People v. Collins

• Decision Date: 11 August 1986
• Citation: 228 Cal.Rptr. 899,42 Cal.3d 378,722 P.2d 173
• Court: California Supreme Court
• Parties: , 722 P.2d 173 The PEOPLE, Plaintiff and Respondent, v. Alonzo COLLINS, Defendant and Appellant. Crim. 24784.

Page 899

228 Cal.Rptr. 899

42 Cal.3d 378, 722 P.2d 173

The PEOPLE, Plaintiff and Respondent, v. Alonzo COLLINS, Defendant and Appellant.

Crim. 24784.

Supreme Court of California In Bank.

Aug. 11, 1986.

Rehearing Denied September 10, 1986.

Dennis L. Cava, under appointment by the Supreme Court, and Dennis A. Fischer, Santa Monica, for defendant and appellant.

Frank O. Bell, Jr., State Public Defender, Theresa B. Doyle and George L. Schraer, Deputy State Public Defenders, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Mark Alan Hart, Ernest Martinez and Terry T. Fujimoto, Deputy Attys. Gen., for plaintiff and respondent.

Ira Reiner, Dist. Atty. (Los Angeles), Donald J. Kaplan and Richard Sullivan, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, we held that article I, section 28, subdivision (f), of the Constitution (hereinafter section 28(f)), adopted as part of Proposition 8 on the June 1982 Primary Election ballot, authorizes the impeachment of a witness in a criminal trial by a prior felony conviction that necessarily involves moral turpitude, but that the trial court retains its discretionary power under Evidence Code section 352 (hereinafter section 352) to exclude any such conviction when its probative value is outweighed by the risk of undue prejudice. ¹ In reviewing this conviction of burglary we adopt a procedure for applying the Castro rule to cases tried before the date of that decision and still pending on appeal. Under that procedure, we reverse the judgment of the Court of Appeal with directions. ²

Defendant was charged with committing, on April 2, 1983, either the crime of burglary of an automobile (Pen.Code, § 459) or the crime of receiving stolen property (id., § 496). The information further alleged that on November 1, 1982, defendant had suffered a prior conviction of burglary. He pleaded not guilty and denied the latter allegation. At the start of trial the prosecution disclosed out of the presence of the jury that defendant had also suffered a prior conviction of robbery on November 1, 1982, but that service of sentence thereon had been stayed.

Robert Hoeven testified that at 4 p.m. on the day in question he parked and locked his pickup truck and camper shell at his place of work. Some two hours later he returned to the vehicle and found it had been burglarized. Missing were a dashboard-mounted AM/FM cassette player, a blue nylon jacket bearing his company logo patch and a name tag, a pair of angled needlenosed pliers, a camera tripod, and a canvas daypack containing two Nikon camera bodies, several lenses and filters, and binoculars.

John Shepard testified that in the late afternoon of the same day he and his cousin were driving their pickup truck about a quarter of a block from the scene of the crime when they saw defendant hitchhiking. They stopped and he climbed into the back of their truck; he was wearing a blue nylon jacket and carrying a backpack and a paper bag. Five minutes later they were pulled over by Deputy Sheriff Nadeau for having expired license plate tags.

Officer Nadeau testified that as he walked towards the truck he saw defendant throw away the paper bag he had been holding. The officer heard a sound of metal and saw an expensive-looking AM/FM cassette player protruding from the bag. He asked defendant why he was throwing away such an expensive piece of equipment, and defendant replied, "What equipment? It must belong to the guys in the cab." When the latter denied owning the cassette player, Officer Nadeau questioned the defendant further.

The officer asked defendant if the tripod lying beside him was his; defendant replied it was and said he was a photography student, but he was unable to name the school he attended. While talking with him, the officer observed in his back pocket two utility knives, a pair of pliers, and gloves. Defendant told Officer Nadeau to look inside his backpack, saying that his father had bought him "the Canon cameras" it contained. When the officer looked in the bag, however, he found only Nikon cameras.

Officer Nadeau then gave defendant Miranda warnings; defendant said he understood his rights, but would continue to answer questions. The officer asked him again where he had obtained the camera equipment; this time defendant claimed he had bought it all for $20, but he could not name the seller. The officer placed him under arrest. Robert Hoeven later identified, as stolen from his truck, all the items found with defendant except the knives and gloves. The logo patch and name tag had been removed from Hoeven's jacket.

The prosecution rested, and defendant moved to prohibit the use of the charged prior conviction of burglary and the uncharged prior conviction of robbery to impeach him if he testified. He contended that section 28(f) is a violation of due process of law insofar as it purports to deprive the court of discretion to exclude prior convictions on the ground of undue prejudice. He therefore asked the court to exercise its discretion despite section 28(f), and to exclude both prior convictions under section 352 and People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1. Opposing the motion, the prosecutor contended that section 28(f) on its face allows any prior felony conviction to be used for impeachment "without limitation." (Fn. 1, ante.) In the alternative, the prosecutor argued that even if the court were to exercise discretion, the prior convictions in this case would be admissible under Beagle.

The court ruled that it had no discretion in the matter and was bound by section 28(f) to admit both prior convictions for impeachment if defendant testified. It therefore denied the motion to exclude. Defense counsel then advised the court, "Your Honor, based on the court's ruling, Mr. Collins' intention is not to testify, although he had otherwise intended to, to preclude the jury from finding out about those matters." Defendant rested without calling any witnesses. The jury found him guilty of second degree burglary and not guilty of receiving stolen property, and judgment was entered accordingly. The Court of Appeal affirmed the judgment after modifying the sentence to strike an erroneous enhancement.

I

The People urge us to adopt the rule announced in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, i.e., that the denial of a motion to exclude a prior conviction offered for impeachment is not reviewable on appeal if the defendant fails to testify. We shall do so, but only prospectively.

A

In Luce a defendant in a federal criminal trial moved under Federal Rules of Evidence, rule 609(a), to preclude the prosecution from using a prior conviction to impeach him if he testified. ³ The district court determined that the conviction was admissible under rule 609(a) and denied the motion; the defendant declined to testify and was convicted. On appeal he contended the ruling was an abuse of discretion, but the circuit court of appeals held it nonreviewable because the defendant had not testified at trial.

The United States Supreme Court affirmed in a unanimous decision, holding that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." (Id. at p. ----, 105 S.Ct. at p. 464.) In an opinion by Chief Justice Burger, the court gave at least three reasons for its conclusion. Its primary concern was that "A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context." (Id. at p. ----, 105 S.Ct. at p. 463.) First, it stressed that rule 609(a)(1) requires the trial court to weigh the probative value of the conviction against its prejudicial effect, and "To perform this balancing, the court must know the precise nature of the defendant's testimony which is unknowable when, as here, the defendant does not testify." (Ibid.) Likewise, an appellate court cannot review that balancing process unless the record discloses "the precise nature of the defendant's testimony." In a footnote at this point the court rejected the idea of substituting an offer of proof for the defendant's testimony: "his trial testimony could, for any number of reasons, differ from the proffer." (Ibid., fn. 5.)

Second, the court explained that "Any possible harm" from such an in limine ruling is "wholly speculative." To begin with, the trial court has discretion to make a different ruling as the evidence unfolds. Next, when the defendant does not testify, the reviewing court also has no way of knowing whether the prosecution would in fact have used the prior conviction to impeach: if the prosecution's case is strong and the defendant is impeachable by other means, the prosecutor might elect not to use a questionable prior conviction in any event. (Ibid.)

Third, when the trial court errs in ruling the conviction admissible the reviewing court cannot intelligently weigh the prejudicial effect of that error if the defendant did not testify. The Supreme Court reasoned that if such rulings were reviewable on appeal, "almost any error would result in the windfall of automatic reversal; the appellate court could not logically term 'harmless' an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to 'plant' reversible error in the event of conviction." (Id. at p. ----, 105 S.Ct. at p. 464.) ⁴

We recognize that Luce is a rule of federal criminal procedure that the Supreme Court adopted pursuant to its advisory power, and hence is not binding on the states. Yet this court has a...