THE PEOPLE OF THE STATE OF CALIFORNIA v. JAMES PENDER

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Court of Appeal, First District, Division 5, California.

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JAMES R. PENDER, Defendant and Appellant.

No. A032486.

Decided: December 23, 1986

Frank O. Bell, Jr., Public Defender, Michael Peschetta, Linda Feldman, Deputy State Public Defenders, San Francisco, for appellant. John K. Van De Kamp, State Attorney General, Robert R. Granucci, Dane R. Gillette, Deputy State Attorneys General, San Francisco, for respondent.

ORDER DENYING REVIEW

Appellant's petition for review DENIED.

The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed December 23, 1986, which appears at 188 Cal.App.3d 241. (Cal. Const., Art. VI, section 14; Rule 976, Cal. Rules of Court.)

Defendant/appellant James R. Pender appeals from a judgment of conviction by jury verdict of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1).)1 Allegations on both counts under sections 12022.7 (infliction of great godily injury) and 1203.09, subdivision (f) (elderly victim) were found to be true. He contends, inter alia, that use of his prior conviction of section 245, subdivision (a)(1) for impeachment was prejudicial. We conclude that a conviction of section 245, subdivision (a)(1) cannot be used for impeachment, but that under the circumstances of this case the error was harmless.

The first victim, 73 year-old William Malatesta, testified he was walking his dog in San Francisco's Sigmund Stern Grove when he was attacked by appellant. The second victim, John Barden, testified he witnessed the attack, rushed to Malatesta's aid, and was in turn assaulted by appellant. Appellant testified he was originally attacked by Malatesta without provocation, and was merely acting in self-defense.

Prior to testifying, appellant moved to exclude evidence of his prior conviction of 245, subdivision (a)(1) for impeachment. The trial court exercised its discretion and denied the motion. Appellant thereafter testified and the prior conviction was used for impeachment.

I.

People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 held that when prior felony convictions are offered for impeachment, the trial court has discretion under Evidence Code section 352 to exclude them. In addition, only those felonies which involve moral turpitude may be used to impeach because ‘the constitutional imperative of relevance prohibits impeachment with felonies which do not connote moral laxity of any kind.’ (Id., at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.) Castro explained that the Fourteenth Amendment's due process clause prohibits impeachment by convictions which do not involve moral turpitude, defined by Castro as a ‘readiness to do evil,’ because such impeachment ‘bears no rational relation to the witness' readiness to lie.’ (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.) Castro made ‘no attempt to list or even further define such felonies' (ibid.), but directed future courts that ‘a witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.’ (Id., at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111; emphasis added.) Castro further held that in making the determination whether a prior conviction was one which involved moral turpitude, the court cannot look behind the least adjudicated elements of the offense. (Id., at pp. 316–317, 211 Cal.Rptr. 719, 696 P.2d 111; see also People v. Crowson (1983) 33 Cal.3d 623, 633–634, 190 Cal.Rptr. 165, 660 P.2d 389.)

The California Supreme Court has ruled in attorney disciplinary cases that a conviction of section 245 does not connote moral turpitude. (In re Strick (1983) 34 Cal.3d 891, 196 Cal.Rptr. 509, 671 P.2d 1251; In re Rothrock (1940) 16 Cal.2d 449, 106 P.2d 907.) Other Courts of Appeal considering the impeachment issue have held that section 245 is a crime of moral turpitude, as that phrase is defined by Castro. (People v. Means (1986) 177 Cal.App.3d 138, 222 Cal.Rptr. 735; People v. Armendariz (1985) 174 Cal.App.3d 674, 220 Cal.Rptr. 229; People v. Cavazos (1985) 172 Cal.App.3d 589, 218 Cal.Rptr. 269.) With the exception of Means, which gave no analysis, the Courts of Appeal distinguished the attorney disciplinary cases in which convictions of section 245 were held not to constitute moral turpitude; they reason that moral turpitude in attorney disciplinary cases refers specifically to the fitness of the attorney to practice law, and therefore carries a different definition than that assigned by Castro.

The analysis invoked by the Courts of Appeal appears reasonable in light of Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375. Morrison confirmed that moral turpitude is a malleable concept, which can be molded to fit a variety of circumstances when the attribute is relevant to obtaining or maintaining a state license. A review of the numerous disciplinary cases involving California's licentiates and aspirants thereto, reveal that our courts have not been consistent with their definitions of moral turpitude. Like a chameleon, it changes color with its environment. (See, e.g., People v. Castro, supra, 38 Cal.3d at pp. 334–336, 211 Cal.Rptr. 719, 696 P.2d 111, dis. opn. of Bird, C.J.) The problem we have in distinguishing the attorney cases, however, is the Supreme Court's explanation in Rothrock as to why section 245 does not involve moral turpitude: ‘In the absence of a statutory definition indicating that evil intent is inherent in the commission of the crime, the courts generally are reluctant to classify the crime of assault with a deadly weapon as one involving moral turpitude as a matter of law.’ (In re Rothrock, supra, 16 Cal.2d at p. 458, 106 P.2d 907, emphasis added.)

Rothrock was cited favorably in In re Strick, supra, 34 Cal.3d 891, 196 Cal.Rptr. 509, 671 P.2d 251. The basis for the quoted language in Rothrock was, apparently, that assault with a deadly weapon is a general intent crime. It still is (People v. Rocha (1971) 3 Cal.3d 893), 92 Cal.Rptr. 172, 479 P.2d 372). ‘[T]he criminal intent which is required for assault with a deadly weapon . . . is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another. Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.’ (Id., at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372, fn. omitted, emphasis supplied.)

If, as Rothrock holds, there is no ‘evil intent’ involved in the violation of section 245, nor any intent to violate the law or to cause injury, it seems to follow that a violation of that statute does not indicate the ‘readiness to do evil’ required by Castro. It would be anomalous to hold that a conviction of assault with a deadly weapon reflects adversely on the credibility of a witness, but does not affect the fitness of an attorney to practice law. We recognize the possibility that the Rothrock court may have been referring to a specific, as opposed to a general, intent. However, if they were they did not say so. Also, if a general ‘evil intent’ was manifested by such a conviction, it should not be necessary to go behind the conviction to determine the presence of moral turpitude, as was done in the attorney disciplinary cases. Since Castro prevents us from considering anything, beyond the bare fact of conviction, the prior conviction cannot be used for impeachment if it could have been upheld on any factual basis reasonably devoid of moral turpitude.

Another example of a circumstance in which conviction of section 245, subdivision (a)(1) does not connote moral turpitude, is the rule in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1. In Flannel our Supreme Court held that an honest but unreasonable belief that it is necessary to use deadly force to defend against imminent peril to life or great bodily injury negates malice aforethought when one is charged with murder. The court reasoned that ‘[n]o matter how the mistaken assessment is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard.’ (Id., at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1, emphasis supplied.)

Obviously murder is a specific intent crime and therefore the honest but unreasonable belief is not a complete defense; it merely removes the element of malice and reduces the offense to manslaughter. (People v. Flannel, supra, 25 Cal.3d at pp. 680–681, 160 Cal.rptr. 84, 603 P.2d 1.) Section 245 on the other hand is a general intent crime and not susceptible to reduction by an honest but unreasonable belief in the need to defend. However, it is factually possible for one to possess an honest but unreasonable belief that the use of force likely to produce great bodily harm is necessary to defend oneself against an assault, but still suffer a conviction under section 245, subdivision (a)(1).2 If the belief was honest, no moral turpitude could reasonably be involved.

Consequently, we feel bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 to hold that the least adjudicated elements of section 245, subdivision (a)(1) do not involve moral turpitude. Since we are also prevented from looking behind the conviction, we necessarily conclude it was error to permit use of that conviction for impeachment.

II–IV3

V

Given the entire record in this case, we are not persuaded that it is reasonably probable that appellant would have achieved a more favorable result in the absence of error. (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

The judgment is affirmed.

I concur in the disposition of this appeal, but do not agree that a prior conviction of assault with a deadly weapon cannot be used to impeach a witness. In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, our Supreme Court held that conviction of a prior felony involving moral turpitude may be admitted to impeach a witness, subject to the trial court's discretion to exclude it pursuant to Evidence Code section 352. In doing so, the court equated moral turpitude with a readiness to do evil. Unfortunately, the terms ‘moral turpitude’ and ‘a readiness to do evil’ lack desirable precision and the court in Castro provided no further guidance.

Because the use of moral turpitude to forbid an attorney from practicing law has a totally different purpose than the purpose of assisting a jury to determine the credibility of a witness by providing it with the knowledge of the witness' prior conviction, I believe the holdings in In re Strick (1983) 34 Cal.3d 891, 196 Cal.Rptr. 509, 671 P.2d 1251, and In re Rothrock (1940) 16 Cal.2d 449, 106 P.2d 907, are inapplicable to the case before us.

I agree with Justice Elkington of this court that ‘Few would agree that an unlawful assault upon a fellow human being with a deadly weapon, indicates other than a ‘general readiness to do evil.” (See People v. Means (1986) 177 Cal.App.3d 138, 139, 222 Cal.Rptr. 735.) Castro itself recognized that prior convictions which are assaultive in nature are admissible for impeachment when the court concluded, after noting such convictions do not weigh as heavily for admissibility as convictions based on dishonesty, “Not as heavily’ does not, of course, mean ‘not at all.” (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)

I likewise agree with Justice Franson when he wrote: ‘Assuming, as we must, that an assault with a deadly weapon does not require proof of a specific intent to harm another, it nevertheless does require proof of an unlawful attempt to inflict physical force upon another person. The jury is so instructed. (CALJIC No. 9.00 (4th ed. 1979).) Because an attempt to commit a battery requires a specific intent to commit the battery and a direct but ineffectual act done towards its commission (Pen. Code, § 664; 1 Witkin, Cal. Crimes, op. cit. supra, § 93, pp. 90–91) and because a deadly weapon is used to effectuate the attempted battery, it follows that the ‘least adjudicated elements' of the crime of an assault with a deadly weapon involve some degree of moral turpitude. It is the use of the deadly weapon which elevates the assault to a moral turpitude crime.’ (People v. Cavazos (1985) 172 Cal.App.3d 589, 595, 218 Cal.Rptr. 269, emphasis in original.)

Thus, I conclude that conviction of assault with a deadly weapon necessarily involves moral turpitude and is therefore admissible for impeachment under Castro.

FOOTNOTES

FOOTNOTE.  FN* This decision is certified for publication, except for parts II, III and IV. (Rules 976 and 976.1, Cal. Rules of Court.)

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

2.  Although Penal Code section 245 is commonly referred to as assault with a deadly weapon, it is important to recognize that use of a deadly weapon is not necessary for a conviction thereunder. Use of force likely to produce great bodily harm such as a blow with a fist is sufficient to sustain a conviction (People v. Chavez (1968) 268 Cal.App.2d 381, 384, 73 Cal.Rptr. 865) and it is not necessary that any sort of injury be inflicted upon the victim. (People v. Covino (1980) 100 Cal.App.3d 660, 667, 161 Cal.Rptr. 155.)

3.  See footnote *, ante.

HANING, Associate Justice.

LOW, P.J., concurs.