PEOPLE v. BELTRAN (1985)

INTRODUCTION

Defendant Jorge Flores Beltran appeals from a judgment of conviction entered after a jury trial.   Defendant's motion to preclude the impeachment of his testimony with prior felony convictions was denied.   The jury found defendant guilty of three counts of first degree burglary (Pen.Code, § 459) and one count of grand theft (Pen.Code, § 487, subd. (3)), after which defendant was sentenced to state prison for the term prescribed by law.

STATEMENT OF FACTS

Richard Woods (Woods) returned to his home at approximately 3:15 p.m. on March 26, 1983.   He found that the bedroom had been ransacked.   Several items of jewelry were missing, including a pair of silver propeller cuff links belonging to his wife.   A flashlight normally kept in the bedroom was on the floor of the kitchen.   A fingerprint found on the flashlight subsequently was identified as that of defendant, and the cuff links were found in the pocket of defendant's codefendant, Antonio Diaz (Diaz), following his arrest.

When Anne Malone (Malone) emerged from her apartment on the morning of April 4, 1983, she discovered her blue-green 1977 Datsun, license number 968 SLW, had disappeared from its parking place.   She had left the Datsun in front of her apartment building on the previous evening;  it was locked and the key was removed from the ignition.   When the Datsun was recovered from a police impound lot several days later, the locks on the left front door and trunk were broken;  the ignition had to be replaced.

Ofelia Reyes (Reyes) returned to her home at approximately 2:30 p.m. on April 4, 1983, to discover a window broken and a light on in her husband's office.   Several bedrooms had been ransacked;  several items of jewelry and a coin collection were missing.   The coin collection included 345 Kennedy and Susan B. Anthony silver coins.   A projector, stero headphones and a lighter had been taken from the office.

Donald Scharbrough (Scharbrough) was servicing a swimming pool next door to the Reyes home on the morning of April 4.   When he heard glass breaking, Scharbrough looked in the direction of the Reyes home and saw a man walking away from the house rapidly.   The man entered the green Datsun depicted in police photographs taken of Malone's automobile and drove away.   At trial, Scharbrough identified defendant as the man he had seen, but at the preliminary hearing he testified he was not 100 percent certain of his identification.

At the time of defendant's arrest, the police found 300 dollars in silver dollars in the automobile he was driving.   The money was returned to Reyes, as were one diamond earring, a pearl pendant and a religious medal.   The jewelry was recovered from defendant's pocket following his arrest.

Teruha Nakahiro returned home at approximately noon on April 5, 1983, to find four windows broken and her house in disarray.   There was blood on a pillow case in the bedroom.   A television set, watch, gold chain and two silver spoons were missing.   Mrs. Nakahiro's grandson, Steve, had driven by his grandmother's house at approximately 10:00 a.m. that morning.   He saw the green Datsun depicted in the police photographs parked in the driveway.   Two rather small Latino males in their twenties were nearby;  one was standing beside the Datsun and the other was walking on Mrs. Nakahiro's lawn.

Hildy Burness (Burness) was approaching an intersection near Mrs. Nakahiro's home at approximately 10:00 a.m. on April 5, when she saw two rather small young Latino males, similar in appearance to defendant and Diaz, standing over an elderly couple on the corner.   One of the men had a rock in his hand.   As Burness watched, the men entered a Datsun similar to the automobile depicted in the police photographs.   Burness recorded the license number and provided it to the police approximately one-half hour later.   A television set, watch, gold chain and ring were returned to Mrs. Nakahiro.   The jewelry was found in defendant's pocket following his arrest.

Following Burness' report to the police at approximately 10:30 a.m. on April 5, a police helicopter observed an aqua Datsun, license number 968 SLW, near the Glendale Freeway in the Glassel Park area.   The Datsun entered the Glendale freeway, transferred to Interstate 5 southbound, then drove onto the Harbor Freeway in the direction of Los Angeles.   A second police helicopter followed the Datsun from the Harbor Freeway near Dodger Stadium into downtown Los Angeles.   The Datsun was stopped by police officers at the intersection of Pico Boulevard and Orchard at 11:30 a.m.   Defendant was driving;  Diaz was a passenger.   The Datsun contained no keys.   A plastic bag full of Kennedy and Susan B. Anthony silver coins was on the right front floor board.   The police also found some rolled coins and a small alarm clock in the automobile.

Defendant and Diaz were placed under arrest.   During booking searches, the police noted that defendant had a cut on the little finger of his left hand;  he was wearing a watch and a chain with a medallion.   There was a Seiko watch, diamond earring, pearl pendant and gold chain in his pocket.   A window latch, lighter and pair of silver propeller cuff links were recovered from Diaz' pocket.

DEFENSE

Defendant testified in his own behalf.   He denied committing a burglary at the Woods residence or touching a flashlight there.   He also denied the Reyes and Nakahiro burglaries and denied being present during their commission.   He denied stealing Malone's Datsun or being present during its theft.

On the morning of April 5, 1983, defendant was playing soccer with Diaz in Verdugo Park.   A friend, called “The Guero,” asked defendant to change some coins into paper money.   The Guero gave defendant some silver dollars and told him a money exchange house near Pico Boulevard would perform the exchange.   As a fee for this service, The Guero promised to pay defendant $50.00.   The Guero also gave defendant some chains and a watch with the request that defendant try to sell them.   He gave Diaz some silver propeller cuff links, a watch, a lighter and a television set because Diaz had loaned him money.   Defendant cut his hand while changing the battery in his automobile that morning.

When defendant said he would take his truck to the money exchange house, The Guero said, “No.   Go in mine.”   That was the Datsun which turned out to belong to Malone.   The Datsun had a key in it and the ignition worked well.

Defendant admitted he had been convicted of receiving stolen property.   However, he denied he had been convicted of burglary under the name of Carlos Chavez.

REBUTTAL

The ignition in Malone's Datsun had been punched out.   There were no keys in the automobile.   In 1980, Officer Paul Knight was involved in a burglary investigation which resulted in a felony conviction of Carlos Chavez.   It was a residential burglary.   Officer Knight identified defendant as Carlos Chavez.

CONTENTIONS

I

Defendant contends his conviction must be reversed, in that he was denied his constitutional right to have a personal interpreter throughout the trial.

II

Defendant further contends the trial court erred prejudicially in permitting his impeachment with two prior felony convictions.

III

Defendant asserts the erroneous instruction of the jury on aiding and abetting requires reversal of his conviction.

IV

Finally, defendant avers the court erred in applying the “serious felony” enhancement provisions of Penal Code section 667, subdivision (a).

DISCUSSION

I

 Defendant contends his conviction must be reversed, in that he was denied his constitutional right to a personal interpreter throughout the trial.   We agree.

Article I, section 14 of the California Constitution provides:  “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”   Defendant and Diaz were tried jointly.   Both are Spanish-speaking and required the assistance of a court-appointed interpreter to understand the proceedings against them.   Throughout the trial proceedings, except while defendant was testifying with the assistance of an interpreter, he and his codefendant were required to share the services of one interpreter at the defense table.

People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198 follows the reasoning of this court in People v. Menchaca (1983) 146 Cal.App.3d 1019, 194 Cal.Rptr. 691 and holds a defendant is deprived of this right when the same interpreter is used for a witness and for the defendant.  (35 Cal.3d at p. 790, 200 Cal.Rptr. 908, 677 P.2d 1198.)   As Aguilar explains, three different roles are played by interpreters.   A “witness interpreter” provides a vehicle for the effective questioning and testimony of a non-English speaking witness;  a “proceedings interpreter” assists a non-English speaking defendant's understanding of the colloquy between the attorneys, the witness and the judge;  while a “defense interpreter” enables a non-English speaking defendant and his English-speaking attorney to communicate with each other.  (Ibid.)

Although the instant matter does not involve the same dual use of an interpreter condemned in Aguilar and Menchaca, but rather the sharing of one interpreter by two defendants, Aguilar contains language useful in the instant analysis:  “California's Constitution does not provide a half measure of protection.   Rather, it requires that when an interpreter is appointed for a criminal defendant, that interpreter must be provided to aid the accused during the whole course of the proceedings.”  (35 Cal.3d at p. 790, 200 Cal.Rptr. 908, 677 P.2d 1198.)   In addition, Aguilar notes approvingly Standards of Judicial Administration which recognize the propriety of providing a separate interpreter for each non-English speaking party to the proceeding.   (Id., at p. 793, 200 Cal.Rptr. 908, 677 P.2d 1198.)

 The flaw in requiring two non-English speaking defendants to share an interpreter at the counsel table is that, while one interpreter may adequately fulfill the need of both defendants for a proceedings interpreter, he or she cannot likewise meet the need of each for a defense interpreter.   On any occasion when the interpreter is functioning as the defense interpreter of one defendant, the other defendant is deprived of a proceedings interpreter.   Therefore, requiring joint use of the same interpreter at the defense table impermissibly impairs a defendant's constitutional right to an interpreter “provided to aid the accused during the whole course of the proceedings.”   (Id., at p. 790, 200 Cal.Rptr. 908, 677 P.2d 1198.)

Two recent appellate decisions agree with this analysis.   As noted in People v. Rioz (1984) 161 Cal.App.3d 905, 913, 207 Cal.Rptr. 903;  “Since the one interpreter could not act even as a proceedings interpreter and as a defense interpreter for all defendants, the conclusion is inescapable that each of the defendants did not know at all times what was going on in the proceedings, or they had no effective means of communicating with their respective attorneys at critical points of the trial, or both.”  (Accord, People v. Resendes (1985) 164 Cal.App.3d 812, 210 Cal.Rptr. 609.)   Given the inescapable force of this analysis, the People's argument that defendant has failed to show a denial of his constitutional right, in that the record indicates defendant's counsel may have spoken Spanish, loses all significance.

Even if defense counsel could communicate fully with defendant without the services of an interpreter, this would not fulfill the constitutional mandate.   Counsel could not adequately give his attention to the proceedings as necessary to fully assist in the defense of the case and at the same time function as an interpreter for his non-English speaking client.   When he is forced into that role, the defendant is denied his constitutional right to an interpreter.  (People v. Chavez (1981) 124 Cal.App.3d 215, 226, 177 Cal.Rptr. 306;  see also People v. Aguilar, supra, 35 Cal.3d at p. 791, fn. 5, 200 Cal.Rptr. 908, 677 P.2d 1198.)   Moreover, defendant's counsel was not sworn as an interpreter;  the failure to administer the required oath (Evid.Code, §§ 750, 751) is fatal to the constitutional effectiveness of an interpreter.  (Chavez, supra, 124 Cal.App.3d at p. 225, 177 Cal.Rptr. 306.)

The People argue further, however, that defendant has failed to demonstrate a denial of his constitutional right, in that there is no indication the interpreter ever was needed to facilitate communication between Diaz and his attorney and defendant therefore was not deprived at any time of a needed proceedings interpreter.  People v. Resendes, supra, 164 Cal.App.3d 812, 210 Cal.Rptr. 609 rejects a similar argument.   In Resendes, the People argued there was no showing of prejudice, in that there was no allegation one codefendant wished to communicate with his attorney but was unable to do so.   The court notes, “We reversed in Rioz in the absence of any such allegation.   Further, it is impossible to say what [the absence of such evidence] meant․   The basic fact is that throughout the presentation at trial of both prosecution and defense evidence, except where his codefendant testified, appellant was required to share one interpreter with his codefendant under a procedure which inhibited effective communication with counsel.”  (Id., at pp. 818–819, 210 Cal.Rptr. 609.)   In any event, the record is equally devoid of any indication Diaz and his attorney did not need the aid of the interpreter to communicate effectively.

Fundamental principles of fairness mandate that a non-English speaking defendant be tried without any inhibition of his ability either to communicate with counsel or to understand the proceedings against him.   As Aguilar, supra, indicates, “In the ethnic richness of California, a multiplicity of languages has been nurtured.   Historically, many peoples speaking diverse tongues have formed large portions of our population.   The people of this state, through the clear and express terms of their Constitution, require that all persons tried in a California court understand what is happening about them, for them, and against them.   Who would have it otherwise?”  (35 Cal.3d at p. 795, 200 Cal.Rptr. 908, 677 P.2d 1198.)   Defendant's need for an interpreter to ensure his effective defense and understanding of the criminal proceedings was decided when one was appointed.   Undeniably, the procedure utilized by the trial court, in which defendant was forced to share one interpreter with his codefendant, inhibited—at the very least—his effective understanding of those proceedings.   Hence, the procedure impermissibly impairs the constitutionally guaranteed right and informed speculation requires the reversal of defendant's conviction.  (People v. Rioz, supra, 161 Cal.App.3d at p. 913, 207 Cal.Rptr. 903.)

II

Certain problems which may arise on retrial require brief attention at this juncture.   The People concede the trial court erred in imposing a five-year sentence enhancement pursuant to Penal Code section 667, subdivision (a).  (People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736.)   In addition, we note that upon a renewed motion, the trial court must exercise its discretion in determining whether either or both of defendant's prior felony convictions should be admitted to impeach his testimony.  (People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.)

The judgment is reversed.

I respectfully dissent.

BACKGROUND

Defendant Jorge Florez Beltran (hereinafter defendant and/or Beltran), in an eight count information was charged with 1) the violation of Penal Code section 459,¹ first degree burglary of the home of Richard and Margaret Wood on March 26, 1983 (count I);  2) violation of section 487, subdivision 3, grand theft of the automobile of Anne Malone on April 4, 1983 (count II);  3) violation of section 459, first degree burglary of the home of Enrique and Ofelia Reyes on April 4, 1983 (count III);  4) violation of section 459, first degree burglary of the home of Teruha Nakahiro on April 5, 1983 (count IV);  5) violation of section 496, receiving stolen property in the form of jewelry and money on April 5, 1983 (count V);  6) violation of Vehicle Code section 10851 of willfully, unlawfully and feloniously driving and taking a Datsun automobile owned by Anne Malone on April 5, 1983 (count VI);  7) violation of section 496, receiving stolen property in the form of jewelry on April 5, 1983 (count VII);  and 8) violation of section 496, receiving stolen property in the form of an automobile on April 5, 1983.

By an amendment to the information, it was alleged that within the meaning of section 667, subdivision (a), that defendant Beltran on or about May 2, 1980 was convicted of a serious felony (burglary, in violation of section 459) in the superior court in California for the County of Los Angeles (case no. A144879).

Following a jury trial (Honorable Lillian M. Stevens, judge presiding) in which defendant Beltran was represented by court-appointed counsel Francisco X. Gomez, defendant was found guilty of burglary in the first degree of the Wood, Reyes and Nakahiro residences (counts I, III, and IV) and guilty of the grand theft of victim Malone's Datsun automobile (count II), all felonies.   Counts V, VII and VIII were dismissed on the People's motion before the matter was submitted to the jury.

In respect to the alleged prior for purposes of a five-year enhancement pursuant to section 667, defendant Beltran initially denied the prior and claimed that he was not the defendant Carlos Rosales Chavez in case no. A144879.   The court, without objection from counsel, deferred the determination of the truth or falsity of the alleged prior for enhancement purposes until after a verdict was rendered by the jury on the charged counts.

The clerk's transcript contains the court's minute order of July 19, 1983, which, following a recitation of the jury verdicts as hereinbefore described, states:  “OUT OF THE PRESENCE OF THE JURORS IN OPEN COURT:  The Defendant is advised of his constitutional rights and the effect of the prior conviction.   Defendant personally waives his constitutional rights and admits the prior.   The Court finds the allegation is true and specifically finds that Defendant Beltran is Defendant Carlos Rosales Chavez in Case A144879.”

The clerk's transcript of September 27, 1983, the date of sentencing, shows that the court sentenced defendant Beltran to the upper term of six years for the base term as to count I and further ordered:  “The middle term of two years as to count II and stays 2/323s by law (deft to serve 8 months) to run consecutive to count I.   The court selects the middle term of four years as to both counts III and IV and orders said counts to run concurrent to count I.  The court selects five years as enhancement for prior conviction filed 7/7/83 alleging deft was convicted for a violation of section 459 Penal Code in case “A 144879 within the meaning of Penal Code section 667(a) and orders said enhancement to run consecutive to count II.”  (Total term imposed—11 years and 8 months with credit for time served.)

SUMMARY OF EVIDENCE

 CASE AT BENCH (No. A 564374)

RE COUNT I:  Defendant Beltran's fingerprint was lifted from a flashlight (usually kept in the bedroom) found on the kitchen floor of the Wood residence after it had been ransacked and numerous items of jewelry valued at about $8,000 taken on March 26, 1983.   Cuff links belonging to Mrs. Wood were retrieved from codefendant Perez' pocket during a booking search following his and Beltran's arrest.

RE COUNT II:  Defendant Beltran was stopped and arrested by police on April 5, 1983 while driving a 1977 Datsun automobile, license number 968 SLW, which had been stolen from Ann Malone on April 3, 1983 while parked on the street in front of her apartment building.   Codefendant Perez was with him in the car.   When recovered, the locks on the driver's door and trunk were broken and the ignition had been punched out.

RE COUNT III:  Witness Scharbrough, servicing a swimming pool next door to the Reyes residence on the morning of April 4, 1983, heard glass breaking at the Reyes house and identified defendant Beltran as the person he saw leaving the Reyes residence at a fast pace and enter a Datsun automobile (identified as the stolen Malone vehicle) and drive away.   A window had been broken in the Reyes residence, several bedrooms had been ransacked, and various items of jewelry and a coin collection valued at about $12,000 were missing from one of the bedrooms.   The coin collection included 345 Kennedy and Susan B. Anthony silver dollars.   A projector, stereo headphones, and a lighter were missing from Mr. Reyes' office.   The police returned $300 in silver dollars, one diamond earring, a pearl pendant, and a religious medal to Mrs. Reyes.   The Kennedy and Susan B. Anthony silver dollars were found in a plastic bag in the Datsun (stolen from Malone) which defendant Beltran was driving at the time of his arrest.   The jewelry was found in Beltran's pocket during a booking search.

RE COUNT IV:  The evidence shows that the Nakahiro residence was broken into on April 5, 1983, and the house ransacked.   Mrs. Nakahiro, who lived alone, was not at home at the time of the burglary.   There were four windows broken and a television set, a watch, a gold chain, and two silver spoons stolen.   The grandson of the victim, Steven Nakahiro, arrived at his grandmother's house at about 10 a.m. and saw a Datsun (identified as the one stolen from Malone) parked in the driveway and two small male Mexicans, one by the Datsun and the other walking on the lawn.   Mrs. Nakahiro received her television set, watch, gold chain, and ring back from the police which were recovered from defendant Beltran.   There was blood on a pillow case in the Nakahiro bedroom and when defendant Beltran was arrested, he had a cut on the little finger of his right hand.

 THE ARREST:

Prosecution witness Hildy Burnese testified that at about 10 a.m. on April 5, 1983, she noticed something unusual in the area of the Nakahiro residence.   She observed two young Latino men standing over an old couple and “it didn't look right to me” because “it looked like one had something [a rock] in his hand.”   Witness Burnese stated that she stopped her car about 24 feet away and watched.   One of the Latino men looked in Burnese's direction and they then entered a Datsun vehicle (identified as the vehicle previously stolen from Malone), and so she took down the license plate number.   As she passed by the area about a half-hour later, after visiting her mother-in-law up the street, she saw a police car and police in the driveway of the Nakahiro residence which was also about 24 feet from the location where she had previously observed the two men and the Datsun.   She stopped and gave the police the license plate number which she had previously written on a small piece of paper.   She stated the two men she saw were similar in appearance to defendant Beltran and codefendant.

Based upon the license number of the Datsun supplied to the police by witness Burnese and the use of a police helicopter, at about 11 a.m. the same day (April 5, 1983), John Olquin of the Pasadena Police Department, arrived at the corner of Pico and Orchard where defendant Beltran and codefendant Perez had been stopped in the Datsun by officers of the Los Angeles Police Department.   Defendant Beltran and codefendant were arrested and the items of personal property taken during the Wood, Reyes and Nakahiro residential burglaries were recovered from the Datsun and during the booking search as hereinbefore described.

 DEFENSE:

Defendant Beltran initially indicated that he would not testify on his own behalf but changed his mind and testified after first being fully advised of his Fifth Amendment rights and that he would be subject to cross-examination for impeachment purposes by the prosecution concerning his prior felony convictions.

Defendant Beltran's testimony on direct examination by his counsel (Mr. Gomez) categorically 1) denied ever entering the Wood residence or touching the flashlight on which his fingerprint was found;  2) denied burglarizing the Reyes and Nakahiro residences;  and 3) denied stealing the Malone Datsun automobile.   Defendant Beltran testified that the Malone Datsun was loaned to him by a person called “The Guero” who also gave him the jewelry and other items stolen from the Wood, Reyes and Nakahiro residences to sell, the money was to be exchanged at a money exchange shop, and that he (Beltran) was to receive $50 for doing that.

 PRIOR CONVICTION FOR SENTENCE ENHANCEMENT (Case No. A144879)

The reporter's transcript shows that witness Paul Knight, police officer for the city of San Fernando, testified that in 1980 he handled the burglary of the residence of Joy Petrosie, charged against a Carlos Chavez (case no. A144879).   Officer Knight made an in-court identification of defendant Beltran as the same person known as Carlos Chavez, who was convicted in case no. A144789.

The court also took judicial notice of the court file in case no. A144879.

ISSUES

On appeal defendant Beltran, represented by a deputy state public defender (not trial defense counsel), contends that a reversal is required because the trial court 1) failed to provide a court appointed Spanish-English interpreter solely for defendant Beltran;  2) allowed the prosecution to impeach defendant's credibility with two prior felony convictions;  and 3) erroneously instructed the jury by giving CALJIC No. 3.01 (1980 rev.) concerning aiding and abetting.

Defense counsel on appeal further contends that in the event the judgment of conviction is not reversed, the sentence should be modified by striking the five-year enhancement in that the prior conviction relied upon did not constitute a “serious felony” conviction within the meaning of section 667, subdivision (a).

DISCUSSION

The first three contentions on appeal are ultimately governed by article VI, section 13 of the California Constitution which mandates that:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”  (Emphasis added.)

I.

The first error complained of (failure to appoint a second Spanish-English interpreter solely for Beltran) is procedural in character with constitutional overtones.   I have examined the entire record on appeal and conclude there has not been a miscarriage of justice for the failure to provide a second Spanish-English interpreter solely for defendant Beltran.

My review of the record shows that the court appointed Spanish-English interpreter Ann McGinn for defendant Beltran and codefendant Perez (true name—Marco Antonio Diaz), who performed in that capacity during the course of the trial;  that at no time did defendant have to share the interpreter with any witness who testified on the stand since defendant Beltran was the only Spanish-speaking, non-English speaking witness who testified at the trial;  and that when defendant Beltran took the stand on his own behalf, another Spanish-English interpreter (Hector Gutierrez) was appointed and sworn and interpreted for codefendant Perez while defendant Beltran testified.

The reporter's transcript further shows that in response to questioning during direct examination of Beltran by his counsel that he (Beltran) testified that he heard and remembered the testimony of the prosecution witnesses.   At no time during the course of the trial was any objection made by either defendant Beltran's counsel or defendant Beltran over failure to appoint a separate Spanish-English interpreter.   Nor has there been any showing whatsoever on appeal that defendant Beltran needed an interpreter to confer with his attorney, Francisco X. Gomez, or was prejudiced in any way because of the lack of an interpreter for that purpose.   To the contrary, the record seems to indicate that defendant Beltran's counsel and Beltran could communicate with each satisfactorily and without the aid of an interpreter.

There is an indication in the augmented record that Beltran was not unfamiliar with the English language.   In the prior case (no. A144879), during the taking of the plea, when asked if he had told his attorney everything he knew about that case, he answered in English “yes.”

Moreover, there is an indication that in the instant case (no. A564374) defense counsel (Francisco X. Gomez) could converse with the defendant without the aid of an interpreter.²

Assuming arguendo that the trial court procedurally erred by failing to appoint an interpreter solely for defendant Beltran, it was nonprejudicial since it is reasonably probable that the result would not have been different absent this claimed error.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)   Moreover, in respect to constitutional overtones involved in this form of error, even if the stricter federal standard is applied, the error, if any, was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

II.

Unavailing also is defendant Beltran's claim that the judgment of conviction should be reversed because the trial court permitted the prosecuting attorney to impeach his credibility with two prior felony convictions.

Here, after the People rested, the trial court ruled that the prosecution could impeach the defendant on the priors without a Beagle -type hearing (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1), based on the court's reading of California Constitution, article I, section 28, subdivision (f), (Proposition 8) passed by the electorate on June 8, 1982, effective June 9, 1982, which provided in pertinent part that a prior conviction is to be used “without limitation” for purposes of impeachment in any criminal proceeding.³

The trial court properly permitted impeachment of defendant Beltran in that the prior convictions of receiving stolen property and residential burglary were unquestionably felonies involving dishonesty and involving moral turpitude.  (People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.)   It is therefore unnecessary to remand this case in order to allow the trial court to exercise its discretion regarding the nature of the prior convictions.

Moreover, even assuming arguendo that such ruling was erroneous, it was harmless.   After reviewing the entire record, I conclude, by reason of the overwhelming evidence hereinbefore described, that “it is not reasonably probable that a result more favorable to [defendant Beltran] would have been reached” had the prosecution not been permitted to impeach defendant on his prior convictions.  (People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243;  see also People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Betts (1980) 110 Cal.App.3d 225, 167 Cal.Rptr. 768;  People v. Castro, supra, 38 Cal.3d 301, 319, 211 Cal.Rptr. 719, 696 P.2d 111.)

III.

Defendant Beltran's assertion that the court erred by instructing the jury on aiding and abetting, which requires a reversal, is not supported by the record and applicable law, and is without merit.

The clerk's transcript shows that the trial court instructed the jury on CALJIC No. 3.00 (1981 rev.) (Principles—Defined) ⁴ and CALJIC No. 3.01 (1980 rev.) (Aiding and Abetting—Defined).⁵

In People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 and People v. Caldwell (1984) 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, the state Supreme Court held it was error to so instruct the jury because it denies a defendant the right to have the jury decide whether the defendant had the intent to further the commission of the crime with which he is charged.

However, in the case at bench the evidence adverse to Beltran (e.g., his fingerprint on the Woods' flashlight) overwhelmingly implicated him as a principal who directly committed the crimes and not as an aider and abettor.   Therefore, Beeman error did not exist as to Beltran.

IV.

The People concede, and the majority concludes, that the five-year enhancement for a prior serious felony pursuant to section 667, subdivision (a), was improper.   I agree under the compulsion of People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 and People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736.⁶

CONCLUSION

Defendant Beltran was fairly tried and fairly convicted.   I would affirm the judgment of conviction and remand the case to the superior court for resentencing since elimination of the five-year enhancement materially changes the options open to the trial court to fashion an appropriate sentence in accordance with the trial court's “intention to protect society—to the greatest extent” of its power.⁷

FOOTNOTES

1.   Unless otherwise indicated, all section references refer to the California Penal Code.

2.   In the reporter's transcript of September 27, 1983 in the case at bench (no. A564374) at the time of sentencing, the following colloquy appears:“THE COURT:  All right.   If you feel that this court made any errors in your trial, you may ask the court of appeal to overturn your conviction in whole or in part and ask for a new trial.  [¶] You have had a chance to confer with your attorney, Mr. Gomez.“THE DEFENDANT:  Just the times that I have come to court.“THE COURT:  I mean just now, regarding what is meant by an appeal.   Did you talk to your lawyer about what is meant by an appeal?“THE DEFENDANT:  Yes.“THE COURT:  Mr. Gomez, do you feel your client understands his appeal rights?“MR. GOMEZ:  I believe he does, Your Honor.   I will speak to him more about his appeal rights when this process is terminated today, Your Honor.”

3.   The cross-examination of defendant Beltran by the prosecution attorney concerning his prior felonies consisted of the following questions and answers:“Q [BY MR. HAYES] Do you think, maybe, Guero left your fingerprints at Mr. Wood's house, too?“A I don't know how to explain that.   How could they have picked up those prints there if I never entered that house.“Q That's a good question.  [¶] Mr. Beltran, how many convictions of felony do you have?“A Last year I was arrested for receiving a stolen car.“Q Were you convicted of a felony on that?“A They told me to plead no contest.   The lawyer told me.“MR. BLUM:  Objection;  hearsay what the lawyer told him.“Q BY MR. HAYES:  Mr. Beltran, you are on felony probation for that, aren't you?“A I don't deny it.   I am on probation.“Q Is that to a lady right in this building, Barbara Brady?“A That's right.“Q How many other felonies, Mr. Beltran?“A I can't think of another one.   That's the only one.“Q How about the residential burglary that you are on probation for?“A No, I don't remember.   I don't have one.“Q That slipped your mind?“A No“Q Isn't it true that you are on probation for residential burglary under the name of Carlos Chavez?“A No.“Q Out of Van Nuys?“A I was in Van Nuys court last year when I was given probation.“Q For burglary?“A No, for having received a stolen car.“Q So you got another felony for receiving stolen property?“A Yes.“Q So that's the two you admit to;  is that right?“A I'm telling you about one last year.   The probation lady told me the computer was throwing out a whole bunch of names, and I was asked if I had used the name Carlos Chavez like you said, and I said I am Jorge Beltran.“Q How many names do you use?“A Just mine.“Q You have 11 names, don't you?“A That's what I was told last year.“Q 11 names that you use.   You have a conviction under Chavez, Beltran, and you have used Gutierrez, and it goes on and on.   You have 11 names, don't you?“A No.“Q How about this burglary conviction?“A I wasn't the one who committed it.   That's not true.“Q Are you sure of that?“A Sure.“Q What is your real name?“A Jorge Beltran Florez.”

4.   CALJIC No. 3.00 reads as follows:“The persons concerned in the commission [or attempted-commission] of a crime who are regarded by law as principals in the crime thus committed [or attempted] and equally guilty thereof include:“1. Those who directly and actively commit the act constituting the crime, or“2. Those who, with knowledge of the unlawful purpose of the person who directly and actively commits the crime, aid and abet in its commission [or attempted commission], [or]“3. Those who, whether present or not at the commission of the crime, advise and encourage its commission.”

5.   CALJIC No. 3.01 reads as follows:“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.  [¶] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.]  [¶] [Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.]”

6.   Defendant Beltran's conviction in the instant case (case no. A–564374), and his prior felony conviction (case no. 144879), must both constitute a “serious felony,” i.e., a burglary of a residence, in order to trigger the five-year enhancement provision of section 667.In the instant case (no. A–564374), the jury convicted defendant Beltran of burglary in the first degree of the Wood, Reyes and Nakahiro residences constituting “serious felonies” within the meaning of section 667.   In respect to the prior felony convictions, the trial court, based upon the testimony of officer Paul Knight who handled the investigation of the 1980 burglary (case no. 144879) and taking judicial notice of the superior court file in that case (in which the defendant was charged with the burglary of a residence and pled guilty to second degree burglary), found 1) that the defendant Chavez in the prior case (no. 144879) was in fact the same person as the defendant in the instant case (no. A–564374) and 2) that defendant in fact burglarized the residence of victim Joy Petrosie in case no. 144879.Accordingly, the five-year enhancement of the sentence, pursuant to section 667 in the instant case (no. A–564374), should also be affirmed “but for ” the prohibition of “going behind” the previous conviction of second degree burglary to prove that burglary was of a residence in order to qualify as a “serious felony.”In concurring in the judgment affirming the defendant's conviction in People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, Justice Malcolm Lucas, at pages 839 and 840 stated:  “I have some reservations regarding the holding in People v. Crowson (1983) 33 Cal.3d 623, 632–635 [190 Cal.Rptr. 165, 660 P.2d 389], that the People may not ‘go behind’ the elements of a prior offense to prove certain specifics of the defendant's conduct which have become relevant for enhancement purposes by reason of his commission of a new offense.   I did not participate in Crowson, and I feel that we should reconsider that aspect of the case.  [¶] The present case, however, is not a suitable vehicle for reconsidering Crowson because defendant expressly admitted the residential nature of his burglaries and, as the majority holds, that admission is sufficient for purposes of enhancing his sentence.   Accordingly, I concur in the judgment.”This case may provide the state Supreme Court a suitable vehicle to revisit and reconsider the principles announced in Crowson in light of current times and the obvious purpose of section 667, and the passage of Proposition 8 (Victim's Bill of Rights) by the sovereign people brought on by a crime wave in which felons on probation and parole continue to pillage and plunder the residences of law-abiding citizens.

7.   At the time of sentencing on September 27, 1983, the trial judge (Honorable Lillian M. Stevens), prior to pronouncing sentence, stated:“THE COURT:  All right.   The Court has very carefully read the probation report, and this court heard the entire trial on these matters.“I have rarely encountered a defendant with so little regard for the law.“The probation report indicates that the defendant is an [sic ] habitual and career criminal.   He is sophisticated and experienced.   He uses aliases, and to try to determine whether he has a prior record is difficult because he has so many different names.“I know of one other case that was brought to the court's attention during the trial where he was convicted and placed on probation under an entirely different name.   The probation officer indicates that they believe they have him supervised under two different file numbers and names.“In going through the probation report it appears to the court that it might well be on three or more matters.“The probation officer feels, and I agree, that the defendant shows no remorse or repentance, and I am in agreement with the probation officer that should he be and whenever he is released from custody, he will continue with his criminal activities.“Probation is denied.   First of all, he is not eligible for probation, having been convicted of residential burglaries, and the court finds no unusual circumstances to exist.“It is my intention to protect society at this point to the greatest extent within my power, and I think, to indicate for the record what is the court's mind at this time, the court is aware of a conviction for second degree burglary in the Van Nuys Superior Court in 1980.   It was where he was placed on probation.   The other conviction for grand theft auto, he pled guilty in 1981.   Another conviction for receiving stolen property in 1982, for which he was placed on probation.   Another case, 1982, just one month later, where he was convicted of an unlawful taking of a vehicle and placed on probation, and in 1982, grand theft auto in which he was placed on probation.“In addition to those convictions, the court is aware of his conviction in Van Nuys for burglary.   So, as I have indicated, I am going to at this point, protect the People as much as I can.”

SPENCER, Presiding Justice.

LUCAS, J., concurs.