People v. Rollo

• Decision Date: 11 October 1977
• Docket Number: Cr. 19637
• Citation: 569 P.2d 771,20 Cal.3d 109,141 Cal.Rptr. 177
• Court: California Supreme Court
• Parties: , 569 P.2d 771 The PEOPLE, Plaintiff and Respondent, v. Gary Michael ROLLO, Defendant and Appellant.

Page 177

141 Cal.Rptr. 177

20 Cal.3d 109, 569 P.2d 771

The PEOPLE, Plaintiff and Respondent, v. Gary Michael ROLLO, Defendant and Appellant.

Cr. 19637.

Supreme Court of California, In Bank.

Oct. 11, 1977.

Roger Agajanian, Santa Ana, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Patricia D. Benke, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Associate Justice.

Defendant appeals from a judgment convicting him of receiving stolen property. ¹ He contends the trial court committed reversible error in allowing the prosecution to impeach him by proof of a prior conviction of a felony of an undisclosed nature, and in giving an instruction on "other crimes" evidence. As will appear, we have concluded that the court erred in both respects but that on the record of this case the rulings were not prejudicial.

David Chow, a technical director of the Kung Fu television show, owned a collection of antique samurai swords which he displayed on his living room wall. Defendant Rollo, an expert in Japanese martial arts, went to Chow's home assertedly to seek employment as a stunt man in the television show. In the interview defendant gave his name as "Michael Long." Chow told defendant that if he wished to demonstrate his karate skills he should do so at the YMCA, where Chow taught a class. Defendant never gave such a demonstration.

On February 13, 1974, burglars broke into Chow's home while he was away on a trip. Among the items stolen were three samurai swords which Chow valued, on the basis of appraisals, at a total of $25,000.

On February 23, 1974, defendant appeared with the three stolen swords at the studio of Fumio Demura, a karate instructor and former champion. The swords were in the trunk of defendant's car, and defendant offered to sell them at whatever price Demura thought fair. Demura said he would pay $400 for the lot, the defendant accepted; Demura testified at trial that the transaction was a "good buy." Defendant directed Demura to make the check payable to one Tom Cross; Demura so identified the payee on the check stub, but left the name on the check blank because he had difficulty writing in English.

Three days later, on February 26, 1974, defendant accompanied Tom Cross to a bank to cash the check. Cross had filled in his name as payee, and after verifying the transaction with Demura the bank paid Cross $400 in cash.

Cross and his brother Jim subsequently admitted the burglary of the Chow residence.

Defendant conceded at trial that he had had the swords in his possession and had sold them to Demura for $400; he denied, however, that he knew their value or that they were stolen property. He acknowledged having been inside the Chow residence, but denied that he saw the swords there. He asserted rather that his friend Cross, who seemed to be a collector of "all kinds of things," told him one day he wanted to "get rid of" the swords and asked if he knew anyone who might buy them. According to Demura, however, when defendant offered the swords for sale he claimed he had won them in a poker game.

The jury found defendant guilty as charged.

I

Defendant's principal contention on appeal is that the court erred in ruling on the admissibility of a prior conviction for purposes of impeachment. The information charged defendant with having previously been convicted of the crime of soliciting another to commit murder. (Pen.Code, § 653f.) Defendant formally admitted the truth of the allegation before the jury was impanelled; in such circumstances, of course, "the charge of the previous conviction must not be read to the jury, nor alluded to on the trial." (Pen.Code, § 1025.)

When defendant thereafter took the stand in his own behalf, however, the prosecutor indicated an intent to introduce the prior conviction as impeachment. Defense counsel objected on the grounds that the prior conviction had little probative value on the issue of defendant's veracity, and was highly prejudicial because of the seriousness of the crime of soliciting murder. The court ruled the prosecutor could ask defendant whether he had ever been convicted of a felony, but that no inquiry into the nature of that felony would be permitted. When defense counsel objected that the jury might infer the prior crime was the same as the charge for which defendant was on trial, the court suggested that counsel could "straighten out" the matter on redirect examination if he so chose.

In accordance with this ruling the prosecutor elicited the following admissions from defendant on cross-examination.

"Q. Mr. Rollo, you have been convicted of a felony yourself, haven't you? A. Yes, I have.

"Q. When was it? A. I don't know the exact date.

"Q. In 1973? A. Yes." ²

Defense counsel declined to ask defendant on redirect to disclose the nature of his prior conviction.

In People v. Beagle (1972) 6 Cal.3d 441, 451-454, 99 Cal.Rptr. 313, 492 P.2d 1, we unanimously declared the rule that trial courts have discretion to exclude evidence of prior felony convictions offered as impeachment "when their probative value on credibility is outweighed by the risk of undue prejudice." (Id. at p. 453, 99 Cal.Rptr. at p. 320, 492 P.2d at p. 8.) Twice in the past two years we have reviewed the origin and purpose of that rule, provided elaborate guidance in its application, and reaffirmed its mandate by reversing judgments of conviction on the ground that failure to exclude such evidence constituted a prejudicial abuse of discretion in the circumstances of each case. (People v. Antick (1975) 15 Cal.3d 79, 96-99, 123 Cal.Rptr. 475, 539 P.2d 43; People v. Rist (1976) 16 Cal.3d 211, 218-223, 127 Cal.Rptr. 457, 545 P.2d 833.) Surely we do not need to repeat that discussion so soon. By now it should be clear to all that when a defendant makes a timely objection to the introduction of evidence of a prior felony conviction for the purpose of impeaching his testimony, the trial court is under a duty (1) to determine the probative value of that evidence on the issue of the defendant's credibility as a witness, (2) to appraise the degree of prejudice which the defendant would suffer from admission of the evidence, and (3) to weigh the foregoing two factors against each other and exclude the evidence "if its probative value (on the issue of credibility) is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice" (Evid.Code, § 352).

Here the court took the second of these steps, but not the first and third. The court correctly found that to disclose to the jury that defendant had previously been convicted of the crime of solicitation of murder would create a substantial danger of undue prejudice: the jury might draw the inference that because defendant had once solicited the commission of a murder, he had demonstrated such a defect of character or criminal disposition that he was likely to be capable of any offense and in particular was probably guilty of the charge now laid against him. Such an inference, of course, is wholly impermissible: it is the general rule, codified in our statutes, that "evidence of specific instances of a person's conduct is inadmissible to prove that on a particular occasion he acted in conformity with the trait of character indicated by his prior specific acts. (Evid.Code, §§ 1101, subd. (a), 787.)" (Fn. omitted.) (People v. Antick, supra, at p. 96 of 15 Cal.3d, at p. 486 of 123 Cal.Rptr., at p. 54 of 539 P.2d.)

Although Evidence Code section 788 permits introduction of prior felony convictions, in accordance with the foregoing rule they are received solely "For the purpose of attacking the credibility of a witness" (italics added). It is for this reason that Beagle requires the trial court to determine the probative value of the prior conviction on the issue of the defendant's credibility: without such a determination the court will be unable to engage in the weighing process implicit in section 352 and mandated by the Beagle analysis.

The record herein raises serious doubts whether the trial court actually resolved this issue. When defense counsel first questioned the probative quality of the conviction the prosecutor replied in conclusory terms, claiming the offense "has to do with the person's veracity" and "is just connected with his dishonest type of conduct." Unsatisfied with these generalities, the trial court asked, "How does that relate to dishonesty and untruthfulness? That is my big question. Whether that type of crime has strong probative value." The question was never competently answered. The prosecutor sought to distinguish the case of an assault, which he admitted did not show dishonesty or untruthfulness, and said the crime of solicitation of murder evidenced a "disrespect for the law." The court replied that it would also show a "disrespect for the law" if the defendant had actually shot someone, yet that crime would not necessarily demonstrate dishonesty and untruthfulness. In his final attempt at justification the prosecutor said rather lamely that "It is hard to explain, I suppose, as to why it indicates untruthfulness, but you have got a guy who is going underground making this kind of a contract and it . . . just, to me, shows a character trait of willingness to do anything." (Italics added.)

The emphasized language is highly revealing. It suggests that the prosecutor's true motive was not to furnish the jury with relevant information on the defendant's credibility as a witness, but simply to blacken his character so that the jurors in defense counsel's succinct words of warning "will think this guy would do anything if he will commit a murder." As stated above, that inference is legally impermissible as a ground of impeachment.

The trial court, however, neither rebuked the prosecutor for his improper suggestion nor attempted a...