PEOPLE v. BRANDON (1985)

John Brandon appeals his jury-tried conviction of assault with a deadly weapon on a police officer (Pen.Code, § 245, subd. (b)).

I

On April 11, 1984, Police Officer Mills arrested Brandon for trespassing at an abandoned house with boarded-up windows and dead-bolted doors.   Three or four days later, Mills saw Brandon at the side of the house.   Mills told Brandon he was trespassing and not allowed on the property;  Brandon said he would not leave the property.   Mills took Brandon into custody for alcohol intoxication.

About 2:40 p.m. on April 28, 1984, Mills saw the front door of the house open with the screen door closed.   Mills went to the front door to check for a trespasser.   He heard movement inside.   When Mills grabbed the screen door, Brandon slammed the front door in Mills' face.   Brandon yelled at Mills to leave the property.   Brandon said he “had something” for Mills if he entered the house.

Mills returned to his patrol car parked nearby to move it to a better position to observe the front door.   From his car Mills saw Brandon standing against the house's outside wall beside a bush.   With a hatchet in his left hand and a knife in his right, Brandon stepped out from the bush.   Mills got out of his car and drew his gun.   Brandon began shouting and walking toward Mills from about 20 feet away.   Shaking the raised hatchet back and forth, Brandon continued approaching Mills.   Mills told Brandon to drop his weapon or he would shoot him.   Brandon said Mills was going to drop his own weapon;  Brandon also said he was going to get Mills off the property and he was tired of Mills coming there.   Mills again warned Brandon to drop his weapon.   Brandon kept approaching Mills and stopped about 12 feet away.   Mills again told Brandon to drop the weapon.   Brandon yelled at Mills to leave and said he was tired of Mills coming there.   When Mills reached for mace in his belt, Brandon yelled and charged Mills from about 12 feet away with the hatchet raised over his head and his other hand moving toward his front.   From eight to ten feet away, Mills shot Brandon below the ribs.   Brandon fell to the ground and dropped the hatchet and knife.   Mills told Brandon to roll away from the weapons.   Brandon started to reach for the hatchet;  Mills said he would shoot him.   Brandon rolled away from the hatchet.   Mills moved the weapons away from Brandon's reach.   Brandon was arrested.

II

In July 1984 the matter was tried to a jury.   After the People rested, the prosecutor said he would impeach Brandon with a 1958 armed robbery conviction if Brandon testified.   Brandon asked the court under Evidence Code section 352 to exclude evidence of his prior conviction, asserting its prejudicial effect outweighed its probative value.   The court denied his motion.   The court said:

“What discretion does the court have?  [C]onviction, for armed robbery is certainly relevant for truth and honesty;

“․

“I don't believe 352 is going to apply.  Article 1, section 28 of the state Constitution says that the People have a right, shall be admitted.   In my opinion, and as long as it deals with truth and honesty, the date of it is not relevant․”

Brandon did not testify.   Doyle Millsap testified for the defense.   Millsap heard a gunshot while driving near the crime scene.   He saw Brandon bent over holding his stomach and Mills holding a gun about 25 to 40 feet away.

After deliverating about 30 minutes, the jury found Brandon guilty of assaulting Officer Mills with a deadly weapon.   Brandon appeals.

III

 A witness' prior felony conviction is “admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.”  (People v. Castro (1985) 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   However, such admissibility is subject to the trial court's discretion under Evidence Code section 352.  (Ibid.)  Article 1, section 28, subdivision (f) of the California Constitution, enacted in June 1982, did not abolish the trial court's discretion under Evidence Code section 352 with respect to admitting evidence of prior felony convictions for impeachment.  (People v. Castro, supra, 38 Cal.3d at pp. 312–313, 211 Cal.Rptr. 719, 696 P.2d 111.)

IV

Brandon contends the court erred in saying it had no discretion to exclude evidence of his prior conviction.   He asserts the court's error prejudiced him by preventing his giving crucial testimony about his distance from Mills at the time of the shooting and his state of mind at the time.   Brandon also contends his prior armed robbery conviction did not necessarily involve moral turpitude.

We hold Brandon's prior conviction for armed robbery did involve moral turpitude;  the trial court erred in not exercising discretion under Evidence Code section 352 to consider excluding evidence of the prior conviction but that the error did not prejudice Brandon.

 Under the authorities cited in Castro, armed robbery clearly involves moral turpitude.¹  Section 10(c) of the annotation cited in Castro says:  “Robbery is so clearly within the category of crimes involving moral turpitude ․ that the courts have seldom felt called upon to discuss at any length the turpitude of this offense.”  (Annot. 23 A.L.R.Fed. at p. 531.)   Witkin cites In re Rothrock (1940) 16 Cal.2d 449, 454, 106 P.2d 907:

“ ‘In cases such as those involving convictions of murder, forgery, extortion, bribery, perjury, robbery, embezzlement and other forms of theft, no difficulty would attend the determination of the question of moral turpitude from a consideration of the record of conviction alone.’ ”  (Witkin, supra, § 195, at p. 202.)

 Brandon's armed robbery conviction involved moral turpitude and was prima facie admissible subject to the trial court's discretion under Evidence Code section 352.  (People v. Castro, supra, 38 Cal.3d at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.)   The trial court erred in stating it had no discretion under section 352 with respect to Brandon's prior felony conviction.  (Id. at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)   However, contrary to Brandon's contention, the court's error did not prejudice him.   Whether the error was prejudicial must be determined under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  (People v. Barrick (1982) 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243;  People v. Spearman (1979) 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74;  People v. Fries (1979) 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19, disapproved on another point in Castro;  People v. Fisher (1984) 153 Cal.App.3d 826, 833–836, 200 Cal.Rptr. 683;  People v. Anjell (1979) 100 Cal.App.3d 189, 197–199, 160 Cal.Rptr. 669.   Reversal is required only if after reviewing the entire record it appears reasonably probable a result more favorable to Brandon would have occurred absent the error.  (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.) ²  “Such an evaluation must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant's guilt in the unique circumstances of the particular case.”  (People v. Rist, supra, 16 Cal.3d at p. 222, 127 Cal.Rptr. 457, 545 P.2d 833, disapproved on another point in Castro.)

The People's case against Brandon was strong.   There was overwhelming evidence of his guilt.   Mills testified he shot Brandon from eight to ten feet away when Brandon charged him from twelve feet with a raised hatchet in one hand and a knife in the other.   Passerby Kelly Williams corroborated Mills' testimony.   Williams said Brandon raised the ax in the air and Mills shot him from eight to ten feet away.   Brandon contends he could have given crucial testimony about his distance from Mills at the time of the shooting and his state of mind at the time.   Outside the jury's presence Brandon told the court he thought the police were harassing him.   However, Brandon does not suggest how his feelings of harassment or any other aspect of his state of mind would in any manner constitute a defense to a charge of the general intent crime of assault with a deadly weapon on a peace officer.  (People v. Parks (1971) 4 Cal.3d 955, 959–960, 95 Cal.Rptr. 193, 485 P.2d 257;  People v. Finney (1980) 110 Cal.App.3d 705, 712–714, 168 Cal.Rptr. 80.)   Further, without personally testifying, Brandon presented to the jury his defense his acts did not constitute assault because he was so far away from Mills as to negate any finding he had the present ability to commit injury.   Millsap's testimony he saw Brandon and Mills 25 to 40 feet apart was consistent with Brandon's version of the facts.   Brandon's attorney argued to the jury Brandon's acts did not constitute an assault on Mills because he was too far away.   Brandon's own testimony was not essential to his defense;  any detrimental effect of his not testifying was insignificant.  (People v. Anjell, supra, 100 Cal.App.3d at p. 199, 160 Cal.Rptr. 669.)   It is not reasonably likely a result more favorable to Brandon would have occurred if he had testified.

Since we find the court's error in ruling on the admissibility of Brandon's prior conviction not to be prejudicial under People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243, we do not reach the issue raised by the People that Brandon does not have standing to claim error because he did not testify at trial (see Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443).

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   In referring to the “considerable bodies of law concerning the characterization of felonies as involving or not involving moral turpitude”, the court in Castro cited two examples:  (1) 1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 195;  and (2) Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of §§ 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 U.S.C.A. §§ 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime (1975) 23 A.L.R.Fed. 480.  (People v. Castro, supra, 38 Cal.3d at p. 316, fn. 11, 211 Cal.Rptr. 719, 696 P.2d 111.)

2.   We disagree with the holding in People v. Almarez (1985) 168 Cal.App.3d 262, 268, 214 Cal.Rptr. 105, the trial court's failure to exercise its discretion under Evidence Code section 352 is reversible error per se where the defendant does not testify.   In Almarez (ibid.), the court said People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833 “prescribed the standard of reversible error per se.”   However, Rist did not prescribe such standard.   Rather, where nothing in the record suggested what the defendant's testimony might have been, the court in Rist declined to speculate.   Where, as here, the record shows what the defendant would have said, we may properly determine any error was harmless under the Watson standard because the defendant's testimony would not have affected the outcome of the case.   (People v. Fisher, supra, 153 Cal.App.3d at pp. 833–836, 200 Cal.Rptr. 683;  People v. Anjell, supra, 100 Cal.App.3d at pp. 197–199, 160 Cal.Rptr. 669.)

KREMER, Presiding Justice.

LEWIS and LOVETT, JJ.*