People v. Lent

• Decision Date: 30 October 1975
• Docket Number: Cr. 17984
• Court: California Supreme Court
• Parties: , 541 P.2d 545 The PEOPLE, Plaintiff and Respondent, v. Howard Leonard LENT, Defendant and Appellant. In Bank

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.

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 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.

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injuries suffered by the daughter of Zippora Smith, after the law firm, originally engaged for that purpose, had withdrawn from the case.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 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 seek to impeach the credibility of the juvenile, but to show his potential bias or prejudice based on concern of jeopardy to his probation. (Id. at p. 311, 94 S.Ct. at p. 1108.)

In the instant case counsel in his offer of proof did not contend the witness was biased or prejudiced, but only that since money was involved her credibility was in question. The implication, though unstated, was that the witness might falsify her testimony because she harbored a hope that if the defendant were convicted, and if the judge gave him probation, and if restitution were a condition of probation, she might be the recipient of that restitution. Obviously such an argument could be made about every victim of theft. But even that possibility, into which the prosecutor agreed counsel could probe, bears no similarity to the bias potentially involved in Davis, nor does it render admissible a five-year-old extraneous misdemeanor conviction.

The trial judge, properly exercising the discretion given under Evidence Code section 352, held 'the introduction of this issue in the case would simply lead us far afield from the basic issues which we are confronted with at this time.' No abuse of discretion can be found in that ruling.

II

In placing defendant on probation, the trial court imposed as a condition thereof restitution in the amount of $1,778. This figure represented the $500 in the count of which defendant was convicted, and the $1,278 in the count of which he was acquitted.

The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen.Code, § 1203 et seq.) A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . ..' (People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290, 293.) ¹ Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.

As to the first Dominguez criterion, there is no question as to the relationship of the total sum of restitution ordered to the crime of which defendant was convicted. The victim failed to receive $1,778 to which she was entitled and the court was convinced of the defendant's responsibility therefor. The crime was the theft of some of those funds.

On the third criterion: an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality (People v. Miller (1967) 256 Cal.App.2d 348, 353, 64 Cal.Rptr. 20), and the court is not limited to the transactions or amounts of which defendant is actually convicted (People v. Miller, supra; People v. Flores (1961) 197 Cal.App.2d 611, 616, 17 Cal.Rptr. 382).

Thus we reach defendant's primary contention based upon the second criterion: that $1,278 of the restitution order relates to conduct which is not criminal in that he was acquitted of the theft of the funds involved. While conceding, as held in People v. Williams (1966) 247 Cal.App.2d 394, 408, 55 Cal.Rptr. 550, 559, 'that there...