People v. Armendariz

• Decision Date: 20 November 1985
• Citation: 220 Cal.Rptr. 229,174 Cal.App.3d 674
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward ARMENDARIZ, Defendant and Appellant. Crim. F003242.

Page 229

220 Cal.Rptr. 229

174 Cal.App.3d 674

The PEOPLE, Plaintiff and Respondent, v. Edward ARMENDARIZ, Defendant and Appellant.

Crim. F003242.

Court of Appeal, Fifth District, California.

Nov. 20, 1985.

Certified for Partial Publication ^*

Mark D. Greenberg, Berkeley, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eddie T. Keller and Raymond L. Brosterhous, II, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BEST, Associate Justice.

At a bifurcated jury trial, defendant was convicted first of robbery (PEN.CODE, § 211)¹ and then found to have been convicted previously of a serious felony, assault with a deadly weapon ( § 245, subd. (a)) within the meaning of section 667. Defendant was sentenced to the middle term of three years for the robbery conviction plus a consecutive five-year enhancement pursuant to section 667.

On appeal, defendant raises multiple claims of error, including prosecutorial misconduct during voir dire of prospective jurors, erroneous admission of opinion testimony to impeach a defense witness, erroneous admission of defendant's prior conviction of assault with a deadly weapon for impeachment purposes, and error in imposing the section 667 enhancement. After discussion, we will affirm but modify the judgment by striking the five-year enhancement.

THE FACTS

The robbery occurred at the Capri liquor store in McFarland. The prosecution's key witness was the cashier of the store, Francisco Vela. Mr. Vela testified that defendant and a companion, Victor Lopez, entered the store on the evening of March 18, 1983. Defendant asked whether Mr. Vela's coworker or the store's manager was on the premises. Mr. Vela said they were not. Defendant then told Mr. Vela to tell the manager, when Vela saw him, that "Eddie Boy" was back.

Defendant and Lopez then walked down an aisle containing bottles of liquor. Defendant removed a bottle of tequila from the shelf and replaced it. He then took off his coat, handed it to Lopez and took the tequila off the shelf again. At this point, Lopez was standing between defendant and Vela, so that Vela could not see precisely what defendant was doing. Vela, however, could see that defendant was "moving or handling" his shirt. He never saw the bottle of tequila placed back on the shelf. As defendant walked toward the cash register, he was pulling his shirt out and over the waistband of his pants.

At the cash register, Lopez paid for a bottle that he had gotten. When defendant and Lopez started to walk out of the store, Vela asked if defendant was planning to pay for the bottle he had taken. Defendant, then, turned and walked back toward Vela. Pulling up his shirt to reveal the handle of a gun and the top of a bottle stuck in his waistband, defendant declared he had nothing but his gun. Defendant and Lopez then left the store without further interference from Vela and drove off in a car.

The defense theory was that the incident never occurred. The theory was brought out by attacking the credibility of the prosecution's witness through pointing out inconsistencies in his testimony and story. Defendant also called Victor Lopez as a defense witness, who testified that he and defendant went to the liquor store that night and that they only bought two bottles of Coke and one bottle of Calvert. He denied that any confrontation with Vela took place. Lopez also testified that he was 19 years of age and had purchased liquor from Vela on several prior occasions.

DISCUSSION

I ²

Did the prosecutor commit prejudicial misconduct?

II2

Did the trial court improperly refuse to admit evidence tending to prove bias by the prosecution witness?

III2

Did the trial court err in admitting opinion testimony to attack the credibility of defense witness Lopez?

IV2

Was defendant's right to federal due process violated by the admission of opinion testimony? In the alternative, was defendant denied effective assistance of counsel by his trial counsel's failure to request exclusion of the opinion testimony on the basis of Evidence Code section 352?

V2

Did the trial court err in failing to instruct the jury on the elements of petty theft?

VI

Did the trial court improperly rule that defendant's prior felony conviction of assault with a deadly weapon would be admissible for impeachment purposes?

The district attorney requested that the trial court allow the use of all prior felony convictions for impeachment purposes. The trial court ruled that all prior felony convictions would be admissible. From the probation report it appears the defendant twice pleaded guilty to the charge of assault with a deadly weapon. Defendant did not testify in his own behalf. In a letter brief submitted on the basis of People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, defendant contends on appeal that the trial court erred in allowing the admission of his felony conviction because assault with a deadly weapon is not a crime of moral turpitude. In the alternative, if assault with a deadly weapon is a crime of moral turpitude, he argues the trial court erred in failing to exercise its discretion under Evidence Code section 352 to exclude the prior.

In People v. Castro, the California Supreme Court construed article I, section 28, subdivision (f), of the state Constitution, which provides in part: "Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding."

This provision had been read and applied by some trial courts so as to take away the trial court's discretion to exclude prior felony convictions pursuant to Evidence Code section 352. The Castro court, however, held that the trial court retains its discretion to exclude prior felonies despite article I, section 28, subdivision (f). It also held, though, that only those prior felonies that are crimes of moral turpitude are relevant to impeach a witness' credibility. The court stated:

"We shall hold that--always subject to the trial court's discretion under section 352--subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty. On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude." (People v. Castro, supra, 38 Cal.3d at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

We must first determine whether assault with a deadly weapon ( § 245, subd. (a)(1)) is a crime involving moral turpitude.

The Castro court gave some guidance on how to determine whether a crime involved moral turpitude. Citing to an opinion by Justice Holmes, the court first noted the rationale behind allowing felony impeachment:

" '[W]hen it is proved that a witness has been convicted of crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in a particular case, and thence that he has lied in fact....' " (People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.)

The court then stated: "It follows, therefore, that if the felony of which the witness has been convicted does not show a 'readiness to do evil,' the fact of conviction simply will not support an inference of readiness to lie." (Ibid.)

While not attempting to list or specify those felonies which involve moral turpitude, the Castro court clearly states that moral turpitude does not depend solely on dishonesty being an inherent element of the felony. "[I]t is undeniable that a witness' moral depravity of any kind has some 'tendency in reason' (Evid.Code, § 210) to shake one's confidence in his honesty." (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111, emphasis added.) Castro, therefore, equates moral turpitude with a "readiness to do evil" (id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111) and "moral depravity," i.e., "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (In re Craig (1938) 12 Cal.2d 93, 97, 82 P.2d 442; 2 Bouvier's Law Dict. (3d rev.ed. 1914) p. 2247; 1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 375, pp. 424-425; see also 23 A.L.R.Fed. 480, 488 involving exclusion or deportation of aliens under Federal Immigration and Naturalization Act.)

Castro then recognizes that assaultive crimes bear some relevance to credibility by quoting from People v. Rist (1976) 16 Cal.3d 211, 222, 127 Cal.Rptr. 457, 545 P.2d 833, " 'convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity' " and then concludes, " 'Not as heavily' does not, of course, mean 'not at all.' " (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)

The court's final dictate is that moral turpitude must be found, if at all, only on the least adjudicated elements of the crime. "[A] witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude." (Castro, supra, at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.) We understand this to mean that the facts underlying a prior felony conviction may not be reviewed in order to determine whether the crime involved moral turpitude.

Section 240 defines an assault as "... an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."

Under California law, an attempt to commit a...