PEOPLE v. JONES (1985)

Defendant Jeffrey Wayne Jones appeals from his conviction by jury of attempted burglary (Pen.Code, §§ 664/45964459) and from the revocation of his probation based on that conviction.   The trial court sentenced defendant to two years in prison for the burglary conviction (Pen.Code, § 459) for which he was on probation at the time of the instant offense and to a consecutive four-month term (one-third of the median term) on the attempted burglary.

On appeal, defendant urges that the trial court erred in ruling defendant's three prior burglaries would be admissible for purposes of impeachment, and this error requires reversal of his conviction of attempted burglary and the revocation of his probation based on that conviction.   He also contends he did not receive proper credits against his sentence.   We reject defendant's contentions and will affirm the judgment.

THE FACTS

Jeffrey David Larson owns Yosemite Boot & Shoe Repair (Yosemite Boot) in Madera.   The store was open on November 24, 1982, the day before Thanksgiving.   Larson left the business at about 6 p.m., setting both the deadbolt and the alarm.   At about 2 a.m. the next morning, the police called Larson to return to his store because of an apparent attempted burglary.   Larson observed that the front door had been damaged, the handle was missing, and wood chips were lying on the sidewalk in front of the door.

Yosemite Boot is located in the 300 block of Yosemite Avenue next door to a clothing store, Bruno's.   Both Yosemite Boot and Bruno's have doorways which are recessed about five to six feet from the sidewalk.

On the night of November 24–25, 1982, police officer Thomas Frazier was patrolling Yosemite Avenue.   As he scanned the 300 block of Yosemite Avenue near 2 a.m., Frazier did not immediately see any pedestrians.   As he proceeded further down Yosemite, he again scanned the street, and this time, within a matter of “a couple of seconds,” Frazier saw two people walking eastbound.   From the area where he first observed the two, Frazier thought they were coming from the vicinity of Yosemite Boot, Bruno's, or possibly Montgomery Wards.   Frazier then made a U-turn and stopped near those businesses.   He observed very obvious signs of tampering with the door of Yosemite Boot although he had seen nothing unusual about the door when patrolling the area some 40 minutes earlier.

Frazier saw the two people turn south at the first intersection they approached.   Frazier stopped and detained them, and at trial Frazier identified defendant and a codefendant as the two men he had stopped that night.   While the suspects were detained, Frazier returned to Yosemite Boot and confirmed that the door looked like someone had tried to jimmy the deadbolt by chipping away the wood surrounding it.   In some shrubbery along the route taken by the defendants between the place Frazier first observed them and the place where he detained them, Frazier found a chisel and a doorplate.   During the booking search of defendant by Officer Maloney of the Department of Corrections, Maloney found a pillowcase with some red stains on it in the lining at the bottom of defendant's coat.

Defendant did not testify, but his codefendant, Juan Rodriguez did.   Rodriguez testified he had met defendant at about 7 or 8 p.m. on the night of November 24 at the Montana Bar.   Later they went to the Veteran's Bar where they met a young woman named Patty Mendoza.   The three left the Veteran's Bar shortly before 2 a.m., defendant and Rodriguez escorting Mendoza to her babysitter's house.   After picking up her infant, Mendoza asked Rodriguez to walk her home.   After leaving Mendoza, Rodriguez and defendant began to walk back to Rodriguez' house along Yosemite Avenue.   They stopped at Bruno's to look in the window at some jackets and some pruning shears, and they stepped into the recessed doorway.   Defendant told Rodriguez he was thinking of buying a leather jacket.   Rodriguez testified he was carrying nothing in his hands.

DISCUSSION

 I. Did the trial court err in ruling defendant's three prior burglary convictions would be admissible for purposes of impeachment?

Prior to trial defendant moved pursuant to Evidence Code section 352 ¹ to exclude evidence of his prior felony convictions if offered for purposes of impeachment on the ground these prior convictions would be more prejudicial than probative.   Defense counsel pointed out the priors (three burglary convictions) were similar to the offense with which defendant was charged (attempted burglary), and these priors “would have a definite impairment on Mr. Jones' willingness to testify in this case.”   Defense counsel argued that the enactment of Proposition 8, specifically the addition of section 28, subdivision (f) to article I of the California Constitution ² did not eliminate the trial court's discretion to exclude such priors under section 352.   Counsel further argued that, since these particular priors were virtually identical to the offense with which defendant was charged, their introduction would be extremely prejudicial to defendant.   The trial court exercised its discretion to admit evidence of the prior convictions to impeach defendant if he elected to testify.

Following the recent decision of the California Supreme Court in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, this court requested supplemental briefing addressing the effect of that opinion on the contention raised by defendant.

Briefly stated, the Supreme Court made clear in People v. Castro, supra, that the addition of section 28, subdivision (f), to article I of the California Constitution did not abrogate the trial court's discretion under section 352 to exclude evidence of a prior felony conviction offered for purposes of impeachment if the trial court determined evidence of the prior would be more prejudicial than probative.   However, the Supreme Court made equally clear that the hard and fast limitations on the admission of such priors, resulting from decisional law prior to the passage of Proposition 8, had been eliminated by that initiative and thus the class of prior convictions usable for purposes of impeachment was significantly broadened.   The Supreme Court held “that—always subject to the trial court's discretion under section 352—subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.   On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.”  (People v. Castro, supra, at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

Thus, the Supreme Court has established a two-pronged test for determining whether a prior conviction may be admitted for purposes of impeachment.   First, when the prosecution proposes to use such a prior felony conviction, the trial court must determine if the conviction is for a felony necessarily involving moral turpitude.   To make this determination, the Supreme Court makes clear that “a witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.”  (People v. Castro, supra, at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111, emphasis added.)   Thus the trial court determines moral turpitude from the fact of defendant's conviction, i.e., looking only to the elements of the offense, and does not receive evidence on the underlying facts of the crime.   If the trial court determines that the prior conviction is for a felony which does not involve moral turpitude, also defined by the Supreme Court as a “ ‘readiness to do evil’ ” (id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111), the prior felony conviction “bears no rational relation to the witness' readiness to lie, [and] the due process clause of the Fourteenth Amendment necessarily cuts into the ‘without limitation’ language of subdivision (f).”  (Ibid.)

However, upon determining that the underlying felony is one involving moral turpitude or a readiness to do evil, the trial court must still exercise discretion pursuant to section 352 to weigh the probative value of the prior felony conviction on the issue of defendant's credibility versus its potentially prejudicial effect.   As noted above, the guidelines for making this determination of probative value versus prejudicial effect, first articulated by the California Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, had evolved through ensuing decisional law into “rigid limitations on the discretion of the trial court.”   (People v. Castro, supra, 38 Cal.3d at p. 308, 211 Cal.Rptr. 719, 696 P.2d 111.)   The Supreme Court determined it was this rigidity which the voters intended to reject by the enactment of Proposition 8.   As the court pointed out in People v. Williams (1985) 169 Cal.App.3d 951, 215 Cal.Rptr. 612, the Beagle guidelines are no longer absolute controls on the discretion of the trial court but are still appropriate factors which may be considered when the trial court weighs probative value versus prejudicial effect.

Applying these principles to the facts of this case, the first inquiry is whether defendant's three prior burglary convictions involved moral turpitude.   Several post-Castro opinions have found burglary to be a felony involving moral turpitude without much discussion.  (See, for example, People v. Williams, supra, 169 Cal.App.3d at p. 957, 215 Cal.Rptr. 612;  People v. Almarez (1985) 168 Cal.App.3d 262, 267, 214 Cal.Rptr. 105;  People v. Boyd (1985) 167 Cal.App.3d 36, 44, 212 Cal.Rptr. 873.)

 We note, however, that rarely does the fact of a prior burglary conviction reveal to the trial court the nature of the target or underlying offense which the defendant intended to commit when he made the unlawful entry.   Thus, the trial court can realistically only determine that a prior burglary conviction involves moral turpitude if every entry “with an intent to commit grand or petit larceny or any felony” involves moral turpitude, without regard to what felony may be intended.   We hold that it does.   The entry into a structure with the intent to commit a public offense therein is itself a dishonest act, involving a knowing readiness to do evil, such that any burglary involves moral turpitude whether or not an underlying felony does.  (People v. Statler (Nov. 6, 1985, F002934) 174 Cal.App.3d 46, 219 Cal.Rptr. 713;  People v. Hunt (1985) 169 Cal.App.3d 668, 675, 215 Cal.Rptr. 429.)

This conclusion resolves a second troubling aspect of burglary as a felony admissible for purposes of impeachment.   The Supreme Court in People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, recognized that felonies involving elements of dishonesty—such as forgery, perjury, and theft—are more probative on the issue of a defendant's credibility than are, for example, crimes of violence.   Under rigid Beagle guidelines, only felonies encompassing dishonesty were admissible for purposes of impeachment, but it is clear the broader class of crimes admissible under Castro will permit crimes of violence to be used for similar purposes.

However, despite this necessary widening of the class of felonies admissible for impeachment, the court in People v. Castro has implicitly recognized a scale of probative value by which the trier of fact is to measure the impact of the prior conviction on the defendant's credibility.   Thus, crimes of dishonesty are the most probative on the issue of credibility, crimes of violence are less probative, and other felonies may involve moral turpitude but be only minimally probative as to a defendant's credibility.   Our conclusion that burglary is a crime involving moral turpitude because it involves a dishonest act permits meaningful placement of the felony at the high end of the probative scale vis-a-vis credibility without regard to the underlying offense.

 As discussed above, the rigid rules of exclusion developed after the decision in People v. Beagle, supra, which strongly disfavored use of identical priors for purposes of impeachment (see, e.g., People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833), have been abrogated by the decision in People v. Castro, supra.   Thus it is now clear identical priors are not per se excludable although the identical nature of a prior conviction offered for purposes of impeachment is still a factor properly considered by the trial court in determining whether use of the prior will be more prejudicial to the defendant than probative on the issue of the witness' credibility.  (See, e.g., People v. Stewart (1985) 171 Cal.App.3d 59, 215 Cal.Rptr. 716;  People v. Almarez, supra, 168 Cal.App.3d 262, 268, 214 Cal.Rptr. 105.)

 The trial court expressly considered both the nearness in time of defendant's prior convictions and their relevance to challenge truth, honesty and integrity.   It impliedly weighed the use of these priors against defendant's unwillingness to testify if they were deemed admissible.   The trial court's failure to expressly discuss the identical nature of defendant's priors does not establish that the trial court did not exercise the required section 352 discretion.   We find nothing in People v. Castro, supra, that supports the application of a rigid rule that each of the abrogated Beagle guidelines be expressly considered and rejected to show that the trial court exercised its discretion under section 352.

The record reveals the trial court's belief that the prior convictions had substantial probative value which outweighed the potential prejudicial effect of their identity with the charge on which defendant was being tried.   We cannot say the trial court abused its discretion in ruling the priors admissible for impeachment.

 II. Is defendant entitled to additional credits for time served pursuant to Penal Code section 2933?

 We find no merit in defendant's contention that during the period he was awaiting sentence he is entitled to the one-for-one conduct credits provided for in Penal Code section 2933 to sentenced prisoners participating in a qualified work program.   This court specifically rejected such a contention in People v. Rosaia (1984) 157 Cal.App.3d 832, 203 Cal.Rptr. 856.   Defendant was given the appropriate credits for a presentence detainee under Penal Code section 4019, i.e., one-half of the time actually served.

The judgments are affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Evidence Code.

2.   Subdivision (f) of article I, section 28 of the California Constitution 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.”

HAMLIN, Acting Presiding Justice.

BEST and FITCH,* JJ., concur.