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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dale Richard CAMPOS, Defendant and Appellant.


Decided: April 30, 1985

John K. Van De Kamp, Atty. Gen., Herbert F. Wilkinson, Landra E. Rosenthal, Deputy Attys. Gen., San Francisco, Cal., for plaintiff and respondent. LeRue Grim, San Francisco, Cal., for defendant and appellant.

Defendant and appellant Dale Richard Campos appeals from the judgment of the Superior Court of San Mateo County entered after a jury found him guilty of burglary.  (Pen.Code, § 459.)   Appellant contends on appeal that the trial court erred in allowing the prosecution to impeach him with a prior conviction for burglary.


On March 2, 1983, Lester and Bessie Whetstone lived on the second floor at 871 Commercial Avenue, apartment 7, in South San Francisco.   Sometime around 10:00 a.m., Mrs. Whetstone went downstairs to do some laundry.   A neighbor, Linda Salameh, was also doing laundry.   The storage rooms near the laundry room belonging to Mrs. Whetstone and Ms. Salemeh were locked while they were doing laundry.

At approximately 1:00 p.m., Mrs. Whetstone heard a knock at her door.   She peeked out through the curtains and saw a man at the door.   When she failed to answer, he knocked on the doors of apartments 6 and 8.   Mrs. Whetstone looked out and saw a black van parked in the apartment parking lot down below.   Next she heard her doorbell ring, went to the door and peeked out an adjacent window.   The man (appellant) saw her.   She quickly closed the draperies and did not open the door.

As she watched out the window, she saw the black van start up, circle around and back into her parking stall.   She heard the engine running, heard some other sounds, and finally, a car door banging closed.   Mrs. Whetstone saw the van leave.   She went downstairs and discovered that her storage room had been burglarized and all her property taken.   The missing items included some luggage, a bag containing Christmas decorations and her wedding dress, a movie screen, some tools, a box containing motor oil and car polish, and a rack.

Mrs. Whetstone went to Linda Salameh's apartment.   Ms. Salameh called the police and Mrs. Whetstone gave them a description of the van.   Officer Raymond Gutierrez heard the radio call and stopped a black van, driven by the appellant, which matched the description he had been given.   Nancy Christine was in the van as well.   She opened the door and inside Officer Gutierrez saw some suitcases.

Nancy Christine was appellant's girlfriend.   She was with appellant on March 2, as was her brother Douglas.   They accompanied appellant to the apartment building on Commercial Avenue where appellant hoped to see his friend, Jim Avilla.   Avilla had been a tenant in the building (in apartment 8), but had moved several months earlier without telling appellant.

Nancy and Douglas waited in the van while appellant went up to find Avilla.   He was gone about 10 minutes and returned without seeing Avilla.   Appellant got into the van but instead of leaving, he pulled around, backed into the area of the building's storage lockers and got out.   Nancy testified that appellant opened the van doors, walked in the direction of a storage room, whose door was ajar about a foot, and began to load items into the van.   Nancy observed appellant pull the storage room door open wider and saw him carrying items out of the room.   However, she did not see him physically inside the locker.   While appellant was loading the items into the van, Douglas questioned what appellant was doing and commented, “ ‘no, not again.’ ”   Nancy saw appellant load two suitcases, two “tool carriers”, some tools and bags.   They drove away, turned down El Camino and stopped at a liquor store to buy some beer.   While appellant was in the store, Nancy and Douglas became aware that a police officer had spotted them.   Douglas had an outstanding warrant and was also concerned that the police knew of the theft;  he left the van and walked to a friend's house.   When appellant returned from the liquor store, Nancy told him about the police.   They drove away and moments later, were stopped and arrested.   Appellant told Nancy to say he had just picked her up at the liquor store and to say nothing about the apartment house.

Appellant admitted taking the items which belonged to Mr. and Mrs. Whetstone.   However, he maintained that he found them lying on the floor of the parking lot, apparently abandoned and denied that he broke open or entered the storage locker.

Appellant made a motion to exclude from jury consideration any evidence of his prior burglary conviction.   In the motion, pursuant to People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, appellant claimed that his testimony was essential to his defense and that denial of the motion would force him not to take the stand.   He argued that Proposition 8 (specifically, the section now designated article I, section 28, subdivision (f) of the California Constitution) was in conflict with the fair trial guarantee of the state constitution.   The court considered itself bound by Proposition 8 and denied appellant's motion.   Despite the court's ruling appellant testified on his own behalf.   He was impeached with the 1980 burglary conviction.

Appellant contends on appeal that Proposition 8 did not withdraw from the trial court discretion to exclude prior felony convictions for impeachment purposes.   The Attorney General contends on the other hand that Proposition 8 has eliminated judicial discretion in the area of the admissibility of prior felony convictions for impeachment.


 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) of section 28 of the California Constitution 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 p. 306, 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.)  The court in Castro makes it clear that subdivision (f) was enacted to overrule a line of cases that the court had decided which limited the trial court's discretion to admit prior convictions.   One of these decisions had found an abuse of discretion in admitting a prior conviction for impeachment purposes when the defendant was on trial for the same offense.   (Id., at p. 305, 211 Cal.Rptr. 719, 696 P.2d 111, referring to People v. Rist (1976) 16 Cal.3d 211, 218–223, 127 Cal.Rptr. 457, 545 P.2d 833.)   Accordingly, under Castro a trial court may not admit a prior conviction that does not involve moral turpitude (the “ ‘readiness to do evil’ ”) but has discretion to admit all other prior felony convictions for impeachment purposes.  (Id., 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)

 In the instant case the trial court thought it had no discretion to exclude appellant's prior felony conviction for burglary.   Under the state of law at the time the trial court made its ruling, it is not surprising that it reached such a conclusion.   However, under Castro the trial court does have discretion to exclude prior felony convictions.

The trial court failed to exercise its discretion in the instant case, but the error was harmless.   First we note that burglary does involve moral turpitude and under Castro a prior conviction may be used for impeachment even if a defendant is being tried for the same offense.   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 burglary had not been used to impeach him.   Appellant did take the stand and testified in his own behalf.   The evidence against appellant was overwhelming.   The locker which appellant burglarized was locked that morning.   He was seen in the building just prior to the burglary.   Appellant's girlfriend testified that appellant removed the items from the area of the storage room.   When the police stopped appellant a few minutes after the crime, the items taken from the storage locker were in his van.   Accordingly, any error which occurred was harmless.

The judgment is affirmed.

WHITE, Presiding Justice.

SCOTT and BARRY–DEAL, JJ., concur.

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