PEOPLE v. RODGERS (1987)

Defendant Steven Patrick Rodgers appeals from a judgment of conviction entered on jury verdicts finding him guilty of burglary (Pen.Code, § 459) ¹ and of vehicle theft (Veh.Code, § 10851) and on an admission by the defendant that he committed a prior felony within the meaning of section 667.5, subdivision (b).

The facts of defendant's crime are largely irrelevant to the issues he raises in this appeal.   Suffice it to say that, on October 5, 1983, defendant was discovered in the act of removing an old truck from a shed on property in Lake County.   When a deputy sheriff arrived to investigate the matter the deputy found a note with the current date addressed “Dear Owner???.”  The note said, “I am in possession of what I believe to be an abandoned '56 truck (G.M.C.) for a friend of mine.”   The note continued with defendant's name, telephone number and address.   Then it closed “If you wish to claim this vehicle, I have attempted several times to contact you through D.M.V.”

When defendant was first prevented from removing the truck by a neighbor, and again when he spoke to the deputy sheriff, he explained that he had been given permission by a friend named “Jack” to collect the truck which had been owned by Jack's grandfather.   At trial defendant did not testify.   Jack, to whom defendant was referring, was Jack Redmond.   Redmond, who, like defendant, lived in Vacaville, had sold defendant a motorcycle and in the course of conversations connected with that sale had told defendant that there was an apparently abandoned truck in a ditch on the property where defendant was arrested.   At trial Redmond denied any knowledge of a second truck in the shed, denied ever telling defendant that he or his grandfather owned any vehicle on the property, and denied giving defendant permission to remove any vehicle from the property.

After trial to a jury defendant was found guilty of burglary and of vehicle theft.   Defendant was sentenced to the mid-term on each count, with the sentences to run concurrently, and to an additional year for a prior conviction within the meaning of section 667.5, subdivision (b).   Defendant makes a timely appeal.

I.

The crimes of which defendant was convicted were committed October 5, 1983.   Thus they occurred after the adoption on June 9, 1982, by the voters of Proposition 8, or article I, section 28, subdivision (f), of the California Constitution.   That subdivision, as interpreted in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, permits impeachment of a witness in a criminal trial with prior felony convictions for crimes which necessarily involve moral turpitude.  People v. Castro was not decided, however, until March 1985, after defendant's sentencing on March 26, 1984.

The California Supreme Court has now explained proper appellate review of such post-Proposition 8, pre-Castro cases in its recent decision in People v. Collins (1986) 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173.   Under Collins, if a case (1) falls into the post-Proposition 8, pre-Castro period, (2) the prosecution proposed to impeach the defendant with prior felony convictions, (3) the defendant moved for an order excluding those priors under Evidence Code section 352, and (4) the court denied the motion believing it had no discretion to exclude under article I, section 28, subdivision (f), of the California Constitution, then we must look to the prior convictions.   (Id., at p. 389, 228 Cal.Rptr. 899, 722 P.2d 173)  In examining these prior convictions we determine whether, under People v. Castro, the priors could have been properly admitted or excluded within the trial court's discretion or whether they were inadmissible as a matter of law.  (Id., at p. 389, 228 Cal.Rptr. 899, 722 P.2d 173)

Defendant's case falls squarely within the criteria set out in Collins.   At trial the prosecution moved to admit the priors to impeach defendant if he chose to testify.   Defense counsel objected to their admission on the grounds that they were more prejudicial than probative under Evidence Code section 352.   Without commenting on whether or not it believed that it had discretion under Evidence Code section 352, the trial court ruled all the priors to be admissible for impeachment purposes.   When the court denies a motion in this context we “presume that it deemed itself bound by the ‘impeachment without limitation’ language of section 28(f).”  (People v. Collins, supra, 42 Cal.3d 378, 389, fn. 9, 228 Cal.Rptr. 899, 722 P.2d 173.)

 Defendant's prior felonies, which the court found admissible for impeachment, included convictions for grand theft (§ 487), forgery (§ 470), possession of marijuana for sale (Health & Saf.Code, § 11359), escape (§ 4532, subd. (b)) and auto theft (Veh.Code, § 10851).   In order for prior felonies to be admissible to impeach a defendant's credibility they must be crimes whose least adjudicated elements necessarily involve moral turpitude.  (People v. Castro, supra, 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111.)

 Grand theft is a moral turpitude crime.  (People v. Boyd (1985) 167 Cal.App.3d 36, 45, 212 Cal.Rptr. 873.)   Forgery is also a crime of moral turpitude.  (People v. Parrish (1985) 170 Cal.App.3d 336, 349, 217 Cal.Rptr. 700;  People v. Almarez (1985) 168 Cal.App.3d 262, 267, 214 Cal.Rptr. 105.)   Auto theft is a crime of moral turpitude.  (People v. Zataray (1985) 173 Cal.App.3d 390, 399, 219 Cal.Rptr. 33;  People v. Hunt (1985) 169 Cal.App.3d 668, 675, 215 Cal.Rptr. 429.)   Possessing a narcotic for sale is a moral turpitude crime because such possession assumes an “intent to corrupt others.”  (People v. Castro, supra, 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111.)

 The question of whether or not escape, section 4532, subdivision (b), is a crime whose least adjudicated elements involve moral turpitude has not yet been resolved.   Section 4532, subdivision (b), makes escape from any city or county jail or prison a crime and provides for greater punishment if the escape is accomplished by means of force or violence.   Because escape is not defined in the section we construe the statute to encompass escape as it was defined at common law.  (2A Sutherland, Statutory Construction (4th ed. 1984 rev.) § 50.03, p. 435.)   Escape was committed at common law if a prisoner made an unauthorized departure from legal custody without the use of force (breach of prison) and before he was lawfully discharged from custody.  (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 5, § 3, p. 561;  United States v. Bailey (D.C.Cir.1978) 585 F.2d 1087, 1122 (dis. opn. of Wilkey, J.);  United States v. Zimmerman (E.D.Pa. 1947) 71 F.Supp. 534, 537.)   All that is necessary for conviction under section 4532, subdivision (b), is that the prisoner be in lawful custody for committing a felony and that he depart from that custody without authorization or discharge from custody.

In the absence of California authority, Castro suggests we turn to federal immigration cases which apply the moral turpitude classification to various crimes.  (People v. Castro, supra, 38 Cal.3d 301, 316, fn. 11, 211 Cal.Rptr. 719, 696 P.2d 111.)   A federal district court has decided that escape is not a crime of moral turpitude because it does not involve any element of “baseness, vileness or depravity which has been regarded as necessarily inherent in the concept of moral turpitude.   On the contrary such action, while mistaken and wrong under these circumstances, does undoubtedly spring from the basic desire of the human being for liberty of action and freedom from restraint.”  (United States v. Zimmerman, supra, 71 F.Supp. 534, 538.)   We conclude that the crime of escape, as defined in section 4532, subdivision (b), is not a crime whose least adjudicated elements involve moral turpitude.

 Therefore, while the rest of defendant's prior crimes were crimes of moral turpitude which the trial court could in its discretion admit for impeachment, the crime of escape was inadmissible to impeach defendant's credibility.   Because the trial court ruled that the escape prior could be used to impeach defendant, it committed error under Castro.  (People v. Castro, supra, 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111;  see also People v. Collins, supra, 42 Cal.3d 378, 389–390, 228 Cal.Rptr. 899, 722 P.2d 173.)   Likewise, the court also erred under Castro in admitting the remaining moral turpitude priors without exercising its Evidence Code section 352 discretion.  (Ibid.)

The final step in the analysis as outlined by Collins is determining whether or not the error was prejudicial to the defendant.   When the defendant does not testify after his motion to exclude the priors has been denied “the appellate court does not know what the defendant's testimony would have been, and hence has no way of assessing the probable effect of the error on the verdict.   Rather than speculating on the matter, however, in all such cases the court should reverse the judgment and remand the cause to allow the trial court not only to exercise its discretion but also to determine prejudice in the first instance.”  (People v. Collins, supra, 42 Cal.3d 378, 393, 228 Cal.Rptr. 899, 722 P.2d 173.)   The language of Collins is clear.   Because the defendant did not testify we must remand.

The People argue we need not follow the dictate of Collins.   They suggest that it would have been an abuse of discretion for the trial court to have excluded all of defendant's prior convictions, “and therefore it is probable that [defendant] would have not testified․”  The People essentially ask us to speculate in exactly the manner which Collins says we may not do.

The only case they cite for such a procedure, People v. Stewart (1985) 171 Cal.App.3d 59, 66, 215 Cal.Rptr. 716, was decided over a year before Collins was handed down.   Moreover, in People v. Stewart defendant's prior felon status was an element of one of the crimes with which he was charged and an abstract of judgment was introduced at trial to prove his felon status.   (Ibid.)  Under these circumstances the Court of Appeal found unpersuasive defendant Stewart's argument that it was admission of his priors which prevented him from testifying.  (Ibid.)  Here, in count three of the information, defendant was charged with joyriding, following an earlier conviction for automobile theft.   Yet the trial court excluded from the information read to the jury that portion of count three which alleged the prior auto theft conviction.   Thus, this is not a case where defendant's record would have been before the jury apart from its being used to impeach his testimony.

We remand to the trial court for it to determine the prejudicial impact of the priors and to exercise its discretion under Evidence Code section 352.

II.–III. **

Disposition

The judgment is reversed and the case remanded to the trial court for further proceedings in accordance with this opinion.

FOOTNOTES

1.   Unless otherwise noted, all subsequent statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

ROUSE, Acting Presiding Justice.

SMITH and BENSON, JJ., concur.