When Holt subsequently woke up, he noticed his jacket on appellant's chair and attempted to retrieve it.   According to appellant, Holt shouted, “[w]hat are you doing with my jacket?”   Appellant replied, “[t]hat's not yours,” and pushed Holt's arm away.   At that point, Holt punched him and a scuffle ensued.   Finally, Holt left the house, leaving behind the jacket.

When the deputy sheriff arrived at the scene, no one was in Lyon's house.   Aided by a K–9 (dog) unit, the police located appellant and two of his companions hiding in bushes nearby.   Holt's jacket and a knife were also recovered in the vicinity.


Use of Prior Convictions for Impeachment

Subdivision (f) of section 28 of the California Constitution which was enacted in 1982 as part of Proposition 8, provides in part for the use of prior felony convictions “without limitation” for impeachment purposes in criminal proceedings.   In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the California Supreme Court held that subdivision (f) was “not intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter—as, indeed, is provided by Evidence Code section 352.”  (Id., at pp. 306–307, 211 Cal.Rptr. 719, 696 P.2d 111.)   The court in Castro held that “always subject to the trial court's discretion under section 352—subdivision (f) 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. 307, 211 Cal.Rptr. 719, 696 P.2d 111, emphasis added.)

 The decision in Castro makes it clear that subdivision (f) was enacted to overrule the Antik (People v. Antik (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43) line of cases which limited the trial court's discretion to admit only those prior convictions which reflect upon veracity.   Equally clear is that subdivision (f) does not do away with the trial court's discretionary power altogether.   The trial court retains the authority to exclude evidence in order to prevent impeachment with irrelevant or unduly prejudicial convictions pursuant to Evidence Code section 352 and due process.  (People v. Castro, supra, 38 Cal.3d at p. 313, 211 Cal.Rptr. 719, 696 P.2d 111.)

The question that confronts us then, is whether mayhem constitutes a crime involving moral turpitude.   In Castro, the court declared that any felony that shows a “readiness to do evil” (id., at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111, citing Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78) or necessarily “evince[s] any character trait which can reasonably be characterized as ‘immoral,’ ” reflects on moral turpitude.  (Id., at p. 318, fn. 13, 211 Cal.Rptr. 719, 696 P.2d 111.)   In recent cases, courts have held that moral turpitude is implicated in felonies such as assault with intent to commit murder (People v. Olmedo (1985) 167 Cal.App.3d 1085, 213 Cal.Rptr. 742), assault with intent to commit rape (People v. Bonilla (1985) 168 Cal.App.3d 201, 214 Cal.Rptr. 191), burglary with intent to commit aggravated assault and grand larceny (People v. Boyd (1985) 167 Cal.App.3d 36, 212 Cal.Rptr. 873).

 We conclude that mayhem involves moral turpitude.   It is a crime of extreme violence and requires an unlawful and malicious state of mind.   (Pen. Code, § 203.)   It can fairly be said that one who commits mayhem possesses a readiness to do evil, and thus the mayhem conviction may be used for impeachment.

 The trial court failed to exercise its discretion in the instant case, but the error was harmless.   First we note that mayhem does involve moral turpitude.   Accordingly, the trial court could have correctly exercised its discretion by admitting the prior felony conviction in the instant case.   Furthermore, a result more favorable to appellant would not have resulted if the prior felony conviction for mayhem had not been used to impeach him.   Appellant did take the stand and testified on his own behalf.   The evidence against appellant was substantial.   Two prosecution witnesses contradicted appellant's testimony and he was caught with the knife, hiding near Lyon's house.   Accordingly, any error which occurred was harmless.

The appellant contends further that the “sanitized” disclosure of his prior conviction violates due process.   The conviction was “sanitized” in that the evidence disclosed that the conviction was for a felony but no evidence was introduced showing the nature of the underlying offense.   The appellant relies on People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, in support of his claim that a conviction thus “expurgated” is unconstitutional.

 Any error on the part of the trial court in failing to reveal the offense was invited by appellant.   Appellant had moved the court to exclude evidence disclosing the nature of the conviction.   Thus, he may not now claim that the court's compliance with his request for exclusion constitutes reversible error.  (See, People v. Moran (1970) 1 Cal.3d 755, 762, 83 Cal.Rptr. 411, 463 P.2d 763 (where defendant is responsible for the admission of evidence, he cannot claim on appeal that the admission of evidence was error).)


Use Immunity

The second issue raised by appellant is that the trial court's refusal to exercise discretion to grant a defense witness use immunity violated his constitutional right to present exculpatory testimony.2  According to the appellant, the circumstances herein required the trial court to exercise such discretion because (1) apart from the antagonists, Terry Knight was allegedly the only person who witnessed the confrontation regarding the jacket,3 and (2) the prosecution's key witness, Diane Lyon, was granted immunity.

 Appellant's argument is not supported in law.   The rule, set out by this state's courts, is that “the denials by trial courts of transactional immunity orders sought by defendants in criminal proceedings for their own witnesses have been repeatedly sustained on the ground that Penal Code section 1324 permits transactional immunity orders only on the request of the district attorney.”  (Daly v. Superior Court (1977) 19 Cal.3d 132, 146 [137 Cal.Rptr. 14, 560 P.2d 1163].)  “․ [T]he decision to seek immunity is an integral part of the charging process, and it is the prosecuting attorneys who are to decide what, if any, crime is to be charged.”  (In re Weber (1974) 11 Cal.3d 703, 720, 114 Cal.Rptr. 429, 523 P.2d 229.)   In People v. DeFreitas (1983) 140 Cal.App.3d 835, 840, 189 Cal.Rptr. 814, the court held that “[t]his rationale seems reasonably, and equally, applicable to both ‘transactional immunity’ and ‘use immunity.’ ”

In In re Marshall K. (1970) 14 Cal.App.3d 94, 92 Cal.Rptr. 39, the appellant argued that a defendant in a criminal action should be entitled to require the state to grant immunity to a witness who has knowledge of the facts in his case to insure him of a fair trial.   In that case, the court pointed out that “[t]he cases hold that the state is under no obligation to make a witness available to testify for the defendant, or on behalf of the People for that matter, by granting him immunity from prosecution.”  (Id., at p. 99, 92 Cal.Rptr. 39.)

Government of Virgin Islands v. Smith (3d Cir.1980) 615 F.2d 964, is the only case cited by the appellant in which a conviction was reversed based on the lower court's failure to exercise its discretion to grant immunity.   That case is readily distinguishable from the case at bar.   In Government of Virgin Islands, the Third Circuit reiterated the standard it prescribed in United States v. Herman (3d Cir.1978) 589 F.2d 1191 (cert. den. 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386), that the court must grant immunity to a witness if it finds that (1) “the government actions denying use of immunity to defense witnesses undertaken with the ‘deliberate intention of distorting the fact-finding process, ․’ ” or (2) the defendant's compulsory process right demands “ ‘judicially fashioned immunity upon a witness whose testimony is essential to an effective defense.’ ”  (Id., at p. 967, citing United States v. Herman, supra, at p. 1204.)   Thus, while Herman upheld judicial power to grant immunity, the power was confined to circumstances where the prosecutor could not show any justification for withholding immunity.

 In the instant case the prosecutor's decision to deny the defense witness, Knight, immunity while granting immunity to the prosecution's witness, Lyon, was justified.   First, contrary to appellant's view, Knight and Lyon were not similarly situated.   Knight was found with narcotics on his person while Lyon was not.   Secondly, the prosecutor had filed charges against Knight prior to appellant's trial, whereas no charges were pending against Lyon.   Thus, the trial court properly declined to grant use immunity to Terry Knight or exercise discretion in the matter.

The judgment is affirmed.


1.   A third contention raised by the appellant in his opening brief, namely that the trial court violated Penal Code section 1170, subdivision (g), was subsequently withdrawn in the reply brief.

2.   Terry Knight, who was indicted on narcotics charges stemming from the same incident, asserted the privilege against self-incrimination and refused to testify at appellant's trial.

3.   Sherry Heywood left the scene prior to the incident;  Tom Farrahy was asleep in an adjacent room, and Hutchings and Lyon were out at the store.

WHITE, Presiding Justice.

SCOTT and MERRILL, JJ., concur.

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