People v. Garrett, B018024

• Court: California Court of Appeals
• Writing for the Court: LUCAS; SPENCER, P.J., and L. THAXTON HANSON
• Citation: 195 Cal.App.3d 795,241 Cal.Rptr. 10
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Darrin Anthony GARRETT, Defendant and Appellant.
• Docket Number: No. B018024,B018024
• Decision Date: 23 October 1987

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241 Cal.Rptr. 10 195 Cal.App.3d 795 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Darrin Anthony GARRETT, Defendant and Appellant. No. B018024. Court of Appeal, Second District, Division 1, California. Oct. 23, 1987.

[195 Cal.App.3d 797]

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Frank O. Bell, Jr., State Public Defender and Edward H. Schulman, Chief Asst. State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Mark Alan Hart and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Associate Justice.

I FACTS

Darrin A. Garrett was charged by information with murder (Pen.Code, § 187), with an allegation that he personally used a firearm in the commission of the offense (Pen.Code, §§ 12022.5, 1203.06, subd. (a)(1)). Garrett's motion to exclude his prior felony conviction of conspiracy to possess an unregistered firearm for the purpose of impeachment was denied. Garrett did not testify at trial. In an offer of proof, under oath and outside the presence of the jury, he stated his decision not to testify was based on the court's ruling allowing impeachment with his prior conviction. But for that [195 Cal.App.3d 798] ruling, he would have taken the stand and testified that he was with Goldie Wright at the time of the homicide.

The jury found Garrett guilty of first degree murder and found the firearm use allegation to be true. He appeals from the judgment of conviction.

The sole issue on appeal is whether the trial court erred in ruling that it would permit defendant to be impeached with his prior felony conviction.

II MORAL TURPITUDE

A witness in a criminal trial may be impeached with a prior felony conviction if the least adjudicated elements of that felony necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317, 211 Cal.Rptr. 719, 696 P.2d 111.) Even if the prior felony conviction involves moral turpitude, its admission is also subject to the trial court's discretion under Evidence Code section 352 to exclude evidence when its probative value is outweighed by the risk of undue prejudice. (Id., at p. 307, 211 Cal.Rptr. 719, 696 P.2d 111.)

Appellant first argues that his prior conviction for conspiracy to possess an unregistered firearm was inadmissible because it does not necessarily constitute a crime of moral turpitude. We disagree.

Moral turpitude involves a " 'readiness to do evil' " which will support an

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inference of a witness' readiness to lie. (People v. Castro, supra, 32 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.) The prior felony conviction must connote moral laxity of some kind which is in some manner relevant to the witness' dishonesty. (Id., at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.) "Whether a conviction involves such turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions." (People v. Collins (1986) 42 Cal.3d 378, 390, 228 Cal.Rptr. 899, 722 P.2d 173.)

Appellant's prior felony conviction was for conspiracy to possess an illegal weapon, a sawed-off shotgun, in violation of 18 United States Code section 371 and 26 United States Code section 5861, subdivision (d). ¹ To determine [195 Cal.App.3d 799] whether this conviction involved moral turpitude, we consider the elements of the crime. (Ibid.) Conviction under these statutes required proof that appellant and another agreed to possess unregistered firearms and that one of the two did an overt act in furtherance of the agreement. (United States v. Crossman (5th Cir.1981) 663 F.2d 607, 609.)

We agree with appellant that all conspiracies ought not be categorized as crimes involving moral turpitude without regard to the object of the conspiracy. As the Supreme Court pointed out in People v. Castro, supra, 38 Cal.3d 301, 314, 211 Cal.Rptr. 719, 696 P.2d 111, since in California it is a felony to conspire to commit a misdemeanor (Pen.Code, § 182), such a broad holding would even impute moral turpitude to a conviction of a crime such as conspiracy to tattoo a person under 18. That result is unreasonable.

Our concern, then, is whether the object of the conspiracy involved moral turpitude. Under 26 United States Code section 5861, subdivision (d), the underlying violation, it is unlawful for any person to receive or possess an unregistered firearm. "Firearm" is defined in 26 United States Code section 5845 to include various modified or altered guns. ² The legislative history of that section was considered in United States v....