People v. Harris
Decision Date | 17 February 1987 |
Citation | 189 Cal.App.3d 704,234 Cal.Rptr. 539 |
Court | California Court of Appeals |
Parties | Previously published at 189 Cal.App.3d 704 189 Cal.App.3d 704 The PEOPLE, Plaintiff and Respondent, v. Gregory Lee HARRIS, Defendant and Appellant. B016175. |
Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Suzan E. Hier, Deputy State Public Defender, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Robert R. Anderson, Supervising Deputy Atty. Gen., Carolyn D. Fuson, Deputy Atty. Gen., for plaintiff and respondent.
Appellant Gregory Lee Harris has appealed from a judgment of conviction, after jury trial, of one count of robbery (Pen.Code, § 211) and a finding of one prior robbery conviction (Pen.Code, § 667, subd. (a)).
Appellant was charged with robbery (Pen.Code, § 211), and there was an allegation of use of a deadly and dangerous weapon, a knife (Pen.Code, § 12022, subd. (b)), and personally inflicting great bodily injury upon the victim (Pen.Code, § 12022.7). It was also alleged that in August 1981, he had previously been convicted of robbery.
On March 6, 1985, in appellant's first trial, his motion to exclude evidence of his prior conviction was granted. On March 8, after deliberations in that trial, the jury informed the court that it was deadlocked, and the court declared a mistrial.
Appellant was retried on the same charges. On March 11, 1985, when the case was called for retrial, the court ordered a transcript of the oral proceedings from the first trial. The case was eventually transferred to another department for trial.
On July 24, 1985, during the defense case, the defense moved, out of the presence of the jury, to preclude defendant's impeachment with his prior robbery conviction. The motion was denied. Appellant did not testify at trial, and the jury returned a verdict of guilty of robbery, but the allegations of use of a deadly weapon and infliction of great bodily injury were found not to be true.
This appeal followed.
On October 20, 1984, at about 7:00 p.m., Richard Dobberthien drove from his home to the Commerce Club Poker Parlor, but when he arrived he was told there would be a wait of several hours before he could be seated. He decided to drive to downtown Los Angeles and find a bar in which to wait, and drove his car to the area of Los Angeles and Fifth Streets. He parked, bought some gum in a liquor store, and tried to enter the Plantation Club bar. He was not familiar with the area. A large man and woman blocked his entrance to the bar and did not respond to his requests to move. As he was trying to enter the bar, a man approached him with a handful of change and asked if he had a dollar bill. Mr. Dobberthien had a wallet full of money because he was going to play poker, and he told the man that he did not have a dollar bill. Mr. Dobberthien was then grabbed from behind by another man whom he later identified as appellant. Mr. Dobberthien wrestled with appellant, fell backwards on top of him, and then turned around so that he was facing him for about 15 to 30 seconds.
While Mr. Dobberthien was struggling with and facing appellant, he felt his wallet being lifted from his back pocket. After a few seconds, he freed himself from appellant and approached the other man and asked for his wallet. That man faced Mr. Dobberthien with a knife and said, " 'I don't have your wallet, the other guy does.' " Mr. Dobberthien testified that when he then grabbed at appellant, appellant cut him on the hand with a "shiny" object. (However, the jury found the allegations of use of a deadly weapon and infliction of great bodily injury not to be true.)
Appellant was walking away when Mr. Dobberthien signaled a passing police car. Appellant then began to run westbound on Fifth Street. Mr. Dobberthien told the police officers that appellant had robbed him, and they pursued appellant. Mr. Dobberthien saw appellant turn right and run down an alley. When appellant was captured, Mr. Dobberthien identified him as the man with whom he had struggled. On police instructions, Mr. Dobberthien looked through a nearby garbage can for his wallet, but he did not find it. The other man was never found. Mr. Dobberthien had no doubt that appellant was the man with whom he had struggled.
At about 9:00 p.m. on October 20, 1984, police officer Jerome Rilling was driving his patrol car westbound on Fifth Street when he saw Mr. Dobberthien across the street waiving his arms. When Officer Rilling drove over, Mr. Dobberthien pointed at appellant and said that appellant had taken his wallet. No one else was in the area then. Officer Rilling pursued appellant down an alley and around a few blocks, briefly losing sight of him a few times. When captured, appellant was lying under a parked car.
Mr. Dobberthien then ran up, yelling, " 'That's the man that took my wallet.' " Appellant answered, " 'Hey, man, I didn't take your wallet, the other guy has it.' " The two men started to argue, and Officer Rilling instructed Mr. Dobberthien to look for his wallet in the trash.
The defense consisted of testimony that when arrested appellant did not have a knife or the wallet, and of attacks on the credibility of Officer Rilling and Mr. Dobberthien through changes in their story.
Appellant contends that: (1) "The trial court committed reversible error in ruling that appellant could be impeached with a prior robbery conviction"; (2) "The trial court improperly admitted the victim's prior consistent statement regarding the clothing of the other crime suspect"; (3) "Appellant's constitutional right to testify was infringed upon when trial counsel waived response to the juror's request for his testimony without consulting with or informing appellant"; and (4) "The trial court committed prejudicial error by failing to instruct the jury, sua sponte, on the lesser and necessarily included offenses of simple assault and attempted robbery."
Appellant contends that the court should have excluded evidence of his prior robbery conviction. On July 24, 1985, during the defense case, defense counsel moved to exclude the prior. The court was aware that, pursuant to People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 (opinion filed March 11, 1985), it had discretion under Evidence Code section 352 to balance the prejudicial effect of the prior against its probative value, and ruled that the prior was admissible for impeachment. The court was urged to consider whether the robbery conviction reflected on appellant's honesty, was not remote in time, and involved the same crime with which appellant was charged here. The People agreed that if Beagle were still the law, "this would be an improper prior type offense to impeach the defendant with...." The court expressly ruled that the prior was not remote in time. However, the court also expressed the opinion that, under Castro, it was not bound by the specific factors expressed in appellate opinions to control its discretion, and ruled that given the state of the evidence, the prior would not be unduly prejudicial. Defense counsel stated that appellant then probably would not testify. The court did not expressly consider what appellant's testimony would have been in ruling on the Beagle motion.
In People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court held that Proposition 8 (Cal. Const., art. I, § 28(f)) did not abrogate the inherent power of the trial court to exercise its discretion to exclude relevant but prejudicial evidence pursuant to Evidence Code section 352. However, subject to this discretion, a criminal defendant may be impeached with any prior felony conviction which necessarily involves moral turpitude and shows a "readiness to do evil." (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.) In Castro, the court returned to the standards for exercising this discretion which were set forth in People v. Beagle (1972) 6 Cal.3d 441, 453-454, 99 Cal.Rptr. 313, 492 P.2d 1, and rejected the rigid rules in the line of cases decided after Beagle. (People v. Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)
The Beagle guidelines are: (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it involved the same or similar conduct for which defendant is on trial; and (4) what effect admission would have on defendant's decision to testify. (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)
In People v. Barrick (1982) 33 Cal.3d 115, 129-130, 187 Cal.Rptr. 716, 654 P.2d 1243, the Supreme Court discussed the fourth Beagle factor and held that it has a "heightened significance" because the defendant's silence may deprive the jury of the testimony of the defendant who may have better personal knowledge of certain events, or may corroborate other witnesses who would otherwise seem suspect, and because the defendant's silence itself may be perceived by the jury as indicating guilt. In Barrick, supra, the court had "no way of knowing what defendant's testimony would have been," but, nevertheless, held that the trial court abused its discretion in allowing impeachment with the prior and that the error was prejudicial. (Id., at p. 130, 187 Cal.Rptr. 716, 654 P.2d 1243.)
In People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, the Supreme Court discussed the effect on a Beagle motion of defendant's decision not to testify, as follows: ...
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