JANTZ v. PEOPLE (1983)

Bryan Darius Jantz (petitioner) seeks to prohibit the superior court from admitting a prior grand theft conviction for impeachment purposes after this court determined in earlier proceedings that use of the prior was prejudicial.

Jantz is charged with attempted murder and robbery while armed with a firearm and causing great bodily injury (Pen.Code, §§ 664, 187, 211, 1203.06, subd. (a)(1)(i), 12022.5, and 12022.7).   His first trial began in early 1980.   At a pretrial motion, the trial court denied petitioner's request to exclude a prior conviction.   Petitioner chose not to testify, was found guilty and appealed.   This court reversed in an unpublished opinion directing a new trial because the decision allowing the prior into evidence was erroneous under People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.  (People v. Jantz, 4 Crim. No. 11733.)

Petitioner's second trial was scheduled for August 1982.   Proposition 8, popularly known as the “Victim's Bill of Rights,” became effective June 9, 1982, and permits the use of all prior felony convictions without limitation for impeachment.   At a pretrial hearing, petitioner's motion to exclude the prior conviction under Evidence Code section 352 was denied on the basis the ruling was required by Proposition 8.   Jantz petitioned for a writ of prohibition in this court and we stayed the proceedings pending decision of the matter.

Jantz claims error on three counts:  Proposition 8 as a whole is unconstitutional;  if constitutional, the application of Proposition 8 as to him is ex post facto;  and Proposition 8 does not apply because of Evidence Code section 352.

After Jantz filed his brief, the validity of Proposition 8 as a whole was upheld as constitutionally free from infirmity (Brosnahan v. Brown, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274).   The Supreme Court did not consider the constitutionality of particular sections but Jantz has not challenged the validity of California Constitution article I section 28(f).  Thus we limit our discussion to the retroactive application of this section and the effect of Evidence Code section 352 on its use.

The new constitutional section with which Jantz is concerned deals with the admission of prior felony convictions and reads:

“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.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

Jantz argues it should be applied only to persons who are being tried for crimes committed after June 9, 1982, the effective date of the act, because it is penal in nature and must be applied prospectively unless there is clear legislative intent to the contrary (Pen.Code, § 3;  People v. Teron, 23 Cal.3d 103, 118–119, 151 Cal.Rptr. 633, 588 P.2d 773).   He suggests the intent of the framers here was to make the reforms prospective since the initiative states in its preamble that it is to serve as a deterrent to crime, a goal which cannot be achieved retroactively.

Proposition 8 does, as Jantz suggests, have penal overtones.   However, it is not a part of the Penal Code but rather an amendment to the state's constitution.   As such it technically is not subject to the preliminary provisions of the Penal Code (Pen.Code, § 3;  People v. Teron, supra, 23 Cal.3d 103, 118–119, 151 Cal.Rptr. 633, 588 P.2d 773).   Instead, it must be considered in light of the general presumption of the law against retroactivity (Pen.Code, § 3;  Civ.Code, § 3;  Code Civ.Proc. § 3), a presumption which can be overcome if it can be shown the electorate's intent was to the contrary (State Bd. of Equalization v. Board of Supervisors, 105 Cal.App.3d 813, 823, 824, 164 Cal.Rptr. 739).

We first look to the section itself to see if anything is said concerning its retroactive or prospective application.   Here there is nothing expressly stated.   The phrase “in any criminal proceeding” might be interpreted to mean the section is to be applied to the trials of crimes committed before June 9, 1982;  or it might equally well be interpreted as excluding the application of section 28(f) to civil matters.

 Finding the amendment itself is ambiguous on whether it is to be applied only prospectively and seeing there is no express statement of the voters' intent, we next look to extrinsic evidence for aid in interpreting the section (State Board of Education v. Levit, 52 Cal.2d 441, 462, 343 P.2d 8).   In the case of initiatives, the voter's pamphlet may be used to ascertain the intent of the electorate (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281).

Here the voter's pamphlet says nothing directly on the question of whether the section is to be applied to those alleged crimes which occurred before the act was passed.   The pro-Proposition 8 arguments declare the need for prompt action to fight crime and promote public safety.   The call for prompt action points to the future, to what is to be done from now on.   Retroactive application will have no effect on the actions of a recidivist contemplating a post-June 8th crime.   What does he care if a person who allegedly committed a crime before June 8 has priors admitted?   What he does care about and what may serve as a deterrent is the fact his priors will now, after June 8, be admissible against him.   Thus, in terms of the evil it is to remedy, retroactive application of section 28(f) would come too late and would serve no purpose.

The dissenting opinion suggests because there is no reference in the ballot argument to different rules depending on when the crime occurred the voters must have assumed it would apply to all future proceedings.   Absent reference to two sets of rules, as is the case here, the voters might equally well have assumed the new law would apply only to crimes committed after the law was passed and became effective.   The question of increased court burden by using two rules in the initial months after the passage of the proposition has nothing to do with the announced purposes of the act.   In light of the public's concern about fighting crime by apprehending, trying and incarcerating more criminals for longer periods of time it would seem that the court burden is of minimal concern.

We find nothing express to show the electorate's intent was to make section 28(f) retroactive.   What little information is available to imply the voter's intent can be used to support or deny retroactive application and is not sufficient to rebut the presumption against retroactivity.

 We continue then in our analysis to look at whether section 28(f) is retroactive in light of the criteria used in determining whether case law is retroactive.   We recognize that use of a test designed for decisional law in interpreting a constitutional provision is not ideal but think it is instructive.   The criteria used in determining whether case law is retroactive are:  the purpose of the new standards, the extent law enforcement authorities have relied on the old standards and the effect of retroactive application on the administration of justice (In re Love, 11 Cal.3d 179, 187, 113 Cal.Rptr. 89, 520 P.2d 713).

In considering the purpose of the new section, retroactivity is appropriate if the major purpose of the new rule is to substantially enhance the reliability of the fact-finding process (Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 918, 31 L.Ed.2d 202).   In the present case, the People suggest the new rule, which permits all prior felony convictions to be admitted, improves the fact-finding process because, otherwise an impeachable witness will be clothed with an aura of credibility which invites false judgments.   However, the history of the use of priors in California shows otherwise.

Before People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 the introduction of any prior felony conviction for impeachment purposes was permissible.   Such a practice was deemed constitutional even though the defendant might elect not to testify in order to keep his prior felony record out of the jury's sight.   With Beagle, Evidence Code section 352 was held to limit the introduction of prior felonies to those where prejudice was outweighed by probative value.   Proposition 8 removes the restrictions placed by Beagle on the admission of priors;  it permits the introduction of prior felony convictions where prejudice outweighs probative value.   In those instances where priors, which under Beagle would have suppressed, now are admitted, prejudice will also be admitted.   Thus, the admission of these priors will impair rather than enhance the reliability of the fact-finding process.   Likewise, it will not further the cause of justice.

On the question of reliance, here the reliance of law enforcement on the old rule is of no legal import since the new rule is more relaxed and favors law enforcement and the prosecution.

 However, in light of the new rule's effect on the fact-finding process and the administration of justice, it should not be applied retroactively.

The petition for writ of prohibition is granted and the superior court is ordered to vacate its order and enter a new and different order granting the motion to exclude the prior felony conviction.   The temporary stay is vacated.

I dissent.

The questions presented by Jantz' petition for a writ of prohibition are whether article I, section 28, subdivision (f) of the California Constitution (section 28(f)) ¹ applies in this case and, if so, whether such application is constitutional.²  I believe both these questions are properly answered in the affirmative and therefore conclude the trial court ruled properly in denying Jantz' motion to exclude evidence of his prior felony conviction at retrial.   I would vacate our stay and deny Jantz' petition.

I

Interestingly, the majority does not attempt to limit its holding to what I would assume are only a small number of cases tried and reversed on Beagle ³ grounds before the effective date of Proposition 8.   They prefer to accept the validity of section 28(f) (see maj. opn., ante, at p. 581) but reject its applicability in the trial of any crime occurring before June 9, 1982 because the voters did not intend the amendment to apply retroactively.   (See id., at p. 582.)

The threshold problem I have with this broad statement relates to the relevancy of any discussion of retroactivity in the context of this case.   I start with the premise that section 28(f) involves a procedural change modifying the evidentiary rule established by Beagle.   Thus, from a temporal perspective, the change operates prospectively only affecting those criminal proceedings occurring after June 8, 1982.   And obviously all criminal proceedings after June 8, 1982 relate to earlier events.   Retroactivity becomes an issue only after it is assumed (1) that defendants will fare less favorably under section 28(f) (defendants would hardly complain if there were no difference between the new and old procedure) and (2) defendants who have committed crimes pre-June 9, 1982 have a vested right to the earlier, more favorable evidentiary rule.   I am willing to accept the accuracy of the first premise, but not the second.   I am unaware of any legal principle which gives a defendant the right to have a specific non-constitutionally related rule of evidence tied to the date he commits his crime.  (See discussion in part III, post.)   The majority has incorrectly and without discussion accepted this latter premise, without which retroactivity becomes irrelevant.   Nonetheless, regardless of my disagreement with the majority's premise, I will accept it for the purpose of analyzing the issues which follow.

I disagree with the majority's conclusion that the voters' pamphlet does not express the intent of the electorate that section 28(f) be retroactive.   (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   The arguments made by then Lieutenant Governor Mike Curb and Attorney General George Deukmejian as set out below ⁴ were couched in urgent and immediate terms, declaring the pressing need for prompt and sweeping steps to fight crime, establish victims' rights and promote public safety.   I cannot conceive an electorate motivated by such arguments intended to make fine distinctions regarding section 28(f)'s applicability based on the dates of defendants' alleged crimes.   There is no reference in the ballot argument to different rules depending upon when the crimes occurred.   Under such circumstances, those voting for Proposition 8 must have assumed that passage of the amendment meant the new rules would apply to all future criminal proceedings regardless of when the underlying crimes had been committed.  (See People v. Barrick (1982) 33 Cal.3d 115, 136, 187 Cal.Rptr. 716, 654 P.2d 1243, dis. opn. of Richardson, J.)   Uniform application of the amendment was thought to be the best remedy for the evils which prompted Proposition 8's enactment.⁵

The categorical statement of the majority that retroactive application “would come too late and would serve no purpose” (see maj. opn., ante, at p. 582) fails to recognize the deterrent effect of more onerous criminal procedures on persons contemplating future criminal acts.   Retroactive application of section 28(f) will signal prospective criminals that the procedural changes brought about by Proposition 8 will be immediately brought to bear against them.   The deterrent effect on others of the vigorous application of the criminal law has always been accepted as an ingredient of the criminal justice system.

I am unable to find anything which supports a finding the electorate intended section 28(f) apply to only those cases where the crimes were committed after June 8, 1982 while withholding application of the amendment to those persons committing crimes before that date.   The electorate hardly intended courts would apply different rules for pre- and post-June 8, 1982 crimes during the course of a single trial of a defendant with a relevant prior felony conviction.   It is equally unlikely the electorate intended to burden the judicial system with separate trials for defendants with priors who participated in a single course of criminal conduct within the first 10 days of June 1982.   I am fully satisfied the dates when the crimes may have occurred were of no consequence to the electorate who intended section 28(f) to apply to all criminal proceedings occurring after its passage regardless of the date of a defendant's criminal conduct.

Perhaps it is overly simplistic to suggest the purpose of a trial, civil or criminal, is to seek the truth underlying the allegations in a particular case.   Toward that end, in a criminal trial the general rule permits admission of all evidence relevant to a defendant's guilt or innocence.  (Evid.Code, § 351.)   This general rule is legitimately qualified, however, by excluding relevant evidence for policy reasons (Evid.Code, § 352) or to protect a defendant's constitutional rights.  (See, e.g., People v. Fioritto (1968) 68 Cal.2d 714, 441 P.2d 625, 68 Cal.Rptr. 817;  People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905.)   It has been this judicial struggle to strike an appropriate balance between the truth-seeking function in a trial and the protection of a defendant's rights with the resultant benefit to all persons in society which generated Beagle and which was rejected by the electorate in approving Proposition 8.   With the qualification that a prior felony must first be relevant (see discussion in part II, post ), use of the prior felony conviction on the issue of credibility is necessarily involved as part of the fact-finding process to establish the truth of the allegations charging a defendant with a criminal offense.   Proposition 8 reflects the voters' determination that inclusion of an earlier relevant felony conviction in trial is preferable to the sanitized factfinding process which the voters rejected as a process detached from reality and purified to a point where defendants were clothed with a “false aura of veracity.”  (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   In deciding that the admission of a defendant's relevant prior felony conviction(s) would enhance truth determination in criminal proceedings, the voters were also saying that jurors should be entrusted as the collective conscience of the community to consider all probative evidence, including the prior, after a judge first ruled on the relevance of the earlier felony.

The logic of the majority stating retroactivity is inappropriate because section 28(f) does not enhance the factfinding process (see maj. opn., ante, at pp. 582–583) is flawed because they not only disregard the fact the prior must be relevant, but they also subordinate that relevance as a matter of law to the alleged prejudice caused by admitting the prior into evidence, thereby derogating the capability of juries.   My reading of the majority opinion leaves me with the impression that, under the guise of concern with the factfinding process, the majority is simply unwilling to accept what the people have done in approving Proposition 8 and are delaying its perceived salutary effect by refusing to give it retroactive application.   In failing to suggest any constitutional infirmity in section 28(f), the majority fails to recognize that their approach has been constitutionally preempted by the voters.  (See Cal.Const., art. IV, § 1.)

Thus guided by a number of factors, including the intent of the electorate, the context of the initiative, the objects to be served, and the evils to be remedied, I would hold section 28(f) was intended to apply to all criminal proceedings held after its adoption regardless of when the underlying criminal offenses are alleged to have occurred.⁶  In light of that conclusion, I must now address the difficult question of whether section 28(f) passes constitutional muster.

II

Due process requires defendants receive that fundamental fairness essential to the very concept of justice.  (U.S. Const., amend. XIV, § 1;  Lisenba v. California (1941) 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166;  People v. Olivas (1976) 17 Cal.3d 236, 250, 131 Cal.Rptr. 55, 551 P.2d 375.)  “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.”  (Chambers v. Mississippi (1973) 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297.)   Therefore, retroactive application of section 28(f) will violate due process only if it operates in a fundamentally unfair manner against Jantz.   The primary effect of section 28(f) is to remove trial court discretion under Evidence Code section 352 to exclude prejudicial evidence of a defendant's prior felony conviction(s).⁷  Thus, assuming the limitations of Evidence Code section 788 also no longer apply,⁸ the constraints of relevance would provide the only limitation on the operation of section 28(f).⁹  However, relevant prior felony convictions accompanied by appropriate limiting instructions can be used to impeach defendants without violating due process.  (McGautha v. California (1971) 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711;  Spencer v. Texas (1967) 385 U.S. 554, 562–565, 87 S.Ct. 648, 652–654, 17 L.Ed.2d 606;  Dixon v. United States (D.C.C.A.1972) 287 A.2d 89, 92–94, cert. den. (1972) 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813;  People v. Beagle, supra, 6 Cal.3d at pp. 453–454, 99 Cal.Rptr. 313, 492 P.2d 1.)   Any deterrent effect which the retroactive application of section 28(f) may have on defendants' testimony will not violate due process by denying them a fair opportunity to defend themselves.   As the Supreme Court explained in Adamson v. California (1947) 332 U.S. 46, 57–58, 67 S.Ct. 1672, 1678, 9 L.Ed. 1903 (overruled on other grounds in Malloy and Griffin, see fn. 10, post ):

“The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction.   When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes.   Indeed, this is a dilemma with which any defendant may be faced.   If facts, adverse to the defendant, are proven by the prosecution, there may be no way to explain them favorably to the accused except by a witness who may be vulnerable to impeachment on cross-examination.   The defendant must then decide whether or not to use such a witness.   The fact that the witness may also be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.” ¹⁰  (Fn. omitted.)

(See also Stein v. New York (1953) 346 U.S. 156, 175–176, 73 S.Ct. 1077, 1087–1088, 97 L.Ed. 1522, disapproved on another point in Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908;  accord, Dixon v. United States, supra, 287 A.2d at pp. 92–96;  People v. Beagle, supra, 6 Cal.3d at pp. 453–454, 99 Cal.Rptr. 313, 492 P.2d 1.)   While defendants have a constitutional right to remain silent, they do not have a constitutional right to prohibit the prosecution from introducing a relevant prior felony if they choose to testify.

III

Ex post facto laws alter the situation of defendants to their disadvantage by:  (1) making criminal an act which was innocent when done;  (2) making more serious an act which already was criminal when done;  (3) inflicting greater punishment for a criminal act than was applicable when done;  (4) permitting conviction for a criminal act with less evidence than was required when done;  or (5) otherwise depriving defendants of any substantial rights of defense or immunity they possessed at the time of their alleged offenses.   (Kring v. Missouri (1883) 107 U.S. 221, 225, 228–229, 232, 2 S.Ct. 443, 447, 449–450, 453, 27 L.Ed. 506;  People v. Ward (1958) 50 Cal.2d 702, 707, 710, 328 P.2d 777, disapproved on another point in People v. Morse (1964) 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33;  People v. Sobiek (1973) 30 Cal.App.3d 458, 472, 106 Cal.Rptr. 519, cert. den. (1973) 414 U.S. 855, 94 S.Ct. 155, 38 L.Ed.2d 104.)

Retroactive application of section 28(f) to Jantz will not constitute an ex post facto law under categories (1) through (3).   Furthermore, section 28(f) will not result in convictions based on less evidence than previously required.   Instead, it will allow the admission of previously inadmissible evidence relevant to defendants' credibility.   It will not disturb the fundamental rule that the prosecution must produce sufficient evidence to prove defendants guilty beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358, 363–364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368;  Speiser v. Randall (1958) 357 U.S. 513, 525–526, 78 S.Ct. 1332, 1341–1342, 2 L.Ed.2d 1460.)   Therefore, retroactive application of section 28(f) will not constitute an ex post facto law under category (4).  (See Thompson v. Missouri (1898) 171 U.S. 380, 387, 18 S.Ct. 922, 924–925, 43 L.Ed. 204;  People v. Ward, supra, 50 Cal.2d at pp. 706–711, 328 P.2d 777;  compare Dixon v. United States, supra, 287 A.2d at pp. 96–97.)

In addition, section 28(f) will not deprive defendants of any substantial rights of defense they may have enjoyed prior to its enactment.   As noted above, defendants have no constitutional right to testify free from impeachment.   Therefore, eliminating their ability to invoke judicial discretion to exclude prejudicial evidence of prior felony convictions does not deprive them of any substantial rights.  (See Dixon v. United States, supra, 287 A.2d at pp. 96–97;  but see United States v. Henson (D.C.Cir.1973) 486 F.2d 1292, 1305, 1307–1308.)   Moreover, defendants have no vested rights in particular modes of procedure and other remedies (Thompson v. Missouri, supra, 171 U.S. at pp. 385–386, 18 S.Ct. at p. 924;  People v. Ward, supra, 50 Cal.2d at pp. 707–708, 328 P.2d 777) and thus are not entitled to rely on the continued existence of such judicial discretion.   Consequently, retroactive application of section 28(f) also will not constitute an ex post facto law under category (5) above.

IV

Equal protection requires similar treatment of similarly situated persons.   (U.S. Const., amend. XIV, § 1;  Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 633.)   Defendants charged with crimes committed before June 9, 1982 comprise a class of similarly situated persons.¹¹  Retroactive application of section 28(f) to such defendants will distinguish between those who were tried before June 9, 1982 and those who were not:  the former defendants were tried under People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and its progeny whereas the latter defendants, including Jantz, will be subject to section 28(f) at trial.¹²  Because Jantz' personal liberty interests will be affected, strict scrutiny applies and the prosecution must show this dissimilar treatment is necessary to promote a compelling state interest.   (Kramer v. Union School District (1969) 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583;  Shapiro v. Thompson (1969) 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600;  People v. Olivas, supra, 17 Cal.3d at p. 251, 131 Cal.Rptr. 55, 551 P.2d 375.)

I am satisfied dissimilar treatment is necessary to promote at least two compelling state interests.   First, the state has a compelling interest, if not a legal obligation (see Cal. Const., art. II, § 1), in implementing the substantive and procedural changes mandated by the people when they enacted Proposition 8.   Only by immediately and comprehensively implementing those changes will Proposition 8's goals be realized.  (See Cal. Const., art. I, § 28, subd. (a).)  Second, the state also has a compelling interest in effectuating the people's power to update and reform the criminal law.  (Cal. Const., art. II, § 8;  see Spencer v. Texas, supra, 385 U.S. at p. 564, 87 S.Ct. at p. 653.)   Therefore, the retroactive application of section 28(f) will not deny Jantz and other similarly situated defendants the equal protection of the laws.

Accordingly, I would permit the Jantz trial to continue in the same manner as the trial court has indicated permitting the introduction of his relevant prior felony conviction into evidence.

FOOTNOTES

1.   Section 28(f) provides:“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.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

2.   The majority inaccurately state Jantz has not challenged the validity of section 28(f).  (See maj. opn., ante, at p. 581.)   The constitutionality of section 28(f) was extensively briefed and argued not only by the parties themselves but also by the State Public Defender and Attorney General as amici curiae.   After oral argument, supplemental briefs were requested and filed.

3.   People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.

4.   Lieutenant Governor Mike Curb argued for Proposition 8 as follows:“It is time for the people to take decisive action against violent crime.   For too long our courts and the professional politicians in Sacramento have demonstrated more concern with the rights of criminals than with the rights of innocent victims.   This trend must be reversed.   By voting ‘yes' on the Victims' Bill of Rights you will restore balance to the rules governing the use of evidence against criminals, ․  If you believe as I do that the first responsibility of our criminal justice system is to protect the innocent, then I urge you to vote ‘yes' on Proposition 8.”Attorney General George Deukmejian similarly argued:“Crime has increased to an absolutely intolerable level.“While criminals murder, rape, rob and steal, victims must install new locks, bolts, bars and alarm systems in their homes and businesses.   Many buy tear gas and guns for self-protection.   FREE PEOPLE SHOULD NOT HAVE TO LIVE IN FEAR.“Yet, higher courts of this state have created additional rights for the criminally accused and placed more restrictions on law enforcement officers.   This proposition will overcome some of the adverse decisions by our higher courts.“THIS MEASURE CREATES RIGHTS FOR THE VICTIMS OF VIOLENT CRIMES․“․“THERE IS ABSOLUTELY NO QUESTION THAT THE PASSAGE OF THIS PROPOSITION WILL RESULT IN MORE CRIMINAL CONVICTIONS, MORE CRIMINALS BEING SENTENCED TO STATE PRISON, AND MORE PROTECTION FOR THE LAW-ABIDING CITIZENRY.“IF YOU FAVOR INCREASED PUBLIC SAFETY, VOTE YES ON PROPOSITION 8.”   (Italics in original.)

5.   The Attorney General also interprets section 28(f) as applying retroactively.   See Attorney General's Guide to Proposition 8 (June 9, 1982), pp. 6–2, 6–4 through 6–5.)   Though the voters never saw the Guide, it is entitled to some weight in interpreting section 28(f) because the Attorney General's official opinions generally are reliable indicators of legislative or electoral intent (see In re Quinn (1973) 35 Cal.App.3d 473, 482, 110 Cal.Rptr. 881, disapproved on another point in State of California v. San Luis Obispo Sportsman's Assn. (1978) 22 Cal.3d 440, 447, fn. 6, 149 Cal.Rptr. 482, 584 P.2d 1088;  see generally 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 70, subd. (e), pp. 3309–3310) and because the Attorney General authored one of the ballot arguments in favor of Proposition 8.

6.   In People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, the defendant's offense occurred before June 9, 1982.   The Barrick majority declined to discuss section 28(f) because its validity and impact had not been orally argued nor considered in an orderly fashion by the lower courts.  (Id., at p. 120, fn. 1, 187 Cal.Rptr. 716, 654 P.2d 1243.)   I realize this treatment could be construed as an implicit holding that section 28(f) should not be retroactively applied.   However, I accept the Barrick majority's explanation for not discussing section 28(f).   Here the prerequisites for such discussion have been met through the full consideration of section 28(f)'s applicability and constitutionality by the trial court and the parties in their briefs and arguments on appeal.

7.   This is the only fair interpretation of section 28(f) consistent with its purposes and those of Proposition 8.  (See People v. Barrick, supra, 33 Cal.3d at p. 136, 187 Cal.Rptr. 716, 654 P.2d 1243 (dis. opn. of Richardson, J.);   Attorney General's Guide to Proposition 8, supra, at pp. 6–2 through 6–4.)Furthermore, the language of section 28(f), when read together with that of sections 28(b) and (d), also indicates Evidence Code section 352 should no longer limit the admissibility of prior felony convictions.   Section 28(d) provides in part:  “Nothing in this section shall affect ․  Evidence Code, Sections 352, 782 or 1103.”  (Italics added.)   Since section 28(f) technically is a subdivision rather than a section, section 28(d)'s use of “section” could evidence an intent for section 352 to apply to section 28 in its entirety, including subdivision (f).   That argument is unpersuasive for two reasons.   First, section 352 logically is inapplicable to nearly all of section 28's subdivisions, including subdivisions (a) (Preamble), (b) (Restitution), (c) (Right to Safe Schools), (e) (Public Safety Bail) and (g) (Definition of “Serious Felony”).   Other than subdivision (d), subdivision (f) is the only subdivision in section 28 to which section 352 conceivably could apply.   It seems unreasonable to say section 352 applies throughout section 28 when it is irrelevant to most of its provisions.   Second, section 28(b) (Restitution) provides in part:  “The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.”  (Italics added.)   The only plausible meaning of “section” in section 28(b) is “subdivision.”  Section 28(b)'s use of “section” to mean “subdivision” strongly suggests “section” was used the same way in section 28(d).   As a result, section 352 would apply to subdivision (d) but not to subdivision (f).Finally, if sections 28(d) and (f) cannot be read harmoniously together, then section 28(f) would preclude the applicability of section 352 to prior felony convictions because it deals specifically with the admissibility of such evidence for impeachment purposes while section 28(d) deals more generally with the admissibility of all relevant evidence in criminal proceedings.  (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723.)

8.   It is unnecessary to decide this issue because none of section 788's limitations on the admissibility of prior felony convictions are applicable in this case.   However, the Attorney General takes the position section 28(f) abrogates those limitations.  (Attorney General's Guide to Proposition 8, supra, at pp. 6–2, 6–5 through 6–6.)

9.   The admission of irrelevant evidence of prior felony convictions would violate due process.  (See Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6, 88 S.Ct. 1620, 1625, fn. 6, 20 L.Ed.2d 476.)   Jantz' prior felony conviction for grand theft (Pen.Code, § 487, subd. 2) is relevant to his credibility and thus properly admissible for impeachment purposes.  (Evid.Code, §§ 786, 788;  People v. Barrick, supra, 33 Cal.3d at pp. 122–124, 187 Cal.Rptr. 716, 654 P.2d 1243.)

10.   In Adamson the Supreme Court held the Fifth Amendment privilege against self-incrimination did not apply against the states under the Fourteenth Amendment, and upheld a California rule allowing court and counsel to comment on a defendant's failure to testify.   The court later held the Fifth Amendment privilege did apply against the states (Malloy v. Hogan (1964) 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653), and subsequently struck down the California comment rule on Fifth and Fourteenth Amendment grounds.  (Griffin v. California (1965) 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106.)   However, in neither Malloy nor Griffin did the court disapprove Adamson 's due process analysis of the admissibility of evidence of prior felony convictions.   (People v. Beagle, supra, 6 Cal.3d at pp. 453–454, 99 Cal.Rptr. 313, 492 P.2d 1.)   Indeed, Adamson 's analysis implicitly underlies subsequent federal and California cases (cited above) holding the admission of prior felony convictions for impeachment purposes does not violate due process.

11.   Defendants charged with post-June 8, 1982 crimes also constitute a similarly situated class.   As to them, however, equal protection will not be an issue because they will all be subject to section 28(f) at trial.

12.   I place Jantz in the latter group because his previous conviction was reversed on appeal (People v. Jantz (Feb. 8, 1982) 4 Crim. 11733) and he presently is awaiting retrial pending our decision in this case.   However, treating Jantz as a defendant tried before June 9, 1982 would not in my mind change the equal protection analysis.

GERALD BROWN, Presiding Justice.

STANIFORTH, J., concurs.