PEOPLE v. RHINEHART (1995)

A jury convicted defendant of first degree murder (Pen.Code, §§ 187, 189) and found he used a firearm in the commission of the offense (Pen.Code, § 12022.5).   He was sentenced to prison for 30 years to life.

On appeal, defendant complains of erroneous jury instructions and the trial court's refusal of evidence offered to rehabilitate an impeached defense witness.   In the published part of this opinion, we shall conclude that the conduct underlying a felony conviction with which a witness has been impeached, offered to mitigate the relative seriousness of the offense and rehabilitate the witness, is inadmissible.   Since we conclude there is no instructional error, we shall affirm.¹

The prosecution's evidence showed that defendant approached the parked car in which the victim was sitting and engaged the victim in a brief conversation.   Suddenly, defendant pulled a gun from his waistband and fired several shots at the victim, killing him.   Defendant then ran to his nearby car and jumped in.   Defendant's car was driven away by Willie McGee.   In a statement to police, defendant admitted he talked to the victim in his car but denied shooting him.   Defendant related that as he walked away from the victim's car a man dressed in dark clothes jogged up to the victim's car, pulled a gun and shot the victim.   Defendant did not testify.   Willie McGee testified for defendant and corroborated the exculpatory account defendant had given in his police statement.

I & II **

III

On direct examination, McGee testified he had been convicted of two felonies and he was currently on probation for both of them.  (See Evid.Code, § 785 [“The credibility of a witness may be attacked or supported by any party, including the party calling him.”].)   One of the felony convictions was for perjury.³  Defense counsel then sought to elicit testimony from McGee as to his conduct underlying the perjury conviction.   The People interposed a relevancy objection.   Out of the presence of the jury, counsel explained that McGee would testify his perjury conviction was based upon his falsification of an application for a driver's license.   Counsel argued the conduct underlying the conviction was relevant because “when a jury comprised of lay witnesses hears that Mr. McGee suffered a perjury conviction they will think as probably most lay people do that perjury means you testified in court to something that wasn't truthful and you were caught.”   The court sustained the People's objection.

 Relying on article I, section 28, subdivision (d) of the California Constitution (hereafter section 28(d)) as well as People v. Harris (1989) 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P.2d 619 and People v. Wheeler (1992) 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938, defendant contends the trial court erred prejudicially in precluding him from presenting testimony of the circumstances of McGee's felony perjury conviction offered to mitigate his impeachment with that felony conviction.   For reasons to follow, we conclude that the conduct underlying McGee's felony conviction is not probative of any “disputed fact that is of consequence to the determination of the action” (Evid.Code, § 210) and therefore is inadmissible.

Section 28(d) states in pertinent part:  “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, [sic ] Sections 352, 782, or 1103.”  (Italics added.)

In People v. Harris, supra, the defendant contended the trial court erred in admitting evidence of a prosecution witness's past reliability as an informant to bolster the witness's credibility.   Defendant relied on Evidence Code section 787 precluding evidence of specific instances of conduct to prove a trait of character as bearing on credibility.  (47 Cal.3d at p. 1080, 255 Cal.Rptr. 352, 767 P.2d 619.)   The Harris court concluded that section 28(d) effected a pro tanto repeal of Evidence Code sections 786, 787 and 790 and held the evidence properly admitted.⁴  (47 Cal.3d at pp. 1081–1082, 255 Cal.Rptr. 352, 767 P.2d 619.)

 In People v. Wheeler, supra, the court noted that a judgment of conviction offered to prove that the person convicted committed the crime is hearsay.   Moreover, although a witness may be impeached by proof of a felony conviction (see Evid.Code, § 788) as an exception to the hearsay rule, there is no comparable hearsay exception allowing impeachment by proof of a misdemeanor conviction.   Nor, the court observed, did section 28(d) alter the rule that “evidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witness's credibility.”  (4 Cal.4th at pp. 297–300, 14 Cal.Rptr.2d 418, 841 P.2d 938, italics original.)   Nevertheless, “if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence under § 28(d).”  (4 Cal.4th at p. 295, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

Neither People v. Harris, supra, nor People v. Wheeler, supra, addressed the issue presented here, i.e., whether conduct underlying a felony conviction is relevant to rehabilitate the credibility of a witness who has been impeached by proof of that felony conviction.

 Evidence Code section 788 provides in pertinent part:  “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․” ⁵

Evidence Code section 210 defines “relevant evidence” as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

 “Evidence Code section 210 encompasses a broad concept of relevance.   That concept comprehends both the probative value of evidence and its relationship to a matter which is provable in the action.   Relevance in the narrower sense deals with the probative value of evidence.   The relationship of evidence to a provable matter is, properly understood, a question of materiality.   Due to imprecise usage and misunderstanding, ‘materiality’ is commonly used interchangeably and synonymously with ‘relevance.’   To avoid confusion, the Evidence Code ‘substitutes the word “disputed” for “material” and covers this correct concept of materiality in the single definition of “relevant evidence” ’ in Evidence Code section 210.  (1 Witkin, Cal. Evidence 3d ed. 1986) § 286, pp. 255–256.)  [¶] As Witkin explains:  ‘A “material matter” is one “the existence or nonexistence of which is provable in the action.”  (Model C., Rule 1(8).)   In other words, materiality depends on the issues in the case;  evidence which does not relate to a matter in issue is immaterial.  (See 29 Cal.L.Rev. 690;  McCormick 3d, § 185;  1 Wigmore (Tillers Rev.) § 2;  29 Am.Jur.2d, Evidence § 251.)’  (1 Witkin, Cal. Evidence (3d ed. 1986), § 286, p. 255, original italics.)   Thus, as broadly defined by Evidence Code section 210, ‘relevant evidence’ has two distinct dimensions:  (1) probative value, i.e., the ‘tendency [of the evidence] in reason to prove or disprove’ the proposition for which it is offered and (2) relationship to a matter which is provable in the action, i.e., the ‘tendency [of the evidence] in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’   Under the broad definition of ‘relevant evidence’ in Evidence Code section 210, evidence which has no ‘tendency in reason to prove or disprove any disputed fact of consequence to the determination of the action’ is irrelevant.   So also is evidence which does have ‘any tendency in reason to prove or disprove any ․’ fact which is not of consequence to the determination of the action.”  (People v. Hill (1992) 3 Cal.App.4th 16, 29, 4 Cal.Rptr.2d 258, italics in original.)

Under Evidence Code section 788, conviction of a felony is a “fact that is of consequence to the determination of [this] action.”  (Evid.Code, § 210.)   It is thus a material fact and any evidence “having any tendency in reason to prove or disprove [that] fact” (Evid.Code, § 210) is relevant.

 A witness's testimonial admission of a prior felony conviction constitutes conclusive proof that the witness committed all acts necessary to constitute the offense.  (Chadwick v. State Bar (1989) 49 Cal.3d 103, 110, 260 Cal.Rptr. 538, 776 P.2d 240;  People v. Chad (1981) 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837.)   The fact of conviction is thereby conclusively proven and is no longer a “disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)   Moreover, even if it were still a disputed fact, evidence offered to show how the witness committed the felony has no “tendency in reason to ․ disprove” (Evid.Code, § 210) the disputed fact that he had been so convicted.   Accordingly, it is irrelevant and, therefore, inadmissible.

The trial court properly excluded as irrelevant evidence of the manner in which McGee committed perjury.

The judgment is affirmed.

FOOTNOTES

1.   Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I and II.

FOOTNOTE.   See footnote 1, ante.

3.   On cross-examination McGee testified the other conviction was for possession of cocaine.

4.   Evidence Code section 786:  “Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.”Evidence Code section 787:  “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 790:  “Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.”

5.   Although the statute provides that a prior felony conviction may be proved to attack a witness's credibility (Evid.Code, § 788), only those convictions of prior felonies involving moral turpitude are sufficiently relevant to credibility to be admissible.  (People v. Castro (1985) 38 Cal.3d 301, 313–317, 211 Cal.Rptr. 719, 696 P.2d 111.)   Consequently, when we speak of a prior felony conviction used to impeach a witness's credibility, we refer only to those prior convictions of felonies involving moral turpitude.

PUGLIA, Presiding Justice.

DAVIS and SCOTLAND, JJ., concur.