People v. Anjell

• Decision Date: 20 December 1979
• Docket Number: Cr. 18512
• Citation: 100 Cal.App.3d 189,160 Cal.Rptr. 669
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Eric ANJELL, Defendant and Appellant.

Page 669

160 Cal.Rptr. 669

100 Cal.App.3d 189

PEOPLE of the State of California, Plaintiff and Respondent, v. John Eric ANJELL, Defendant and Appellant.

Cr. 18512.

Court of Appeal, First District, Division 4, California.

Dec. 20, 1979.

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Philip M. Brooks, Phyllis J. Hamilton, Deputy State Public Defenders, San Francisco, for defendant and appellant

George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Timothy A. Reardon, John B. Moy, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

RATTIGAN, Associate Justice.

Appellant John Eric Anjell was charged in a two-count information with having committed robberies (Pen.Code, § 211) ¹ in Pleasant Hill and Orinda on October 22, 1977. It was also alleged in the information that he had been armed with and used a firearm during the commission of each offense, and that he had two prior felony convictions. The first prior was a 1971 Nevada conviction of grand larceny. The second was a 1974 Alameda County conviction of receiving stolen property. Appellant admitted both priors in the course of his jury trial.

The jury found him guilty of the Pleasant Hill robbery as charged in Count One, and made a special finding that he had been armed within the meaning of section 12022, subdivision (a), during the commission of the offense. The jury also found him guilty of the Orinda robbery as charged in Count Two, and made special findings that he had used a firearm within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1), and that he had been armed within the meaning of section 12022, subdivision (a), during the commission of the offense.

The trial court sentenced him to state prison for a total term of eight years. The terms imposed on the two counts were ordered to run consecutively, with enhancement terms added by reason of the special findings and the two priors admitted by appellant. He appeals from the judgment of conviction.

THE TRIAL

The Prosecution's Case

Robert Michie, an employee at a service station located in Orinda, testified that he was robbed by two men as he was closing the premises at 8:30 p. m. on October 22, 1977. One of the men, whom Michie identified as appellant, was armed with a shotgun. The robbers took approximately $100 from the station and Michie's wallet, which contained a few dollars. A few weeks later, Michie selected appellant's picture from a lineup of police photographs. He made positive in-court identifications of appellant at the preliminary examination and the trial.

Gail Schneider testified that she was working in her office at the Greyhound depot in Pleasant Hill on the night of October 22, 1977. Two men entered the depot at 9:27 p. m. and robbed her. The shorter of the two men was armed with a gun. They took money from the cash register in the depot. The witness subsequently identified Daniel Tillery as the robber with the gun. She could not identify appellant as the other man, but she testified that he had a similar height and build. She also testified that she had become acquainted with appellant outside the courtroom at his preliminary examination, that she had made a trip to Sacramento with him, and that he had subsequently visited her at the Greyhound depot.

Detective Frank Fonda and Officer Jack Harper testified to a series of statements

appellant had made to one or both of them concerning the Orinda and Pleasant Hill robberies. On November 14, 1977, he told Fonda that he had been present when both robberies were committed; that he was only "technically involved" in them, and had been no more than a nonparticipating bystander on each occasion; that the robbers were two men whom he had met for the first time on October 22, 1977; [100 Cal.App.3d 195] and that he knew the men only as "Danny" and "Billy." He identified Daniel Tillery as "Danny," but did not identify "Billy," from some police photographs. On November 15, 1977, Officer Harper arrested him for the Orinda robbery and told him that he was suspected of having committed the robbery in Pleasant Hill. Appellant then confessed that there was no such person as "Billy," and that he and Tillery had committed both crimes. ²

The Defense

Appellant called Donald Payne and Patricia Wulbern as alibi witnesses. Payne owned a restaurant in Pleasant Hill. Wulbern worked there as a waitress. They both testified that appellant had been in the restaurant throughout the evening of October 22, 1977.

During an interval between the testimony of these two witnesses, appellant made a so-called "Beagle motion" (People v. Beagle (1972) 6 Cal.3d 441, 451, 454, 99 Cal.Rptr. 313, 492 P.2d 1) for an order preventing the prosecution for impeaching him with the two prior felony convictions, which he had then admitted, if he testified in his own defense. The trial court denied the motion, and he elected not to testify.

REVIEW

Claimed Impeachment Error

Appellant contends that the trial court prejudicially abused its discretion in denying his "Beagle motion." The Supreme Court has established that a trial court must consider at least four factors, in determining whether to allow a defendant to be impeached with a prior conviction pursuant to Evidence Code section 788, to assure that the potentially prejudicial effect of the conviction does not outweigh its probative value as contemplated in Evidence Code section 352. The factors are (1) the prior conviction's bearing on the defendant's honesty, integrity and veracity; (2) its remoteness in time to the offense charged; (3) the similarity between the conduct involved in the prior and the conduct for which the defendant is on trial; and (4) the desirability that the jury hear the defendant's version of the case. (People v. Beagle, supra, 6 Cal.3d 441 at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Rist (1976) 16 Cal.3d 211, 218-219, 127 Cal.Rptr. 457, 545 P.2d 833.)

Appellant first contends that the trial court failed to consider All of the foregoing factors because its ruling on the Beagle motion made no reference to the importance of having the jury hear appellant's testimony.

Although the court's discussion included explicit references to the first three Beagle factors only, a close reading of the record demonstrates that the fourth factor was also considered. In defense counsel's written points and authorities on the motion, he asserted that it was more important for the jury to hear the defendant testify than to have him remain silent through fear of impeachment, and that "priors may be excluded on this ground alone."

In oral argument on the motion, counsel stated that an adverse ruling "may compel Mr. Anjell not to take the stand and give evidence in his own behalf." The prosecutor cited passages in Beagle to the asserted effect that a defendant should not be permitted to "blackmail" the trial court by threatening not to testify. Immediately after this exchange, the court announced that ". . . applying the Beagle standards (plural) And weighing the factors that I must weigh in making the decision, I am going to deny the Beagle motion . . .." (Emphasis added.) The record thus dispels the contention that the court did not consider all the Beagle factors.

Appellant next contests the court's ruling on its merits. Application of the Beagle principles produces several conclusions to be enumerated as follows:

(1) The crimes of grand larceny and receiving stolen property are both recognized as reflective of a person's honesty and integrity, and are therefore probative for purposes of impeachment. (See People v. Beagle, supra, 6 Cal.3d 441 at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Banks (1976) 62 Cal.App.3d 38, 44, 132 Cal.Rptr. 751. Cf. People v. Rist, supra, 16 Cal.3d 211 at p. 220, 127 Cal.Rptr. 457, 545 P.2d 833.) Appellant in effect proposes the adoption of a new rule of exclusion for all crimes which do not involve making false statements, arguing that only offenses which require false assertions significantly bear upon a defendant's ability to lie or feign sincerity. A holding to that effect would effectively eliminate "honesty" and "integrity" as traits which bear upon credibility, and would be contrary to the Supreme Court's pronouncements on the subject. (People v. Beagle, supra; People v. Rist, supra. See also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) In any event, there is no merit in the argument that a person's propensity to give false testimony may be shown Only by instances of past lying. In many instances, actions speak louder than words.

(2) The respective prior convictions having been three and six years old, they were not so remote in time as to diminish their probative value. (See People v. Boothe (1977) 65 Cal.App.3d 685, 688-689, 135 Cal.Rptr. 570 (six-year-old robbery conviction not too remote).)

(3) Grand larceny and receiving stolen property are somewhat similar in nature to the crime of robbery with which appellant was charged. Because all three offenses are larcenous, there was a degree of risk that the jury might be persuaded to find appellant guilty of the robberies on the basis of his past larcenous conduct. (See People v. Rist, supra, 16 Cal.3d 211 at p. 219, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Banks, supra, 62 Cal.App.3d 38 at p. 44, 132 Cal.Rptr. 751.) However, the crime of robbery is assaultive as well as larcenous (People v. Rist, supra, 16 Cal.3d at p. 220, 127 Cal.Rptr. 457, 545 P.2d 833), and preponderantly so in the perception of lay people sitting as jurors. The risk mentioned was accordingly diminished because neither of appellant's priors indicated assaultive conduct in the past. No abuse of discretion has been shown in the trial court's treatment of the third Beagle factor.

(4) The fourth Beagle factor...