PEOPLE v. JACKSON (1980)

James Ralph Jackson appeals from a judgment of imprisonment which was rendered after a jury found him guilty of burglary (Pen.Code, § 459) and two counts of robbery (Pen.Code, § 211).

Appellant contends, citing People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 and People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, that it was error for the court to deny a motion by appellant to preclude the use of a prior felony conviction for the purpose of impeachment. In Beagle, the California Supreme Court established guidelines to be applied by the trial courts in exercising discretion pursuant to Evidence Code section 352 for the purpose of determining whether proof of any particular prior felony should be excluded on the basis that its prejudicial effect will outweigh its value as evidence bearing on the credibility of the defendant. If the prior conviction is of a crime which reflects on the personal integrity of the perpetrator, that is a circumstance pointing in the direction of admissibility. Undue remoteness in time points against admissibility and conviction of a crime which is the same or similar to the charged offense should be considered for exclusion “‘[w]here multiple convictions of various kinds can be shown.”’ (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 320, 492 P.2d 1, 8.) It is a factor bearing against admissibility of a prior that its admission may cause the defendant to withhold testifying rather than subject himself to the prejudicial effect of the prior.

In the present case, the Beagle guidelines were argued before the court. The prior conviction of robbery did reflect upon appellant's personal integrity and hence his credibility as a witness, and it was not unduly remote. Although appellant indicated his intention not to testify if the prior were ruled to be admissible, and the prior was for the identical offense for which appellant was on trial, no other prior convictions were available. Hence, it would as a general rule have been within the discretionary power of the trial court to determine that the prior conviction should be usable for the purpose of impeachment rather than to allow to the defendant “a false aura of veracity.” (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) But the California Supreme Court has declared that a prior robbery may not be used for the purpose of impeachment in a robbery trial. (People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19.)

A Beagle error which has resulted in a decision by the defendant not to testify calls for reversal of the judgment if the ruling has “prevented [[[the defendant] from presenting any defense to the charges” (People v. Spearman (1979) 25 Cal.3d 107, 118, 157 Cal.Rptr. 883, 889, 599 P.2d 74, 80). Here the ruling did not prevent appellant from presenting a defense that had substantial prospects for success. The defense was an alibi, supported by two witnesses. Against that defense, the fact that the crimes were committed was not challenged at all, and the victim's identification of appellant as the perpetrator was based on a good opportunity to observe and remember appellant's appearance. We conclude that it is not reasonably probable that if impeachment had been precluded and appellant had testified, a result more favorable to him would have resulted. Therefore the Beagle error does not call for reversal. (Cal.Const., art. VI, § 13.)

Appellant contends that it was error for the court to refuse to give an instruction (CALJIC No. 2.91)¹ relating the prosecution's burden of proof to the issue of identification, which was the foremost issue in this trial. The requested instruction appears in CALJIC with a “use note” which advises the trial judge to “use this instruction where the only evidence of identification is the testimony of eyewitnesses.” That use note apparently led the trial judge to the view that the instruction need not be given in the present case because, in addition to eyewitness identifications, there was circumstantial evidence of appellant's identification as one of the robbers.

The terms “presumption of innocence” and “reasonable doubt” have been defined by statute (Pen.Code § 1096). It has also been provided by statute that “In charging a jury, the court may read to the jury [the statutory definition] and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.” (Pen.Code, § 1096a.) Nevertheless, it has been held that the court should, upon request, deliver a special instruction on reasonable doubt “relating particular facts to any legal issue.” (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 717, 465 P.2d 847, 853; see also People v. Rincon-Pineda (1975) 14 Cal.3d 864, 173 Cal.Rptr. 119, 538 P.2d 247; People v. Guzman (1975) 47 Cal.App.3d 380, 121 Cal.Rptr. 69.) In the present case, the principal factual issue was the identity of appellant as a participant in the offenses. Thus, the court should have, on request, delivered an instruction posing that issue in terms of reasonable doubt. The distinction suggested by the Attorney General, that the requested instruction need be given only where the identification of the defendant is dependent exclusively upon eyewitness testimony, has no reasonable basis and is not to be recognized. But the identity issue was presented not only by the prosecution evidence which would have been the subject of the requested instruction; it was posed also by alibi evidence presented by the defense. The court properly gave an instruction on alibi, cast in terms of reasonable doubt: “The defendant in this case has introduced evidence tending to show that he was not present at the time and place of the commission of the alleged offense for which he is here on trial. If, after a consideration of the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal.” That instruction, although it used a different formulation from the requested instruction, put to the jury the issue of identity stated in terms of presence “at the time and place of the commission of the alleged offense.” Therefore, it was not error to refuse the requested instruction and in any event the refusal was not prejudicial. (See People v. Gomez (1972) 24 Cal.App.3d 486, 100 Cal.Rptr. 896.)

Appellant contends that the judgment should be modified by deleting reference to the prior robbery conviction. It is pointed out that in pronouncing judgment the court neglected to refer to the prior conviction. The clerk did, in arraigning appellant for judgment, mention that appellant had “suffered the prior conviction as charged.” But that reference does not meet the requirement that the judgment as orally pronounced by the judge must make it clear that the defendant is being sentenced as one whose prior conviction has been admitted or found true. Therefore, the prior conviction must be stricken (see In re Candelario (1970) 3 Cal.3d 702, 706, 91 Cal.Rptr. 497, 477 P.2d 729).

Appellant contends that the judgment should be modified to reflect a single finding of firearm use inasmuch as all the offenses of which appellant was convicted constituted a single course of conduct. It is conceded by the Attorney General that this contention is sound. (See In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23; People v. Johnson (1974) 38 Cal.App.3d 1, 11.)

The judgment is modified by deleting reference to the prior conviction and by providing that appellant serve only one additional period of imprisonment pursuant to Penal Code section 12022.5.

As so modified, the judgment is affirmed.

I dissent.

In People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, the California Supreme Court held that Beagle error which deprives a defendant of his right to testify is a “miscarriage of justice” within the meaning of article VI, section 13 of the California Constitution. In the case at hand there is no dispute that there was Beagle error and that it prevented appellant from testifying. The result would seem to follow.

Here the majority correctly recites the Spearman rule as mandating reversal when an erroneous Beagle ruling has “prevented the defendant from presenting any defense to the charges.” But in the next line of the majority opinion, Spearman is magically transmuted without the citation of authority into a holding that reversal is required only when the Beagle error prevented appellant from presenting “a defense that had substantial prospects for success.” (Emphasis added.) That ipse dixit is followed by a rather sour review of appellant's alibi defense (supported by two witnesses) which the majority does not believe.

There is absolutely nothing in Spearman that talks of reversing only when the precluded defense had substantial prospects for success. Quite to the contrary, the Supreme Court emphasizes that such analysis is speculation beyond the powers of appellate tribunals, and that any such speculation is without basis.” All of this is contained in succinct, readable form in the five terse paragraphs of part IV of the majority opinion in People v. Spearman, supra, written by Chief Justice Bird. This court is bound by that, like it or not.

What the majority does here is to misunderstand the function of appellate tribunals when faced with a Watson-type question. We are not triers of fact. If we were then we could make the assessment made here by the majority: we don't believe your alibi and we don't believe your two alibi witnesses. That may very well be a proper assessment for a juror. But, “[f]or this court to reject the possibility that the jury might have believed appellant would involve not only a high degree of presumption, but also, in certain respects, an invasion of the province of the jury. By refusing to indulge in speculation, this court preserves the right of every person to present his version of the case to the jury.” (People v. Spearman, supra, at p. 119.)

I would reverse the judgment.¹

FOOTNOTES

1.  CALJIC No. 2.91:“The burden is on the State to prove beyond a reasonable doubt that defendant is a person who committed the offense with which he is charged. You must be satisfied beyond a reasonable doubt of the accuracy of the identification of defendant as a person who committed the offense before you may convict him.“If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the person who committed the offense, you must give defendant the benefit of that doubt and find him not guilty.”

1.  Nothing in this dissent, limited as it is in scope, should be understood as approval by the author of other language in the majority opinion especially that related to the nature of the Beagle error itself and a prior conviction which “reflects on the personal integrity of the perpetrator.” That portion of the opinion appears to misunderstand both People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 and People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, but such analysis is not essential here.

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., concurs. POCHÉ, Associate Justice, dissenting.