People v. Castro, Cr. 23605

Decision Date11 March 1985
Docket NumberCr. 23605
Citation38 Cal.3d 301,211 Cal.Rptr. 719,696 P.2d 111
CourtCalifornia Supreme Court
Parties, 696 P.2d 111 The PEOPLE, Plaintiff and Respondent, v. Maria J. CASTRO, Defendant and Appellant.

Richard A. Lieberman, Howard J. Berman and Berman & Glenn, San Francisco, for defendant and appellant.

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

John K. Van de Kamp, Atty. Gen., Eugene W. Kaster and David D. Salmon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Christopher N. Heard, San Jose, as amicus curiae for plaintiff and respondent.

KAUS, Justice.

A jury convicted defendant Maria Castro of receiving stolen property (Pen.Code, § 496). Before trial, the court denied a motion to bar impeachment with then unspecified priors, should defendant choose to testify. The court based its ruling on article I, section 28, subdivision (f) of the California Constitution, 1 concluding that it was more specific than subdivision (d) 2 and, therefore, controlled. 3 The issues on appeal are (1) whether the court erred in ruling that defendant could be impeached with what proved to be prior convictions of possession of heroin and possession of heroin for sale, and (2) whether the error, if any, was prejudicial.

Defendant contends that article I, section 28, subdivision (f) of the Constitution--enacted in 1982 as part of the so-called Victims' Bill of Rights (Proposition 8)--did not eliminate Evidence Code section 352 as a basis for excluding evidence of prior convictions. She also claims that to apply the subdivision to erase the trial court's authority to exclude evidence of priors in criminal proceedings denies equal protection. As amicus curiae, the State Public Defender argues that the automatic admission of all prior felony convictions for impeachment under subdivision (f) is a denial of due process.

The Attorney General responds that the voters intended subdivision (f) to abolish all judicial discretion to restrict admission of prior convictions for impeachment and to require the admission of all such evidence subject only to federal constitutional restraints. It is also urged that admission of defendant's prior convictions did not deny due process or equal protection.

The legislative and judicial history of sections 352 and 788, the circumstances under which article I, section 28, was enacted, the language of the enactment--concededly ambiguous--as well as certain policy considerations convince us that section 28 was not intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter--as, indeed, is provided by Evidence Code section 352. 4

A further issue--tendered by the nature of defendant's convictions and subdivision (d)'s recognition that only relevant evidence is admissible--is the nature of the prior convictions which may be used for impeachment of witnesses in criminal cases. 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.

One vital point which must be made at the outset is this: Although the majority of decisions examining the use of prior convictions for impeachment of witnesses in criminal cases has involved situations in which the defendant himself was the witness, subdivision (f) is by no means confined to that situation, but applies to all witnesses--the prosecution's, the defense's, as well as the court's own.


The history of section 352 compels the conclusion that at least until the adoption of section 28, section 352 was intended to apply across the board, excluding no relevant and otherwise admissible evidence from judicial weighing of prejudice against probative value. (For a review of the genesis of section 352, see People v. House (1970) 12 Cal.App.3d 756, 90 Cal.Rptr. 831, concurring opinion, pp. 769-771, 90 Cal.Rptr. 831.) Early decisions of the Courts of Appeal, however, did not recognize the full import of section 352 and, in a series of cases later disapproved in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, held that section 788 of the Evidence Code was immune to the exercise of discretion under section 352. 5 In Beagle we confirmed that section 352 did, indeed, apply to all relevant evidence and that the general rule that a judge may exclude evidence when its probative value is outweighed by the risk of undue prejudice, codified in section 352, was applicable to evidence of prior convictions to impeach: "We find nothing in the statutory language to exempt section 788 from the general evidentiary provisions applicable to all rules of admissibility, and conclude that when sections 788 and 352 are read together they 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., 6 Cal.3d at pp. 452-453, 99 Cal.Rptr. 313, 492 P.2d 1; emphasis added.)

Although Beagle made it clear that we did not intend to establish rigid standards to govern the exercise of discretion, the opinion did rely on Gordon v. United States (D.C.Cir.1967) 383 F.2d 936, 940-941, for certain suggested factors to be considered in the exercise of discretion--namely, (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant's decision to testify. We expressly recognized that the trial court's decision was dependent on "sound" judicial discretion and, in fact, affirmed Beagle's conviction, holding that the trial court had not erred in admitting a prior conviction to impeach.

Thereafter, in recognition of the fact that no discretion is so unbounded that it cannot be abused (e.g. People v. Malloy (1974) 41 Cal.App.3d 944, 952, 116 Cal.Rptr. 592), we handed down a series of decisions delineating the boundaries of permissible discretion.

In People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, the first case to apply the Beagle "guidelines," we found an abuse of discretion in the admission of prior convictions because of their remoteness.

In People v. Rist (1976) 16 Cal.3d 211, 218-223, 127 Cal.Rptr. 457, 545 P.2d 833, a robbery prosecution, we found an abuse of discretion in the admission of a prior robbery conviction suffered by defendant five months before trial, where two other dissimilar priors were available--one a two-year old conviction of credit card forgery.

In People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, we found error where, in a prosecution for receiving stolen goods, the court admitted only the fact of the prior, leaving to defendant the option of disclosing its nature (solicitation of murder).

In People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391, our first--and so far only--case involving a nonparty witness' priors, we held that the court should have exercised its discretion under section 352; further, since neither prior (voluntary manslaughter and felon in possession of firearm) had any bearing on truthfulness, they should have been excluded.

In People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, we found an abuse of discretion where a robbery prior was admitted to impeach a defendant accused of robbery.

In People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, we found an abuse of discretion in the admission of an identical narcotic prior which was not relevant to credibility.

And, lastly, in People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, we held that in a case charging auto theft, the trial court erred in "sanitizing" a prior auto theft conviction by calling it a "felony involving theft."

In each of the cases, a dissenting opinion disputed the result on the issue of the trial court's abuse of discretion. More important, however, the dissents expressed a minority view that the guidelines of Beagle had, in fact, become rigid limitations on the discretion of the trial court.

It was against the backdrop of the controversies raised by the Antick line of cases (excepting Barrick, decided in December 1982) that article 1, section 28 was framed. Whether or not we were correct in our interpretation of section 788 and in limiting the discretion of the trial court, there seems to be little doubt that the drafters of section 28 wanted a change and that the voters legislated it.

The question is, did they intend to throw out the baby with the bath? Assuming that the framers and voters were attempting to revitalize section 788 to counter the effect of the Antick line of cases, as decried by the dissenters, is there hard evidence that they intended to go further--to abrogate entirely the discretion of the trial court under section 352, a traditional, inherent and, in truth, indispensable tool of the law of evidence? (Smith v. Lewis (1975) 13 Cal.3d 349, 364, 118 Cal.Rptr. 621, 530 P.2d 589; Adkins v. Brett (1920) 184 Cal. 252, 258-259, 193 P. 251; People ex rel. Dep. Pub. Wks. v. Princess Park Estates, Inc. (1969) 270 Cal.App.2d 876, 885, 76 Cal.Rptr. 120.)

It must be reemphasized that subdivision (f) applies to all witnesses in criminal cases. Did the drafters really intend that all persons who choose or are compelled to testify, either for the...

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