PEOPLE v. GRASER (1985)

A jury found defendant Graser guilty of robbery in the perpetration of which he was armed with, and personally used, a firearm.   The court thereafter found that he had suffered two prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b), and 1203, subdivisions (e)(4).   He has appealed from the judgment which was entered upon such verdict and finding.

I. The first of Graser's appellate contentions is that:  “The trial court committed reversible error by ruling that Mr. Graser's prior convictions were admissible.”

Graser had apparently previously been convicted of the felonies of grand theft (Pen.Code, §§ 484, 487), and assault with a deadly weapon (Pen.Code, § 245, subd. (a)).

On a so-called Beagle (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) motion, Graser sought to exclude impeachment evidence of his prior felony convictions in the event he should take the witness stand on his own behalf.   The trial court, apparently deeming itself bound by the recently adopted (June 8, 1982) state constitutional provision, article I, section 28, sometimes known as “Proposition 8,” denied the motion.   We shall hereafter refer to the constitutional provision as Section 28.

Graser did not testify at his trial.

The issue before us concerns the effect of Section 28 upon an unsuccessful Beagle motion where the defendant does not thereafter testify.   And, more particularly, it is whether under Section 28, a defendant situated as was Graser, who does not testify, has standing on appeal to complain of such an adverse ruling.

The state Supreme Court's cases, principally relied upon by Graser, are People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833, and People v. Fries (1979) 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19.   They have held that since in cases such as this where the defendant does not testify, there is “no clue as to what [his] testimony would have been had he testified,” the “usual [harmless error] tests for concluding that an error requires a reversal of conviction are not applicable.”

It will thus be seen that under Rist and Fries, an erroneous adverse ruling on a Beagle motion will, at least ordinarily, not be harmless error.   Instead it will require a retrial, or possibly dismissal.

Subsequently to Rist and Fries there appeared a growing practice of knowledgeable counsel, apparently whether or not the defendant intended to testify on his own behalf, to make Beagle motions, hoping upon an adverse ruling thus “to ‘plant’ reversible error in the event of conviction,” and obtain “the windfall of automatic reversal.”  (See Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 464, 83 L.Ed.2d 443, 448.)

It was following Rist and Fries that Section 28 was adopted by the People of California.

Subdivision (f) of Section 28 states:  “Any prior felony conviction of any person in any criminal proceeding, ․ shall subsequently be used without limitation for purposes of impeachment ․ in any criminal proceeding.”  (Our emphasis.)

But subdivision (d) of Section 28 provides that:  “Nothing in this section [i.e., Section 28] shall affect any existing statutory rule of evidence relating to ․ Evidence Code Section ․ 352.”  (Our emphasis.)

Evidence Code section 352 provides:  “The [trial] court in its discretion [our emphasis] may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

It will be seen that an ambiguity existed whether such prior convictions of felony shall be admissible for impeachment without limitation, or whether they were to be limited according to the trial court's Evidence Code section 352 discretion.

The ambiguity had puzzled judges and lawyers generally.   But on March 11, 1985, the state's high court resolved it in People v. Castro, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, passim, holding that such evidence of prior felony convictions was limited by the trial court's discretion under Evidence Code section 352.   The Castro court further held that since, to be admissible, evidence must be relevant (see Evid.Code, §§ 350, 351), only evidence of prior convictions which concern “moral turpitude” and thus relate to one's “credibility,” were admissible for impeachment under Section 28.   And, the Castro court pointed out that Beagle had “made it clear that we did not intend to establish rigid standards to govern the exercise of [the trial court's] discretion.”   Nevertheless, it said, “we handed down a series of decisions delineating the boundaries of permissible discretion.”   Such restrictive decisions, the court said, included Rist and Fries.  (38 Cal.3d at p. 308.)  “However [the Castro opinion said] the dissents [of such cases] expressed a minority view that the guidelines of Beagle had, in fact, become rigid limitations on the discretion of the trial court.”

And the Castro court emphasized that:  “[T]here seems to be little doubt that the drafters of section 28 wanted a change and that the voters legislated it.”  (Our emphasis.)

It thus seems manifest that the criticized rules of Rist and Fries, contrary to the later Section 28, placed limitations on the use of evidence of prior felony convictions, involving moral turpitude, for impeachment.   Defendants without any intention of testifying or subjecting themselves to cross-examination, were thereby permitted to create a kind of “windfall” or “planted” error per se.

The United States Supreme Court has also so concluded that rules such as that of Rist and Fries involve improper limitations.   In Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the court had before it Federal Rule of Evidence 609(a), which seemingly, as did Rist and Fries, permitted appellate review of a motion such as here was made, where the defendant did not testify.   The Luce court stated:

“We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.”  (Our emphasis.)

We quote the court's rationale at length (469 U.S. pp. –––– – ––––, 105 S.Ct. pp. 463–464, 83 L.Ed.2d pp. 447–448):

“It is clear, of course, that had petitioner testified and been impeached by evidence of a prior conviction, the District Court's decision to admit the impeachment evidence would have been reviewable on appeal along with any other claims of error.   The Court of Appeals would then have had a complete record detailing the nature of petitioner's testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury's verdict.

“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) [Federal Rules of Evidence], 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.   The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer.   Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.   On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.

“When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction.   If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

“Because an accused's decision whether to testify ‘seldom turns on the resolution of one factor,’ ․ a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify.   In support of his motion a defendant might make a commitment to testify if his motion is granted;  but such a commitment is virtually risk free because of the difficulty of enforcing it.

“Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error․   Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal;  the appellate court could not logically term ‘harmless' an error that presumptively kept the defendant from testifying.   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.”  (The emphasis is ours.)

It is notable that the eight participating justices of Luce unanimously concurred in the opinion.

We are further aided by the recent decision of this state's high court in In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, passim.

The court held that by adopting Section 28 the electorate “did intend to change the law,” and that:  “Faced with a constitutional amendment adopted by initiative, ․ we are obliged to set aside our personal philosophies and to give effect to the expression of popular will, as best we can ascertain it, within the framework of overriding constitutional guarantees.”   The court continued, saying that:  “The people have apparently decided that the exclusion of evidence [by rules of ‘judicial creation’ ] is not an acceptable means of implementing a [criminally charged defendant's] rights, except as required by the Constitution of the United States․   The express intent of [Section 28] is to ensure that all relevant evidence be admitted.   That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the Constitutions․   Moreover, not only the language of that section but also accepted canons of statutory construction and available ‘legislative’ history confirm our conclusion that the electorate intended to mandate admission of relevant evidence, ․ to the extent admission of the evidence is permitted by the United States Constitution.”  (Our emphasis.)

We observe that the limiting rules of Rist and Fries, and of Federal Rule of Evidence 609(a), were judicially created rules, which were not compelled by the United States Constitution.  (See Beagle, supra, 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1, and Luce, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, passim.)

For the reasons we have stated, we are in disagreement with recent holdings of the state's Courts of Appeal upholding the continued vitality of Rist and Fries on the issue here before us.

 We hold, Graser having not testified at his trial, that he has no standing on this appeal to complain of the superior court's adverse Beagle ruling.

II. The appeal's remaining contention is that:  “The trial court committed reversible error by refusing to give Mr. Graser's requested instructions on eyewitness identification.”

Under the authority of People v. Guzman (1975) 47 Cal.App.3d 380, 121 Cal.Rptr. 69, criticized on other grounds in People v. McDonald (1984) 37 Cal.3d 351, 371, 208 Cal.Rptr. 236, 690 P.2d 709, Graser requested the following jury instructions:

“You are instructed that the identity of the defendant as the person who committed the crime is an element of every crime.   Therefore, the burden is on the state to prove beyond a reasonable doubt not only that the crime alleged was committed, but also that the defendant was the one who committed it.   You must be satisfied beyond a reasonable doubt of the accuracy of the witness' identification of the defendant.   In this regard, you are instructed that it is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence.   If facts and circumstances have been introduced into evidence which raise a reasonable doubt as to whether the defendant was the person who committed the crime charged, then you should find the defendant not guilty of the offense.

“The identity of the defendant as the person who committed the crime is an element of every crime.   Therefore, the burden is on the state to prove beyond a reasonable doubt not only that the crime alleged was committed, but also that the defendant was the one who committed it.   You must be satisfied beyond a reasonable doubt of the accuracy of the witness' identification of the defendant as the perpetrator.   In this regard, you are instructed that it is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence.   If facts and circumstances have been introduced into evidence which raise a reasonable doubt as to whether the defendant was the person who committed the crime charged, then you should find the defendant not guilty of the crime.”

The request was rejected.

The court did, however, give the instruction of CALJIC 2.20 dealing generally with the credibility of witnesses and also, CALJIC 2.91, as follows:

“The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged.   You must be satisfied beyond a reasonable doubt of the accuracy of the identification of defendant as the person who committed the offense before you may convict him.   If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find him not guilty.”

 The validity of the People v. Guzman instructions has been challenged.  (See People v. Castellano (1978) 79 Cal.App.3d 844, 145 Cal.Rptr. 264.)   And it has been held that instructions according to People v. Guzman are unnecessary, or at least that the failure to give the instructions is unprejudicial, where CALJIC 2.20 and 2.91 instructions are given.  (See People v. Hall (1980) 28 Cal.3d 143, 159–160, 167 Cal.Rptr. 844, 616 P.2d 826;  People v. Glaude (1983) 141 Cal.App.3d 633, 641–642, 190 Cal.Rptr. 479;  People v. Levingston (1982) 136 Cal.App.3d 724, 727, 186 Cal.Rptr. 417.)

Again, no error is perceived.

_

The judgment is affirmed.

I cannot agree with the “standing” requirement imposed under the lead opinion analysis, nor with its automatic—and unexamined—disapproval of anonymous contrary holdings.

I do not read Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460 [83 L.Ed.2d 443], to extend beyond its limited holding that under Federal Rule of Evidence 609(a) a defendant must have testified at trial in order to preserve a challenge to the use of a prior state felony conviction for impeachment.  (See conc. opn. of Brennan, J., 469 U.S. at p. ––––, 105 S.Ct. at p. 464, 83 L.Ed.2d at p. 449.)   That limited federal procedural rule is not binding on us under the holding of In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, as implied in the lead opinion.  In re Lance W. only dealt with—and decided—the admissibility of unlawfully obtained evidence within the context of California Constitution, article I, section 28, subdivision (d) mandating inclusion as “relevant evidence” (id. at pp. 889–890, 210 Cal.Rptr. 631, 694 P.2d 744).   It neither discussed nor determined questions turning on Evidence Code section 352.  (Id., at pp. 885–886, fns. 5 and 6, 210 Cal.Rptr. 631, 694 P.2d 744;  cf. People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 [in construing §§ 28, subd. (d) and 28, subd. (f) to avoid conflict, plurality opinion concludes trial court retains discretion under Evid.Code, § 352 re admissibility of felony convictions for impeachment].)

But while the Castro plurality opinion emphasizes that the 1982 initiative was intended to reject “black letter rules of exclusion ․ [en]grafted ․ by the Antick line of decisions” (id., at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111), nothing is found in that opinion or the concurring opinions suggesting that People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, has lost “continued vitality” at least insofar as the standard of error which is to be applied.   Thus, assuming arguendo, that error resulted in the court's failure to exercise discretion in denying defendant's Beagle motion (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1), it would appear that reversal is required only if a miscarriage of justice occurred under the conventional Watson standard.  (See People v. Fries, supra, 24 Cal.3d 222, 233–234, 155 Cal.Rptr. 194, 594 P.2d 19;  cf. People v. Castro, supra, 38 Cal.3d at p. 319, 210 Cal.Rptr. 631, 694 P.2d 744 [Watson standard applied].)  Since a review of the record discloses the error to be harmless under that standard, I concur in the result reached herein.

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.