People v. Barrick

• Decision Date: 10 December 1982
• Docket Number: Cr. 22389
• Court: California Supreme Court
• Parties: , 654 P.2d 1243 The PEOPLE, Plaintiff and Respondent, v. Steven Mark BARRICK, Defendant and Appellant.

Page 716

187 Cal.Rptr. 716

33 Cal.3d 115, 654 P.2d 1243

The PEOPLE, Plaintiff and Respondent, v. Steven Mark BARRICK, Defendant and Appellant.

Cr. 22389.

Supreme Court of California,

In Bank.

Dec. 10, 1982.

Rehearing Denied Jan. 27, 1983.

Michael C. Bourbeau, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Quin Denvir, State Public Defender, and Jonathan B. Steiner, Chief Asst. State Public Defender, as amici curiae for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven V. Adler, J. Richard Haden and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

John K. Van de Kamp, Dist. Atty., Los Angeles, Harry B. Sondheim and Suzanne Person, Deputy Dist. Attys., as amici curiae for plaintiff and respondent.

BROUSSARD, Justice.

Defendant appeals from a judgment of conviction after a jury found him guilty of theft and unlawful driving or taking of a vehicle. (Veh.Code, § 10851.) Defendant was acquitted of the charge of receiving stolen property. (Pen.Code, § 496.) The prosecutor also charged two prior felony convictions for the purpose of sentence enhancement (Pen.Code, § 667.5, subd. (b)), and to preclude probation (Pen.Code, § 1203, subd. (e)(4)). These were admitted by the defendant.

The primary issue in this appeal is whether the trial court erred in ruling that if the defendant testified, he could be impeached by the prosecutor asking whether defendant had ever been convicted of a "felony involving theft." This is but the latest twist involving the propriety of admitting prior felony convictions for the purpose of impeachment. We conclude that where similar offenses are involved, the technique of "sanitizing" the prior felony is ineffective to dispel the prejudice in admitting evidence of the prior conviction. Therefore, the procedure is unacceptable, and the trial court erred in permitting it. ¹

On May 29, 1980, about 8:30 p.m., Deputy Sheriff Bennallack received a report that a man was lying in the front seat of a vehicle parked in the northwest corner of the otherwise empty Rubidoux courthouse parking lot. Bennallack went to the location and discovered defendant in a 1969 Datsun. Bennallack attempted to awaken defendant by calling to him and shaking the vehicle. After several unsuccessful attempts, he was able to unlock the vehicle and shake defendant awake.

Bennallack asked defendant his name and what he was doing in the area. Defendant stated that he was waiting for a friend, got tired, pulled the vehicle over and went to sleep. He told the officer that the car belonged to a friend, but he could not provide the friend's name. Defendant identified himself as "Steven Johnson," but he did not produce any identification.

Bennallack returned to his patrol car to check the ownership of the Datsun. Unsure of the correct spelling of "Johnson," the officer returned to the Datsun and asked defendant for the correct spelling of his last name. Defendant replied "B-A-R-R-I-C-K." Bennallack smelled alcohol on defendant's breath and asked if he had been drinking. Defendant replied that he had consumed some beers and marijuana at a party earlier in the evening. Defendant thought that the marijuana had been "sprayed with something."

Bennallack returned to his vehicle and learned that the Datsun was stolen. The owner had reported the theft in the morning that same day. Defendant was arrested, advised of his Miranda ² rights, and placed in custody.

A defense witness testified that defendant had been at a party earlier in the evening, where he had consumed beer and marijuana mixed with PCP. The witness testified that he observed defendant getting very intoxicated, and that defendant left the party about 5:30 or 6 p.m., stumbling down the street. Defendant's brother testified that their mother's house, where defendant stayed occasionally, was within eyesight of the parking lot where defendant was found. Testimony from prosecution witnesses revealed that a different ignition switch and toggle switch had been installed in the vehicle and the locked gas cap was bent. Defendant's wallet was found beneath the driver's seat.

Before trial, defense counsel made a motion to prohibit the prosecutor from impeaching defendant with a prior felony conviction of automobile theft. (People v. Beagle [1972] 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.) The trial court recognized the potential prejudice in telling the jury that defendant had been previously convicted of automobile theft. In an attempt to avoid that prejudice, the court ruled that should the defendant testify, the prosecutor could ask him if he had ever been convicted of "a felony involving theft." At that point, defense counsel indicated that he would advise his client not to testify.

We granted a hearing to consider the propriety of impeaching a defendant by a "sanitized" reference to a prior conviction as a "felony involving theft."

We begin by examining the statutory authorization for allowing impeachment by prior felony convictions, and the statutory and judicial limitations on that authority. Evidence Code section 788 provides in pertinent part that "[f]or the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony ...." (Italics added.) This authorization of judicial discretion is tempered, however, by Evidence Code section 352, which permits the trial judge to exclude otherwise admissible evidence "if its probative value is substantially outweighed by the probability that its admission ... will create substantial danger of undue prejudice ...." We first examined the relationship between these sections in People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, where we held that read together, sections 788 and 352 "clearly provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice." (Id., at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) This court adopted the discussion by Judge (now Chief Justice) Burger in Gordon v. United States (1967) 383 F.2d 936, identifying some of the more important factors for the trial court to consider in exercising its discretion whether to allow evidence of the prior felony conviction for the purpose of impeachment: " 'In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity. Acts of violence ... generally have little or no direct bearing on honesty and veracity. A "rule of thumb" thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not .... The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness. [Par.] A special and even more difficult problem arises when the prior conviction is for the same or substantially similar conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe "if he did it before he probably did so this time." As a general guide, those convictions which are for the same crime should be admitted sparingly .... [Par.] ... One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. Even though a judge might find that the prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant's version of the case than to have the defendant remain silent out of fear of impeachment.' " (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1, fns. and citations omitted.) Beagle was premised on the thesis that the Legislature did not intend to " 'exempt section 788 from the general evidentiary provisions [of Division 3 of the Evidence Code] applicable to all rules of admissibility.' (People v. Beagle, supra, 6 Cal.3d at p. 453 [99 Cal.Rptr. 313, 492 P.2d 1].)" (People v. Woodard [1979] 23 Cal.3d 329, 336, fn. 4, 152 Cal.Rptr. 536, 590 P.2d 391.) These general evidentiary provisions declare that only "relevant evidence" is admissible in a court proceeding. (Evid.Code, §§ 300, 350.) Before admitting evidence of the prior felony conviction, courts have the duty to determine whether the proferred evidence has "any tendency in reason to prove or disprove" (Evid.Code, § 210) the defendant's credibility. (People v. Woodard, supra, at p. 336, fn. 4, 152 Cal.Rptr. 536, 590 P.2d 391.)

Evidence Code section 786 provides that the sole trait relevant to the witness' credibility is truthfulness: "Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness." (Evid.Code, § 786.) Thus, if a prior felony conviction does not reflect on the trait of truthfulness, it must be excluded as irrelevant under Evidence Code section 350, which provides that "[n]o evidence is admissible except relevant evidence." (People v. Woodard, supra, at p. 335, 152 Cal.Rptr. 536, 590 P.2d 391.) However, not all felony convictions reflecting on the truthfulness of the defendant are equally probative of that issue. "[D]ifferent felonies have different degrees of probative value on the issue of credibility. Some,...