People v. Lent, Cr. 17984

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; WRIGHT; CLARK
• Citation: 541 P.2d 545,15 Cal.3d 481,124 Cal.Rptr. 905
• Parties: , 541 P.2d 545 The PEOPLE, Plaintiff and Respondent, v. Howard Leonard LENT, Defendant and Appellant. In Bank
• Decision Date: 30 October 1975
• Docket Number: Cr. 17984

Page 905

124 Cal.Rptr. 905 15 Cal.3d 481, 541 P.2d 545 The PEOPLE, Plaintiff and Respondent,
v.
Howard Leonard LENT, Defendant and Appellant. Cr. 17984. Supreme Court of California, In Bank. Oct. 30, 1975.
Rehearing Denied Dec. 17, 1975.

[15 Cal.3d 483]

Page 906

[541 P.2d 546] Alexander Anolik and Suzanne M. McDonnell, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. and Don Jacobson, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

After conviction of grand theft (Pen.Code, § 484) defendant appeals, alleging

Page 907

[541 P.2d 547] the trial court erred in (1) preventing introduction into evidence of a prior misdemeanor conviction to impeach the credibility of a prosecution witness, and (2) imposing as a condition of probation restitution of funds involved in a related criminal charge of which defendant was acquitted. For reasons discussed Infra we affirm the judgment.

[15 Cal.3d 484] Defendant, a nonlawyer investigator for a law firm, undertook to negotiate with an insurance carrier for settlement of a claim for personal injuries suffered by the daughter of Zippora Smith, after the law firm, originally engaged for that purpose, had withdrawn from the case. Ultimately defendant received on behalf of Mrs. Smith a draft in the amount of $1,278 and releases, all of which she signed. Presumably the $1,278 was to be allocated to payment of the medical bills of Mrs. Smith's daughter. The bills were not paid. Nevertheless defendant was acquitted of the charge of theft of those funds.

Mrs. Smith also received an additional $2,000 from the insurance carrier. Defendant accompanied her to the bank where the check was cashed. Out of the proceeds Mrs. Smith gave defendant $500 which she understood was for attorney's fees for defendant's employers. Defendant testified the sum was a personal gratuity; however, he shared it with the insurance adjuster. The jury convicted defendant of the theft of those funds.

I

When Mrs. Smith was on the stand as a prosecution witness, defendant's counsel sought to impeach her by inquiring into a five-year-old misdemeanor conviction. Upon objection being sustained, counsel made an offer of proof, conceding therein that his sole purpose was to reflect upon the credibility of the witness.

From the celebrated case of Sharon v. Sharon (1889) 79 Cal. 633, 673--674, 22 P. 26, 131, to date, it has been hornbook law that testimony relating to specific instances of misconduct is inadmissible to attack the credibility of a witness. This has always been interpreted to require exclusion of evidence concerning prior misdemeanor convictions. (Stickel v. San Diego Elec. Ry. Co. (1948) 32 Cal.2d 157, 165, 195 P.2d 416; People v. Matlock (1970) 11 Cal.App.3d 453, 461, 89 Cal.Rptr. 862.) Indeed, the rule has been described as 'elementary' (People v. Sutton (1964) 231 Cal.App.2d 511, 514, 41 Cal.Rptr. 912). The only exception is specifically provided in Evidence Code section 788, which permits impeachment by a prior felony conviction. (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 591, 86 Cal.Rptr. 465, 468 P.2d 825; People v. Meyer (1963) 216 Cal.App.2d 618, 634--635, 31 Cal.Rptr. 285.)

Contrary to defendant's contention, we find no undue restriction on cross-examination in the legislative scheme, contained in section 788, of [15 Cal.3d 485] limiting impeachment by previous crimes to felonies. The section is merely a 'recodification of the existing law' (Cal.Evidence Code Manual (Cont.Ed.Bar 1966) p. 133). We decline the invitation to extent its application to misdemeanors. Indeed, the current trend is toward refinement and limitation of the use even of prior felonies for impeachment. (See, e.g., People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.)

Nor do we find authority to support defendant in Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. The circumstances in Davis bear little similarity to the case before us. There a juvenile witness on probation, said the high court, might have falsified his story under undue police pressure not only 'to shift suspicion away from himself as one who robbed' the premises in question, but also 'under fear of possible probation revocation.' The court explained that Davis' counsel did not...