PEOPLE v. MORALES

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Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert MORALES, Defendant and Appellant.

A027027.

Decided: November 25, 1985

Peter F. Goldscheider, Palo Alto, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Eugene W. Kaster, Deputy Atty. Gen., and Alexandra Ramsburg, Acting Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Gilbert Morales appeals from a judgment, based upon a jury verdict, convicting him of assault with intent to commit rape (Pen.Code, § 220); 1  sexual battery (§ 243.4);  attempted forcible rape (§ 261, subd. (2), and § 664);  simple assault (§ 240);  and battery (§ 242).

Defendant's jury trial began on February 7, 1984.   At this time, the court ruled in limine on various motions made by both sides.   The court denied defendant's motion to exclude evidence of certain prior incidents in which he was alleged to have used force and violence against the complaining witness in the present case.   The court granted defendant's motion to exclude any reference to the fact that he had sustained a prior felony conviction (corporal injury to a coinhabitant) during the People's case-in-chief.   However, the court ruled that the facts underlying the conviction were admissible in the prosecution's case-in-chief pursuant to Evidence Code section 1101, subdivision (b), and that the existence of the prior conviction would be admissible to impeach defendant should he take the witness stand.   As a result of this latter ruling, defendant heeded the advice of his counsel and did not testify in his own behalf.

On February 17, 1984, the jury rendered its verdict, convicting defendant of count II (assault with intent to commit rape) and count III (sexual battery.)   The jury found defendant not guilty of count I (rape), but found him guilty of four lesser included offenses of rape:  (1) assault with intent to commit rape;  (2) attempted forcible rape;  (3) simple assault;  and (4) battery.   On March 16, 1984, defendant was sentenced to six years in state prison for the assault with intent to commit rape, a lesser included offense under count I.   Sentencing on all other counts was stayed pursuant to section 654.

Defendant filed a timely notice of appeal.

The evidence consisted solely of the testimony of three witnesses for the prosecution:  Corina M. the alleged victim, Yvette G. the victim's young daughter, and Deputy Sheriff Baldridge, the officer who responded to the scene of the alleged rape.

Corina M. testified that she had known defendant Morales since the two had attended high school together in New Mexico.   In December 1975, they developed a close relationship with one another and soon began living together in San Jose.   Miss M. was then in her early twenties and had two children, Yvette and Tigre G.   Miss M. and defendant subsequently had two children of their own:  Barbara, who was born in May 1977, and Monique, who was born in November 1978.   The relationship between Miss M. and defendant deteriorated over a period of time, and they separated sometime prior to December 1980.   However, Miss M. testified that she never lost contact with defendant for any extended period of time and that he would frequently visit her wherever she was living, force his way into her home and insist upon staying with her from time to time.

The incident giving rise to the instant prosecution took place at approximately 6:30 a.m. on Sunday, August 28, 1983.   Miss M. testified that she was then in bed asleep and that two of her daughters, 11-year-old Yvette and 4-year-old Monique, were sharing the bed with her.   According to Miss M. she was awakened by someone shaking her by the shoulder and calling her names.   She saw that defendant was standing next to her bed.   She was frightened and did not know how he had gotten into her house.   She testified that defendant then seized her by the hair, called her dirty names and told her that he wanted to “fuck her.”   She could smell alcohol on defendant's breath and she also noticed that his eyes were red and that his speech was somewhat slurred.   Miss M. testified that she told defendant to get out of her room and that he then pulled her out of bed by her hair.   Yvette began crying and carried Monique into the living room.

Miss M. testified that defendant struck her once and dragged her into another bedroom while holding her by the hair and the upper arm.   Defendant closed the door to this bedroom and threw Miss M. on the bed, and she then called out to her daughter, Yvette, to call the police.   Miss M. testified that there was no telephone in the house, but that there was a pay telephone three blocks away at a 7–Eleven store.   According to Miss M. defendant ordered her to undress immediately after he threw her on the bed.   When she refused to do so and asked defendant to leave her alone, he unzipped his pants and ripped her clothes off while she attempted to fight him off.   Defendant then got on top of her and began choking her and telling her to be quiet.   Miss M. testified that she was crying, could not swallow and found it hard to breathe, but that she continued to struggle and call out to Yvette to call the police.   Defendant told her to shut up or he would beat her even more and that she would be sorry if the police did come to the house.   Miss M. testified that although she continued to struggle, defendant was stronger than she and ultimately succeeded in forcing his penis into her vagina.   She continued to struggle and to attempt to wriggle free, and at one point managed to dislodge defendant's penis from her vagina.   However, he then penetrated her for a second time.

At this point, Miss M. heard the sound of a police radio outside her house, and defendant put his hand over her mouth and told her that he would make her pay for calling the police.   She then heard the sound of voices within the house.   A man was telling her daughter, “It looks like everything is okay here.”   Fearing that the officer would leave, Miss M. cried out.   She testified that defendant told her to shut up and continued to lie on top of her.   A uniformed sheriff's deputy then entered the bedroom, and Miss M. asked him to please help her and to get defendant off her and make him leave.   The deputy ordered defendant to get up off the bed and he did so.

Miss M. admitted having testified at the preliminary hearing that penetration had not taken place.   However, she explained that at that time, she was unsure of the meaning of the word “penetration” and thought that it meant that the penis had entered “all the way inside” the vagina and that ejaculation had taken place.

Miss M's daughter, Yvette, corroborated portions of her mother's testimony.   Yvette recalled that early on the morning of August 28, she was asleep in her mother's bed when she was awakened by the sound of defendant yelling at her mother.   Yvette testified that she then saw defendant seize her mother by the arm and drag her into another bedroom.   Defendant smelled of beer and Yvette thought that he was drunk and feared that he would hit her mother.   Yvette's younger sister, Monique, began crying and Yvette took her into the living room.   Yvette saw defendant pull her mother into the other bedroom.   Just before defendant closed the door to that room, Yvette's mother told her to get dressed and go call the police.   Yvette walked to a nearby 7–Eleven store and used the pay telephone to contact the sheriff's department.   She then returned home and waited until a sheriff's deputy came to the house.

Deputy Sheriff Baldridge of the Santa Clara County Sheriff's Department testified that he received a radio call at approximately 7:30 a.m. on August 28, advising him to respond to the scene of a family disturbance.   He proceeded to Miss M's house was admitted by Yvette G.   Deputy Baldridge asked the young girl what the problem was.   She appeared frightened and told him that her father had come home drunk and was hurting her mother.   Yvette directed Baldridge to the closed door of the back bedroom.   The deputy heard no sounds coming from that room and indicated to Yvette that he was about to leave.   However, Yvette then began begging him to stay and he heard a muffled cry from the back bedroom.   Upon opening the door to that room, Deputy Baldridge saw defendant lying in bed on top of Miss M. with his hand on her throat.   Both individuals were beneath the covers.   Defendant turned his head toward the deputy and asked what he wanted, and Baldridge ordered defendant to get out of bed and to put his clothes on.   Baldridge saw defendant roll off Miss M. and reach under the covers as though he was pulling his pants up.   Miss M. who was lying on her back, appeared hysterical, and she stated that defendant was hurting her and begged Deputy Baldridge to get defendant out of the bed and out of her house.   Defendant complied with the deputy's order to get out of bed, and Baldridge then saw that his underwear was above the belt line of his pants, confirming the deputy's impression that defendant had pulled up his pants while lying in the bed under the covers.   Baldridge arrested defendant and placed him under restraint.

Deputy Baldridge testified that he then attempted to calm Miss M. so that he could obtain a statement from her.   Baldridge described her as “so hysterical at the time and nervous and trembling.”   When he felt that she was sufficiently calm, he questioned her concerning what had happened and specifically asked her whether “penetration was made.”   According to Deputy Baldridge, “she said no, she had struggled to stop it.”   She also stated “that she could feel [his] penis pressing against her vagina.”   Deputy Baldridge concluded from Miss M's statements that an actual rape had not occurred, and he therefore made no attempt to collect physical evidence to establish rape.   Thus, he did not ask Miss M. to undergo a pelvic examination nor did he take custody of the covers or sheets from the bed.

In addition to the above evidence pertaining to the crime for which defendant was here on trial, the prosecuting witness, as we have previously noted, was permitted to testify over a defense objection to various prior incidents of assaultive behavior on the part of defendant.   She recounted the following occurrences:

(1) In July 1976, she and defendant began arguing, and she got into a car with the intention of driving to a relative's home and staying there until things calmed down.   Defendant walked in front of the car and hurled a wrench or ratchet through the windshield with such force that the windshield shattered and some glass fell into the interior of the car.   Miss M. then quickly drove away.

(2) In September 1980, Miss M. and defendant were living apart but were attempting a reconciliation.   They attended a barbecue where they began arguing, and defendant struck Miss M. while a friend was driving them back to Miss M's home.   The argument continued at her home, and defendant threw his car keys and then a jar of pickles at Miss M. and ultimately struck her with his hand and with a full beer bottle.   He then threw her on a bed, tore off her clothes and repeatedly raped her while choking her so severely that she lost consciousness at one point.   On an afternoon in March 1983, defendant forced his way into Miss M's home by kicking the door in.   After slapping her around, he left.

(4) Early on a morning in May 1983, Miss M. was asleep on the couch when she was awakened by defendant, who was calling her such names as “whore” and “bitch” in Spanish.   Defendant then began hitting Miss M. but her uncle was present in the home at the time and was able to subdue defendant while Miss M. fled from the house and called the sheriff's department.

I.

Defendant's first contention is that the trial court committed prejudicial error when it overruled a defense objection and allowed Miss M. to testify concerning various past occasions when defendant had allegedly assaulted her, including one instance which involved behavior markedly similar to that for which defendant was currently on trial:  forcibly raping her while simultaneously choking her.

 Defendant is correct in asserting that such evidence should not have been admitted.   Although this area of the law was somewhat unsettled in the past, all doubts as to the admissibility of this type of evidence were laid to rest by the California Supreme Court in People v. Tassell (1984) 36 Cal.3d 77, 83–89, 201 Cal.Rptr. 567, 679 P.2d 1.   There, the court held that where the identity of the accused is not in issue and there is no basis for arguing that the various prior uncharged crimes were part of one larger plan, evidence of such prior unlawful conduct cannot be admitted merely to corroborate the testimony of the prosecuting witness.  (Ibid.)  The court reasoned that where evidence of such prior offenses is not required to refute specific issues raised at the trial, its admission serves no purpose but the improper one of demonstrating the defendant's disposition to engage in the sort of conduct for which he is currently on trial.  (Id., at pp. 84–86, 201 Cal.Rptr. 567, 679 P.2d 1.)

In this instance, the evidence of defendant's prior alleged assaults upon the prosecuting witness was admitted solely for the improper purpose condemned in Tassell, namely, to corroborate the alleged victim's testimony concerning the offenses for which defendant was currently on trial.   Defendant's identity was never in issue, as the prosecutor conceded in the trial court.   Instead, the prosecutor argued that the evidence of defendant's prior assaultive behavior was admissible to explain the victim's state of mind and her conduct when defendant sexually assaulted her on August 28, 1983.   The prosecutor's reasoning appears to have been that the victim was already in great fear of defendant due to the prior assaults and therefore did not resist more forcefully when he sexually assaulted her on August 28.   The trial court erred in admitting evidence of the prior assaults for this purpose, since such evidence actually tended to prove no disputed issue “except the defendant's disposition which was, as such, taboo.”  (People v. Tassell, supra, 36 Cal.3d 77, 86, 201 Cal.Rptr. 567, 679 P.2d 1.)

However, erroneous admission of this type of evidence need not require reversal.   In People v. Tassell, supra, 36 Cal.3d at p. 89, 201 Cal.Rptr. 567, 679 P.2d 1, the court found the error harmless, since the case was not evenly balanced and there was compelling corroboration for the victim's testimony and none for the defendant's story.   The Tassell court concluded, therefore, that under the test espoused in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, it did not appear reasonably probable that the jury would have reached a more favorable result had the evidence been excluded.  (Ibid.)

 The same reasoning controls here.   In this instance, defendant was caught, quite literally, with his pants down on top of a hysterical woman who had earlier sent her young daughter to summon help from the police.   The testimony of the prosecution witness was uncontradicted and subject to dispute on only one significant point, i.e., whether penetration had occurred;  and the jury resolved that issue in defendant's favor, acquitting him of the charge of rape.   It is difficult, if not impossible, to see how the jury could have reached a verdict more favorable to defendant.   Obviously, if the jurors had attached any significance to the testimony concerning defendant's prior assaults upon the victim, they would have been likely to conclude that the conduct for which defendant was currently on trial was merely a reenactment of the September 1980 incident when defendant had simultaneously raped and choked the victim.   Indeed, such a conclusion seems particularly tempting in view of Deputy Baldridge's testimony that when he opened the bedroom door, defendant was on top of the victim with his hand on her throat.   Instead, the jury obviously resolved all reasonable doubts in defendant's favor and acquitted him of rape.   Under the circumstances, there is little likelihood that defendant was prejudiced by the victim's testimony concerning his assaultive behavior in the past.   Accordingly, there is no need for reversal of defendant's conviction.  (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)

II.

Defendant contends that his constitutional right to confront the witnesses against him was abridged because the trial court unduly restricted defense counsel's cross-examination of the prosecuting witness, Miss M.

This argument is without merit.   The record reveals that defense counsel sought the trial court's permission to cross-examine Miss M. concerning the fact that she was currently being prosecuted on welfare fraud charges.   Defense counsel claimed that the evidence was relevant for impeachment purposes, since it tended to establish that Miss M. would be motivated to assist the district attorney's office in convicting defendant in the instant case because she might have hoped that, in return for such cooperation, she would be accorded more lenient treatment in connection with the welfare fraud charges pending against her.   The trial court ruled that defense counsel could question Miss M. concerning the fact that welfare fraud charges were pending against her, but that he could not delve into the specific facts underlying those charges and also could not question her concerning the fact that she had been convicted of petty theft in 1978 and was therefore eligible to receive a more severe sentence on the welfare fraud charges.

 In this instance, it is unnecessary for us to determine whether the trial court ought to have allowed defense counsel to question the prosecuting witness concerning pending welfare fraud charges of which she had not yet been convicted.   The trial court did permit this inquiry, therefore the defense had ample opportunity to depict Miss M. as the type of individual whose veracity was subject to question.   In view of the overwhelming evidence of defendant's guilt of the charges of which he was convicted, it is highly unlikely that the jury would have returned a more favorable verdict had defense counsel been allowed to delve into the details underlying the pending welfare fraud charges and to establish that Miss M. had previously been convicted of petty theft.

III.

Defendant complains of the fact that the trial court ruled, over a defense objection, that if defendant chose to testify, he could be impeached by a prior felony conviction for inflicting corporal injury upon a spouse or coinhabitant, in violation of section 273.5.  (The conviction in question was based upon the incident of September 1980, when defendant repeatedly raped Miss M. while simultaneously choking her.)

 We are in total agreement with the views expressed in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, and People v. Williams (1985) 172 Cal.App.3d 539, 218 Cal.Rptr. 267, that a defendant who does not testify waives the right to complain of any error on the part of the trial court in ruling that a prior conviction would be admissible for impeachment purposes.   In any event, in view of the nature of the evidence in this case, there is no reasonable possibility that defendant's testimony would have resulted in a more favorable verdict.   As previously noted, Deputy Sheriff Baldridge caught defendant under highly incriminating circumstances.   Defendant had his pants down and was in bed on top of a naked, hysterical woman with one hand on her throat.   The victim had earlier sent her young daughter to summon the police.   Given this evidence, we find it inconceivable that the jury would have believed defendant, had he testified that his sexual encounter with Miss Mendoza was consensual or that he reasonably entertained any such belief.   We conclude that any error in the trial court's ruling as to the admissibility of defendant's prior conviction for impeachment purposes was harmless.

IV.

 Defendant contends that, rather than upholding the stay of imposition of sentence on some of the convictions, this court should reverse all convictions with the exception of one count of assault with intent to commit rape and one count of sexual battery.   The Attorney General agrees that convictions based upon a single act should be reversed.   However, he claims that we should also uphold defendant's conviction of simple battery since there was evidence that he slapped the victim, in addition to touching other parts of her body, and because simple battery is not necessarily included within the offense of sexual battery.

We agree with defendant's position.   A sexual battery is, by definition, a form of battery and, under the instructions given, it is possible that the jurors concluded that since defendant was guilty of sexual battery he was also necessarily guilty of the lesser offense of simple battery, based upon identical conduct.

Disposition

The judgments of conviction for the crime of assault with intent to commit rape, a lesser included offense of the crime of forcible rape, as charged in count I of the Information, and for the crime of sexual battery, as charged in count III of the Information, are affirmed.   The judgments of conviction for the crimes of attempted forcible rape, and simple assault and battery, lesser included offenses of the crime of forcible rape, as charged in count I of the Information, and for the crime of assault with intent to commit rape, as charged in count II of the Information, are reversed.

I respectfully dissent.   Relying primarily upon Luce v. United States (1985) 469 U.S. 38, 105 S.Ct. 460, 461, 83 L.Ed.2d 443, the majority has determined that to raise and preserve for review a claim of improper impeachment with a prior conviction, a defendant must testify.1  By doing so the majority has ignored the most basic principle of our jurisprudence—namely, that a lower court is bound by the decision of a higher court unless the lower court is released from the precedential effect of the higher court decision by a subsequent higher court decision or some other change in the law.

“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.   Otherwise, the doctrine of stare decisis makes no sense.   The decisions of [the California Supreme Court] are binding upon and must be followed by all the state courts of California․  Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.   It is not their function to attempt to overrule decisions of a higher court.   [Citations.]”  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

It is beyond dispute that our Supreme Court has decided that a defendant may raise an issue of “Beagle-Castro ” error on appeal even though he has not testified.  (People v. Barrick (1982) 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Spearman (1979) 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833.)   Moreover, the California Supreme Court has determined that where a ruling to admit a prior felony causes the defendant not to testify, it becomes difficult, if not impossible, to assess the effect of the error since the record does not ordinarily provide a basis for determining what the defendant would have said in his defense.   In such a case, “the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable,” and the judgment must almost always be reversed.  (People v. Rist, supra, 16 Cal.3d at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Spearman, supra, 25 Cal.3d at p. 118–119, 157 Cal.Rptr. 883, 599 P.2d 74.)

I perceive nothing in Proposition 8 or People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, which would relieve this court from following the clear dictates of People v. Rist and People v. Spearman on this issue.  (See People v. Almarez (1985) 168 Cal.App.3d 262, 268–269, 214 Cal.Rptr. 105.)   In my view Castro holds only that Proposition 8 abrogates the post-Beagle [People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1] decisions to the extent they purport to establish rigid standards to govern the exercise of a trial court's discretion in admitting prior convictions to impeach a defendant.  (People v. Castro, supra, 38 Cal.3d at pp. 307–309, 211 Cal.Rptr. 719, 696 P.2d 111.)   Castro says nothing about a defendant's standing on appeal to raise the erroneous admission of a prior felony or the standard of review for assessing such error when it occurs.   Accordingly, whatever the virtues of the rule articulated by the United States Supreme Court in Luce, I conclude that we are still bound by the rules of review laid down by our own Supreme Court in People v. Rist and People v. Spearman.  (Accord, People v. Almarez, supra, 168 Cal.App.3d at pp. 268–269, 214 Cal.Rptr. 105.)

In addition, appellant may well have relied on Rist and Spearman in deciding not to testify.   I believe it is fundamentally unfair to retrospectively apply the Luce rule which has so dramatic an effect on a tactical decision made at trial.  (See People v. Burns (1985) 174 Cal.App.3d 127, 219 Cal.Rptr. 814 [85 D.A.R. 3733, 3734].)

As previously indicated, Rist and Spearman make clear that where the ruling to admit a prior conviction causes the defendant not to testify, it is difficult to assess the effect of the error.   In such a case, “the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable,” and the judgment must be reversed.  (People v. Rist, supra, 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Spearman, supra, 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74.)   Also, there is the risk—a difficult one for an appellate court to assess—that the jury, despite instruction to the contrary, will infer guilt from the defendant's silence.  (People v. Fries (1979) 24 Cal.3d 222, 228–229, 155 Cal.Rptr. 194, 594 P.2d 19.)   On the other hand, there will in some cases be a basis in the record for determining what the defendant's testimony would have been and that the testimony would not probably have affected the jury's verdict.  (See People v. Fisher (1984) 153 Cal.App.3d 826, 833, 837, 200 Cal.Rptr. 683;  cf. People v. Lassell (1980) 108 Cal.App.3d 720, 730–731, 166 Cal.Rptr. 678;  People v. Newton (1980) 107 Cal.App.3d 568, 576–577, 166 Cal.Rptr. 60;  People v. Anjell (1979) 100 Cal.App.3d 189, 197–199, 160 Cal.Rptr. 669.)

In the instant case I cannot conclude that the error was harmless.

In the usual case where error has been held harmless despite a defendant's failure to testify, the defendant's alibi has been presented through other witnesses and it has been determined that the defendant's testimony could add nothing to that already presented.  (See, e.g., People v. Fisher, supra, 153 Cal.App.3d 826, 833, 200 Cal.Rptr. 683;  People v. Bailes (1982) 129 Cal.App.3d 265, 180 Cal.Rptr. 792;  People v. Anjell, supra, 100 Cal.App.3d 189, 160 Cal.Rptr. 669.)   In the instant case, no one testified in appellant's behalf, and we cannot say for certain that his testimony would have added nothing to that already presented.   This is also not a situation where appellant's only defense is that of identity.   In such a case appellant's testimony would add very little in the face of overwhelming evidence.

The majority's conclusion that appellant's testimony would not have resulted in a more favorable verdict is not only impermissibly conjectural (People v. Spearman, supra, 25 Cal.3d 107, 118, 157 Cal.Rptr. 883, 599 P.2d 74), but is based upon a rather presumptious analysis of the facts.   Although, to be sure, the prosecution's case appears strong, crucial issues of appellant's intent and Miss M's consent remain open to question.   Appellant's trial counsel never denied the sexual encounter but argued that there were significant questions as to whether appellant intended forcible rape (an element of assault with intent to rape and attempted rape).   Given the stormy history of the relationship between this couple and Miss M's somewhat conflicting and confused testimony in several regards, the possibility cannot be entirely ruled out that the jury might have been persuaded that appellant lacked the requisite intent, had he testified to that effect.   The case against appellant is certainly not irrefutable.   M's testimony at the preliminary hearing that appellant did not penetrate her vagina and her statement to Deputy Sheriff Baldridge to this effect conflicted with her trial testimony, thereby casting some doubt on her credibility.   Moreover, in a number of significant particulars, Miss M's testimony was inconsistent with that of her daughter Yvette, who was in the bedroom with her when appellant appeared.

Had appellant testified he might have presented testimony which would warrant acquittal of assault with intent to commit rape and attempted rape.   It is not inconceivable that he might have convinced the jury that he reasonably believed Miss M. was consenting as this was, under the circumstances, customary behavior for the couple.   He might have also have argued that Miss M. ultimately consented to his advances or that he reasonably believed she consented.   The fact that the victim had no bruises, scratches, or abrasions following the incident also supports this possibility.   There was no indication of any marks resulting from strangulation or choking and the deputy sheriff himself did not believe at the time that the offense had been serious enough to warrant an examination or the taking into evidence of bedclothes, or the garments allegedly torn off Miss M. but never produced at trial.

In any event, as I have earlier suggested, “[w]hether the jury would have believed such testimony calls for speculation beyond the powers of this appellate court.”  (People v. Spearman, supra, 25 Cal.3d 107, 118, 157 Cal.Rptr. 883, 599 P.2d 74.)

Having concluded that the trial court erred in failing to exercise its discretion with respect to the admissibility of the prior felony conviction, I believe reversal is compelled in the absence of our ability to effectively assess prejudice.   As we do not know what defendant's testimony would have been we have no basis for concluding that the testimony would not have resulted in a verdict more favorable to appellant.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Accordingly, I would reverse the judgment.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Penal Code.

1.   The majority also relies upon the very recent decision in People v. Williams (1985) 172 Cal.App.3d 539, 218 Cal.Rptr. 267, (currently before our Supreme Court on a petition for review), which is the only one of several intermediate appellate decisions in this State adopting the Luce standard that at the present time has not been depublished.   (Cal.Rules of Court, rule 976.)   Since I believe that, like the majority opinion herein, Williams is impossible to square with the unambiguous rule heretofore laid down by our Supreme Court, I do not believe it is binding upon us.

ROUSE, Associate Justice.

SMITH, J., concurs.

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