People v. Fries

• Decision Date: 14 May 1979
• Docket Number: Cr. 20031
• Citation: 594 P.2d 19,24 Cal.3d 222,155 Cal.Rptr. 194
• Court: California Supreme Court
• Parties: , 594 P.2d 19 The PEOPLE, Plaintiff and Respondent, v. James Paul FRIES, Defendant and Appellant.

Page 194

155 Cal.Rptr. 194

24 Cal.3d 222, 594 P.2d 19

The PEOPLE, Plaintiff and Respondent, v. James Paul FRIES, Defendant and Appellant.

Cr. 20031.

Supreme Court of California.

May 14, 1979.

Ronald D. MacGregor, Pacific Grove, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Richard L. Adams, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

Appellant, James Paul Fries, was convicted of robbery in the second degree by a jury. (Pen.Code, § 211.) He asks this court to hold that the trial court abused its discretion in denying his motion to exclude evidence of a prior conviction which was offered to impeach his credibility.

I

Approximately 9 p. m. on November 9, 1973, Bill Burrell left a bar in Modesto. As he walked across the parking lot adjacent to the bar, someone grabbed him and struck him on the head, knocking him unconscious. When he regained consciousness, he discovered that his wallet, which contained $40, was gone. Burrell did not see who robbed him nor did he remember talking to or leaving with anyone from the bar.

The evidence presented against appellant at trial was circumstantial. Andrew Haines testified that about one-half hour before the robbery, he was in the bar with Richard Nystrom and they noticed Burrell was sitting at the counter and looking in their direction. Nystrom spoke to Burrell, picked up some money which was on the counter in front of Burrell, and returned with Burrell to the table. Burrell, who had been drinking since the middle of the afternoon, fell when he attempted to sit down, hitting his head on the floor. Burrell then got up and staggered to the bathroom.

While Burrell was in the bathroom, another man joined Nystrom and Haines at the table. Nystrom gave the other man the money he had picked up from the counter, remarking that Burrell was "loaded." Haines interpreted the remark to mean that Burrell had a large amount of money. The man went into the bathroom and when he came out shortly thereafter, Nystrom approached him.

The two men conversed by the bathroom and then returned to the table. Haines heard the man say to Nystrom, "Let's get him to go with us." When Burrell returned, Burrell, Nystrom and the other man left the bar. The man, who was the last to leave the bar, waved good-bye to one of the cocktail waitresses.

About five minutes after the three men left the bar, Francisco Sanchez, the bar's owner and bartender, called the police because he suspected something might happen outside. By the time the police arrived 15 minutes later, Burrell had been robbed and had returned to the bar.

At the trial, Sanchez identified a photograph of appellant as the man he had seen in the bar with Burrell and Nystrom. However, Sanchez admitted that at a prior trial ¹ he had been unable to identify the appellant in person or from his photograph as the third man.

Haines also identified appellant at the trial as the third man. Haines further claimed that he had seen appellant on two other occasions in late November and early December 1973 and that he had talked to appellant during the latter encounter. However, Lieutenant Deputy Richard McKay, jail commander of the Stanislaus County jail, testified that appellant had been arrested at 12:30 a. m. on November 10, 1973, and had remained continuously in the county jail until February 5, 1974.

The cocktail waitress could not identify appellant as the man who waved to her.

At the close of the prosecution's case, appellant moved to exclude evidence of his prior robbery conviction. The trial court denied the motion and appellant did not testify. The sole witness presented by the defense was the jail commander.

Appellant was convicted of second degree robbery.

II

In People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, this court unanimously held that although Evidence Code section 788 ² authorizes the use of a prior felony conviction to impeach the credibility of a witness, a trial court must, when requested, exercise its discretion under section 352 ³ and exclude this evidence if the probative value of the prior conviction is outweighed by other considerations, such as the risk of undue prejudice. (People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391; People v. Rollo (1977) 20 Cal.3d 109, 115-116, 141 Cal.Rptr. 177, 569 P.2d 771; People v. Rist (1976) 16 Cal.3d 211, 218-219, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Antick (1975) 15 Cal.3d 79, 97, 123 Cal.Rptr. 475, 539 P.2d 43.)

Some of "the more important factors that must be considered by trial courts . . ." in deciding whether to admit a prior felony conviction to impeach a witness' credibility were enumerated by this court in People v. Beagle, supra, 6 Cal.3d at page 453, 99 Cal.Rptr. at page 320, 492 P.2d at page 8. Since the purpose of the use of a prior felony conviction is to impeach credibility, the first factor which the trial court must evaluate is whether the prior conviction reflects adversely on an individual's honesty or veracity; if it does, the degree of probative value of the conviction must be determined. (People v. Woodard, supra, 23 Cal.3d at pp. 335-336, 152 Cal.Rptr. 536, 590 P.2d 391.) As this court stated in People v. Rollo, supra, 20 Cal.3d at page 118, 141 Cal.Rptr. at page 181, 569 P.2d at page 775, "different felonies have different degrees of probative value on the issue of credibility. Some, such as perjury, are intimately connected with that issue; others, such as robbery and burglary, are somewhat less relevant; and ' "Acts of violence . . . generally have little or no direct bearing on honesty and veracity." ' "

The second factor which the trial court must evaluate in determining whether the conviction is probative of the witness' credibility is the nearness or remoteness in time of the prior conviction. (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 320, 492 P.2d 1, 8.) A conviction, " '(e)ven one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, ( ⁴ ) should generally be excluded on the ground of remoteness.' " (Ibid.) The "remoteness detracts significantly from the value of this evidence in impeaching . . . credibility." (People v. Antick, supra, 15 Cal.3d at p. 99, 123 Cal.Rptr. at p. 488, 539 P.2d at p. 56.) The trial court must weigh these two factors, which show the probative value of the conviction, against the probability that admission of such evidence "will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." ( § 352.)

While the trial court must engage in this balancing process when a prior conviction is offered to impeach the credibility of any witness, there are several considerations which are of particular importance in a criminal case when the witness is the defendant. This court has previously grouped these considerations into two general categories: (1) the "unique risk of undue prejudice and confusion of issues" (People v. Antick, supra, 15 Cal.3d at p. 97, 123 Cal.Rptr. at p. 487, 539 P.2d at p. 55) which occurs when the prior convictions are admitted to impeach the credibility of a defendant who testifies, and (2) the adverse effect on the administration of justice when a defendant elects not to take the stand in order to keep information about his prior felony convictions from the jury. (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 49 P.2d 1.)

If a defendant testifies and is impeached by means of a prior felony conviction, there is a widely acknowledged danger that this evidence will be misused by the trier of fact. "Despite limiting instructions, the jury is likely to consider this evidence for the improper purpose of determining whether the accused is the type of person who would engage in criminal activity." (People v. Antick, supra, 15 Cal.3d at p. 97, 123 Cal.Rptr. at p. 487, 539 P.2d at p. 55.) ⁵ As the United States Supreme Court has noted in a related context, evidence of a "defendant's prior trouble with the law . . . is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." (Michelson v. United States (1948) 335 U.S. 469, 475-476, 69 S.Ct. 213, 218, 93 L.Ed. 168.) This tendency to prejudge the issue of guilt denies an accused the presumption of innocence and lessens the burden of the prosecutor to prove guilt beyond a reasonable doubt.

There is also the "obvious danger" that the jury will decide that based on his prior convictions, the accused "ought to be put away without too much concern with the present guilt." (McCormick, Supra, § 43, p. 89.) Further, the admission of prior convictions often confuses the issues at trial and "draw(s) (the jurors') minds away from the real issue" of guilt or innocence. (Boyd v. United States (1892) 142 U.S. 450, 458, 12 S.Ct. 292, 295, 35 L.Ed. 1077; see also People v. Antick, supra, 15 Cal.3d at p. 97, 123 Cal.Rptr. 475, 539 P.2d 43.)

If, on the other hand, the accused elects not to testify in order to keep the evidence of prior convictions from the jury, the jury is deprived of competent, probative evidence the testimony of the accused. For example, an accused's testimony might be necessary to give a complete picture of the events, since he may be the sole witness or the defense witness with the most complete knowledge of the events underlying the charges. If a specific intent crime is involved, or if defenses of diminished capacity, unconsciousness or insanity are proffered, an accused's testimony may well be the most direct evidence of his mental state. Further, his testimony may add weight and credibility to testimony of other...