PEOPLE v. THOMPSON

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Troy Lonnel THOMPSON et al., Defendants and Appellants.

No. F003971.

Decided: April 21, 1986

Ilene L. Gusfield, Berkeley, Judy L. Carver, Sacramento, for defendants-appellants. John K. Van de Kamp, Atty. Gen., James T. McNally and Roger E. Venturi, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

Codefendants Troy Lonnel Thompson (Thompson) and Wallace Rule (Rule) were jointly charged with a residential burglary (Pen.Code, § 459) 1 committed in Bakersfield on October 31, 1983.   Rule was additionally accused of suffering prior prison commitments for receiving stolen property, escape, forgery, burglary and possession of a prohibited weapon.   Thompson was additionally accused of suffering prior commitments for attempted robbery and arson.

After trial and jury verdicts finding both defendants guilty of the charged burglary, defendants each admitted the alleged prior felony convictions and commitments.   The trial court denied probation and sentenced Rule to state prison for an aggregate term of 10 years.   Thompson was sentenced to state prison for the aggregate term of 11 years.   As to Thompson, the second enhancement was stayed by the trial judge.   Both defendants filed timely notices of appeal.

STATEMENT OF FACTS

Mr. Edward Abbott, an 84-year-old retired gentleman, lived by himself in a small house at 2520 Calloway Road approximately one house removed from the Greenacres Market in Greenacres.   At approximately 9 a.m. on October 31, 1983, Mr. Abbott locked up his home and went downtown.

A parking area and a six-foot-high wooden fence divided the market area from the residential area.   One could see only the rooftops, not the lower portion of the houses, from the market.

At approximately 11 a.m. on that same day, defendants Thompson and Rule, accompanied by a blond woman, later identified as Debbie Huntsberry, entered the Greenacres Market and purchased one bottle of wine and then sat in the parking lot and started drinking the wine.   The market owner, Sharon Minor, checked on defendants' whereabouts occasionally.   Her view consisted of all of Rosedale Street, across the street and the parking lot.   Sometimes she saw them both there, other times neither was in view.

At approximately 12 noon, one of the market employees, Laura Pashilk, walked to her house located across the street from Mr. Abbott's home.   She noticed the defendants and the woman near the fence.   The woman stood by the telephone pole, looking all around as if she were keeping watch.   Then Ms. Pashilk observed Rule get up, walk to Mr. Abbott's front door and enter the house “like he lived there.”   Shortly thereafter, Thompson came out of the Abbott house;  he was carrying a portavision radio in one hand and a paper sack in the other.   He also appeared to have two beer cans.

Moments later she observed Rule exit the house with nothing in his hands.   The two men returned to the parking lot fence area.   Ms. Pashilk then telephoned Sharon Minor, her employer at the market, and asked her to call the police.

At approximately 12:20 p.m. someone telephoned the sheriff's office from the market.

Deputy Porter drove up to the area in a marked patrol vehicle and parked by the fence within 10 feet of where Rule was seated on the ground.   At the time, Thompson was in the market asking for change to make a telephone call.2  The officer noticed a radio, later identified as belonging to Mr. Abbott, playing loudly and a paper sack beside Rule.

After getting out of his vehicle, Deputy Porter passed close by defendant Rule and took a close look at him.   Rule said he was waiting for a ride;  the officer then walked around the fence and headed toward Mr. Abbott's residence.   At that time, Rule got up and walked rapidly around the corner of the market heading in the general direction of the telephone booth.   Ms. Pashilk told the officer she had observed Thompson leaving the scene.   The officer then set out to locate him. As he was headed toward Bakersfield on Rosedale, Deputy Porter saw Thompson and pulled up behind him.   Thompson looked back at the officer and kept on walking.   The officer then took Thompson into custody.   He returned to the market and secured the items that had been in close proximity to Rule, still located by the fence.   Among them was a radio, a bottle of whiskey, three bottles of Scotch, and other items, such as a jar of olives, bread, raisin nut rolls and two cans of beer, all taken from Mr. Abbott's house.

Shortly after 1 p.m., that same day, Wayne Berkshire was driving home when he encountered Rule and a woman companion standing in the middle of the roadway on Delbert Avenue near Rosedale Highway.   Rule requested a ride to town.   Berkshire complied.   As he was driving toward Bakersfield on Rosedale, an officer stopped the car and took Rule and Huntsberry into custody.

Thompson was advised of and waived his Miranda 3 rights.   He identified himself as “John Williams.”   He denied knowing Huntsberry or Rule, and denied any knowledge of the items found by the fence.

After being advised of and waiving his Miranda rights, Rule said he had not been at 2520 Calloway Road;  he had just stood on the corner.   Subsequently, he admitted going there but claimed he did not go inside.   Afterward, he admitted entering through the window of the house to look for “booze” and taking some items with him, but he thought it was Eddie Gonzales' house, someone known by Huntsberry.

At the Kern County jail, Thompson told the officer his true name, admitted going into Mr. Abbott's home to look around, but denied stealing anything or touching anything.

Thompson's fingerprints were found on a raisin nut roll wrapper and Rule's fingerprints were found on the radio, items left by the parking lot fence area.

DISCUSSION

I. USE OF PRIOR FELONY CONVICTIONS FOR IMPEACHMENT PURPOSES

At trial, Thompson and Rule moved to exclude evidence of their prior felony convictions.   The trial court determined Proposition 8 4 prevented the exercise of discretion to exclude evidence of prior felony convictions for impeachment purposes.   As to defendant Rule, the court indicated it would have otherwise excluded the conviction for possession of an illegal weapon and the escape conviction because he considered them irrelevant and not offenses involving moral turpitude.   The court further would have excluded the burglary conviction because defendant Rule was currently charged with an identical offense.   The court stated it would have allowed in any event a 13-year-old forgery conviction for the court did not consider it a remote prior followed by a legally blameless life pursuant to People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.

The trial court also declared itself bound by Proposition 8 to allow evidence of Thompson's 6-year-old arson conviction and an 18-year-old attempted robbery conviction to be admitted for impeachment purposes despite the court's opinion the robbery was quite remote and arson did not indicate moral turpitude.

Neither defendant testified.

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the California Supreme Court interpreted Proposition 8 and held the trial court retains discretion to exclude prior felonies despite the passage of this provision.   The court stated:

“We shall hold that—always subject to the trial court's discretion under [Evidence Code] section 352—subdivision (f) [of Proposition 8] 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.”   (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

The Castro court further explained:

“Obviously it is easier to infer that a witness is lying if the felony of which he has been convicted involves dishonesty as a necessary element than when it merely indicates a ‘bad character’ and ‘general readiness to do evil.’   Nevertheless, it is undeniable that a witness' moral depravity of any kind has some ‘tendency in reason’ (Evid.Code, § 210) to shake one's confidence in his honesty.   We ourselves recognized this in People v. Rist [ (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833] where we said that ‘convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity.’  (16 Cal.3d at p. 222, [127 Cal.Rptr. 457, 545 P.2d 833].)  ‘Not as heavily’ does not, of course, mean ‘not at all.’

“There is then some basis—however tenuous—for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known.   Certainly the inference is not so irrational that it is beyond the power of the People to decree that in a proper case the jury must be permitted to draw it, if it wishes, and the ‘no limitation’ language of subdivision (f) makes it abundantly clear that the People so decreed.”  (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111;  fns. omitted.)

 Thus, the threshold question is whether the prior felony necessarily involves moral turpitude.   If the felony involves moral turpitude, Evidence Code section 352 requires the trial court to exercise its discretion in admitting or excluding the prior.   The exercise of discretion under section 352 requires the trial court to determine probative value, appraise prejudicial effect and weigh one against the other.  (People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468.)   In determining whether otherwise admissible evidence should be excluded, the trial court must determine on the record if its probative value is substantially outweighed by the probability that the admission will create substantial danger of undue prejudice.   (People v. Parrish (1985) 170 Cal.App.3d 336, 347, 217 Cal.Rptr. 700.)

The Castro case expressly recognizes the framers and voters, in enacting Proposition 8, sought to counter the cases which have construed the Beagle guidelines as rigid limitations on the discretion of the trial court.   The Castro court called this series of cases “the Antick line of cases.”   (People v. Castro, supra, 38 Cal.3d at p. 308, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Olmedo (1985) 167 Cal.App.3d 1085, 1096, 213 Cal.Rptr. 742.)   The Supreme Court conceded the voters were rejecting the following cases:  People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, People v. Rist (1976) 16 Cal.3d 211, 218–223, 127 Cal.Rptr. 457, 545 P.2d 833, People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391, People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, and People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.  (People v. Castro, supra, 38 Cal.3d at pp. 307–308, 211 Cal.Rptr. 719, 696 P.2d 111.)

The Castro court equated moral turpitude with a “readiness to do evil.”   The court stated a crime involves moral turpitude if it “evince[s] any character trait which can reasonably be characterized as ‘immoral.’ ”   (People v. Castro, supra, 38 Cal.3d at p. 317, fn. 13, 211 Cal.Rptr. 719, 696 P.2d 111.)

Thus, we must examine each of these prior convictions to determine whether it involves moral turpitude.

THOMPSON

A. Attempted Robbery

 There can be little doubt attempted robbery involves elements pertinent to a witness' veracity and honesty.   All priors which necessarily involve dishonesty under the pre-Castro standards ipso facto involve moral turpitude under Castro.  (People v. Parrish, supra, 170 Cal.App.3d at p. 349, 217 Cal.Rptr. 700.)   Attempted robbery is also a crime of violence which demonstrates “a general readiness to do evil.”   Thus, attempted robbery clearly involves moral turpitude.  (People v. Williams (1985) 169 Cal.App.3d 951, 957, 215 Cal.Rptr. 612.)

B. Arson

Section 451 provides in pertinent part:

“A person is guilty of arson when he wilfully and maliciously sets fire to or burns or causes to be burned or who aids, councils or procures the burning of, any structure, forest land or property.”

Respondent relies on the case of In re Coffey (1899) 123 Cal. 522, 56 P. 448, involving the disbarment of an attorney for the crime of extortion.   In concluding the crime of extortion involves moral turpitude, the court stated:

“It is thus apparent that extortion is not an act innocent in itself and only wrong because prohibited by the statute law.  [On] the contrary, it is an act inherently bad and vicious.   It is a crime against property, and by the Penal Code of the state is so classified.   Under the provisions of the code, we find it in the company of arson, burglary, counterfeiting, larceny and embezzlement.   They are bad and wicked companions, and by the company it keeps it must be judged.”  (Id., at pp. 524–525, 56 P. 448, emphasis added.)

 Arson requires a deliberate and intentional firing of a building or structure, requiring a showing of a wilful and malicious burning.  (People v. Tanner (1979) 95 Cal.App.3d 948, 955, 157 Cal.Rptr. 465;  People v. Clagg (1961) 197 Cal.App.2d 209, 212, 17 Cal.Rptr. 60.)   Arson suggests conduct “contrary to justice, honesty, modesty or good morals․”  (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 246, 82 Cal.Rptr. 175, 461 P.2d 375 (dis. opn. of Sullivan, J.);  Matter of Coffey, supra, 123 Cal. 522, 524, 56 P. 448.)

As arson is a crime against property and contrary to justice and good morals, we are satisfied arson connotes moral obliquity, a readiness to do evil and, thus, is morally turpitudinous.

RULE

A. Forgery

It is undisputed forgery inherently involves dishonesty, a readiness to lie and involves moral turpitude.  (People v. Castro, supra, 38 Cal.3d at pp. 315–316, 211 Cal.Rptr. 719, 696 P.2d 111;  In re Petty (1981) 29 Cal.3d 356, 361–362, 173 Cal.Rptr. 461, 627 P.2d 191;  People v. Parrish, supra, 170 Cal.App.3d at p. 349, 217 P.2d 700.)

B. Receiving Stolen Property 5

Knowledge that the property was stolen is an element of the offense of receiving stolen property in violation of section 496.   This knowledge connotes a “readiness to do evil” and, thus, receiving stolen property is a crime which constitutes moral turpitude.  (In re Waisbren (1975) 15 Cal.3d 553, 557, 125 Cal.Rptr. 479, 542 P.2d 639.)

C. Burglary

Since the Castro opinion was filed, several appellate court decisions have concluded burglary involves moral turpitude.  (People v. Williams, supra, 169 Cal.App.3d at p. 957, 215 Cal.Rptr. 612;  People v. Hunt (1985) 169 Cal.App.3d 668, 675, 215 Cal.Rptr. 429.)   In People v. Statler (1985) 174 Cal.App.3d 46, 219 Cal.Rptr. 713, this court reached a like conclusion, reasoning as follows:

“In People v. Gauze (1975) 15 Cal.3d 709, 715 [125 Cal.Rptr. 773, 542 P.2d 1365], the Supreme Court noted:

“ ‘As aptly articulated by the Court of Appeal in People v. Lewis (1969) 274 Cal.App.2d 912, 920 [79 Cal.Rptr. 650], “Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.   The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.”  [Penal Code] Section 459, in short, is aimed at the danger caused by the unauthorized entry itself.’

“The essence of the crime of burglary, then, is the unauthorized entry with the dangers inherent thereto and not simply the intent to commit a crime, whether or not that crime involves moral turpitude.

“We are of the view that entry into a building or structure with the secret intent to commit theft or any felony therein not only evinces dishonesty on the part of the perpetrator, but also necessarily evinces the perpetrator's ‘readiness to do evil.’  (See People v. Castro, supra, 38 Cal.3d at pp. 313–315 [211 Cal.Rptr. 719, 696 P.2d 111].)   Every burglary conviction, therefore, is relevant on the issue of credibility and is admissible to impeach the testimony of any witness, including a defendant-witness.”  (Id., at p. 54, 219 Cal.Rptr. 713.)

Accordingly, we too conclude burglary involves moral turpitude.

D. Escape

 We have found no post-Castro citable authority construing a prior felony of escape.   While an escape may involve the use of force or violence, Castro instructs that a prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.  (People v. Castro, supra, 38 Cal.3d at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   The least adjudicated elements of section 4530, subdivision (b), the prior felony alleged in the instant case, may consist of merely walking away from a prison road camp, prison forestry camp, prison farm or other prison camp.   Section 4530, subdivision (b) is limited to an escape or attempt to escape without force or violence.   While an argument may be made that any escape does show a disrespect for the law and a desire to avoid the consequences of prior criminal acts, in our opinion a nonviolent, nonforceful escape, as here, does not appear to constitute an act involving “baseness, vileness, or depravity” as described in Castro.   We conclude that a prior felony for escape as defined in section 4530, subdivision (b) is not morally turpitudinous and may not be admitted to impeach a witness' credibility.

E. Possession of an Illegal Weapon

On May 25, 1979, the defendant was arrested for robbery and possession of a dangerous weapon.   Subsequently he pleaded guilty to carrying a concealed weapon in violation of section 12020, subdivision (a).6

Castro held that simple possession of heroin does not necessarily involve moral turpitude, and the defendant therein should not have been impeached with the conviction for simple possession. (People v. Castro, supra, 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   We can detect no meaningful distinction between carrying a concealed weapon and possession of heroin.   If anything, possession of heroin would seem the more opprobrious conduct.   Many persons in our society are legally authorized or licensed to carry a concealed weapon, yet none, to our knowledge, are allowed to personally possess heroin.   There is seemingly no greater degree of “readiness to do evil” with a concealed weapon than with heroin, nor does it appear to constitute an act involving “baseness, vileness or depravity.”   We conclude the simple possession of an illegal weapon does not involve moral turpitude.

As to Thompson, both of his prior felony convictions were relevant.   As to Rule, two of the five prior felony convictions which the trial court would have admitted for impeachment purposes, escape and possession of an illegal weapon, do not in our view involve the element of moral turpitude requisite for admission as relevant evidence.   The trial court erred in failing to exercise its discretion in determining whether to admit or exclude those priors under Evidence Code section 352 as mandated by Castro.   Castro further states this error may be deemed harmless if “[a]fter a review of the entire record [the reviewing court is] of the opinion that it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of error.”  (Id., at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

However, unlike Castro, the defendants here did not testify.   The further question then arises:  What impact, if any, does this fact have on adjudging the prejudice to defendants?   Our Supreme Court has yet to address this post-Castro issue.   In pre-Castro cases, that court found prejudicial error in each instance where the trial court committed Beagle error and the defendant did not testify.   However, it did not go so far as to state that under such circumstances per se reversal is required.   Instead, in each instance the court balanced the evidence against the fact it was not possible to know what defendant's testimony would have been.  (Cf. People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Spearman, supra, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Rist, supra, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833.)

As this court explained in People v. Dorsey (1985) 174 Cal.App.3d 400, 220 Cal.Rptr. 145:

“Each of the aforementioned decisions presented a fact pattern in which not only was it impossible to know what the defendant's testimony would have been, it was also reasonable to conclude that defendant's testimony could have affected the result.   In Rist, the prosecution's case relied exclusively upon the testimony of one woman who identified defendant as the robber.   In Fries, the case against defendant was based upon circumstantial evidence, there being no eyewitnesses to the robbery.   In Spearman, defendant was charged with possession of heroin for sale after heroin was found in the bumper of a car defendant was driving.   Last, in Barrick, defendant was found asleep in a recently stolen car and charged with auto theft.   Admittedly, these cases presented ‘close calls' for the trier of fact.”   (Id., 220 Cal.Rptr. at p. 149–150.)

The court's rationale in these cases is exemplified by the following language in People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19:

“[T]his court has no clue as to what appellant's testimony would have been had he testified.   Absent any basis for concluding that such testimony would not have affected the result, ‘the court is of the opinion “that it is reasonably probable that a result more favorable to [appellant] would have been reached in the absence of this error.” ’  (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].)”  (Fries, supra, at pp. 233–234, 155 Cal.Rptr. 194, 594 P.2d 19.)

There are appellate decisions in which Beagle error has been found harmless, although defendant did not testify.  (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.)

In People v. Parrish, supra, 170 Cal.App.3d 336, 217 Cal.Rptr. 700, a post-Castro decision, defendant declined to testify after the trial court ruled it would admit his two prior felonies for impeachment should he testify.   The trial court, as here, failed to engage in the Evidence Code section 352 balancing process mandated by Castro.   In rejecting a “per se” reversible rule and concluding the error was harmless, this court stated:

“We are aware of the doctrine developed by the progeny of People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1] which hold in substance that if the defendant stayed off the stand as the result of a threat of impeachment by prior felonies and the felonies were not in fact admissible then reversal usually followed.   As the Supreme Court stated in People v. Barrick, supra, 33 Cal.3d 115, 130 [187 Cal.Rptr. 716, 654 P.2d 1243]:  ‘The record reveals that following the ruling on the Beagle motion, the attorney for the defendant advised him not to testify.   The court has no way of knowing what defendant's testimony would have been, thus, we have no basis for concluding that such testimony would not have affected the result.  “ ‘[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.’  (Traynor, [The Riddle of Harmless Error (1970) ] at p. 68.) ․” '  ‘Ordinarily’ does not mean ‘always.’   Our research has turned up no case wherein the Supreme Court has held that the error is reversible per se.   The rule by its terms indicates that the failure of the defendant to take the stand does not always result in reversal.”   (People v. Parrish, supra, 170 Cal.App.3d at pp. 352–353, 217 Cal.Rptr. 700, fn. omitted.)

In People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519, we reached the opposite result, i.e., the error was prejudicial, upon the facts of that case.   In Navarez, unlike the instant case, the facts precluded an assumption the trier of fact would have rejected the defense theory of that case.  (Id., at p. 949, 215 Cal.Rptr. 519.)   However, we did not there adopt a “per se” reversible rule.

 Upon a review of the evidence, we conclude the error here involved was harmless as to both defendants, Rule and Thompson.   Laura Pashilk testified she knew the owner of the house, Mr. Abbott.   She observed Rule enter the house and, shortly thereafter, Thompson came out with a portable radio and a sack, plus two beer cans.   Debbie Huntsberry appeared to be acting as a “lookout.”   Mr. Abbott identified the radio and other property as his, taken from his home without permission.   He did not know either defendant and gave no one permission to enter his house.   The doors were locked when he left the premises shortly before the burglary.   When Deputy Porter approached the victim's house, Rule got up from the parking lot and rapidly walked away, abandoning what was later identified as stolen property.   When Thompson saw the officer pull up behind him, he attempted to walk away.   Such conduct suggests a consciousness of guilt.   Each defendant's fingerprints were found on an item of stolen property.   Upon arrest, Thompson gave a false name, denied knowing Rule or Huntsberry and denied any knowledge of the items found by the fence.   Later, he gave his true name and admitted entering the victim's house to look around, but denied stealing or touching anything.   Rule initially denied going inside the house, but later admitted entering through the window to look for “booze” and admitted taking some items with him.

Although neither defendant testified, their version of the events was presented through the testimony of Deputy Porter's recital of their several, conflicting statements.   Each defendant's voluntary statements, at best, fell just short of a confession and had they elected to testify, each was subject to impeachment on credibility by multiple prior morally turpitudinous felony convictions.   In sum, the evidence against both Rule and Thompson was overwhelming and absent the trial court's error, under Castro, it is not reasonably probable a result more favorable to defendant would have occurred.   (People v. Castro, supra, 38 Cal.3d at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111, citing People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

II. AN INSTRUCTION REGARDING FLIGHT WAS PROPERLY GIVEN 7

The judgments of conviction as to both defendants are affirmed.   The trial court is directed to amend the abstract of judgment, as to defendant Thompson, to reflect the five-year enhancement was imposed under section 667.   A certified copy of the amended abstract is to be mailed to all appropriate authorities.

With one exception I concur in the judgment.   My disagreement lies in the conclusion that the felony conviction of escape from a state prison does not qualify for impeachment under the Castro rules.   My understanding of Castro is that the jury is entitled to hear of the defendant's prior conviction when it may shed light on whether the defendant is a credible witness.   The prior felony conviction must raise at least a reasonable suspicion that one who would commit that type of crime would have a disposition, or readiness to lie.  (People v. Castro (1985) 38 Cal.3d 301, 313–314, 211 Cal.Rptr. 719, 696 P.2d 111.)

Jurors are always given a laundry list of factors relevant to witness credibility, including the routine one pointing to bias, interest, or other motive arising because of the nature of the case.   When proper character evidence has been presented, character for honesty or truthfulness (or their opposites) becomes a permitted consideration.   Prior conviction evidence is of this latter kind.   Thus, I interpret Castro to mean that the prior conviction may qualify for impeachment if, based upon its least adjudicated elements, the crime was of a kind which would cause an affirmative answer to the question:  “Is it likely that a person who would commit that crime would be untruthful as a witness under the current trial circumstances?”

In my view, one who would escape from a state prison would be inclined to lie if ever again subjected to criminal prosecution.   The consequences of perjury pale in comparison with the risks of incarceration and the penal terms available for felony escape.   If the “escape” is the result of prison conditions or circumstances which excuse the flight from state authority, under very limited circumstances the flight is justified and excused.  (People v. Lovercamp (1974) 43 Cal.App.3d 823, 118 Cal.Rptr. 110.)   In that case there is no prerequisite “moral turpitude.”   However, if the defense of necessity is inapplicable, the conduct cannot be described in the simplistic terms of a mere “walkaway.”   Many years ago the crime of escape was aptly analyzed at some length.   The description remains a valid one.

“One of the dominant essentials of a properly managed prison, whether a state, county or city, involves rules of discipline whereby the behavior of prisoners confined therein is regulated and controlled.   Naturally, there is always a strong temptation in the breast of every person confined within the walls of a prison as a prisoner to regain his liberty, to which he is not legally entitled until he has paid in full the penalty which the law has annexed to the criminal act for which he is being imprisoned.   The escape or attempt to escape by a prisoner, whether from a local jail or a state prison, tends to the general disruption of the prison discipline, and, as often such conduct by prisoners has caused, may be the cause of the slaying or serious wounding of officers or guards of the prison from which the escape or attempt to escape is made.   Hence, such an act by persons legally confined in prisons or jails before their terms of imprisonment have expired is justly regarded as among the most flagrant violations of the rules governing prison discipline.   It was obviously upon these considerations that the legislature at a very early date in the history of the jurisprudence of California declared that for such conduct a prisoner should be deemed guilty of an offense against the state, regardless of the character or degree of the offense for which he was being held in restraint, so far as the quantum of punishment was concerned, or the character of the prison in which he was confined.   At once it must become apparent from the foregoing observations that there does not exist, nor can there be imagined, any less reason for penalizing a misdemeanor prisoner for escaping or attempting to escape from lawful custody than there is for likewise penalizing a felony prisoner, or that there does not now exist equally as sound reason for punishing a misdemeanor prisoner for such conduct as existed when section 107 of the Penal Code was originally enacted.”  (In re Haines (1924) 68 Cal.App. 522, 526–527, 229 P. 984.)

The crime of escape should qualify for Castro-Beagle use.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Ms. Pashilk's testimony was in conflict with Deputy Porter and Sharon Minor as to whether Thompson went to the market while Rule remained by the fence, or vice versa.

3.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

4.   Article I, section 28, subdivision (f) of the California Constitution, added by initiative measure effective June 1982, commonly referred to as Proposition 8, provides in pertinent part:“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

5.   Rule's prior conviction of receiving stolen property was inadvertently overlooked by the trial court at the time of stating its rulings.   The court asked defense counsel what other convictions remained to be ruled upon and defense counsel neglected to name this particular crime.

6.   Section 12020, subdivision (a) provides:“Any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any cane gun or wallet gun, any firearm which is not immediately recognizable as a firearm, any ammunition which contains or consists of any flechette dart, any bullet containing or carrying an exposive agent, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, nunchaku, sandclub, sandbag, sawed-off shotgun, or metal knuckles, or who carries concealed upon his or her person any explosive substance, other than fixed ammunition or who carries concealed upon his or her person any dirk or dagger, is guilty of a felony․”

7.   See footnote *, ante.

MARTIN, Associate Justice.

FRANSON, Acting P.J., concurs.

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