PEOPLE v. WHEELER (1991)

The issue in this case is whether the trial court erred in allowing the prosecution to impeach a defense witness on cross-examination with the witness's prior misdemeanor conviction for grand theft.¹  We hold that evidence of a misdemeanor conviction for impeachment constitutes admissible “relevant evidence” (Cal. Const., art. I, § 28, subd. (d)), that misdemeanor grand theft is a crime of moral turpitude (People v. Collins (1986) 42 Cal.3d 378, 390, fn. 10, 228 Cal.Rptr. 899, 722 P.2d 173), and that the court did not commit reversible error in balancing the probative value of the misdemeanor conviction against its prejudicial impact (Evid.Code, § 352;  People v. Castro (1985) 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111).   Appellant's contentions on appeal are thus without merit, and we affirm her conviction of the sale of cocaine.  (Health & Saf.Code, 11352.)

FACTS

On November 15, 1989, at approximately 7 a.m., Los Angeles Police Officer Anthony Lopez was working as an undercover officer attempting to purchase narcotics.   Officer Lopez drove to an apartment building on Orion Street in the San Fernando Valley.   Appellant approached the officer's car and asked what he wanted.   Officer Lopez responded that he needed “a 20,” which is street slang for $20 worth of rock cocaine.   Appellant called Pauline Burton over to the officer's car.   Burton looked inside the car and then ran inside the apartment building on Orion Street.

While Burton went inside the apartment building, appellant and Officer Lopez chatted.   Burton returned in a few minutes.   Burton showed Officer Lopez .20 grams of rock cocaine, which she then gave to him in exchange for a $20 bill.   Thereafter, Officer Lopez signaled another police officer that he had a “confirmed buy,” and other officers promptly arrested Burton and appellant.

In defense at trial, appellant claimed that on the morning of her arrest, she was briefly standing in front of the apartment building on Orion Street when Officer Lopez drove up.   When appellant asked Officer Lopez what he wanted, he replied, “a 20,” and appellant did not respond.   Officer Lopez said he was having difficulty finding any.   As appellant left and walked toward the apartment building without selling Officer Lopez any cocaine, she saw Burton run up to Officer Lopez's car.   Appellant claimed at trial that she was “not a drug dealer” and did not intend to assist Burton in selling cocaine.

In appellant's defense, Burton testified that she had been selling cocaine at that location since the prior evening and saw appellant and Officer Lopez at approximately 7 a.m.   Burton looked at them, told them to “hold on a minute,” ran to the apartment building and back to the car, and then sold some rock cocaine to Officer Lopez for $20.   During the exchange of money and cocaine, appellant stood next to Burton.   However, Burton claimed that she worked by herself and had no arrangement with appellant to assist in selling cocaine.

During cross-examination by the prosecutor, Burton admitted that she had a felony conviction on March 24, 1989, for selling cocaine, and a conviction for selling cocaine to Officer Lopez on November 15, 1989, which related to the sale with which appellant was charged in the present case.   Over appellant's objection, Burton also admitted that she had a misdemeanor conviction on May 20, 1987, for grand theft of property.

In rebuttal, Probation Officer Paylia Kittrell testified for the prosecution regarding her interview with Burton after Burton's arrest.   During the interview, Burton admitted that appellant had told Burton that someone wanted to buy cocaine.   Burton then left, got the cocaine, returned and sold it to the undercover police officer.

DISCUSSION

I. Impeachment with a misdemeanor conviction

 At common law, a person was deemed totally incompetent to testify if that person had been convicted of any so-called “infamous” crime, which included treason or any felony, the obstruction of justice, or any misdemeanor involving dishonesty.  (McCormick on Evidence (3d ed. 1984) § 43, p. 93;  see People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)   Today, such primitive absolutism which deemed a witness incompetent to testify has been abandoned and reduced to the mere impeachment of the witness's credibility by use of a prior conviction.  (McCormick on Evidence, supra, § 43, p. 93.)   Which type of prior conviction may be used to impeach a witness's credibility varies with the jurisdiction.   A few jurisdictions have limited impeachment to the common law “infamous” crimes, while other jurisdictions have permitted impeachment with any crime, including misdemeanors, but usually limited to crimes involving moral turpitude or dishonesty.  (Id. at p. 93, fn. 5.)   In several other jurisdictions, impeachment is limited by statute to felonies (ibid.), as it has been in California,² and our Supreme Court has further restricted the use of felony convictions to those involving moral turpitude.³

However, respondent urges that California's statutory limitation on impeachment with only prior convictions which constitute a felony (Evid.Code, § 788) does not survive in criminal cases after the addition by the electorate of section 28, subdivision (d) (hereinafter section 28(d)), the “Right to Truth–in–Evidence” provision of Proposition 8, to article I of the California Constitution.  Section 28(d) provides, in pertinent part, as follows:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.”  (Emphasis added.)   In fact, according to respondent, the issue of impeachment with a prior misdemeanor conviction has been resolved by People v. Harris (1989) 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P.2d 619, which respondent views as broadly holding that section 28(d) has removed in criminal cases the statutory limitation on the admissibility of evidence pertinent to a witness's honesty or veracity which existed in Evidence Code sections 786 through 790.

We do not view the holding in Harris as broadly as does respondent.  Harris implies that Evidence Code section 788 has been repealed pro tanto in criminal cases by section 28(d), “but its holding is limited to sections 786 [evidence of traits of character], 787 [evidence of specific instances of conduct] and 790 [evidence of good character of a witness].  (People v. Harris, supra, 47 Cal.3d at pp. 1081–1082, 255 Cal.Rptr. 352, 767 P.2d 619.)  Section 788 deals with prior convictions and credibility ․”  (People v. Lankford (1989) 210 Cal.App.3d 227, 237–238, fn. 9, 258 Cal.Rptr. 322.)   Although some of the court's language in Harris applies to Evidence Code section 788, the language used in an opinion must sometimes be distinguished from its holding.  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 668, 125 Cal.Rptr. 757, 542 P.2d 1349.)   The distinction between language and holding flows from the fundamental premise that a decision is not authority for a contention which was not presented and resolved.  (People v. Myers (1987) 43 Cal.3d 250, 265, fn. 5, 233 Cal.Rptr. 264, 729 P.2d 698;  General Motors Accept. Corp. v. Kyle (1960) 54 Cal.2d 101, 114, 4 Cal.Rptr. 496, 351 P.2d 768.)

The section 28(d) issue presented and resolved in Harris involved the admission of evidence of specific instances of an informant's past reliability in other informant situations.  (People v. Harris, supra, 47 Cal.3d at pp. 1080–1082, 255 Cal.Rptr. 352, 767 P.2d 619.)   In holding that section 28(d) effected a pro tanto repeal of Evidence Code sections 786, 787 and 790, the court broadly remarked that section 28(d) contains no “exception that would preserve the exclusionary rule of Evidence Code sections 786–790, when the evidence relates to a witness's conduct, but is offered to attack or support the credibility of the witness.”  (Id. at p. 1081, 255 Cal.Rptr. 352, 767 P.2d 619, emphasis added.)

On an unrelated evidentiary point, Harris also held that the trial court did not abuse its discretion in restricting the impeachment of a prosecution witness with evidence that the witness was on probation (id. at pp. 1090–1091, 255 Cal.Rptr. 352, 767 P.2d 619), but noted in dicta that the trial court erroneously observed that because the witness's probation status was for a misdemeanor, the conviction itself could not be used for impeachment.  (Id. at p. 1090, 255 Cal.Rptr. 352, 767 P.2d 619.)   As the following language in Harris explained:  “As [People v.] Lent [ (1975) 15 Cal.3d 481, 484–485, 124 Cal.Rptr. 905, 541 P.2d 545] notes, Evidence Code section 788 codified existing law in limiting impeachment by previous crimes to felony convictions.  (15 Cal.3d at p. 484, 255 Cal.Rptr. 352, 767 P.2d 619.)   Impeachment by evidence of prior convictions has been proscribed as evidence of specific instances of misconduct which may not be introduced to attack the credibility of a witness, except as permitted by section 788.   Because section 28(d) now makes all relevant evidence admissible in a criminal proceeding except as provided in that section, the evidence is now admissible unless excluded pursuant to Evidence Code section 352.”  (People v. Harris, supra, 47 Cal.3d at p. 1090, fn. 22, 255 Cal.Rptr. 352, 767 P.2d 619.)

Although there is no actual holding in Harris that section 28(d) permits the use of a misdemeanor conviction for impeachment in a criminal case, the language in Harris carries us a considerable distance.   The previously quoted language in Harris referred to People v. Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, wherein the Supreme Court explained that Evidence Code section 788, which permitted impeachment with a felony conviction, was essentially a recodification of “the only exception” (id. at p. 484, 124 Cal.Rptr. 905, 541 P.2d 545) to the “hornbook law” (ibid.) which established “that testimony relating to specific instances of misconduct is inadmissible to attack the credibility of a witness.”   (Ibid.)  This hornbook law is reflected in Evidence Code section 787, which provides that “Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.”

Evidence Code section 788's exception which permits felony impeachment is thus the exception to section 787's general rule of inadmissibility of specific prior conduct.   Since, as Harris held, section 28(d) has abrogated the general rule of inadmissibility, i.e., Evidence Code section 787, the conclusion is ineluctable that the specific exception to the general rule, i.e., Evidence Code section 788, cannot remain in a vacuum and must also have been abrogated by section 28(d).

Accordingly, “relevant evidence” (section 28(d)) admissible in a criminal case for impeachment may include evidence of a misdemeanor conviction.   The essential difference between a conviction of a misdemeanor and a felony is the punishment imposed (Pen.Code, § 17, subd. (a)).  There is no difference between a conviction of a misdemeanor and a felony as to the relevance of the conviction in assessing a witness's truthfulness, honesty and credibility.   (See People v. White (1904) 142 Cal. 292, 294, 75 P. 828.)   Indeed, the misdemeanor conviction in the present case was for grand theft, which, for the identical criminal conduct, could have resulted in a felony if a state prison sentence had been imposed.  (Pen.Code, § 489, subd. (b).)  Since there is no meaningful difference between the use of a misdemeanor and a felony conviction for impeachment purposes, we hold that a prior misdemeanor conviction used for impeachment must satisfy the same test of moral turpitude or readiness to do evil as is used to qualify a felony conviction for impeachment use.  (Cf. People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111;  see People v. Carolan (1886) 71 Cal. 195, 196, 12 P. 52.)

II. The witness's impeachment with misdemeanor grand theft

 Contrary to appellant's contention, the trial court did not apply the wrong standard or abuse its discretion in admitting evidence of the misdemeanor conviction of defense witness Burton.   The trial court properly admitted the evidence of the misdemeanor conviction under the felony conviction guidelines in People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, which we find applicable in the context of impeachment with a misdemeanor conviction.

Prior to introduction of the evidence of Burton's misdemeanor conviction for grand theft property, counsel approached the bench and the following discussion ensued:  “[The prosecutor]:  I would like to also impeach this witness with a misdemeanor grand theft property conviction, under People versus Harris.  [¶] [Defense counsel]:  I would object, Your Honor, I don't think it's appropriate.   I think Harris is confined to [its] specific fact[s].  She is already impeached with two prior felony convictions.  [¶] The Court:  Where will that get you?  [¶] [The prosecutor]:  Because grand theft property's a charge that goes more directly to dishonesty, and credibility of this witness is most definitely at issue.   And the fact that someone has stolen, I believe, is more indicative of their propensity to be dishonest than it is to sell narcotics.  [¶] The Court:  What is your response to that?  [¶] [Defense counsel]:  First of all, I think it is cumulative․  [¶] [Defense counsel]:  [Also,] it gets to the point when in exercise of discretion under 352, that certainly felony convictions, and felony convictions that are recent in time for a similar charge—[¶] The Court:  What is the conviction date on that?   [The prosecutor]:  This is a 1987 grand theft date․  [¶] The Court:  I have no problem with that.   If there is an objection it will be overruled.  [¶] [Defense counsel]:  That is a good point, though.   I think the Harris case is confined to ․ its facts.  [¶] The Court:  The question here is whether a grand theft has more of a benevolent [sic] ⁴ attitude than a sale.   And it does appear to this court that it does.   And you may impeach her, or bring it out.”

In People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court allowed a witness in a criminal trial to be impeached by a prior felony conviction which necessarily involves moral turpitude, subject to the exercise of the trial court's discretionary power under Evidence Code section 352.   Under that section, the trial court should exclude any such conviction when its probative value is outweighed by the risk of undue prejudice.  (Id. at pp. 312–313, 317, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Collins, supra, 42 Cal.3d at p. 381, 228 Cal.Rptr. 899, 722 P.2d 173.)   It is well established that when the conviction is such that it would have been admissible even prior to Proposition 8's amendment to article I, section 28 of the Constitution “because the immoral trait it evidences is dishonesty—e.g., when the felony is theft, forgery, bribery, or perjury—the inquiry need proceed no further:  such a conviction is ipso facto admissible under the broader standard of Castro.  [Citation.]”  (People v. Collins, supra, 42 Cal.3d at p. 390, fn. 10, 228 Cal.Rptr. 899, 722 P.2d 173.)   Burton's conviction for grand theft property, albeit a misdemeanor, thus is an offense involving moral turpitude within the meaning of Castro.  (Cf.People v. Boyd (1985) 167 Cal.App.3d 36, 45, 212 Cal.Rptr. 873 (grand larceny).)

Since the offense of misdemeanor grand theft property is one involving moral turpitude, the trial court was required to balance its probative value versus prejudicial impact.   To ensure meaningful appellate review, the trial court must explicitly articulate on the record its balancing of probative value versus prejudicial impact and thus reveal its exercise of discretion under Evidence Code section 352.  (People v. Farmer (1989) 47 Cal.3d 888, 906–907, 254 Cal.Rptr. 508, 765 P.2d 940;  People v. Heishman (1988) 45 Cal.3d 147, 170, 246 Cal.Rptr. 673, 753 P.2d 629;  People v. Frank (1985) 38 Cal.3d 711, 732, 214 Cal.Rptr. 801, 700 P.2d 415.)   Nonetheless, the trial court is not required to “recite the magic words that its decision was based on ‘352’ ․ [or to] intone that the probative value of the evidence, if admitted, was not outweighed by creating substantial danger of undue prejudice, or comments of similar import.”  (People v. Boyd, supra, 167 Cal.App.3d at p. 45, 212 Cal.Rptr. 873.)

It is apparent from the present record that the court and counsel discussed the impeachment issue “under the Harris case,” which addressed the issue in terms of the Castro analysis.   The court also focused on the relatively recent date of the prior misdemeanor grand theft which enhances its probative value.  (Cf. People v. Woodard (1979) 23 Cal.3d 329, 336–337, 152 Cal.Rptr. 536, 590 P.2d 391.)   Furthermore, defense counsel himself spoke in terms of the “exercise of discretion under 352.”   Accordingly, the record sufficiently establishes that the court understood and undertook its obligation to weigh prejudice against probative value.  (See People v. Montiel (1985) 39 Cal.3d 910, 924, 218 Cal.Rptr. 572, 705 P.2d 1248;  People v. Boyd, supra, 167 Cal.App.3d at p. 45, 212 Cal.Rptr. 873.)   The misdemeanor conviction of grand theft clearly involved an act of dishonesty and thus had significant probative value for the purpose of witness impeachment.   In fact, this conviction was more probative on that issue than were Burton's felony narcotic convictions.   Burton's narcotic convictions could even have enhanced her credibility since Burton's testimony was in essence that she alone, not appellant, was the only drug dealer involved in the narcotic sale to Officer Lopez.   And since it was the witness, not appellant, who was impeached by the conviction, the only prejudice was that inherent in such impeachment—loss of witness credibility.   Hence, the trial court correctly resolved the issue.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Grand theft (Pen.Code, § 487) is a so-called “wobbler” and can result in either a misdemeanor or a felony conviction, depending upon the sentence imposed.  (Pen.Code, § 489, subd. (b).)

2.   Evidence Code section 788 provides, in pertinent part, as follows:  “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony․”

3.   In People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, our Supreme Court construed the addition of section 28, subdivision (f) (the “Use of Prior Convictions” section of Proposition 8), to article I of the California Constitution, to obviate People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 and its progeny.   In Castro, the court eliminated the requirement in Beagle that a prior felony used for impeachment must involve an element of dishonesty.   The court in Castro construed subdivision (f) of Proposition 8 to require that for a felony to be used for impeachment the felony need only include within its least adjudicated elements moral turpitude, meaning a general readiness to do evil.  (People v. Castro, supra, 38 Cal.3d at pp. 313–317, 211 Cal.Rptr. 719, 696 P.2d 111.)   Subdivision (f) of Proposition 8 addressed only, by its terms, the use of “prior felony convictions,” and the court in Castro was not called upon to address the use of prior misdemeanor convictions for impeachment.

4.   Respondent suggests that there is an error in transcription, and that the word “benevolent” should actually be “malevolent.”

BOREN, Associate Justice.

TURNER, P.J., and GRIGNON, J., concur.