PEOPLE v. BLOODSAW (1990)

I. INTRODUCTION

Theopric Kent Bloodsaw (defendant) was tried by a jury and convicted of first degree burglary of an inhabited dwelling house (Pen.Code, §§ 459, 460).   Probation was denied and defendant was sentenced to the middle term of 4 years in state prison.   On appeal, defendant contends that the court erred in allowing impeachment of his testimony by evidence of two prior misdemeanor convictions for petty theft and in admitting evidence of uncharged crimes.   In addition, defendant asserts that because the court stated no reasons for imposing the middle term, a remand for resentencing is required.   Because none of these grounds provide a proper basis for reversing the judgment, it is affirmed.   In the published portion of this opinion, we will resolve the issue of whether defendant may raise the issue of the propriety of allowing impeachment with the two prior convictions.

II. FACTUAL AND PROCEDURAL MATTERS

A. Pre–Trial Evidentiary Rulings

Prior to trial, the court made two evidentiary rulings.   First, the court ruled that impeachment of defendant by his two misdemeanor prior convictions for petty theft (Pen.Code, § 484) was permissible, citing as authority People v. Harris (1989) 47 Cal.3d 1047, 1080–1081, 1090, fn. 22, 255 Cal.Rptr. 352, 767 P.2d 619.   In addition, the court determined that evidence of defendant's two misdemeanor prior convictions would be more probative than prejudicial.  (Evid.Code, § 352.)   Second, defendant's half-sister, the victim of the burglary, was questioned outside the presence of the jury concerning three instances in which defendant had removed items of value from her home.   The court ruled that this other crimes evidence would be admissible.   Defense counsel only objected to impeachment by the misdemeanors and to the introduction of other crimes evidence at the time of these pretrial hearings.   No objection was interposed when the challenged evidence was introduced at trial.

B. Evidence Elicited at Trial

Defendant was found guilty of burglarizing Doris Anderson's (Anderson) apartment.   Anderson is defendant's half-sister.   A neighbor, Mary Hart (Hart), testified that on September 4, 1989, she heard the sound of breaking glass and observed defendant, with whom she was familiar, kicking Anderson's window in with his feet.   Defendant stepped through the broken window into Anderson's apartment.   Hart then telephoned the authorities.   When she looked back outside, she saw defendant leaving Anderson's apartment carrying a white plastic bag.   An item inside the bag “ ‘looked like it was square, squared off’ ” and “ ‘it seemed like it had weight to it because he was tilt angle with it.’ ”   Anderson returned home to find her VCR missing.   Her kitchen cabinet was open and white trash bags had been pulled out onto the floor.   Anderson testified that prior to the September 4 burglary defendant had removed a gold bracelet and money from her apartment.   She had never reported these incidents to the police.

Defendant testified on direct examination and over the prosecutor's objection that he had twice been arrested for and plead guilty to petty theft, specifically, stealing a bottle of wine.   He denied breaking into Anderson's apartment and stealing her VCR.   He further testified that at the time of the alleged thefts of jewelry and money from Anderson's apartment he had been in jail.

III. DISCUSSION

A. Defendant may not Raise the Issue on Appeal of the Admissibility of His Prior Misdemeanor Convictions

Prior to trial, defendant moved to exclude evidence of his two prior misdemeanor convictions for petty theft because their probative value was outweighed by their prejudice (People v. Castro (1985) 38 Cal.3d 301, 306, 211 Cal.Rptr. 719, 696 P.2d 111;  Evid.Code, § 352) and misdemeanor convictions may not be used to impeach a defendant's credibility.  (Contra, People v. Harris, supra, 47 Cal.3d at pp. 1080–1081, 1090, fn. 22, 255 Cal.Rptr. 352, 767 P.2d 619;  Cal. Const., art. I, § 28, subd. (f).)  On appeal, defendant only argues that because the two prior convictions involved misdemeanors, as a matter of law, they were inadmissible.   The Attorney General argues that defendant may not raise this issue because during the direct examination of defendant, defense counsel elicited testimony from defendant as to his two prior convictions.   Additionally, the Attorney General contends that defendant has failed to preserve the issue for appeal because defense counsel did not restate the objection concerning the admissibility of the prior convictions, which was initially presented during the pretrial in limine motion, when defendant took the stand and testified.

1. The “Defensive Acts” Doctrine Allowed Defendant to Testify on Direct Examination Concerning the Two Priors and Still Raise the Issue on Appeal

 On six occasions between 1913 and 1988, the California Supreme Court held that a party who introduces evidence at trial was estopped to argue on appeal that the evidence was inadmissible.  (People v. Williams (1988) 44 Cal.3d 883, 912, 245 Cal.Rptr. 336, 751 P.2d 395;  People v. Wiley (1976) 18 Cal.3d 162, 176, 133 Cal.Rptr. 135, 554 P.2d 881;  People v. Sirhan (1972) 7 Cal.3d 710, 746, 102 Cal.Rptr. 385, 497 P.2d 1121, disapproved on another point in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7, 150 Cal.Rptr. 435, 586 P.2d 916;  People v. Moran (1970) 1 Cal.3d 755, 762, 83 Cal.Rptr. 411, 463 P.2d 763;  People v. Feldkamp (1958) 51 Cal.2d 237, 241, 331 P.2d 632;  People v. Simmons (1946) 28 Cal.2d 699, 722, 172 P.2d 18;  Gjurich v. Fieg (1913) 164 Cal. 429, 433, 129 P. 464.)   However, beginning in 1918, the Supreme Court developed the so-called “defensive acts” doctrine which limited this estoppel rule.  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 310, p. 320.)   On two occasions, the Supreme Court held that no waiver of the right to raise an evidentiary question on appeal occurred when the appealing parties' counsel cross-examined a witness on a topic which previously had been the subject of an objection.  (People v. Sam (1969) 71 Cal.2d 194, 207, 77 Cal.Rptr. 804, 454 P.2d 700;  Jameson v. Tully (1918) 178 Cal. 380, 384, 173 P. 577.)   Once, the Supreme Court held that no waiver occurred when a criminal defendant objected prior to trial to a court-ordered test, did not contest the admissibility of the test results at the time of trial, and then argued to the jury that the test results favored defendant.   The Supreme Court held that the defendant's argument to the jury was a “ ‘defensive act[ ]’ ” and he was free to argue on appeal that the trial court should never have ordered the test in the first place.  (People v. Scott (1978) 21 Cal.3d 284, 291, 145 Cal.Rptr. 876, 578 P.2d 123.)

In 1990, utilizing the “defensive acts” rule, our Supreme Court held that a criminal defendant did not waive the right to contest on appeal the correctness of a trial court's order allowing impeachment with prior felony convictions when defense counsel asked the defendant on direct examination about the impeaching convictions.   In People v. Turner (1990) 50 Cal.3d 668, 704–705, fn. 18, 268 Cal.Rptr. 706, 789 P.2d 887;  the Supreme Court held:  “The People claim defense counsel waived any reliance on Castro [People v. Castro, supra, 38 Cal.3d at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111] by himself asking defendant to disclose the fact and nature of the prior convictions.   Given the apparent futility of an effort to exclude the prior convictions, however, prudent counsel would be well advised to minimize their ‘sting’ by eliciting them himself [or herself].   Such defensive acts do not waive an objection on appeal.”   Therefore, in the present case, the People's contention that defendant waived his right to litigate the issue of the admissibility of the two misdemeanor convictions on appeal because his attorney asked about them on direct examination is without merit.

2. The Failure to Reiterate the Objection

 The People argue that a ruling on a pretrial in limine motion is not binding on a trial court and in order to preserve an objection for appeal it is necessary to rearticulate the objection during the trial.   In People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3, 251 Cal.Rptr. 278, 760 P.2d 475, our Supreme Court held, “Generally, when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal.  [Citations.]”   However, our Supreme Court has articulated several exceptions to the new rule ¹ set forth in Jennings.   For example, the court in Jennings held that when the parties stipulate that the pretrial ruling will be binding at trial, there is no requirement that the objection be reiterated during the trial.  (Ibid.)  In People v. Boyer (1989) 48 Cal.3d 247, 270, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610, our Supreme Court recognized another exception to the general rule enunciated in Jennings.   In Boyer, prior to the first trial, a defendant argued in connection with a motion to suppress evidence pursuant to Penal Code section 1538.5 that the defendant was “ ‘detained’ by the police for Fourth Amendment purposes at the time he made ․” a statement to the police.   In connection with that motion, the trial court found no detention occurred.   Our Supreme Court held that the ruling on the motion to suppress evidence pursuant to Penal Code section 1538.5 was a binding ruling and during trial no further objection was necessary in order to preserve the issue for appeal.   Also, prior to the first trial, defendant moved to suppress a statement given to the police in a non-statutory motion to suppress on the theory that since defendant was detained when the admission was made, the failure to advise him of his rights prior to Miranda v. Arizona (1966) 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, required the statement be suppressed.   However, the finding made in connection with the motion to suppress evidence pursuant to Penal Code section 1538.5 that defendant was not detained “essentially obviated” the Miranda issue since the advisement and waiver requirements of that case extended only to “ ‘custodial’ interrogation.”  (People v. Boyer, supra, 48 Cal.3d at pp. 270–271, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610.)   Therefore, the non-statutory pretrial Miranda motion was denied.   The guilt trial proceeded and the jury was unable to reach a verdict.  (Id. at p. 262, fn. 5, 256 Cal.Rptr. 96, 768 P.2d 610.)   Prior to the retrial, defendant renewed all suppression motions made at the first trial.   After jury selection was concluded but prior to the presentation of any evidence, the trial court ruled that all “suppression rulings from the first trial would remain in effect.”  (Id. at p. 270, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610.)   Our Supreme Court held that the Miranda issue, the resolution in the trial court of which was mandated by the finding at the time of the hearing on the motion to suppress evidence pursuant to Penal Code section 1538.5 that no detention occurred, was properly preserved for appeal.   The court emphasized that the Miranda issue was “properly before us on the particular facts” of the case.   Because the renewal of the non-statutory Miranda motion would have been “futile,” the court concluded that no “rational interest” would be served by holding that the Miranda issue had been waived.²  (Id. at pp. 270–271, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610.)

 In the present case, defense counsel failed to renew his objection to the impeachment by the misdemeanor prior convictions at the time of trial.   None of the exceptions described in Jennings or Boyer to the rule requiring renewal of an objection apply to the present case.   Therefore, the issue of the propriety of the pretrial order allowing impeachment with defendant's misdemeanor convictions has been waived.³

Defendant argues that this court should fashion an exception to the new rule established by the Supreme Court in Jennings.   Defendant argues that the reason for the Jennings rule was “until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.”  (People v. Jennings, supra, 46 Cal.3d at p. 975, fn. 3, 251 Cal.Rptr. 278, 760 P.2d 475.)   Defendant contends that the issue before this court is one purely of law—whether a misdemeanor conviction can be used to impeach a defendant notwithstanding the holding of People v. Harris, supra, 47 Cal.3d at pp. 1080–1081, 1090, fn. 22, 255 Cal.Rptr. 352, 767 P.2d 619, and the reason for the Jennings rule is therefore inapplicable.

Several factors warrant rejection of defendant's argument.   First, the Supreme Court has narrowly construed the exception to the general rule enunciated in Jennings.   In Jennings, our Supreme Court noted that the parties had stipulated that the pretrial ruling would be binding on the trial court.  (People v. Jennings, supra, 46 Cal.3d 963 at p. 975, fn. 3, 251 Cal.Rptr. 278, 760 P.2d 475.)   In Boyer, the Supreme Court emphasized that it was limiting its ruling to the “particular facts” before the court.   (People v. Boyer, supra, 48 Cal.3d at p. 270, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610.)   Second, the Supreme Court has never recognized defendant's proposed exception to the Jennings rule.   Third, there is no basis for concluding that reiteration of the objection would have been futile as was the case in Boyer.   Trial court judges are extremely conscientious and often change their minds in the face of arguments by lawyers.   Fourth, to adopt defendant's proposed rule that when strictly legal issues are present, no contemporaneous objection is necessary would begin an inexorable pedagogical process which would lead to the abolition of the general rule.   Many disputes concerning admissibility of evidence raised in the context of a pretrial motion are either solely or largely legal issues.   Fifth, the Jennings rule is premised in part on the theory that a ruling on a pretrial in limine motion is not binding during a subsequent trial.   Defendant has cited no authority for the proposition that a pretrial motion to exclude evidence of prior convictions on legal grounds would be binding during an ensuing trial.   To adopt defendant's position would undermine our Supreme Court's rationale for adopting the Jennings rule.   Finally, defendant has cited no authority from any jurisdiction which follows the rule developed in Jennings which holds that when a pretrial motion involves solely a legal issue that the question of the correctness of the ruling is preserved on appeal when the objection is not restated during the trial when testimony concerning the subject is received.   To sum up, defendant may not raise on appeal the issue of the correctness of the court's ruling prior to trial allowing impeachment with his two misdemeanor prior convictions because the objection was not renewed during trial at a time reasonably contemporaneous with defendant's testimony concerning the prior convictions.

 B.–C.***

IV. DISPOSITION

The judgment of conviction is affirmed.

FOOTNOTES

1.   The judicially created rule enunciated in Jennings represented a change in California law.   The Supreme Court cited four cases as authority.   None of these cases held that when a pretrial in limine motion is denied that a party must object once again at the time of trial in order to preserve the issue raised in the in limine motion on appeal.   Rather, the four cases cited in Jennings either held that a ruling on a pretrial in limine motion (other than a suppression motion brought pursuant to Penal Code section 1538.5) was not binding on the trial court during the ensuing trial (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 734, 125 Cal.Rptr. 798, 542 P.2d 1390;  Saidi–Tabatabai v. Superior Court (1967) 253 Cal.App.2d 257, 266, 61 Cal.Rptr. 510;  People v. Beasley (1967) 250 Cal.App.2d 71, 77, 58 Cal.Rptr. 485) or that an objection not interposed “at trial” may not be argued on appeal.  (People v. De Santiago (1969) 71 Cal.2d 18, 22, 76 Cal.Rptr. 809, 453 P.2d 353.)   The logical inference of these cases was that if the pretrial order was not binding on the trial court, then the failure to raise the issue during trial did not preserve the question for appeal.   This reasoning served as the theoretical basis for the new rule enunciated in Jennings.In addition to the four cited cases, the Jennings court referred to Professor Witkin's treatise on evidence.  (3 Witkin, Cal. Evidence (3d ed.1986) § 2011, p. 1971.)   However, Professor Witkin did not state that a pretrial denial of an in limine motion was insufficient to preserve an evidentiary issue for appeal;  rather, he wrote, “If the motion is denied, the ruling may be reviewed on appeal without making an objection to the prejudicial matter at the trial.”  (Ibid.)  Professor Witkin's analysis in his 1986 evidence text was consistent with the case law in existence prior to Jennings.   In two Court of Appeal decisions, it was held that an objection interposed at a pretrial in limine motion but not restated in the midst of trial was preserved for appellate purposes.  (Sacramento, etc. Drainage Dist. ex rel. State Reclamation Bd. v. Reed (1963) 215 Cal.App.2d 60, 67–68, 29 Cal.Rptr. 847;  Pierce v. J.C. Penney Co. (1959) 167 Cal.App.2d 3, 13, 334 P.2d 117.)  Jennings obviously invalidated the holdings of these two cases upon which Professor Witkin quite properly relied.In this country, various jurisdictions have adopted the Jennings rule while other courts have held that a pretrial in limine motion preserves an issue for appeal.  (1 Tillers, Wigmore on Evidence (Rev. ed. 1983) § 18, pp. 801–808;  Weinstein, Weinstein's Evidence Manual (1989) § 2.03, p. 2–17;  Annot. Need to Renew Objection at Trial (1986) 76 A.L.R. Fed. 619.)

2.   Other Supreme Court cases have restated the Jennings general rule but have not created other exceptions.  (People v. Mattson (1990) 50 Cal.3d 826, 849–850, 268 Cal.Rptr. 802, 789 P.2d 983;  People v. Turner, supra, 50 Cal.3d at p. 708, 268 Cal.Rptr. 706, 789 P.2d 887.)

3.   We recognize the problem confronting a conscientious defense attorney who wishes to exercise a client's right pursuant to People v. Turner, supra, at pp. 704–705, fn. 18, 268 Cal.Rptr. 706, 789 P.2d 887, to minimize the “sting” of prior convictions but at the same time pursue the issue on appeal.   It would be unreasonable to require defense counsel to ask the client whether she or he has sustained a prior conviction and then before the question is answered to interpose an objection to the attorney's own question.   The most appropriate course of action would be for defense counsel, outside the presence of the jury, to restate the objection.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.  FN* In denying review, the Supreme Court ordered that the opinion be not officially published.

TURNER, Associate Justice.

LUCAS, P.J., and BOREN, J., concur.