PEOPLE v. FULLER

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. James Everett FULLER, Defendant and Appellant. IN RE: James Everett FULLER on Habeas Corpus.

Crim. F002294, F003463.

Decided: November 15, 1985

Eugene F. Toton, Bakersfield, under appointment by the Court of Appeal, for petitioner, defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert Marshall, Paul V. Bishop and Esteban Hernandez, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Defendant James Everett Fuller was charged with arson of property (Pen.Code, § 451, subd. (d)) and attempted arson of a residence (Pen.Code, §§ 664/451, subd. (b)).  The information also alleged defendant previously had been convicted of a serious felony (voluntary manslaughter) within the meaning of Penal Code section 667.

A jury found defendant guilty as charged.   In a bifurcated trial the court found the allegation of the previous conviction true.   The court sentenced defendant to state prison for eight years (three years for conviction of arson of property, a concurrent three-year term for attempted arson of a residence and a five-year enhancement for the prior felony conviction).   Defendant filed a timely appeal from the ensuing judgment and a petition for a writ of habeas corpus.   Defendant's petition was ordered consolidated with his appeal.

Defendant contends his conviction must be reversed because:  the trial court erroneously ruled his prior felony conviction could be used for purposes of impeachment;  he was denied effective assistance of counsel;  and his sentence was improperly enhanced with his prior conviction.   We will reject defendant's contention, affirm the judgment and deny his petition for habeas corpus.

STATEMENT OF THE FACTS

On October 1, 1982, defendant spent several hours in a bar with his estranged girlfriend, Leslie Moore, in an unsuccessful attempt to renew their relationship.   They had previously lived together for nearly three years, but at the time they had been separated for nearly a year.   Moore was then living with David Graham.   She left the bar at about 6 p.m. and went to the house she shared with Graham.

During the early morning hours of October 2, 1982, Graham was awakened by a phone call from defendant, who wanted to talk to Moore.   Moore talked to defendant for about one minute.   Within a few minutes, defendant called two more times and tried to persuade Moore to renew their relationship.   When she refused and told him she intended to stay with Graham, defendant became upset and said that if he could not have her no one else could.

About an hour after the last phone call, Moore and Graham were awakened by the sound of screeching tires and the crash of Graham's burning automobile being pushed through his garage door.   They ran to the front of the house and saw defendant backing his pickup truck out of the driveway.   As they watched, defendant drove past Graham's house twice and stopped in the street to observe the house for about two minutes before leaving.

A few minutes later, defendant phoned Moore.   When she demanded to know why he had burned Graham's car, defendant laughed and denied any knowledge of the crime.

An investigator in the fire marshal's office photographed defendant's truck and the tire tracks found in Graham's driveway and made cement impressions of the tire tracks.   An expert testified that based upon wheel base measurements, tire width measurements, type of tread design and wear patterns of some of the tires the tire tracks were consistent with having been made by the tires on defendant's truck.   The investigator found no evidence of a transfer of paint from Graham's car to defendant's truck.

Defendant's Defense

Jessica Wellerd testified that at the time the crime occurred defendant was with her at her home playing cards.   She was quite definite as to the date and time.   Defendant did not testify.

DISCUSSION

IUse of Prior Conviction for Impeachment

Defendant contends the court erred in ruling that if he took the stand he could be impeached with a 1973 felony conviction of voluntary manslaughter.   Specifically, he argues that (1) voluntary manslaughter does not involve moral turpitude;  (2) the trial court failed to exercise its discretion to exclude evidence of this conviction;  and (3) the trial court's ruling caused him to decline to testify.

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, our Supreme Court considered whether the voters intended, by enacting Proposition 8 and adding section 28 to article I of the California Constitution, to abolish all judicial discretion to limit the use of prior convictions for purposes of impeachment.   Specifically, section 28, subdivision (f), permits the use of any prior felony conviction without limitation for purposes of impeachment or sentence enhancement.   However, section 28, subdivision (d), provides in part, “Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 732, 782 or 1103.”   The Castro court held that “[A]lways 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.   On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.”  (People v. Castro, supra, at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

The court stated a two-part test for admissibility of prior convictions.   First, did the felony conviction necessarily involve moral turpitude or a “readiness to do evil”?  (People v. Castro, supra, at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)   Second, would the probative value of the prior conviction outweigh its prejudicial effect?  (People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468.)

In this case, the prior felony was voluntary manslaughter.   Such a crime does involve moral turpitude.  (People v. Parrish (1985) 170 Cal.App.3d 336, 217 Cal.Rptr. 700.)   Additionally, the record reveals that defendant, the People, and the trial court believed the court retained discretion under Evidence Code section 352 1 to exclude evidence of defendant's prior conviction.   However, the record does not include an affirmative statement that the court decided to deny defendant's motion after weighing prejudice against probative value.2  We believe this constitutes error.   (People v. Green, supra, 27 Cal.3d at pp. 25–26, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Stone (1983) 139 Cal.App.3d 216, 224–225, fn. 2, 188 Cal.Rptr. 493.)   We review that error under the standard announced in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, i.e., whether it is reasonably probable a result more favorable to defendant would have occurred absent the error.  (Castro, supra, 38 Cal.3d at pp. 318–319, 211 Cal.Rptr. 719, 696 P.2d 111.)

Defendant contends his conviction must be overturned because, without his testimony, this court cannot assess the prejudicial effect of the trial court's error.   In People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, the defendant, who had been charged with first degree robbery, moved to exclude evidence of a recent burglary conviction if offered to impeach.   When his motion was denied, the defendant chose not to testify.   Our Supreme Court held the admission of the prior robbery conviction constituted an abuse of discretion when two other dissimilar priors were available.   Additionally, the court discussed the effect of the defendant's election not to testify despite substantial evidence of his guilt.

“[W]e cannot presume to know what defendant's testimony might have been had he testified, as might well have happened had the court excluded his conviction for robbery.   It is thus not possible for us to determine on the record before us the degree of prejudice suffered by defendant because of the court's error in failing to grant his motion, ․” (Id., at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833, fn. omitted.)

In reversing a conviction of possession of heroin for sale, the court in People v. Spearman (1979) 25 Cal.3d 107, 119, 157 Cal.Rptr. 883, 599 P.2d 74, likewise refused to speculate about the effect the defendant's testimony could have had on a jury.

“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.

“This court, therefore, has no basis for concluding that appellant's testimony would not have affected the result of the trial.  ‘[E]rrors at a trial that deprive a litigant of the opportunity to present his version of the case ․ are ․ ordinarily reversible, since there is no way of evaluating whether or not they affected the judgment.’ ”  (Fn. omitted.)

The People urge that the “ordinarily reversible” rule of People v. Spearman, supra, and its progeny is one of the so-called “rigid rules” which the Supreme Court determined the electorate had rejected in passing Proposition 8.   In this regard, Justice Kaus stated:

“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 [People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43] line of decisions.   Our conclusion is based on the historical context of subdivisions (d) and (f) of section 28.   The dissatisfaction of the proponents with the appellate courts was expressed in the literature that supported the initiative.”  (People v. Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)

Thus, rigid, black-letter rules of exclusion as applied by trial courts were rejected, not rules for assessing prejudicial error as used by a reviewing court.   Accordingly, despite the People's argument to the contrary, the holding of People v. Spearman, supra, continues to bind this court to the extent it is applicable.

The question then arises:  Does the Spearman line of cases create a rule of reversal per se?   Although the Supreme Court has yet to find harmless error when the trial court commits Beagle error (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) and the defendant does not testify, it has not gone so far as to announce that under such circumstances, reversal per se is required.   Instead, in each instance, the court weighed the evidence probative of guilt against the inability to speculate about the impact of the defendant's testimony.  (See People v. Rist, supra, 16 Cal.3d at p. 233, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Fries (1979) 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman, supra, 25 Cal.3d at pp. 228–229, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.)

Additionally, we note numerous appellate court decisions in which Beagle error has been found harmless, even though defendant did not testify.  (See, e.g., People v. Williamson (1977) 71 Cal.App.3d 206, 213, 139 Cal.Rptr. 222;  People v. Burdine (1979) 99 Cal.App.3d 442, 450, 160 Cal.Rptr. 375;  People v. Jardine (1981) 116 Cal.App.3d 907, 923, 172 Cal.Rptr. 408;  People v. Logan (1982) 131 Cal.App.3d 575, 578, 182 Cal.Rptr. 543;  People v. Fisher (1984) 153 Cal.App.3d 826, 833, 200 Cal.Rptr. 683.)

Based on the authorities just cited, we conclude that a trial court's erroneous denial of a motion to exclude a defendant's prior conviction(s) resulting in the defendant's election not to testify does not always require reversal.   Since Castro, numerous appellate courts have, at least impliedly, reached similar conclusions.  (See, e.g., People v. Stewart (1985) 171 Cal.App.3d 59, 215 Cal.Rptr. 716;  People v. Parrish, supra, 170 Cal.App.3d 336, 217 Cal.Rptr. 700;  People v. Sanchez (1985) 170 Cal.App.3d 216, 216 Cal.Rptr. 21;  People v. Brown (1985) 169 Cal.App.3d 800, 215 Cal.Rptr. 494.)

The instant case is one among many in which it is difficult, if not impossible, to determine with any reasonable assurance of accuracy just what defendant would have testified to had the trial court ruled inadmissible his prior conviction if offered to impeach.   At the close of the People's case, defendant presented an alibi defense through the testimony of Jessica Wellerd.   Additionally, defendant argues on appeal that, if he had testified, he would have contradicted Moore's version of what happened between them on the afternoon and evening before the charged offense was committed.   Does the state of this record require us to conclude that it is reasonably probable a result more favorable to defendant would have obtained absent the error?   We believe not.

The United States Supreme Court recently decided “that to raise and preserve for review a claim of improper impeachment with a prior conviction, a defendant must testify.”  (Luce v. United States (1984) ––– U.S. ––––, ––––, 105 S.Ct. 460, 464, 83 L.Ed.2d 443.)   Although the Luce decision is specifically based upon Federal Rule of Evidence 609(a), the general parameters of that rule closely parallel the discretionary power of a trial court in California pursuant to section 352 since both concern the trial court's discretion to exclude impeachment evidence of prior felony convictions when the potential for prejudice outweighs probative value.   Consequently, several appellate decisions applying Castro have elected to follow Luce and have held that a claim of error in ruling admissible impeachment evidence of a prior felony conviction is not cognizable on appeal unless the defendant has taken the stand.   However, each of these decisions has either been accepted for review or ordered depublished by our Supreme Court.   Nonetheless, we do not determine from this that uncertainty about the defendant's testimony always requires reversal.

In People v. Rist, supra, 16 Cal.3d 211, 222, 127 Cal.Rptr. 457, 545 P.2d 833, interpreting People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, the Supreme Court stated:

“Perhaps the most difficult to evaluate of the Beagle factors is the adverse effect on the administration of justice should a defendant elect not to testify for fear of impeachment.   Such an evaluation must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant's guilt in the unique circumstances of the particular case.   The trial court may be aided in making such evaluation should the defendant in support of his motion to exclude prior convictions make an offer of proof as to matters to which he will testify should the motion be granted.   However, such an offer, although doubtless helpful to the court, is not a sine qua non to the court's duty to evaluate probative value against prejudicial effect and where as in the instant case the other Beagle factors dictate the exclusion of a prior conviction or convictions because their prejudicial effect manifestly overbalances their probative value it is an abuse of discretion to deny the motion to exclude.  [Citations omitted.]”  (Fn. omitted.)

Later, in People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  the Supreme Court held that a defendant could not be constitutionally required to make an offer of proof to preserve for appeal the issue of admissibility of a prior felony conviction.   On this point the court stated:

“To require such an offer of proof from appellant would have violated his right against self-incrimination.   This court has repeatedly forbidden ‘compelled disclosures which could serve as a “link in a chain” of evidence tending to establish guilt of a criminal offense․’  (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326 [85 Cal.Rptr. 129, 466 P.2d 673] [․].)  So long as the disclosure might conceivably lighten the prosecution's burden of proving its case, a defendant ‘cannot be compelled to disclose [the evidence] at any time prior to its actual use at trial.’  [Citation omitted.]   ‘It requires no great effort or imagination to conceive of a variety of situations wherein the disclosure of the expected testimony of defense witnesses ․ could easily provide an essential link in a chain of evidence underlying the prosecution's case in chief.’  [Citations omitted.]”   (Id., at p. 233, fn. omitted, 155 Cal.Rptr. 194, 594 P.2d 19.)

Based on its reliance on Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673, it is clear the offer of proof 3 which the Supreme Court foreclosed in Fries was one made in open court in the presence of the prosecutor.   That is not the only procedural vehicle by which an effective offer of proof can be made.   An offer of proof about a defendant's intended testimony can be made in an in camera hearing from which the prosecutor is excluded.   Since potential appellate review would mandate that the in camera offer of proof be recorded, the transcript should be sealed and made available only to the court reviewing a challenge to the trial court's ruling.

Although a motion to exclude evidence of prior convictions is routinely made before opening arguments, the trial court is not required to rule on the motion before the prosecution has completed its case.   The trial court may protect against disclosure of the prior convictions in the prosecutor's opening statement and defer receipt of the defendant's offer of proof until the prosecution has presented its evidence.   Thus, before ruling on a defendant's motion to exclude use of a prior conviction for purposes of impeachment, the trial court will have before it not only the evidence presented in the prosecution's case-in-chief but the proposed evidence the defendant anticipates presenting to the jury through his own testimony.   This assures the trial court of the firmest possible evidentiary base on which to weigh the probative value of a defendant's proposed testimony against the prejudicial impact of keeping this evidence from the trier of fact.   At the same time, this procedure will perfect a record by which a reviewing court can evaluate the prejudice of any erroneous ruling by the trial court.

An in camera offer of proof or hearing at which only one side is present before the court and which results in a sealed transcript available only for appellate review on that issue is certainly not unknown in California procedure.   The most obvious example is the right of a district attorney seeking to maintain the anonymity of a confidential informant to demand a hearing on the materiality of the informant's potential testimony in a hearing outside the presence of the jury and from which the defendant and his attorney are excluded.  (§ 1042.)   The transcript of such a hearing is sealed and reviewable only by a court faced with an appeal from the trial court's ruling.   A reviewing court routinely guards against revealing anything in its opinion or otherwise which might affect the integrity of the in camera proceeding.  (See generally, Witkin, Cal. Evidence (2d ed. 1984 supp.)   Witnesses, §§ 885, 885A and 885B, at pp. 460–464.)

We recognize that trial courts must retain some degree of flexibility in the manner of taking an in camera offer of proof to permit them to respond to individual circumstances and to safeguard the orderliness and efficiency of the judicial proceeding.   However, we also recognize that a trial court can best assess the potential value of a defendant's testimony, and correspondingly the prejudice if the jury does not hear the testimony, if the offer of proof is made by the defendant under oath.   The court should therefore require such a formal offer of proof when the court deems it necessary.  (1 Wigmore, supra, at p. 859.)

The requirement of a sworn offer of proof from the witness received tacit approval in People v. Keith (1981) 118 Cal.App.3d 973, 173 Cal.Rptr. 704.   The proposed testimony of three witnesses in Keith would necessarily have encompassed admissions of violating Penal Code section 261.5, unlawful sexual intercourse, and thus run afoul of the constitutional proscription against self-incrimination.   The court reversed the defendant's conviction because the trial court erred in excluding this testimony despite an adequate offer of proof by defense counsel.   However, the court “strongly urge[d] trial courts, whenever to do so is at all practical, not to accept offers of proof at face value but—to use the vernacular—to force counsel to ‘put their witness where their offer is.’ ”  (Id., at p. 982, 173 Cal.Rptr. 704.)   The court went on to note that requiring the offer of proof under oath does not necessarily involve any advance disclosure of the expected testimony of the defendant or of defense witnesses.  “All that a sworn offer of proof demands of the defense is disclosure to the court alone of the very evidence the defense wanted to bring to the attention of the jury.”  (Id., at p. 982, fn. 13, 173 Cal.Rptr. 704.)

Given the precedent found in existing case law, we think it clear that the carefully safeguarded offer of proof to the trial court we have here discussed is not the offer of proof the Supreme Court condemned in People v. Fries, supra, 24 Cal.3d at page 233, 155 Cal.Rptr. 194, 594 P.2d 19.   More importantly, although the procedure we have outlined is needed to protect a defendant's constitutional right to be free of self-incrimination, we must emphasize that the purpose underlying a requirement of an offer of proof is to protect the appellate function.   Only by requiring an offer of proof as to the defendant's proposed testimony can a reviewing court assess the prejudicial effect of a trial court's erroneous determination that the defendant's prior convictions are admissible for purposes of impeachment.   From a practical standpoint, it is irrelevant whether the trial court's error arose from an abuse of discretion under section 352 or from failure to exercise that discretion in the first instance.   A reviewing court's determination that the trial court erred does not necessarily depend on the defendant's offer of proof.

For example, in cases tried between the effective date of Proposition 8 and the Supreme Court's decision in People v. Castro, supra, many trial courts accepted the People's argument that the addition of article I, section 28, subdivision (f) to the California Constitution wholly abrogated discretion under section 352 to exclude prior convictions.   After the Castro opinion, this determination was clear error.   On the other hand, a trial court might exercise discretion and still determine that a recent conviction for an offense similar to the one for which a defendant is on trial should be admitted for purposes of impeachment;  a reviewing court could conclude this was an abuse of discretion without resort to any offer of proof.

However, a determination of error or abuse of discretion in admitting prior convictions for impeachment is only the first step in appellate review.   A reviewing court must still gauge the prejudicial effect of the error to determine whether the conviction should be reversed and a new trial granted.   It is in this latter determination, i.e., the determination of prejudice, that an offer of proof is indispensable when the defendant has not actually testified.

Having recognized that any retrospective appellate determination of harmless error or reversible error necessarily encompasses some guesswork and estimates of probability, Wigmore points out:

“The function of an offer of proof is not to eliminate uncertainty and guesswork.   It cannot do that;  it does not do that;  and the effort to make it do that is futile.   The function of an offer of proof is to reduce uncertainty as to the nature of the excluded evidence to a tolerable and acceptable level;  by doing so, the offer of proof serves to improve the reliability of the appellate court's guesses and estimates concerning the probability that the trial court's error was either prejudicial or harmless.   We trust the latter estimate more when an offer of proof was made because we generally believe that our guesses are more reliable when they are based on a wider range of information.”  (1 Wigmore, supra, at pp. 864–865, fns. omitted.)

Moreover, requiring a defendant to make an offer of proof to preserve for appeal his claim that a trial court committed reversible error in ruling prior felonies could be used to impeach is consistent with existing statutory provisions governing reversal of judgments based on evidentiary errors.   Those provisions, in turn, rest upon article VI, section 13 of the California Constitution:

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”  (Emphasis added.)

Resting upon this constitutional mandate, the Evidence Code precludes setting aside a verdict or finding or reversing a judgment based thereon, because of the erroneous admission of evidence (§ 353) or the erroneous exclusion of evidence (§ 354) unless the error complained of has resulted in a miscarriage of justice.   Moreover, section 353 requires a timely and specific objection of record to the evidence challenged as erroneously admitted.   Section 354 adds a similar requirement at subdivision (a) that “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.” 4

The facts of the instant case amply demonstrate the burden faced by an appellate court trying to assess the prejudicial effect of a defendant's election not to testify rather than face impeachment with evidence of a prior felony conviction.   For purposes of this discussion, we will presume a defendant who moves to exclude evidence of a prior felony conviction does so with the sincere intention of giving up his constitutional right to remain silent and taking the witness stand in his own behalf.   Although a defendant with a prior felony conviction may move to exclude that evidence with no intention whatsoever of actually testifying in the hope of “planting” error in the record, it is unnecessary for us to rest our decision on speculation about a defendant's motives.   We need only look to the entire record before us from which we note the following:  (1) the People's case against defendant was substantial even though the victim and his girlfriend were the only witnesses to the crime;  (2) their identification testimony was positive;  (3) circumstantial evidence supported the link between defendant's truck and the crimes;  and (4) a female witness for defendant offered an alibi for him, testifying he was playing cards with her at the time of the offense.

We have already determined the trial court erred in ruling defendant's prior conviction admissible, and we have recognized that an error which keeps the defendant from testifying is “ordinarily reversible” (People v. Spearman, supra, 25 Cal.3d 107, 119, 157 Cal.Rptr. 883, 599 P.2d 74), although “ ‘[o]rdinarily’ does not mean ‘always' ” (People v. Parrish, supra, 170 Cal.App.3d at p. 353, 217 Cal.Rptr. 700).   The value of a defendant's testimony in a case such as the one now before us is purely speculative.   We cannot determine whether there has been a miscarriage of justice from a review of the entire record, including the evidence, since the allegedly prejudicial omission, i.e., defendant's testimony, is not a part of the record before us.   Without an offer of proof of the testimony defendant would have given, we cannot constitutionally conjecture that defendant's failure to testify was prejudicial.

It could be argued that requiring a defendant to make an offer of proof to preserve for appeal a claim of error in ruling admissible prior felony convictions for purposes of impeachment cannot retroactively be applied to the case now before us.   However, the necessity that the record on appeal adequately and specifically reflect the bases on which evidentiary errors are asserted as grounds for reversal has its roots in the common law and is not a novel or innovative proposition to any practicing attorney in this state.   Nor does it strain credulity to assert that the passage of Proposition 8 left unanswered so many questions of criminal procedure that every trial court, every prosecutor, and every defense attorney in California understood clarification could only come from the Courts of Appeal, if not the Supreme Court.   Nonetheless, in continuing to move for the exclusion of prior felony convictions if offered to impeach a defendant's testimony, defense counsel necessarily contemplated that the ultimate judicial construction of the “without limitation” language of article I, section 28, subdivision (f) of the California Constitution might not encompass complete abrogation of trial court discretion under section 352.   Thus as the trial courts struggled with the parameters of that constitutional provision, it was incumbent upon defendants who suffered adverse rulings and consequently elected not to testify to insure that the prejudicial effect of the trial court's ruling, if ultimately deemed erroneous, was reflected in the record.

Significantly, as pointed out by the court in People v. Rist, supra, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833 of the Beagle guidelines, the importance of a defendant's testimony may be the most crucial.   At the same time, the other Beagle guidelines, including the bearing of the prior conviction on truth or veracity, the temporal propinquity of the prior conviction, and the similarity of the prior conviction to the instant offense, are all factors which can be reviewed by the fact of the prior conviction itself.   A prosecutor who proposes to introduce a 1981 robbery conviction has given a reviewing court adequate information to review the trial court's exercise of discretion on those latter three guidelines.   It is only the most important factor, the defendant's own testimony, which remains an absolute mystery without an offer of proof and thus is outside the constitutional limits of an appellate court's power of review.   Since the error we consider is not one deemed “reversible per se,” basic legal common sense dictates that the record reflect the necessary prejudice to warrant reversal of the conviction.

We hold that defendant, by his failure either to testify or make an in camera offer of proof as discussed above, is foreclosed from claiming reversible error in the trial court's failure to state on the record it had weighed the probative value of defendant's prior conviction on credibility against the risk of undue prejudice.

II

Motion to Strike Prior Felony Conviction 5

5. See foot note *, ante.

III5

Motion for New TrialIV5Effective Assistance of Counsel

We affirm the judgment and deny defendant's petition for a writ of habeas corpus.

FOOTNOTES

1.   Further statutory references are to the Evidence Code unless otherwise indicated.

2.   The court in ruling stated:  “The court independently feels that the People ․ voted Proposition 8 in, and I consider 352, and I deny it.   It will be admitted in case he [defendant] testifies.”

3.   Consistent with California decisional law, we use the phrase, “offer of proof” throughout this opinion, but as Wigmore has pointed out, there is a distinction between the purpose served by an offer of proof in the trial court, which Wigmore calls an “offer of evidence,” and an offer of proof made to protect the appellate record.   The primary function of the “ ‘offer of evidence,’ is to inform the parties at trial and the trial court of the nature of the evidence that the proponent plans to introduce, so that opposing parties may lodge an objection and the trial court may make an informed ruling on any objection made.   The mission of the second type of offer, the ‘offer of proof,’ is to place on the record any evidence actually excluded by the trial court, so that the appellate court can make an intelligent determination of whether a party was prejudiced by the trial court's ruling excluding the evidence.”  (1 Wigmore, Evidence (Tillers rev.ed. 1983) § 17, p. 578, fn. 3.)   Although we must necessarily discuss some of the procedural ramifications an “offer of proof,” i.e., an “offer of evidence,” may have on the trial court, our sole focus in this opinion is the “offer of proof” made for the purpose of perfecting an appellate record.

4.   Both sections 353 and 354 reflect the overlap discussed above between offers of proof made for the benefit of the trial court and offers of proof made to protect the appellate record.   Thus, the exception to the requirements of section 354, subdivision (a) concerning either the futility of making an offer of proof because of prior rulings of the trial court (subd. (b)) or the protection from prior disclosure afforded a cross-examiner (subd. (c)) may excuse the proponent of evidence from making what Wigmore calls an offer of evidence to the trial court but cannot, consistent with the constitutional mandate, excuse the proponent from insuring that the record to be presented to a reviewing court offers adequate information from which that court can measure prejudice.

HAMLIN, Associate Justice.

GEO. A. BROWN, P.J., and WOOLPERT, J., concur.

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