PEOPLE v. MILES (1984)

Appellant Charles Miles was charged by information with two counts of robbery.  (Pen.Code, § 211.)   Count I alleged a violation which occurred on June 13, 1982.   Count II alleged a violation which occurred on June 14, 1982.   The jury convicted appellant on count I.   On count II, the jury found defendant guilty of the lesser included offense of attempted robbery.

CONTENTIONS

Appellant contends that the trial court erred in denying his motion to exclude a prior arson conviction pursuant to People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and that the trial court committed reversible error in refusing his request to play to the jury a tape recording crucial to his defense.

FACTS

At about 9:40 p.m. on June 13, 1982, a man wearing a black leather jacket and black cap entered the Church's Fried Chicken store located at 4411 South Western Avenue and ordered some chicken.   The store's senior manager, Bobby Gene Tillie, later identified appellant as that man.   Tillie testified that appellant told him to put the cash register money in the chicken bag.   At that time, appellant had his hand up under his closed jacket as if he held a concealed weapon.   Tillie gave the money to appellant.

At about 1 p.m. the following day, June 14, 1982, someone went to the same Church's Fried Chicken store and ordered food from Patricia Nobles.   The person indicated to Nobles that he wanted the money from the cash register.   At that time, the person had his hand in his pocket as if he held a pointed gun.   Nobles filled a sack with money but the person left the store without taking it.   At trial, Nobles could not identify appellant as the man who attempted to rob her.

Melba Lewis, the assistant manager, was present at the store while the person attempted to rob Nobles and identified appellant as that person.

After his attempt to rob Nobles, the man went across the Church's store parking lot to a donut shop.   At 1 p.m. or shortly thereafter, Tillie drove into the parking lot and saw appellant at a phone booth.   He recognized appellant.   Tillie then went inside the Church's store and told Lewis that the person who had robbed him the previous night was at a phone booth next door.   Lewis told Tillie that Nobles had just been robbed.   Tillie then called the police.

At 1:36 p.m. on June 14, 1982, a police department operator received a phone call from a male person who identified himself as Charles Miles.   The caller asked the police to pick him up on an outstanding warrant, at 4718 South Western Avenue.   At about 2 p.m., Officer Thompson was directed to the address to pick Miles up.   Officer Thompson had been investigating the crime which took place at Church's one hour before.   He had been given a description of the suspect by the victims and when he saw appellant, he felt that appellant fit the description of the suspect.

Thompson then drove to Church's, picked up Lewis, and drove her to appellant's location.   Lewis recognized and identified appellant, who was in the back seat of a second police car.   Appellant was cooperative with the police when he was arrested.

Appellant's defense at trial was mistaken identity and alibi.   He testified in his own behalf and as the sole defense witness as follows:  He had not robbed Church's on either day and had not been inside that store on either day.   On June 13, he drank and smoked marijuana from 1 to 7 p.m., 8:30 or 9 p.m. in an empty parking lot on Western by 45th, 46th or 47th streets and then took a bus to Figueroa and Florence where he checked into a motel room and fell asleep.

He ate, drank liquor and smoked marijuana during the morning of June 14 and then went to his cousin's furniture store at 4716 South Western Avenue, where he had intended to go all morning in order to call the police and turn himself in.   He called the police at about 1:36 p.m. to pick him up on an outstanding warrant for his violation of probation on a prior felony arson conviction.   He then fell asleep.   He further testified that he was “kind of high at the time” and could not understand the police operator.

Before trial, pursuant to People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, defense counsel moved to exclude appellant's prior arson conviction.   The trial court denied the motion based on its interpretation of section 28, subdivision (f) of article I of the state Constitution (hereafter section 28) as adopted on June 8, 1982, as part of Proposition 8.¹

 Counsel for appellant also moved, under section 402 of the Evidence Code, to admit into evidence the tape recording made by the police department of a telephone call made by a man who identified himself as Charles Miles and who requested that the police pick him up at 4718 South Western.   It was argued that this tape recording was relevant in proving:  (1) that appellant did in fact place the call to turn himself in to the police, “otherwise, the jury might not believe he ever made that phone call”;  and (2) that he was intoxicated at 1:36 p.m. on June 14, 1982.²  Appellant's counsel further contended that the jury should have heard the tape because that was the best way the fact finder could be informed of the physical condition of appellant when he turned himself in.   Appellant also intended to argue, “Why would anyone rob Church's Chicken or try to rob Church's Chicken and then immediately call the police to pick him up on a warrant?”

The trial court denied appellant's motion under Evidence Code section 352, finding that the tape had very little, if any, probative value “because it would only be cumulative to what is already known to the jury through previous testimony.”   The trial judge also ruled that playing the relevant part of the tape, which was estimated to be five minutes long, would necessitate undue consumption of time and create a substantial danger of confusing the issues or misleading the jury.

DISCUSSION

IThe Tape Recording

“The duty to balance ‘probative value’ against ‘danger of undue prejudice’ upon proper request is a duty imposed upon the trial court in the first instance.  (Evid.Code, § 352;  see also People v. Beagle, supra, 6 Cal.3d at pp. 453–454 [99 Cal.Rptr. 313, 492 P.2d 1].)   The trial court is statutorily directed to exclude otherwise material, relevant evidence only ‘if its probative value is substantially outweighed by the probability that its admission will ․ create substantial danger of undue prejudice, ․’  (Evid.Code, § 352;  italics supplied.)   The trial court's exercise of discretion under Evidence Code, section 352 will not be reversed on appeal absent a clear showing of abuse.  (People v. Tiner, 11 Cal.App.3d 428, 435 [89 Cal.Rptr. 834] [disapproved on another point in People v. Beagle, supra, 6 Cal.3d at pp. 451–452, 99 Cal.Rptr. 313, 492 P.2d 1];  People v. Hayden, 30 Cal.App.3d 446, 449 [106 Cal.Rptr. 348], [disapproved in part on other grounds People v. Rist (1976) 16 Cal.3d 211, 222, fn. 10, 127 Cal.Rptr. 457, 545 P.2d 833].)”  (People v. Delgado (1973) 32 Cal.App.3d 242, 251, 108 Cal.Rptr. 399, disapproved in part on other grounds People v. Rist, supra, 16 Cal.3d at p. 222, fn. 10, 127 Cal.Rptr. 457, 545 P.2d 833.)

Appellant was the sole defense witness.   His credibility was a matter of the utmost importance to his defense.   The actual tape recording of the conversation with the police operator was of substantial probative value to the defense as it may have shed light on appellant's testimony.   The tape recording arguably corroborated the defense that appellant was “loaded” at 1:36 p.m. on June 14, 1982, and that it was he who placed the call.   If it was found by the trier of fact to be corroborative in either or both respects, the argument that the identification by the witnesses for one or the other of the crimes was mistaken might well have been successful.

Playing the tape recording presented no undue-consumption-of-time problem.   Nor was there any danger that its playing could have confused or misled the jury.   The trial court abused its discretion under Evidence Code section 352 when it excluded the tape recording and refused to allow it to be played to the jury.

That abuse of discretion requires a reversal.

II

As this matter may be retried, we consider the question of the use of the prior felony conviction of arson ³ for impeachment purposes.   The offenses with which appellant was charged occurred after the effective date of article I, section 28;  that section applies to this case.  (People v. Smith (1983) 34 Cal.3d 251, 257–258, 193 Cal.Rptr. 692, 667 P.2d 149.)

Subdivision (f) of section 28 provides:  “Use of Prior Convictions.   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.”  (Emphasis added.)

Appellant contends that his prior arson conviction had “no direct bearing on the credibility of the witness” and therefore should have been excluded and that the admission of his prior arson conviction deprived him of due process of law.

Respondent argues that section 28, subdivision (f) overruled People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and other judicial restrictions on the admission of prior felony convictions for impeachment purposes and allows unlimited impeachment with any and all prior felony convictions.

In People v. Beagle, supra, our state Supreme Court unanimously held that Evidence Code section 788, which authorizes the admission of prior felony convictions to impeach the credibility of a witness, must be read together with Evidence Code section 352, which gives the trial judge discretion to exclude evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   Accordingly, under Beagle, and its progeny, the trial judge must exclude impeachment evidence of a prior felony conviction when its probative value is substantially outweighed by the risk of undue prejudice.

 Before the balancing as to admissibility, embodied in Evidence Code 352 and Beagle comes into play, the prior felony conviction sought to be admitted must have probative value, i.e., it must be relevant to the issue of credibility.  (See People v. Fries (1979) 24 Cal.3d 222, 227, 155 Cal.Rptr. 194, 594 P.2d 19.)  “ ‘Relevant evidence’ includes ‘evidence relevant to the credibility of a witness.’ ”  (Evid.Code, § 210.)   By statute, the trier of fact, in determining the credibility of a witness may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of [a witness'] testimony at the hearing ․”  (Evid.Code, § 780.)

 This decisional and statutory law is consistent with the rule in this state since at least 1872, that relevancy is the predicate to the admissibility of evidence for the purpose of impeaching a witness.  Evidence Code section 350 states that rule simply and clearly:  “No evidence is admissible except relevant evidence.”  Section 350, enacted in 1965, merely restates and supersedes that portion of Code of Civil Procedure section 1868, enacted in 1872, which required the exclusion of irrelevant evidence.

 In Evidence Code section 786, the Legislature established truthfulness as the sole character trait relevant to impeaching credibility.   (People v. Woodard (1979) 23 Cal.3d 329, 335, 152 Cal.Rptr. 536, 590 P.2d 391.)  Evidence Code section 786 states:  “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.”   Cognizant of this, the Supreme Court in People v. Woodard, supra, noted that “[w]hile a prior felony conviction may be probative of one or more ‘separate traits' of character, it may not involve the one trait—truthfulness—which is relevant to impeaching credibility.   If a prior felony conviction does not involve the character trait of truthfulness, it must be excluded as irrelevant at the outset, since [Evidence Code] section 350 unequivocably provides that ‘[n]o evidence is admissible except relevant evidence.’ ”  (23 Cal.3d at p. 335, 152 Cal.Rptr. 536, 590 P.2d 391, fn. omitted;  see also People v. Barrick (1982) 33 Cal.3d 115, 123–124, 187 Cal.Rptr. 716, 654 P.2d 1243.)   Under Evidence Code section 350, the trial court has no discretion to admit statutorily irrelevant evidence.  (People v. Hall (1980) 28 Cal.3d 143, 152, 167 Cal.Rptr. 844, 616 P.2d 826.)

 It is readily apparent that under the law as it existed prior to the enactment of Proposition 8, appellant's prior conviction of arson unaccompanied by the necessary element of an intent to defraud would have been excluded at the outset.   Evidence of ordinary arson unaccompanied by an intent to defraud is irrelevant to the issue of credibility since it has no tendency in reason to prove that appellant was testifying untruthfully.   Neither Evidence Code 352 nor Beagle would even have been called into play since the court may only weigh the admission of relevant, not irrelevant, evidence.

The crucial question remaining, however, is whether the electorate, in passing section 28, subdivision (f), intended to make admissible for purposes of impeachment of a witness, evidence of a prior felony conviction which has no tendency in reason to disprove the credibility of a witness.   We hold that it did not.⁴  We need not, and do not, decide the questions of whether, as respondent contends, section 28, subdivision (f) overrules Beagle or whether, as appellant contends, section 28, subdivision (d) ⁵ applies to section 28, subdivision (f).⁶  Nor need we reach the possible constitutional ramifications of using irrelevant prior felony convictions to impeach the credibility of a witness.⁷  (See People v. Beagle, supra, 6 Cal.3d at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.)

“A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words.  [Citation.]  The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent to the framers.  [Citations.]  [¶] Most importantly, apparent ambiguities frequently may be resolved by the contemporaneous construction of the Legislature or of the administrative agencies charged with implementing the new enactment.  [Citations.]  In addition, when, as here, the enactment follows voter approval, the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.  [Citations.]”  (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.)

Insofar as is here pertinent, section 28, subdivision (f) provides:  “Any prior felony conviction ․ shall ․ be used without limitation for [the purpose] of impeachment ․”

The words “[a]ny prior felony conviction ․ shall ․ be used without limitation” would, if unmodified, appear to require the admission of all prior felony convictions regardless of their relevancy to the issue of credibility.⁸  These words, however, are then immediately followed and modified by the words “for purposes of impeachment or enhancement of sentence in any criminal proceeding.”   These words, insofar as is here pertinent, import a requirement of relevancy inasmuch as a prior felony conviction obviously cannot be used “for purposes of impeachment” unless it has impeachment value.   To state the matter another way, it may be said that a prior felony conviction may be used without limitation for the only two certain purposes set forth in article I, section 28, subdivision (f), i.e., for purposes of [1] impeachment or [2] enhancement of sentence in any criminal proceeding.

The legislative analyst's analysis of section 28, subdivision (f) submitted to the voters along with Proposition 8 states:  “Prior Convictions.   The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation to discredit the testimony of a witness, including that of a defendant.   Under current law, such information may be used only under limited circumstances.”  (Emphasis added.)   A reading of this analysis discloses that it suffers from the same uncertainty and ambiguity from which section 28, subdivision (f) itself suffers.

Stating the problem most favorably to respondent's position results, at the most, in the conclusion that the language in question is reasonably susceptible of two constructions.

“ ‘[W]hen language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.  [¶] The defendant is entitled to the benefit of every reasonable doubt, whether it arise[s] out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’ ”  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186, quoting In re Tartar (1959) 52 Cal.2d 250, 256–257, 339 P.2d 553.)

 In accordance with this rule of statutory construction, which we conclude applies equally when a constitutional provision is reasonably susceptible of two constructions, we are compelled to construe section 28, subdivision (f) as permitting, for the purpose of impeachment, the admission of only those prior felony convictions which are relevant to the issue of credibility of the witness.

Further, there is nothing in the language of section 28 or any of its parts to suggest that the electorate intended section 28, subdivision (f) to permit the admission of IRRELEVANT prejudicial matter by mandating the admission of prior felony convictions which have no tendency to prove that a witness is untruthful or lacks credibility.

Section 28, subdivision (d) speaks of relevant evidence and reflects the electorate's will that such relevant evidence, subject to certain exceptions, not be excluded.   It is highly improbable that the voters would, a mere two subdivisions later in subdivision (f), inconsistently mandate the admission of irrelevant prior felony convictions to impeach a witness.   Irrelevant prior felony convictions cannot be used “for purposes of impeachment” since they have no probative impeachment value.   Their use tends only to prove that the witness is a “bad person” who has a propensity for criminal activity.

If the target of the draftsmen of section 28, subdivision (f) is People v. Beagle, supra, they missed their mark.  Beagle and Evidence Code section 352, deal with the discretion of the court to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   Only relevant evidence is probative and only relevant evidence may be balanced under the Beagle -Evidence Code section 352 test.   The determination of whether evidence is relevant, therefore, must be made one step before any possible necessity could arise to balance it under the Beagle -Evidence Code section 352 test.

Called upon to construe a statute ⁹ having some provisions similar to those of section 28, subdivision (f), the Illinois Supreme Court in People v. Montgomery (1971) 47 Ill.2d 510, 268 N.E.2d 695, held that the admission of defendant's 21 year old conviction for robbery constituted reversible error because it had no tendency to show identity, motive or plan, and bore no rational relationship to defendant's present credibility.   The reasoning of the Montgomery court to support its holding is instructive:

“Our analysis of the correctness of this construction of the statute begins with a fundamental proposition of the law of evidence.  ‘There is a principle—not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence, as contrasted with the old formal and mechanical systems—which forbids receiving anything irrelevant, not logically probative.’  (1 Thayer, Preliminary Treatise on Evidence, 264 (1898).)   In discussing the basic axiom, ‘None but facts having rational probative value are admissible’, Wigmore says that ‘Among its innumerable indirect effects are to be noted the rules directed to prevent the jury from substituting passion and prejudice, instead of reasoning, as the foundation of their conclusion;  and the doctrine that even the Legislature cannot establish a rule of decision which will deprive the Judiciary of its power to investigate the facts by rational methods.’   1 Wigmore on Evidence, sec. 9, (3rd Ed.1940), p. 920.”  (People v. Montgomery, supra, 268 N.E.2d at p. 697.)

The Montgomery court went on to say:

“On the other hand, the prejudicial effect of this [prior conviction] evidence is unmistakable.   As the trial judge in this case put it, ‘The defendant is a dead duck once he is on trial before a jury and you present a record that he was convicted ․ twenty-five years ago ․  If it's any way close, the jury is going to hang him on that record, not on the evidence.’

“The customary safeguard against this danger is an instruction to the jury that the defendant's criminal record may be considered only as it bears upon the weight to be given to the defendant's testimony.   The unstudied remarks of the trial judge reflect his disbelief in the effectiveness of that safeguard.   That same disbelief was expressed in more scholarly terms by Dean Griswold:  ‘We accept much self-deception on this.   We say that the evidence of the prior conviction is admissible only to impeach the defendant's testimony, and not as evidence of the prior crimes themselves.   Juries are solemnly instructed to this effect.   Is there anyone who doubts what the effect of this evidence in fact is on the jury?   If we know so clearly what we are actually doing, why do we pretend that we are not doing what we clearly are doing?’   Griswold, The Long View (1965) 51 A.B.A.J. 1017, 1021;  [citations].”  (People v. Montgomery, supra, 268 N.E.2d at pp. 697 and 698.)

The trial court in the case before us instructed the jury that “[t]he fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness.   The fact of such a conviction does not necessarily destroy or impair the witness' credibility.   It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.”  (CALJIC No. 2.23.)

 Neither an intent to deceive, defraud, lie, steal or the like was a necessary element of the kind of arson of which appellant was convicted.   Introduction of evidence of his prior conviction of that particular crime did not bear upon his credibility as a witness and was, therefore, prejudically irrelevant.

Nor may the words “without limitation for [purposes] of impeachment” as used in section 28, subdivision (f) cloak all prior felony convictions with the garb of relevance, for a cloak does not alter the substance of that which it covers.   Irrelevant evidence by any other name is still irrelevant evidence.

We, accordingly, hold that the trial court's ruling that appellant could be impeached with evidence of his prior arson conviction was erroneous as it had no relevance to the issue of his credibility.   It was, therefore, improperly admitted under section 28, subdivision (f).

The judgment is reversed.

I concur in the view that reversal is required because it was error to exclude the tape recording and to refuse to allow it to be played to the jury.   I dissent from that portion of the majority opinion ruling inadmissible on retrial the prior arson conviction suffered by appellant and would, instead, hold that conviction admissible for impeachment purposes upon any retrial.

Under People v. Beagle, (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and its progeny, appellant's arson conviction clearly was not relevant to his credibility.¹  The sole character trait relevant to impeaching credibility is truthfulness.  (Evid.Code, § 786;  People v. Woodard (1979) 23 Cal.3d 329, 335, 152 Cal.Rptr. 536, 590 P.2d 391.)  “Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty or veracity.”  (Gordon v. United States (D.C.Cir.1967) 383 F.2d 936, 940–941, quoted in part in People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)  “ ‘Only a conviction which has as a necessary element an intent to deceive, defraud, lie, steal, etc., impacts on the credibility of a witness.’  (People v. Spearman (1979) 25 Cal.3d 107, 115 [157 Cal.Rptr. 883, 599 P.2d 74].)”  (People v. Barrick (1982) 33 Cal.3d 115, 123–124, 187 Cal.Rptr. 716, 654 P.2d 1243.)   Thus, under controlling California law prior to the adoption of California Constitution article I, section 28 (herein section 28), the trial court would have been obliged to exercise its discretion under Evidence Code section 352² and exclude appellant's prior felony conviction as bearing little, if at all, on his credibility as a witness and creating substantial danger of undue prejudice.   (People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826;  People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.)

California Constitution article I, section 28, subdivision (d) (herein section 28(d)) is entitled “Right to Truth-in-Evidence” and provides, “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.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

California Constitution article I, section 28, subdivision (f) (herein section 28(f)) is entitled “Use of Prior Convictions” and 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.”   By contrast with section 28(d), section 28(f) makes no reference to any specific Evidence Code section.

Appellant argues that section 28(f) is unclear and ambiguous.   Further, appellant urges that section 28(d) and section 28(f) must be read together.   By doing so, the result would be that the Evidence Code section 352 exception is engrafted onto section 28(f) when, to me, the clear intent of section 28(f) is that the Evidence Code section 352 exception as interpreted in Beagle be removed from consideration when a trial court judge is ruling on admissibility of a prior felony conviction for purposes of impeachment.

Respondent argues that the text of section 28(f) is clear and unambiguous in its intent to overrule Beagle and reinstate the original strength of Evidence Code section 788.³  I agree with that position.   Respondent argues, additionally, that section 28(f) permits automatic, unlimited impeachment with evidence of prior convictions.⁴  I would not go that far and it is not necessary to do so in deciding this case.  (See fn. 6, infra.)

As noted by the majority, “A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words.  [Citation.]  The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers.  [Citations.]  [¶] ․  In addition, when, as here, the enactment follows voter approval, the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.  [Citations.]”  (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 analysis by the Legislative Analyst submitted to the voters concerning section 28(f) provided, “Prior Convictions.   The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation to discredit the testimony of a witness, including that of a defendant.   Under current law, such information may be used only under limited circumstances.”

To the extent that the provisions of section 28(d) and section 28(f) are uncertain, the analysis submitted to the electorate may be used to determine the intent of the framers.  (Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 580–581, 203 P.2d 758.)   Here, reference to the legislative summary leads me to the conclusion that the target of section 28(f) was Beagle and its utilization of Evidence Code section 352 to restrict use of prior felony convictions for impeachment purposes.

The majority cites People v. Montgomery (1971) 47 Ill.2d 510, 268 N.E.2d 695, in support of the proposition that the introduction of a felony conviction into evidence may damage the credibility of the defendant-witness in the eyes of the jury, even where the conviction is for a crime not related to truth telling.   CALJIC 2.23, which was given in this case, instructs the jury that, “The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness.   The fact of such a conviction does not necessarily destroy or impair the witness' credibility.   It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.”   If a defendant who testifies has suffered a conviction unrelated to truth telling (here, arson) and that fact is presented to the jury, it can be argued by defense counsel in closing argument that this fact bears not at all on credibility.   The jury instruction and the opportunity for argument reduce any likelihood that irreparable damage is done by virtue of admitting into evidence the prior conviction.

The majority holds that section 28(f) makes inadmissible evidence of the prior conviction of appellant for arson because it has nothing to do with credibility.   Yet Evidence Code section 788 makes admissible for impeachment purposes “any felony conviction” (subject to the limitations therein expressed) and section 28(f) provides for use of any prior felony conviction “without limitation for purposes of impeachment.”

This language in the state Constitution and in the Evidence Code is tantamount to an expression that all felony convictions are, by virtue of that fact alone, relevant.   Their weight remains to be evaluated by the fact finder.

The intent of the framers of section 28(f) seems to me to be clear in this regard.   All prior felony convictions are relevant for purposes of impeachment of witnesses.⁵  (See People v. Aldana (1984) 151 Cal.App.3d 948, at p. 955–956, 199 Cal.Rptr. 156, petn. for hg. filed March 20, 1984.)

In my view, it was not error to permit the prosecution to use in cross-examination the 1981 arson conviction suffered by appellant and I would permit its use on retrial.⁶

FOOTNOTES

1.   Section 28, subdivision (f) reads in part, as follows:  “Use of Prior Convictions.   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.”  (Emphasis added.)

2.   Prior to the court's ruling on the motion, the parties agreed that if the motion were denied, it would be stipulated that “․ on June 14, 1982, at 1:36 p.m., the police received a call from a male person identifying himself as Charles Miles who asked the police to pick him up on a warrant at 4718 South Western.”   After the ruling, the stipulation was read to the jury.

3.   Appellant was apparently not convicted of that type of arson which involves as a necessary element an intent to deceive, defraud, lie, steal or the like.   Insofar as the record reflects, he was convicted of a violation of Penal Code section 451, which in pertinent part provides:  “A person is guilty of arson when he willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of, any structure, forest land or property․”

4.   “[N]othing shall be given in evidence which does not directly tend to the proof of the matter in issue.”  (Bird v. United States (1901) 180 U.S. 356, 360, 21 S.Ct. 403, 405, 45 L.Ed. 570.)

5.   Section 28, subdivision (d) provides:  “Right to Truth-in-Evidence.   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.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

6.   We specifically do not decide whether the term “section” as used in section 28, subdivision (d) means “section” or “subdivision” and whether, after Proposition 8, Evidence Code section 352 may be used to limit the admissibility of prior felony convictions that are relevant to the issue of credibility.

7.   We do note, however, that in Blackburn v. Alabama (1960) 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242, the United States Supreme Court stated:  “It is also established that the Fourteenth Amendment forbids ‘fundamental unfairness in the use of evidence, whether true or false.’ ”  (Quoting Lisenba v. California (1941) 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166.)

8.   This observation was also made by Chief Justice Rose Elizabeth Bird in her dissent to the majority's opinion in Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.   The Chief Justice noted:  “[Section 28, subdivision (f) ] appears to require the admission of certain irrelevant evidence—all prior felony convictions, whether or not relevant to credibility.  [Citation.]”  (Id., at p. 279, 186 Cal.Rptr. 30, 651 P.2d 274;  emphasis in original.)

9.   That statute provided in pertinent part:  “ ‘No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime;  but such interest or conviction may be shown for the purpose of affecting his credibility․’ (Italics supplied.)  (Ill.Rev.Stat.1967, ch. 38, par. 155—1.)”   (People v. Montgomery, supra, 268 N.E.2d at p. 697.)

1.   Arson consists of the following elements under Penal Code section 451:  “1.   That a person set fire to or burned or caused to be burned, or aided, counseled or procured the burning of ․ property of another, and [¶] 2.   That the fire was willfully and maliciously set.”   (CALJIC 14.85.2.)

2.   Section 352 of the Evidence Code provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

3.   Evidence Code section 788 provides:  “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 unless:  [¶] (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.  [¶] (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.  [¶] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.  [¶] (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”

4.   Prior to the Beagle decision, California courts concluded that the trial judge has no discretion to exclude evidence of a prior felony conviction when the lawfulness of that conviction is established or uncontested.  (People v. House (1970) 12 Cal.App.3d 756, 762–763, 90 Cal.Rptr. 831, People v. Grant (1970) 11 Cal.App.3d 687, 691, 89 Cal.Rptr. 784, People v. Hall (1970) 7 Cal.App.3d 562, 565, 86 Cal.Rptr. 504 (House, Grant and Hall, overruled in People v. Beagle, supra, 6 Cal.3d 441), 99 Cal.Rptr. 313, 492 P.2d 1.)

5.   After the adoption of section 28, care must be exercised in considering People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391, and People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, Woodard involved the application of Beagle principles to a nonparty witness in a criminal case.  Barrick involved a discussion of Beagle principles as they applied to a “sanitized” prior conviction of the defendant.   If, as I see it, section 28(f) supplants Beagle, then also washed away are cases, including Woodard and Barrick, which rely on Beagle for their underpinning.

6.   My position is limited to the case presented to us, i.e., a defendant-witness whose prior conviction is for a felony unrelated to the charge he faces at trial.   Where a defendant has suffered a prior felony conviction for a crime substantially similar to the charge he faces, there are, in my opinion, due process considerations to be evaluated in determining whether the prior conviction is admissible for impeachment purposes.

McCLOSKY, Associate Justice.

KINGSLEY, J., concurs.