People v. Cavazos

• Decision Date: 25 September 1985
• Docket Number: No. F004691,F004691
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert Raymond CAVAZOS, Defendant and Appellant.

Page 269

218 Cal.Rptr. 269

172 Cal.App.3d 589

The PEOPLE, Plaintiff and Respondent, v. Albert Raymond CAVAZOS, Defendant and Appellant.

No. F004691.

Court of Appeal, Fifth District, California.

Sept. 25, 1985.

Certified for Partial Publication ^*

[172 Cal.App.3d 591] Kent A. Davidson, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Joel Carey, Supervising Deputy Atty. Gen., and Garrett Beaumont, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

Appellant was convicted after a jury trial of possession of phencyclidine (PCP) for sale. (Health and Saf.Code, § 11378.5.) He was committed to the California Rehabilitation Center for a five-year term.

Appellant's conviction is based on the following evidence. Around midnight near a busy, well-lighted intersection in Bakersfield, appellant and his cousin Mark Sanchez were seen by Officer Charmley walking unsteadily along the sidewalk in an area frequented by PCP users. The officer particularly noted appellant who was staggering. The officer got out of his marked patrol car to talk to the men, but when they saw the officer they turned away and kept walking. When the officer told them to stop, appellant took an object from his right front pocket and tossed it into the gutter about two feet from where he was standing.

After appellant and Sanchez were detained, a brown bottle containing 5.4 milliliters of PCP was found in the gutter. The officer could smell ether on the bottle and on appellant's hands. Appellant appeared to be under the influence of something.

Appellant was arrested and taken to jail (Sanchez was released). In the booking area, appellant tried to give his Kool cigarettes to another inmate. Expert testimony was introduced to the effect that 5.4 milliliters of PCP was too much for personal use and that Latins tended to smoke PCP on Kool cigarettes.

At trial, appellant called Sanchez as a witness. Sanchez testified that he and appellant tried to avoid the police officer when they first saw him because Sanchez had been physically abused by officers in an incident about two weeks earlier. Sanchez stated that he never saw appellant with PCP nor did he see appellant throw a bottle into the gutter on the evening in question. Over defense objection, Sanchez was impeached with a "two to three year old" prior conviction of assault with a deadly weapon.

Appellant testified that he never possessed the PCP bottle and did not throw it into the gutter. However, he said that he had seen the bottle earlier that evening when Sanchez showed it to him and offered him a cigarette. When appellant declined the offer, Sanchez put the bottle back in his (Sanchez') pocket. Appellant denied that he had PCP on his hands when he was arrested and maintained that it was Sanchez who was walking next to the gutter when they were stopped by the officer.

DISCUSSION

I ¹

The prosecutor's remark that appellant was a "drug dealer" was not misconduct.

II

Sanchez' prior conviction of assault with a deadly weapon involved moral turpitude.

Subject always to the trial court's discretion under Evidence Code section 352, a prior felony conviction that necessarily involves moral turpitude may be used to impeach a witness in a criminal proceeding. (People v. Castro (1985) 38 Cal.3d 301, 306, 211 Cal.Rptr. 719, 696 P.2d 111.) "[M]oral turpitude" means a general " 'readiness to do evil' " (id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111), 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. 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 makes no attempt to list or define those felonies which involve moral turpitude but it makes clear that moral turpitude does not depend on dishonesty being an element of the felony. "... it 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." (Emphasis added; People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)

Castro also makes reference to its prior opinion in People v. Rist (1976) 16 Cal.3d 211, 222, 127 Cal.Rptr. 457, 545 P.2d 833 that "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" (16 Cal.3d at p. 222, 127 Cal.Rptr. 457, 545 P.2d 833, emphasis added) and then concludes " 'Not as heavily' does not, of course, mean 'not at all.' " (Emphasis added, People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.) Thus, we have a clear indication from the Supreme Court that assaultive crimes bear some relevance to the credibility of a witness. "Certainly the inference is not so irrational that it is beyond the power of the People to decree that in a proper case the jury must be permitted to draw it, if it wishes, and the 'no limitation' language of subdivision (f) makes it abundantly clear that the People so decree." (Ibid.)

Finally, Castro holds that in deciding whether a felony offered for impeachment necessarily involves moral turpitude, the trial court may look only to the "least adjudicated elements" of the crime of which the witness was previously convicted. (38 Cal.3d at p. 317.) It may not go behind the conviction and take evidence on the underlying facts.

We turn now to the application of the Castro principles to the present case. Witness Sanchez was impeached by his prior conviction of assault with a deadly weapon. California law defines an assault as "... an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen.Code, § 240, emphasis added.) So defined, an assault departs from the common law definition in two respects. First, under the statute, a conviction for assault requires more than intent to frighten the victim; the defendant must intend to commit a battery; and second, the defendant must have the present ability to commit the battery. (People v. Wolcott (1983) 34 Cal.3d 92, 99, 192 Cal.Rptr. 748, 665 P.2d 520.) Although the statutory definition of an assault refers to the attempt to commit a "violent injury" on another person, the "least touching" will suffice to constitute a battery. (1 Witkin, Cal.Crimes (1963) § 258, pp. 243-244.) Thus, a simple assault does not necessarily show moral turpitude. Only by looking behind the conviction to the particular facts can moral turpitude be ascertained.

Paradoxically, our Supreme Court has held that not only simple assault but assault with a deadly weapon constitutes a general intent crime in the context of a defense of intoxication short of unconsciousness. (See People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Rocha (1971) 3 Cal.3d 893, 898-899, 92 Cal.Rptr. 172, 479 P.2d 372.) To avoid permitting a person who voluntarily gets drunk and assaults another from escaping the penal consequences of his action, the court ruled that an assault does not require a specific intent to injure.

"Accordingly the intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being 'any willful and unlawful use of force or violence upon the person of another.' (Pen.Code, § 242.) We conclude that the criminal intent which is required for assault with a deadly weapon ..., is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another. Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary." (People v. Rocha, supra, 3 Cal.3d at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372, fns. omitted.)

Assuming, as we must, that an assault with a deadly weapon does not require proof of a specific intent to harm another, it nevertheless does require proof of an unlawful attempt to inflict physical force upon another person. The jury is so instructed. (CALJIC No. 9.00 (4th ed. 1979).) Because an attempt to commit a battery requires a specific intent to commit the battery and a direct but ineffectual act done towards its commission (Pen.Code, § 664; 1 Witkin, Cal.Crimes, op. cit. supra, § 93, pp. 90-91) and because a deadly weapon is used to effectuate the attempted battery, it follows that the "least adjudicated elements" of the crime of an assault with a deadly weapon involve some degree of moral turpitude. It is the use of the deadly weapon which elevates the assault to a moral turpitude crime.

The Supreme Court holdings in attorney discipline cases that assault with a deadly weapon does not necessarily involve moral turpitude (In re Rothrock (1940) 16 Cal.2d 449, 459, 106 P.2d 907; see 1 Witkin, Cal.Procedure, op. cit. supra, § 375, pp. 424-430) should be distinguished. In those cases, the court was formulating a standard by which to determine the attorney's fitness to continue his practice according to the ethical standards of his profession. Simple fairness requires the court to look behind the conviction to ascertain the precise nature of the assault and the circumstances in which it occurred. The bare fact of conviction does not determine the attorney's fitness to practice.

Our conclusion that an assault with a deadly weapon necessarily involves moral turpitude accords with...