PEOPLE v. FRENCH (1986)

Defendant was convicted by a jury of first degree burglary (Pen.Code, §§ 459, 460).   He admitted service of a prior prison term for burglary (Pen.Code, § 667.5, subd. (b)).  (CT 30–32)  Sentenced to state prison, defendant appeals contending (1) the evidence is insufficient to support his conviction, and (2) the trial court erred in denying his motion to exclude his prior conviction for impeachment.   As to the second contention we hold defendant waived his right to appellate review by failing to testify.   Finding the evidence sufficient, we shall affirm the judgment.

 I2

II

 Prior to trial defendant moved the court to exclude for impeachment purposes his 1979 felony conviction for burglary.   Believing it had no discretion under article I, section 28, subdivision (f), of the California Constitution (§ 28(f)), the court denied the motion.³  After the People rested their case, defendant informed the court he would not testify due to the court having ruled the prior admissible.   He presented no defense.

Defendant contends that under People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, reversal is required since the court failed to exercise its discretion under Evidence Code section 352 in ruling the prior conviction admissible.   The Castro decision had not yet been rendered when the trial court made the ruling at issue here.

In People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, the Court held that prior felony convictions offered for impeachment are subject to discretionary exclusion under Evidence Code section 352.  Beagle set forth four criteria to be considered by the trial court in performing the balancing required by section 352.   The fourth enumerated criterion was “ ‘․ the effect ․ if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.’ ”  (Id., at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   As explained by the court, “ ‘Even though a judge might find that the prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant's version of the case than to have the defendant remain silent out of fear of impeachment.’ ”  (Ibid.)

Although Beagle eschewed any intention to establish “rigid standards” for the trial courts in exercising their discretion (id., at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1), there immediately followed a series of decisions, commonly referred to as the Antick line of cases, in which the Court did exactly that, i.e., employ the Beagle criteria to establish rigid standards curtailing the trial court's discretion.⁴

Of particular difficulty was the application of Beagle's fourth criterion—the effect of defendant's not testifying out of fear of impeachment weighed against the desirability of having the jury hear defendant's “version of the case.”   Though a defendant was not required to make an offer of proof as to the substance of his testimony (People v. Rist, supra, 16 Cal.3d at p. 222, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Fries, supra, 24 Cal.3d at pp. 232–233, 155 Cal.Rptr. 194, 594 P.2d 19), the trial court was still obligated to apply this particular Beagle criterion.   How this was to be accomplished has never been explained.

Requiring the trial court to apply the fourth Beagle criterion in circumstances where there was no way of knowing what the defendant's “version of the case” would be resulted in a dismal state of affairs.   Of course, if the trial court erred in ruling the prior admissible and the defendant testified, the reviewing court, under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836–837, 299 P.2d 243, could measure the amount of prejudice to the defendant occasioned by the error.  (See People v. Antick, supra, 15 Cal.3d p. 99, 123 Cal.Rptr. 475, 539 P.2d 43, and People v. Rollo, supra, 20 Cal.3d p. 121, 141 Cal.Rptr. 177, 569 P.2d 771.)   So far so good.   However, given Beagle error and a nontestifying defendant, reversal was virtually automatic because, lacking his testimony, the reviewing court could not measure the degree of prejudice to the defendant.  (People v. Rist, supra, 16 Cal.3d pp. 222–223, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Fries, supra, 24 Cal.3d pp. 233–234, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman, supra, 25 Cal.3d pp. 118–119, 157 Cal.Rptr. 883, 599 P.2d 74.   See People v. Woodard, supra, 23 Cal.3d at p. 341, 152 Cal.Rptr. 536, 590 P.2d 391.)

The frustration of trial and intermediate appellate courts over these circumstances was aptly reflected in the critique in People v. Kyllingstad (1978) 85 Cal.App.3d 562, 571, 149 Cal.Rptr. 637:  “The result of all this is that a defendant, burdened with a truly impressive string of prior convictions, who has no intention of testifying and whose offer of proof would, under the circumstances, only amuse, can smuggle an automatic reversal into the record just by goading the trial court into an erroneous ruling on his Beagle motion.”

On June 8, 1982, the electorate enacted Proposition 8—the Victim's Bill of Rights.   Proposition 8 added to the California Constitution, section 28(f) governing the use of prior convictions for impeachment.  (See fn. 2, ante, p. 814.)

People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, held that under section 28(f) only prior felony convictions involving moral turpitude were admissible for impeachment and these were “always” subject to the trial court's discretionary power to exclude under Evidence Code section 352.  (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)   However, in drawing this conclusion Castro found “The intention of the drafters of the initiative was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the Antick line of decisions.”  (Id., at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111;  see fn. 3, ante, p. 814.))

At this point we digress briefly to note that defendant's prior conviction was for burglary, a crime so manifestly involving moral turpitude that the proposition requires no citation of authority.   Accordingly, under the Castro regime, defendant's prior conviction is prima facie admissible to impeach subject to the trial court's discretionary power to exclude.   The error here was simply the court's failure to exercise discretion, heretofore, under the Beagle regime, a perplexing task at best in the case of a nontestifying defendant.

 Presumably the Castro court did not intend on the one hand to acknowledge the return of discretion to the trial courts with regard to determining the admissibility of prior convictions for impeachment, while on the other hand withholding from them the wherewithal meaningfully to exercise that discretion.   Application of the fourth Beagle criterion in the case of a nontestifying defendant effectively nullifies trial court discretion by requiring the court to factor into the balancing equation an unknown quantity—the defendant's testimony.

This problem was solved by the United States Supreme Court in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443.   There, the court undertook to resolve a conflict among the circuits as to whether a defendant, who did not testify at trial, was entitled to review of the trial court's ruling under Federal Rules of Evidence rule 609(a) (28 U.S.C.A.) denying his motion to exclude for impeachment purposes a prior felony conviction.⁵  (Id., at p. –––– – ––––, 105 S.Ct. at p. 462–463, 83 L.Ed.2d at p. 446–447.)   In holding that a nontestifying defendant was not entitled to such review the Court identified the fundamental difficulty:  “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.”  (Id., at p. ––––, 105 S.Ct. at p. 463, 83 L.Ed.2d at p. 447;  fns. omitted.)

Luce pointed out that where a defendant's motion to exclude his prior was denied, he could then build in “automatic reversal” by not testifying.   (Id., at p. ––––, 105 S.Ct. at p. 463, 83 L.Ed.2d at p. 448.)   Finally, Luce noted that, “Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole;  it will also tend to discourage making such motions solely to ‘plant’ reversible error in the event of conviction.”  (Id., at p. ––––, 105 S.Ct. at p. 464, 83 L.Ed.2d at p. 448.)

Proposition 8 is a bill of rights for crime victims.   In order to accomplish its goal of advancing the protection of public safety, “broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons” were stated to be “necessary and proper.”  (Cal. Const., art. I, § 28, subd. (a).)  This included the treatment of prior felony convictions for impeachment purposes.  (§ 28(f).)  People v. Castro, supra, 38 Cal.3d at pages 308–309, 211 Cal.Rptr. 719, 696 P.2d 111, expressed “little doubt” that one objective of Proposition 8 was to eliminate the effect of the line of recent Supreme Court decisions which rigidly limited the discretion of trial courts in admitting impeaching prior convictions.   We have absolutely no doubt about that proposition nor about the further objective of Proposition 8 to eliminate the effect of some of those same decisions practically to foreclose discretion while at the same time airily professing to require it in cases where the defendant does not testify.

When the defendant does not testify the degree of harm from erroneous admission of a prior conviction, if any, is largely speculative.   By requiring the defendant to testify as a prerequisite to review, the appellate court will be able to determine the degree of prejudice, if any, from the error.   If, on the other hand, the defendant's decision not to testify, whatever his reasons, continues to mandate a presumption of prejudice, it will remain open to defendant, as it was before Proposition 8, to contrive prejudice or at least conclusively assert it where none in fact exists.  (Ibid.;  see also Kyllingstad, supra, 85 Cal.App.3d at p. 571, 149 Cal.Rptr. 637.)   Proposition 8 we believe was intended, inter alia, to introduce rational criteria, fair not only to the defendant but to the People as well, into the review of judgments no less solemn by virtue of defendant's failure to testify.   The rule announced in Luce comports with the intent of Proposition 8 and provides an appropriate solution to this disturbing, frequently recurring problem.

Although a federal appellate court has held Luce may not be applied retroactively (United States v. Givens (9th Cir. 1985) 767 F.2d 574, 577–578), the rule we apply derives from Proposition 8 itself.⁶  Although it was not until Castro, supra, that Proposition 8 was definitively interpreted with respect to prior felony convictions for impeachment, the Castro rule is clearly applicable to this case.   As stated in People v. Garcia (1984) 36 Cal.3d 539, 549, 205 Cal.Rptr. 265, 684 P.2d 826, “Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim.”  (Ibid.)  In our view Castro correctly determines that one objective of Proposition 8 is to counter the effect of the Antick line of cases.   This objective is served by adopting the rule fashioned in Luce and applying it to this case.

For the foregoing reasons we hold defendant has not preserved his right to appellate review of the trial court's failure to exercise discretion in the denial of his motion to exclude his prior conviction.

The judgment is affirmed.

FOOTNOTES

2.   See footnote 1, ante.

3.   Section 28(f) provides:  “Use of Prior Convictions.   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.”

4.   People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43;  People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391;  People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  and People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74.

5.   Rule 609(a) provides:  “General Rule.—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.”  (Emphasis added;  cf. Evid.Code, § 352.)

6.   Givens is distinguishable on the additional ground that there the defendant had faithfully relied on the law of the circuit prior to Luce, following very specific rules and procedures to preserve his claim.   Unlike the Ninth Circuit, California had no such specific procedures in this situation.

PUGLIA, Presiding Justice.

EVANS and SPARKS, JJ., concur.