15 Cal.3d 481, 17984, People v. Lent

Docket Nº:17984
Citation:15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545
Opinion Judge:[10] Mosk
Party Name:People v. Lent
Attorney:[7] Alexander Anolik and Suzanne M. McDonnell for Defendant and Appellant. [8] Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Derald E. Granberg and Don Jacobson, Deputy Attorneys General, for Plaintiff and Re...
Case Date:October 30, 1975
Court:Supreme Court of California
 
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Page 481

15 Cal.3d 481

124 Cal.Rptr. 905, 541 P.2d 545

The PEOPLE, Plaintiff and Respondent,

v.

Howard Leonard LENT, Defendant and Appellant.

Cr. 17984.

Supreme Court of California

Oct. 30, 1975.

In Bank

Rehearing Denied Dec. 17, 1975.

Page 482

[Copyrighted Material Omitted]

Page 483

Alexander Anolik and Suzanne M. McDonnell, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. and Don Jacobson, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

After conviction of grand theft (Pen.Code, § 484) defendant appeals, alleging the trial court erred in (1) preventing introduction into evidence of a prior misdemeanor conviction to impeach the credibility of a prosecution witness, and (2) imposing as a condition of probation restitution of funds involved in a related criminal charge of which defendant was acquitted. For reasons discussed Infra we affirm the judgment.

Page 484

Defendant, a nonlawyer investigator for a law firm, undertook to negotiate with an insurance carrier for settlement of a claim for personal injuries suffered by the daughter of Zippora Smith, after the law firm, originally engaged for that purpose, had withdrawn from the case. Ultimately defendant received on behalf of Mrs. Smith a draft in the amount of $1,278 and releases, all of which she signed. Presumably the $1,278 was to be allocated to payment of the medical bills of Mrs. Smith's daughter. The bills were not paid. Nevertheless defendant was acquitted of the charge of theft of those funds.

Mrs. Smith also received an additional $2,000 from the insurance carrier. Defendant accompanied her to the bank where the check was cashed. Out of the proceeds Mrs. Smith gave defendant $500 which she understood was for attorney's fees for defendant's employers. Defendant testified the sum was a personal gratuity; however, he shared it with the insurance adjuster. The jury convicted defendant of the theft of those funds.

I

When Mrs. Smith was on the stand as a prosecution witness, defendant's counsel sought to impeach her by inquiring into a five-year-old misdemeanor conviction. Upon objection being sustained, counsel made an offer of proof, conceding therein that his sole purpose was to reflect upon the credibility of the witness.

From the celebrated case of Sharon v. Sharon (1889) 79 Cal. 633, 673--674, 131, to date, it has been hornbook law that testimony relating to specific instances of misconduct is inadmissible to attack the credibility of a witness. This has always been interpreted to require exclusion of evidence concerning prior misdemeanor convictions. (Stickel v. San Diego Elec. Ry. Co. (1948) 32 Cal.2d 157, 165; People v. Matlock (1970) 11 Cal.App.3d 453, 461, 89 Cal.Rptr. 862.) Indeed, the rule has been described as 'elementary'...

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