People v. Coleman

• Decision Date: 08 February 1979
• Docket Number: Cr. 32920
• Citation: 89 Cal.App.3d 312,152 Cal.Rptr. 407
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew Thomas COLEMAN, Defendant and Appellant.

Page 407

152 Cal.Rptr. 407

89 Cal.App.3d 312

The PEOPLE, Plaintiff and Respondent, v. Andrew Thomas COLEMAN, Defendant and Appellant.

Cr. 32920.

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

Feb. 8, 1979.

Michael W. McIsaac, South Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

In an information, defendant was charged with committing three felonies on June 7, 1977. In count I, defendant was charged with committing forcible rape, in violation of Penal Code section 261.3. In count 2, he was charged with committing the felony of forcible oral copulation in violation of Penal Code section 288a, subdivision (c). In count 3, he was charged with committing burglary in violation of Penal Code section 459. As a part of the burglary count, it was alleged that he entered premises in Bellflower with the intent to commit the felony of rape. Defendant entered a plea of not guilty and was tried by a jury.

The jury found defendant guilty as charged in all three counts. The burglary offense was fixed as burglary of the first degree. Probation was denied and defendant was sentenced to state prison for the term prescribed by law with the sentences on counts 1 and 2 to run concurrently. The sentence on count 3 was ordered stayed pending final judgment with respect to counts 1 and 2, at which time the sentence on count 3 would be permanently stayed. Defendant has appealed from the judgment of conviction.

I The Factual Background

The victim of the alleged three offenses was Nina, a 54-year old female divorcee. Although all three offenses occurred on June 7, 1977, Nina testified on direct examination that in February 1977, on a Sunday evening, defendant came to her home in Bellflower. Defendant was admitted to her home as he indicated that he had news about Nina's son, who had recently been arrested.

Defendant and Nina sat on the couch on this occasion. She related that defendant suddenly grabbed her and said: "I'm going to rape you." Defendant then grabbed her by the shoulders and threw her to a prone position on the couch. He then told her that she had better cooperate. Next defendant placed his hands at her throat; she screamed. Nothing further occurred and defendant left shortly thereafter. No one responded to Nina's screams. Nina testified that she reported the incident to her daughter and a friend, but decided not to call the police.

On June 7, 1977, Nina was alone in her apartment and had gone to bed between midnight and 1 a. m. She was suddenly awakened by the shaking of the bed and saw defendant standing in her bedroom. He was dressed in bib overalls, which was the way he was dressed at the time of the February 1977 incident. Nina testified that she asked defendant: "What are you doing here, and how did you get in here?" Defendant replied: "I came to rape you."

Nina stated that defendant took off his bib overalls, threw back the covers and removed her nightgown over her head. She testified that defendant told her that she had better cooperate because it would be easy to break her neck; that defendant grabbed her by the shoulders as he made these statements. Nina testified that she became very frightened and therefore did not physically resist. Defendant then masturbated himself, fondled her breasts, and pushed her head down toward his penis so that she was required to orally copulate defendant.

Nina further testified that defendant then had regular intercourse with her. After completion of the sexual intercourse, defendant laid back on the bed and began talking about Nina's son and daughter. Nina attempted to leave the bed, but defendant told her to stay right there. Finally, Nina told defendant that she had to go to work the next day; defendant then put on his overalls and walked out of the bedroom. She observed the defendant leave her apartment through a window in the living room area.

The police were called and observed smudges on the inside of the window from which defendant left the apartment. There was testimony that the window itself appeared to have been tampered with.

Defendant testified in his defense that he had been a friend of Nina's son for 12 years. He testified that he had gone to Nina's apartment in February, but that on that occasion Nina invited him into her bedroom and consented to an act of intercourse which occurred in the bedroom. He denied making any threats or using any force as testified to by Nina. Defendant testified that after the act of intercourse in February 1977, Nina asked him whether he wished to return some time.

Defendant testified that in June 1977, he again visited the apartment of Nina and another consensual act of sexual intercourse occurred on that occasion. Defendant denied making any threats or using any force or committing any act of oral copulation with Nina.

II Statement of Alleged Errors

Defendant asserts that the following errors occurred in the trial below: 1. The trial court erred in permitting defendant's impeachment by use of a prior burglary conviction. 2. The trial court erred in giving CALJIC Instruction No. 2.50. 3. The evidence was insufficient to support defendant's convictions for rape and oral copulation. 4. Defendant's conviction of burglary is based solely upon the inherently improbable testimony of Nina.

III The Use of a Prior Burglary Conviction To Impeach Defendant as a Witness

At the conclusion of defendant's direct examination, the prosecutor advised the trial court, out of the presence of the jury, that he intended to attack defendant's credibility by establishing that, approximately five months prior to the date of trial, defendant had been convicted of a felony a burglary involving a theft of stereo equipment. Defendant's objection to the use of such felony conviction was overruled. On cross-examination, in answer to the prosecutor's questions, defendant testified that he had previously been convicted of a burglary that involved a theft. The prosecutor did not seek to establish the date of the burglary.

Defendant contends that the impeachment use of the burglary conviction was in violation of the principles set forth in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833. The thrust of defendant's argument is to the effect that the guidelines set forth in Beagle and Rist mandated an exclusion of the defendant's burglary conviction because (1) the felony of burglary of which defendant was convicted is very similar to the burglary charged against defendant in the instant case, and (2) the prior felony conviction was of recent origin only five months prior to the date of trial.

We start our discussion with the principle that the Beagle and Rist cases constitute judicial interpretations of Evidence Code section 352, which provides that the trial court may exclude proffered evidence if its probative value is substantially outweighed by, among other things, a danger of undue prejudice to a party. The Beagle and Rist courts set forth guidelines to enable the trial judge to exercise properly his discretion under Evidence Code section 352 when impeaching evidence is offered in the form of the witness' prior conviction of a felony.

Under the principles set forth in Beagle and Rist, certain factors point toward exclusion of the impeachment evidence and certain factors point toward admissibility. Thus, a felony offense that involves character traits of Dishonesty or Untruthfulness has substantial probative value for witness impeachment and points towards admissibility because these two character traits are the most relevant character traits to attack the credibility of a witness. (See Evid.Code, § 786.) Similarly, a felony conviction that is close in time to the date of the charged offense has greater probative value for impeachment purposes than a felony conviction which is remote in time.

The probative value of a burglary conviction for impeachment purposes depends upon the Intent element of the burglary. An entry in a building with the intent to commit rape constitutes a burglary with little probative value for witness impeachment, since such a burglary does not involve the character trait of dishonesty or untruthfulness. However, a burglary in which the entry is made with the intent to commit theft does have substantial probative value for impeachment purposes since the theft intent connotes the character trait of dishonesty.

In the case at bench, therefore, the prior burglary involving an intent to commit theft is a felony conviction with substantial probative value for witness impeachment purposes. Because of the nearness of time of the prior burglary to the date of the offenses charged against defendant, the probative value of the prior burglary conviction cannot be discounted because of the element of remoteness from the date of the charged offenses.

The most serious element which points toward a rule of exclusion of a felony conviction proffered to impeach a defendant as a witness is that of a felony conviction which is Similar to the offense charged. In People v. Banks (1976) 62 Cal.App.3d 38, 44-45, 132 Cal.Rptr. 751, 755, we pointed out the serious danger of unfairness and prejudice to a defendant from the use of such a felony conviction: " 'A jury which is made aware of a similar prior conviction will inevitably feel pressure to conclude that if an accused committed the prior crime he likely committed the crime charged.' (Rist, supra, 16 Cal.3d 211, at p. 219, 127 Cal.Rptr. 457, 545 P.2d 833.) This statement from Rist epitomizes the manifest danger to a defendant from evidence of a felony conviction introduced to attack his credibility. It is this danger of...