PEOPLE v. WILLIAMS (1985)

A jury found appellant guilty of auto theft (Veh.Code, § 10851) and of three counts of robbery (Pen.Code, § 211), but found that he did not use a firearm in the commission of the latter offenses.   The trial court found true allegations of three prior serious felony convictions within the meaning of Penal Code section 667.   On May 4, 1984, the court sentenced appellant to twenty years in prison (three years middle term on count I, robbery, plus one-year consecutive terms for the two other robberies, plus five-year consecutive terms for each of the prior serious felonies).   Appellant claims that he was prejudiced by the trial court's error in ruling that his prior convictions could be used to impeach him if he testified and that the court erred in refusing to exercise its discretion and strike the priors pursuant to section 1385 for purposes of sentence.   We affirm the judgment.

The facts are undisputed.   Appellant robbed the same savings and loan on December 28, 1983, and on January 9, 1984.   On January 6, he robbed a liquor store.   He was apprehended shortly after the last robbery and was identified as the perpetrator of each of the three robberies by one or more witnesses to the respective crimes.   He explained to his probation officer that he is manic-depressive but does not believe in medication, so when he is depressed he commits robberies to elevate his mood.

I

Appellant moved pursuant to People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 to exclude use of any of his three prior robbery convictions for impeachment.   The trial court denied the motion on the ground that its discretion to grant such a motion had been eliminated by article I, section 28, subdivision (f), of the California Constitution, enacted in 1982 as part of the Victims' Bill of Rights (Prop. 8).   Appellant claims that his decision not to testify on his own behalf was based on the trial court's denial of his motion.

After the trial in this case, in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, in four separate opinions, the Supreme Court considered the effect of section 28 on impeachment with priors.   What emerges from an analysis of those opinsions is that all prior felonies necessarily involving “moral turpitude” are admissible for purposes of impeachment (id., at pp. 316, 211 Cal.Rptr. 719, 696 P.2d 111 (Kaus, J., Mosk, J., and Broussard, J.), 322, 211 Cal.Rptr. 719, 696 P.2d 111 (conc. and dis. opn. by Grodin, J.)), but that the trial court retains discretion pursuant to Evidence Code section 352 to exclude such felonies (id., at pp. 316–317, 211 Cal.Rptr. 719, 696 P.2d 111 (Kaus, J., Mosk, J., and Broussard, J.), 323, 211 Cal.Rptr. 719, 696 P.2d 111 (conc. and dis. opn. by Bird, C.J., and Reynoso, J.)).

 Appellant's prior robbery convictions unquestionably involved moral turpitude.  (People v. Stewart (1985) 171 Cal.App.3d 59, 215 Cal.Rptr. 716;  People v. Guillen (1985) 169 Cal.App.3d 349, 354, 215 Cal.Rptr. 174;  People v. Brown (1985) 169 Cal.App.3d 800, 806, 215 Cal.Rptr. 494.)   Therefore, appellant's priors were clearly admissible for impeachment, but the trial court erred in ruling it had no discretion to exclude any of the priors.

 We conclude, however, that because appellant did not testify he failed to preserve the issue on appeal.   Recently, in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the United States Supreme Court held that a defendant who did not testify at trial was not entitled to appellate review of a trial court's decision denying his in limine motion to exclude use of a prior conviction for impeachment.  (Id., at p. ––––, 105 S.Ct. at p. 464.)   The court reasoned, “A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.   This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant.   To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.  [¶] Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.”  (Id., at p. ––––, 105 S.Ct. at p. 463, fns. omitted.)

The court also stated that when the defendant does not testify, the reviewing court has no way of knowing whether the prosecution would actually have sought to impeach with the prior.   In addition, the court rejected a suggestion that the defendant might preserve the issue by making an offer of proof as to what his testimony would be, noting that the defendant's trial testimony could, for several reasons, differ from the offer.  (Id., at p. ––––, 105 S.Ct. at p. 463, fn. 5.)

We consider the Luce court's analysis persuasive.   We are aware, of course, that in the line of cases which followed People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and commenced with People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, our Supreme Court did not require a defendant to testify in order to raise the impeachment issue on appeal.  (See, e.g., People v. Rist (1976) 16 Cal.3d 211, 219–223, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Fries (1979) 24 Cal.3d 222, 225–234, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman (1979) 25 Cal.3d 107, 119, 157 Cal.Rptr. 883, 599 P.2d 74;  see also People v. Barrick (1982) 33 Cal.3d 115, 121–130, 187 Cal.Rptr. 716, 654 P.2d 1243.)   However, the lead opinion in People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, stressed that what the voters intended to accomplish with Proposition 8 was to “counter the effect of the Antick line of cases․”  (Id., at p. 309, 211 Cal.Rptr. 719, 696 P.2d 111.)   One significant effect of those cases was to encourage a defendant to claim that his decision not to testify was based on the trial court's denial of his Beagle motion, in the hope of planting reversible error in the record in the event of conviction.   But as the Luce court declared, an accused's decision whether to testify seldom turns on the resolution of one factor.  (Luce v. United States, supra, 469 U.S. at p. ––––, 105 S.Ct. at p. 463.)

 Because the defendant in Castro did testify, the Supreme Court was not squarely presented with the question now before this court.   Nevertheless, there is an essential conflict between the Antick line of cases and Castro, given the several statements by members of the Castro court that Proposition 8 was directed against those cases.   Accordingly, and lacking any more specific guidance from our Supreme Court on what remains of the Antick line of cases after Proposition 8, if anything, we consider the question an open one, and adopt the rule articulated in Luce.  (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 692, pp. 4608–4609.)   A defendant who does not testify is not entitled to appellate review of a trial court's ruling on the admissibility of his or her priors for impeachment.¹  (Accord People v. Brewer (1985) 169 Cal.App.3d 1114, 1122–1123, 215 Cal.Rptr. 736;  see also People v. Mink (1985) 170 Cal.App.3d 121, 127–128, 215 Cal.Rptr. 622.)

We have not forgotten that in People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, the court suggested that when the trial court considers the admissibility of a prior to impeach, it should evaluate the effect admission would have on the defendant's decision to testify, among other factors.  (Id., at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   From our conclusion that a defendant must testify to preserve the impeachment issue on appeal, it necessarily follows that reviewing courts will no longer be concerned with whether a trial court properly evaluated that factor.

II 2

III

The judgment is affirmed.

FOOTNOTES

1.   We recognize that this conclusion may appear to be inconsistent with our analysis in People v. Stewart, supra, 171 Cal.App.3d 59, 215 Cal.Rptr. 716, in which we assessed the merits of a nontestifying defendant's contention that the trial court erred in denying his Beagle motion.   Nevertheless, upon reconsideration of the issues and of Castro, we are convinced that our ruling in the case at bench is the proper one.

2.   Part II of this opinion is not certified for publication.  (See fn. * ante.)

BARRY–DEAL, Associate Justice.

SCOTT, Acting P.J., and MERRILL, J., concur.