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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Elias JIMENEZ, Defendant and Appellant.

Cr. No. E001564.

Decided: February 13, 1986

James R. Bostwick, Jr., Pomona, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Michael D. Wellington, Pamela A. Ratner and Jay Bloom, Deputy Atty's. Gen., for plaintiff and respondent.

Defendant appeals from a conviction of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)).   The information included an allegation of intentional infliction of great bodily injury during the commission of a felony (Pen.Code, § 12022.7), upon which the jury deadlocked necessitating a mistrial as to that issue.

On appeal defendant contends the trial court prejudicially erred in (1) failing to exercise its discretion under Evidence Code section 352 when it denied defendant's pretrial motion in limine to exclude, for purposes of impeachment, evidence of defendant's prior felony conviction of assault with a deadly weapon, and (2) sustaining the prosecution's relevancy objection to defendant's questions concerning the circumstances underlying a defense witness' prior felony conviction.


During the evening of October 29, 1983, Rockey Baldwin parked his van outside the Flabob Airport on 42nd Street in Riverside.   While he sat eating some take-out food he had purchased earlier, he was approached by Robert Madriaga, who lived across the street and whose grandfather owned the Flabob Airport.   Because he was concerned about a recent pattern of thefts from the airport, Madriaga informed Baldwin that the van was unlawfully parked on private property and asked him to leave.   The two exchanged some angry words, and Baldwin drove the van away, threatening to return shortly.   Several minutes later Baldwin returned with defendant, who was his friend and house guest.

Shortly thereafter two cars parked beside Baldwin's van.   One vehicle was driven by Bobby Zugig and his wife Tamara (Madriaga's cousin);  the other was occupied by two brothers, Vincent and Donald Kettering, who were also cousins of Madriaga.   The driver of each car was apparently motivated by similar concerns for the recent thefts at the airport and stopped to inform the van's occupants they were parked on private property and should leave.   Seeing his cousins approaching the van, Madriaga ran from his house across the street to help.

As the others approached the van, defendant got out the passenger side door and walked around toward the front of the vehicle, facing the Zugigs and Madriaga.   He produced a switchblade knife and pressed its ejection button, clicking the blade into place.   He started waving the knife through the air, stating to the group, “I am going to kill you.”   He slowly moved toward Madriaga and Bobby Zugig.

In the meantime, Donald Kettering, who had remained behind in his car, located a wooden dowel stick sitting on the car seat.   He had heard his brother Vincent exclaim that someone was standing with a knife and trying to stab members of the group.   Donald Kettering grabbed the dowel and exited the car, rushing toward the group from behind and pushing his way between Madriaga and Bobby Zugig to the front.

Defendant lunged at Donald Kettering with the knife, wounding his arm and chest.   Kettering was restrained and pulled back from defendant by Bobby Zugig, who dragged Kettering toward a nearby fence which surrounded the airport.   Defendant retreated to the van's passenger seat.   Around this same time, Madriaga and Baldwin became involved in a separate scuffle outside the driver's door of the van.   The events surrounding that confrontation are not directly involved in this appeal.

Bobby Zugig called Donald Kettering's attention to the fact that he had been injured.   Kettering looked down at his wounded arm and chest and became angry.   He approached the passenger side of the van, using the dowel to strike the body of the van and poke through the open passenger window.   Defendant jumped out the passenger door onto Kettering, severely stabbing him in the abdomen and chest.   As Kettering fell incapacitated against the fence, Zugig restrained defendant and dragged him out toward the street.   As Zugig returned to attend the injured Kettering, Baldwin and defendant retreated into the van and sped away.

The jury was instructed on self-defense but nevertheless returned a guilty verdict.   The jury was deadlocked, however, on the great bodily injury allegation, and the court declared a mistrial on that issue alone.   As codefendant in the original information, Rockey Baldwin pled guilty to an assault charge arising out of his scuffle with Madriaga.


1. Use of Defendant's Felony Conviction for Impeachment Purposes

Defendant made a pretrial motion in limine to exclude for purposes of impeachment evidence of his 1978 felony conviction of assault with a deadly weapon.   Ruling at a time after Proposition 8 added section 28(f) to article I of California's Constitution 1 but before the Supreme Court decided People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the trial court apparently believed it was without discretion to consider granting the motion and accordingly denied it.   Defendant did not testify nor did he make an offer of proof in camera or otherwise as to what his testimony would have been had he testified.   He now contends that in light of the Castro decision the trial court's failure to exercise its discretion and weigh the probative value against the prejudicial effect of the prior felony conviction under Evidence Code section 352 was prejudicial error.

 In retrospect, under People v. Castro, supra, 38 Cal.3d at page 306, 211 Cal.Rptr. 719, 696 P.2d 111, the trial court erred in failing to exercise its discretion.   However, we hold defendant is foreclosed from asserting such error was prejudicial because he failed to testify, or, alternatively, to make an offer of proof, in camera if necessary, as to what his testimony would encompass.

Under similar circumstances in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the United States Supreme Court held a defendant who did not testify at trial was not entitled to review of the District Court's ruling denying his motion to exclude use of his prior conviction for impeachment purposes.   The court stated:  “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 [like Cal.Evid.Code, § 352] 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.  [¶]  Any possible harm flowing from a District Court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.”  (Luce, supra, 469 U.S. ––––, ––––, 105 S.Ct. 460, 463, 83 L.Ed.2d 443, 447, fns. omitted.)

Defendant relies on the decisions in People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833, and People v. Fries (1979) 24 Cal.3d 222, 232–233, 155 Cal.Rptr. 194, 594 P.2d 19, as establishing that a defendant need not testify or make an offer of proof to preserve his right to attack the court's ruling on a motion in limine such as he made here.   But such a rule permits a defendant, simply by making a motion to exclude prior convictions, to “plant” reversible error in the record in the event of conviction.  (See People v. Kyllingstad (1978) 85 Cal.App.3d 562, 570–571, 149 Cal.Rptr. 637.)   It was precisely this sort of legal blackmail, cautioned against in People v. Beagle itself,2 that Proposition 8 was designed to abrogate.  People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43 and its progeny including Rist and Fries were countermanded by the people when they adopted Proposition 8.  (See People v. Castro, supra, 38 Cal.3d 301, 307–309, 211 Cal.Rptr. 719, 696 P.2d 111.)

 It has been suggested that the retrospective application of the Luce rule is unfair to a defendant whose choice of trial strategy preceded the United States Supreme Court's decision.   We do not find this suggestion compelling.   The clear, unambiguous language of Proposition 8 itself (see fn. 1, ante) provided defendant notice of the likelihood that all prior felony convictions would be admissible for impeachment purposes and that the decision to testify or not testify must be made in light of that fact.   Thus, no procedural unfairness is inherent in applying the Luce rule.   The Luce rule is fully consistent with both Proposition 8 and the Castro decision.   Indeed, based on earlier federal decisions, a similar rule was suggested by this court in People v. Delgado (1973) 32 Cal.App.3d 242, 251–254, 108 Cal.Rptr. 399.  Delgado was, of course, disapproved to the extent inconsistent by People v. Rist, supra, 16 Cal.3d 211, 221, 222, fn. 10, 127 Cal.Rptr. 457, 545 P.2d 833.   But as already noted Proposition 8 was intended to and did countermand the decision in Rist, and as already indicated Proposition 8 was effective before the instant case was tried.

It is not possible to weigh the probative value of evidence against its unduly prejudicial effect in a vacuum.   Generally the court cannot exercise an informed discretion until it knows what the evidence is or, at least, will be.   We stated in Delgado:  “[T]he court in Beagle [People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1] did not deal with the timing and procedure for invoking the trial court's discretion and its ruling.   The ․ federal cases ․, however, evolved procedures, which given the Beagle rule, appear to us to be a reasonable, workable solution to the apparent dilemma, conducive to an informed determination by the trial court, and worthy of emulation.

“The procedures evolved are these.   In the first place, since the trial court is in no position to make an informed determination prior to hearing the People's evidence, the time most appropriate for the motion to exclude evidence of prior convictions for impeachment purposes is at the close of the People's case in chief or thereafter before the defendant takes the stand to testify.   (See United States v. Coleman [ (D.C.Cir.1969) 420 F.2d 1313] at pp. 1316–1317;  Evans v. United States [ (D.C.Cir.1968) 397 F.2d 675] at pp. 678–679;  Brooke v. United States [ (D.C.Cir.1967) 385 F.2d 279] at p. 285.)   Secondly, the burden of showing the danger of undue prejudice and the need for defendant's testimony in the ascertainment of the truth is on the defendant.   (See Hood v. United States [ (D.C.Cir.1966) 365 F.2d 949] at p. 951;  Gordon v. United States [ (D.C.Cir.1967) 383 F.2d 936] at p. 939;  Evans v. United States, supra, 397 F.2d at pp. 678–679.)   Third, except, perhaps, where it is obvious what the defendant's testimony would be (see United States v. Coleman, supra, 420 F.2d at pp. 1316–1317), in meeting this burden defendant should testify to his version of the facts in an in camera hearing or, in the alternative, make an offer of proof outside the presence of the jury summarizing what his testimony would be.  (See Gordon v. United States, supra, 383 F.2d at p. 941;  Evans v. United States, supra, 397 F.2d at pp. 678–680.)   As was indicated in Gordon, the defendant cannot be compelled to give testimony in the in camera hearing, and should he do so, such testimony would not be admissible in evidence for any purpose except for impeachment should defendant ultimately elect to take the stand and testify.   (383 F.2d at p. 941.)

“In expressing approval of the procedures developed in the federal cases, we do not wish to be understood as saying that there is no case in which a pretrial motion and ruling would be appropriate.   Neither do we mean to preclude the development of pretrial procedures that might serve the same purpose, to wit, giving the trial judge sufficient information upon which to make a reasoned determination.   Manifestly, however, in the absence of some procedure by which the trial court can be fully informed as to the factors in the particular case bearing on ‘probative value’ and ‘undue prejudice,’ a pretrial ruling where the question is a close one is contraindicated.”   (People v. Delgado, supra, 32 Cal.App.3d 242, 252–253, 108 Cal.Rptr. 399, fn. omitted.)

We are cognizant that in United States v. Givens (9th Cir.1985) 767 F.2d 574, the Ninth Circuit declined retroactively to apply the rule of Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, upon which we rely here, because the Givens defendant had done all that he could under existing Ninth Circuit decisions to preserve the issue of admissibility of a prior conviction for impeachment purposes.   However, Givens does not dissuade us from applying the Luce reasoning to the facts of the present case.   In its consideration of the fairness implications of retroactively applying Luce, the Ninth Circuit was not confronted with Proposition 8 and the clear indication it gave criminal defendants of the likely admissibility of all prior convictions and of the fact that their decision whether or not to testify would be made at their own risk.   As so cogently observed by the late Justice Peters in In re Ferguson (1971) 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234:  “The search for truth is not served but hindered by the concealment of relevant and material evidence․  [A] trial is not a game.”

2. Circumstances behind Prior Guilty Plea Cannot Be Probed

During the direct examination of Rockey Baldwin, the only defense eyewitness to the incident, the following exchange took place:

“Q. [Defense Counsel] Mr. Baldwin, have you ever been convicted of a felony?

“A. Yes, I have.

“Q. Was that in relation to this case?

“A. Yes.

“Q. Was that in relation to the cutting, or stabbing, or assault upon Mr. Madriaga?

“A. Yes, it was.

“Q. And you, in fact, pled guilty to that?

“A. Yes, I did.

“Q. Could you tell us, Mr. Baldwin, why you pled guilty to that crime?”

At this point the deputy district attorney objected on grounds of relevance.   The trial court sustained the objection, precluding any inquiry into the circumstances underlying Baldwin's guilty plea.

 The sustaining of the objection was proper.   It is well settled in California that a witness may be asked whether he was convicted of a felony and what the nature of that crime was, but he cannot be questioned concerning the underlying details or circumstances of the felony conviction.   Allowing such practice would unduly burden the trial court with lengthy, distracting and confusing examinations into collateral matters.  (See People v. Wynn (1941) 44 Cal.App.2d 723, 732, 112 P.2d 979;  see also Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1246(b), p. 1149.)

Although the questioning took place on direct examination, defendant argues the issue of Baldwin's assault conviction as codefendant in the case would inevitably have been raised on cross-examination.   Thus, he urges his attempt to inquire into the circumstances underlying Baldwin's guilty plea was proper as an attempt to rehabilitate his impeached witness.   Not so.   The prior conviction was conclusive proof of the witness' guilt of the offense to which he pled guilty and he could not competently contradict it.   The reason he pled guilty was wholly irrelevant.   The prior conviction itself was admissible only for impeachment.   It is the fact of conviction, not the reason for it, that is material to impeachment.

The trial court was correct in preempting such an inquiry by sustaining the prosecution's relevancy objection.


Judgment affirmed.


1.   California Constitution, Article I, section 28(f) provides in relevant part:  “Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

2.   (1972) 6 Cal.3d 441, 453–454, 99 Cal.Rptr. 313, 492 P.2d 1.

KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.

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