PEOPLE v. HOFFMAN (1984)

Richard Alan Hoffman appeals a judgment convicting him of burglary (Pen.Code, § 459).   He contends the trial court erred (1) in ruling evidence of his prior felony conviction for rape (Pen.Code, § 261) could be admitted to impeach his credibility, preventing him from testifying in his defense, and (2) in using the prior conviction to enhance his sentence (Pen.Code, § 667).   We conclude article I, section 28,¹ does not permit impeachment of a witness by evidence that he or she previously has been convicted of a felony which is not probative of the issue of credibility.   We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In circumstances more suggestive of fiction than fact, the owner of a residence returned home to find a light off which she had left on, food and drink missing, dresser drawers open, and Hoffman asleep in her bed.   The police woke, then arrested Hoffman.   Hoffman said he broke a window to enter, ate some food and drank some beer taken from the refrigerator before going to sleep.   He told the officers he at one time intended to steal the television but changed his mind.   However, he never stated what his intent was at the time he broke into the home.

Hoffman was charged with burglary of an inhabited building (Pen.Code, § 459), i.e., unlawful entry with intent to commit theft and an enhancing allegation of a prior serious felony conviction.   Hoffman moved in limine to prevent the prosecution from impeaching him with evidence of the prior conviction, claiming he desired to testify but would not if so doing would allow the jurors to learn of his previous rape conviction.  (People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.)   The trial court denied the motion, ruling article I, section 28, subdivision (f) of the California Constitution removed its discretion to refuse to admit a prior felony conviction for credibility impeachment.   However, it bifurcated the trial on Penal Code section 667 enhancement to avoid evidence of that conviction from being presented to the jury deciding guilt on the present charge.

Hoffman did not testify.   Before sentencing, he moved to strike the sentence enhancement allegation, claiming the record of the prior conviction was silent regarding the administration of his Boykin-Tahl rights and he did not recall any advisement of those rights.   After hearing, this motion was denied.

I

 Hoffman's evidence of Boykin-Tahl violations at the time he pleaded guilty to the prior charged rape is insufficient under the rule of People v. Sumstine, 36 Cal.3d 909, 914, 206 Cal.Rptr. 707, 687 P.2d 904.   He presented no evidence that he did not know his rights or did not voluntarily waive them.   He testified only that he did not recall being advised of these rights.   He did not state he was unaware of these constitutional rights or did not waive them.

II

UNDER THE CONSTITUTION AND LAWS OF CALIFORNIA, ONLY RELEVANT PRIOR CONVICTIONS CAN BE ADMITTED TO IMPEACH A WITNESS

 In opposition to Hoffman's contention on the impeachment issue, the People argue article I, section 28 of the California Constitution effects a significant change in the nature of evidence admissible for impeachment.   Specifically, subdivision (f) of section 28 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 ․”  Under the People's interpretation, this constitutional provision overrules People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and abrogates the trial court's discretion to restrict irrelevant or prejudicial prior conviction evidence.   Although we do not decide whether section 28, subdivision (f) overrules Beagle, we hold, under the Constitution and laws of California, only those prior felony convictions relevant to the witness's credibility may be used to impeach testimonial credibility.

Relevancy is the engine of the judicial search for truth.   As Thayer stated:  “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 ․ which forbids receiving anything irrelevant, not logically probative ․”  (Thayer, Preliminary Treatise on Evidence (1898) p. 264, quoted in McCormick on Evidence (2d ed. 1972) p. 433.)   Wigmore states this basic axiom of evidence indirectly effects “the rules directed to prevent the jury from substituting passion and prejudice, instead of reasoning, as the foundation of its conclusion and the doctrine that even the Legislature cannot establish a rule of decision that will deprive the judiciary of its power to investigate the facts by rational methods.”  (1 Wigmore, Evidence (Tillers rev. ed. 1983) § 9, p. 665.)

In California, Evidence Code 2 sections 210 and 350 operationalize these principles.  Section 210 states:  “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness ․ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  Section 350 provides:  “No evidence is admissible except relevant evidence.”   The impeaching relevance of prior felony convictions has most recently been controlled by section 788 ³ as construed by Beagle and its progeny.  (People v. Barrick, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Spearman, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Fries, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Woodward, 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391;  People v. Rollo, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Rist, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Antick, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43.)

While Beagle affirms the trial court's discretion to weigh the probative value of prior felonies against potential prejudice to the defendant (§ 352), the threshold question to this balancing and the fundamental issue in all challenges to admissibility is whether the proffered evidence is probative of the issue to be resolved.   The Legislature has established the sole trait relevant to impeaching credibility is truthfulness;  that is, “[e]vidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.”  (§ 786.)

“Since section 788 authorizes the use of [prior felony convictions] only ‘[f]or the purpose of attacking the credibility of a witness,’ the first factor which the trial court must evaluate is whether the prior felony conviction reflects adversely upon credibility.   Although the commission of any felony is sometimes said to reflect upon the character of the individual convicted, such a belief would not justify the use of every type of felony conviction to impeach credibility.  ‘Character is only an abstract group-term;  what actually exists is a number of virtually separate traits, e.g., honesty, violence, benevolence, etc.’  (Wigmore, Science of Judicial Proof (1937), p. 106;  original italics.)”  (People v. Woodward, supra, 23 Cal.3d 329, 335, 152 Cal.Rptr. 536, 590 P.2d 391.)

 In defining the limits of relevance for impeachment, our Supreme Court has examined the elements of the prior offense.  “ ‘Only a conviction which has as a necessary element an intent to deceive, defraud, lie, steal, etc., impacts on the credibility of a witness.’  [Citation.]  It is not sufficient that the prior offense shows a ‘disrespect for law’ or a ‘character trait of willingness to do anything.’  [Citations.]”  (People v. Barrick, supra, 33 Cal.3d 115, 123–124, 187 Cal.Rptr. 716, 654 P.2d 1243.)   Thus, the nature of the act, and not the nature of the actor, is the dimension on which the court has scaled the probative value of prior felony convictions.

Violent or assaultive crimes have little or no bearing on one's honesty or veracity.  (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   In People v. Rist, supra, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, the Supreme Court expressly disapproved the holding in People v. Delgado, 32 Cal.App.3d 242, 108 Cal.Rptr. 399, which held prior convictions for assault with intent to rape and attempted forcible rape involved elements of “stealth” and bore “some relationship to dishonesty.”  (Id., at p. 250, 108 Cal.Rptr. 399.)   The Court of Appeal in People v. Nelson, 63 Cal.App.3d 11, 133 Cal.Rptr. 552, determined prior rape convictions were irrelevant to credibility.  (Id., at p. 22, 133 Cal.Rptr. 552.)   Logic and case precedent show Hoffman's prior rape conviction is not relevant to impeach his credibility as a witness.

The People argue article I, section 28, subdivision (f) of the state Constitution prohibits us from reaching this conclusion.   To the contrary, our holding does violence neither to the intent nor construction of this section.   We briefly review the evolution of impeachment by prior conviction.

At common law in the 17th century, a person convicted of an “infamous” crime was incompetent to be a witness.  (2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 519–520, pp. 725–730.)   Though difficult to specify, the usual and more broadly accepted infamous crimes included treason, felonies, and crimes involving falsehood.   Such exclusions worked a further punishment for infamy and precluded the presumedly untrustworthy from presenting unreliable evidence.   The rationale underlying the latter consequence was supported by a common belief of the times:  Since “all treasons, and almost all felonies, were punishable by death, it was very natural that crimes, deemed of so grave a character as to render the offender unworthy to live, should be considered as rendering him unworthy of belief in a court of justice.  [Fn. omitted.]”  (1 Greenleaf, Evidence (16th ed. 1899) § 373, p. 514, quoted in Note, Constitutional Problems Inherent in the Admissibility of Prior Record Conviction Evidence for the Purpose of Impeaching the Credibility of the Defendant Witness (1968) 37 U.Cin.L.Rev. 168, 169.)  “Nevertheless, in whatever degree the disqualification may have been thought of as part of the punishment of the offender himself, it was obvious that this theory could not of itself justify the incidental punishment of innocent persons who might need the convict's testimony;  and hence the justification had ultimately to be founded on some more acceptable reason.   Hence, as soon as the rule begins to be reasoned about, we find it placed upon the more plausable theory of actual moral turpitude, i.e., the person is to be excluded because from such a moral nature it is useless to expect the truth ․”  (2 Wigmore, op. cit. supra, at p. 726.)   However, even this rationale was roundly criticized, and by the 19th century, exclusion of infamous criminals as witnesses was all but abolished from Anglo-American law in favor of decisional and statutory modifications allowing the infamous criminal to testify while permitting the conviction to be entered into evidence to affect the weight of his testimony.   Typical of these changes was a New York statute which provided:  “A person who has been convicted of a crime is a competent witness;  but the conviction may be proved, for the purpose of affecting the weight of his testimony ․”  (N.Y.Civ.Prac.Law (McKinney 1963) § 4513.)

The modern evolution of these impeachment principles has resulted in considerable diversity in state practice.   Nonetheless, the relevance of the prior conviction to credibility remains the primary, and in some jurisdictions exclusive, factor in admitting proffered impeachment evidence.  (See 81 Am.Jur.2d, Witnesses, §§ 569–572, pp. 574–578;  Annot. (1920) 6 A.L.R. 1608, supplemented by (1923) 25 A.L.R. 339, (1936) 103 A.L.R. 350, and (1946) 161 A.L.R. 233;  3A Wigmore, Evidence (Chadbourn rev. ed. 1970) § 987, fn. 1, pp. 862–911 and § 987 (1984 pocket supp.) pp. 22–38;  Note, Other Crimes Evidence at Trial:  Of Balancing and Other Matters (1961) 70 Yale L.J. 763, 774–777.)

As mentioned, relevancy is the threshold test for the admission of prior felony convictions for impeachment.   Whether relevance has been abandoned as a criterion under article I, section 28, subdivision (f) of the California Constitution depends on a proper construction of that section.

 Section 28, subdivision (f) was added to the California Constitution in June 1982 with the passage of the Proposition 8 initiative.   Under its terms, “[a]ny prior felony conviction ․ shall subsequently be used without limitation for purposes of impeachment ․”  The People argue the prior felony convictions are free from any restraint on their admission for impeachment.   However, a constitutional amendment must be plainly and naturally construed, relying on the ordinary and accepted meaning of its words.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   And such a construction must reach all the words.   Thus, while the words “without limitation” undoubtedly unshackle some admissibility restraints, they do not eliminate the fact that the prior felonies are still being admitted “for purposes of impeachment.”   Since 1965, section 780 has stated the general rule regarding impeachment:  “[T]he court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony ․” ⁴  (Italics added.)   As can be seen, section 780 embodies the fundamental concept of relevance appearing in section 210.   Further, section 786 explicitly refines the potential use of character evidence for impeachment by stating:  “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.”   Thus, a plain reading of subdivision (f) in light of the long-accepted meaning of its words under the laws of California does not preclude the assessment of relevance in determining prior conviction evidence for impeachment.

 A contrary interpretation proves too much.   Any rational theory of impeachment by a prior felony conviction requires two inferential steps.   First, the trier of fact must link the commission of the felony, i.e., conduct, to some propensity in the witness to lie, i.e., a character trait.   From this propensity, the fact finder may then infer the witness is dishonest or untruthful.   In the most obvious example, the fact finder hears evidence of the witness's past conduct of making false statements under oath from which he can infer the witness has a character trait for untruthfulness, from which he may further infer the present testimony is likely incredible.

The People's argument circumvents or totally eliminates the second inferential step.   They argue the commission of any felony is itself probative of credibility.   Stated most simply, they maintain all former felons will lie under oath.   But this conclusion is betrayed by the flaw in its underlying premise.   Conduct is the manifestation of many human motivations, and not an unerring reflection of character.   Indeed, the line from one's prior conduct to one's present truthfulness is rarely straightly drawn.⁵  For example, one homicide may be a product of a premeditated and stealthily crafted scheme, effectuated by misrepresentations and false statements;  another may be a spontaneous response to a foul and sinister provocation.   While a conviction for either homicide would be a felony, it would be illogical to maintain each equally proves the witness's present truthfulness.   To argue otherwise is to support a belief common in the 17th century which considers neither modern advances in jurisprudence nor in psychology.   Further, the offer of past felonious conduct in this example may support other inferences regarding the witness's character, inferences not at issue in testing one's credibility.   For instance, a jury might infer a fortiori that both felons have a propensity for violence.   Mindful of the potential prejudice in such evidence, the Legislature provided:  “[E]vidence of specific instances of his conduct relevant only as tending to prove a trait or his character is inadmissible to attack or support the credibility of a witness.”  (§ 787.)   Thus, the second inferential step cannot logically, nor legally, be excluded.   It functions much like a filter, sifting the witness's conduct to exclude logically irrelevant, and thereby potentially prejudicial, character evidence and to include assuredly relevant conduct demonstrating a propensity for truthfulness and honesty or the lack thereof.   As Justice Jefferson states:  “If the trait involved in the offense is that of dishonesty or untruthfulness, a felony conviction of such an offense has far greater probative value to impeach a witness than if the character trait is other than that of dishonesty or untruthfulness.”  (2 Jefferson, Cal.Evidence Benchbook (2d ed. 1982) Witnesses, § 28.8, p. 924.)   Our Supreme Court assures such high probative value by requiring that “[u]nless the conviction contains an element reflecting on defendant's honesty, it may not be admitted.”  (People v. Barrick, supra, 33 Cal.3d 115, 123, 187 Cal.Rptr. 716, 654 P.2d 1243.)

 The People, however, argue the framers of subdivision (f) intended to free impeaching prior conviction evidence from a relevancy requirement.   To effectuate the purpose of a law, the court must construe its provisions consistent with the intent of the lawmakers.  (Sand v. Superior Court, 34 Cal.3d 567, 570, 194 Cal.Rptr. 480, 668 P.2d 787.)   This fundamental principle of statutory construction applies with equal force to constitutional amendments adopted by the initiative process.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)  “In construing an initiative measure, the California courts have often referred to the analysis and arguments in the voters' pamphlet as an aid to ascertaining the intention of the framers and the electorate.  [Citations.]”  (Carlos v. Superior Court, 35 Cal.3d 131, 143, 197 Cal.Rptr. 79, 672 P.2d 862, fn. omitted.)

 The analysis of subdivision (f) by the Legislative Analyst 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.”   (Cal.Ballot Pamp., Proposed Amends. to Cal. Const., with analysis by the Legislative Analyst (June 8, 1982) p. 54.)   This analysis clearly suggests the framers intended a change in the law, but the specific target is unclear.  (See Comment, Impeaching the Accused with Prior Convictions:  Does Proposition 8 Put Beagle in the Doghouse? (1984) 15 Pacific L.J. 301, 310.)   Whether aim was drawn on the policy restrictions evolving from Beagle and its progeny, we need not decide.   However, we find relevancy is neither specifically excluded by, nor incompatible with, the amendment's analysis.   Prior felony convictions are to be used to discredit the testimony of the witness, not to discredit the general character of the witness.   Proof the witness is a “bad guy” is not evidence that he will lie under oath.   Thus, the intended focus of impeachment is the credibility of the witness.   The most logically consistent, assuredly accurate, and procedurally expedient way to challenge witness credibility is to present evidence discrediting the witness's truthfulness.   Felony convictions unrelated to truthfulness can support only irrelevant inferences and cannot further the stated purpose revealed in the voters' pamphlet analysis.

Intent, however, can be best ascertained from the language of the constitutional amendment.  (People v. Black, 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.)   Courts must construe all provisions of a statute together, giving significance to every part in pursuance of the intended purpose.  (Turner v. Board of Trustees, 16 Cal.3d 818, 826, 129 Cal.Rptr. 443, 548 P.2d 1115.)   In scrutinizing article I, section 28 in its entirety, we find the preamble, subdivision (a), promotes “a bill of rights for victims of crime” through “broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons ․”  This subdivision does not suggest these goals are to be effected through unrestrained admission of irrelevant and misleading prior conviction evidence.   Subdivision (d), however, does specifically provide for a “right to truth-in-evidence.”   It is highly significant that in ensuring this right, subdivision (d) provides, “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.”  (Italics added.)   Harmonizing subdivisions (d) and (f), as we must, we find it highly improbable an electorate seeking truth-in-evidence would require such evidence be relevant to the disputed issue, but in seeking the reform of impeachment, would find relevance to be unwanted or undesirable.   An harmonious construction of the specific language of section 28 supports the survival of relevancy as a prerequisite to admitting prior felony convictions for impeachment.

This construction also finds support in other state courts construing similar impeachment laws.⁶  In People v. Montgomery, (1971) 47 Ill.2d 510, 268 N.E.2d 695, the Illinois Supreme Court interpreted a statute stating:  “ ‘No person shall be disqualified as a witness in any criminal case or proceeding ․ by reason of his having been convicted of any crime;  but such ․ conviction may be shown for the purpose of affecting his credibility ․’ ”  (Id., at p. 697;  Ill.Rev.Stat.1967, ch. 38, par. 155–1.)   Although the prosecution argued the trial court had no discretion to exclude a 20-year-old robbery conviction, the court determined relevance was fundamental to the admission of evidence and cited Wigmore for the proposition, “ ‘none but facts having rational probative value are admissible.’ ”  (People v. Montgomery, supra, at p. 697.)   Similarly, the New Hampshire Supreme Court determined the trial court should exercise its discretionary powers and “should bear in mind that the use of prior convictions to show nothing more than a disposition to commit crime, or the crime currently charged, would violate the Due Process Clause of the Fourteenth Amendment” (State v. Cote (1967) 108 N.H. 290, 235 A.2d 111, 116, cert. den. Cote v. New Hampshire (1968) 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282), even though the controlling statute provided:  “ ‘No person shall be incompetent to testify on account of his having been convicted of an infamous crime, but the record of such conviction may be used to affect his credit as a witness.’ ”  (Id., 108 N.H. 290, 235 A.2d at p. 115.)   Even in State v. Driscoll (1972) 53 Wis.2d 699, 193 N.W.2d 851, a case cited for allowing impeachment by convictions not confined “to crimes having a relationship to the honesty or veracity of the witness” (81 Am.Jur.2d, Witnesses, § 571, p. 578), the Wisconsin Supreme Court mandated the balancing of relevancy against prejudice in admitting prior felony convictions for impeachment.  (State v. Driscoll, supra, at pp. 857–858.)

 Finally, we interpret subdivision (f) as we do to avoid conflict with the Due Process Clause of the Fourteenth Amendment.   Established principles of judicial construction require California courts to adopt “an interpretation of a statutory provision which, ‘consistent with the statutory language and purpose, eliminates doubt as to the provision's constitutionality’ [citation].”  (People v. Amor, 12 Cal.3d 20, 30, 114 Cal.Rptr. 765, 523 P.2d 1173.)   In the present case, an interpretation of subdivision (f) allowing the unfettered admission of prior felony convictions for impeachment creates a significant constitutional problem.

Due process assures a criminal defendant a fundamentally fair trial.   (Lisenba v. California (1941) 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166.)   The control of evidence is central to this fairness.  (Blackburn v. Alabama (1959) 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242.)   In general,

“[t]he function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions.   Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need;  the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error.”  (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668.)

Although the United States Supreme Court has never determined the constitutionality of impeaching an accused with his prior felony convictions, the courts of California have found no due process infringements.  (People v. Beagle, supra, 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Roberts, 65 Cal.2d 514, 522, 55 Cal.Rptr. 412, 421 P.2d 420;  People v. Modesto, 62 Cal.2d 436, 454, 42 Cal.Rptr. 417, 398 P.2d 753;  People v. Pike, 58 Cal.2d 70, 93, 22 Cal.Rptr. 664, 372 P.2d 656;  People v. Harris, 20 Cal.App.3d 534, 538, 97 Cal.Rptr. 883;  People v. House, 12 Cal.App.3d 756, 763–764, 90 Cal.Rptr. 831, disapproved on other grounds in People v. Beagle, supra, 6 Cal.3d at pp. 451–452, 99 Cal.Rptr. 313, 492 P.2d 1.)   Early cases in this line addressed the potential and undue penalty suffered by a defendant testifying as a witness in his own behalf when prior felony convictions were introduced for impeachment.   These courts found no violations under the Sixth and Fourteenth Amendments and generally held:  “[t]he defendant must weigh the danger of impeachment by the introduction of prior convictions for every witness he calls for the defense.  ‘The fact that the witness may also be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.’  [Citation.]”  (People v. Modesto, supra, 62 Cal.2d at p. 454, 42 Cal.Rptr. 417, 398 P.2d 753.)

However, since 1967 the California courts have relied heavily on Spencer v. Texas (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, for constitutional analysis of impeachment questions.  (See People v. House, supra, 12 Cal.App.3d 756, 764, 90 Cal.Rptr. 831.)   In Spencer, the Supreme Court faced the question of whether the use of prior felony convictions in a single-stage recidivist proceeding violated the Due Process Clause.   In finding the recidivist proceeding constitutionally firm, the Supreme Court analogized to the use of prior convictions for impeachment.   The court suggested the potential prejudice of impeachment evidence is acceptable when it is “particularly probative ” of a defendant's credibility and “[t]he defendant's interests are protected by limiting instructions [citation] and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence.”  (Spencer v. Texas, supra, 385 U.S. at pp. 560–561, 87 S.Ct. at pp. 651–652, italics added.)   Though dictum, the Supreme Court's statement reemphasizes the need to control evidence to assure a fundamentally fair trial.

The People's position also finds no support in a hypothetical application of the specific test in Spencer.   In its holding, the court stated:  “In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases.”  (Spencer v. Texas, supra, 385 U.S. at p. 564, 87 S.Ct. at p. 653.)   Although Spencer did not specify the particular state interest at issue (see id., at p. 570, 87 S.Ct. at p. 657, Warren, C.J., dis.), we perceive of no legitimate state interest furthered by the uncontrolled admission of irrelevant and prejudicial prior felony convictions.  (See generally, Mendez, California's New Law on Character Evidence:  Evidence Code Section 352 and the Impact of Recent Psychological Studies (1984) 31 U.C.L.A.L.Rev. 1003.)   To require prior convictions be relevant to credibility places no greater burden on impeachment evidence than any other type of evidence.   Further, as stated by Chief Justice Warren in his dissent in Spencer:  “While this court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.”  (Spencer v. Texas, supra, at p. 572–574, 87 S.Ct. at pp. 658–659, fns. omitted.)

 Having determined relevancy is still a prerequisite to admitting prior felonies under section 788, we now turn to the effect of the improperly admitted prior conviction.   In a conviction for burglary, the accused's intent at the moment of entry is all important.   On these facts, an entry without an intent to steal would not be a burglary.

 Evidence of Hoffman's intent at entry is circumstantial.   After entry, he promptly stole food and drink and opened dresser drawers, but the evidence also showed he was homeless and had been wandering, cold and scared, about the city seeking shelter.   Further, he had been taken to the county mental health facility a day earlier but refused admittance when he objected to taking medication.   Fearing impeachment, Hoffman elected not to testify and thereby was unable to present his version of his intent.   Addressing a similar error with similar consequences, our Supreme Court stated:  “This court has no way of knowing what defendant's testimony would have been, thus, we have no basis for concluding that such testimony would not have affected the result.   ‘ “[E]rrors at a trial that deprive a litigant of the opportunity to present his version of the case ․ are ․ ordinarily reversible ․”  [Citation.]   A conviction under such circumstances is a “miscarriage of justice” within the meaning of article VI, section 13 of the California Constitution.   [Citations.]’ ”  (People v. Barrick, supra, 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243.)

Judgment reversed.

FOOTNOTES

1.   Added to the California Constitution by initiative measure, approved by the people, June 8, 1982.)

FN2. All statutory references are to the Evidence Code unless otherwise specified..  FN2. All statutory references are to the Evidence Code unless otherwise specified.

3.   Section 788 states:  “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 provision 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 provision 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.   The standard dictionary definition of “impeach” also comports with the language of section 780.   Illustrative is the entry in Webster's New World Dictionary (2d college ed. 1982) at p. 703:  “1. to challenge or discredit ․  2. to challenge the practices or honesty of ․”  (Italics added.)

5.   As Wigmore eloquently states:  “From the point of view of modern psychology, the moral disposition which tends for or against falsehood is an elusive quality.   Its intermittent operation in connection with other tendencies, and the difficulty of ascertaining its quality and force, make it by no means a feature peculiarly reliable in the diagnosis of testimonial credit.”  (3A Wigmore, Evidence (Chadbourn rev. ed. 1970) § 922, p. 725, fn. omitted.)

6.   The Federal Rules of evidence expressly incorporate relevancy as a threshold test in admitting prior convictions to impeach.   Rule 609(a) provides:  “For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.”

WORK, Associate Justice.

BROWN, P.J., and WIENER, J., concur.