People v. McFarland

Decision Date16 July 1980
Docket NumberCr. 19154
Citation108 Cal.App.3d 211,166 Cal.Rptr. 429
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. James McFARLAND, Defendant and Appellant.

Quin Denvir, State Pub. Defender, Deborah Long, Deputy State Pub. Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske, Patricia D. Benke, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

GRODIN, Associate Justice.

James McFarland appeals from his conviction for burglary (Pen.Code, § 459) on the grounds that the trial court erred in denying his motion to preclude use of his prior convictions for purposes of impeachment, in instructing the jury in accordance with CALJIC Nos. 2.03 and 22 (rev.), and in denying his motion to strike a prior conviction as unconstitutional. He contends also that he is entitled to good time/work time ("conduct") credit for his time spent in presentence custody. We find no prejudicial error, and therefore affirm his conviction subject to administrative determination of conduct credit pursuant to People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, as modified.

Background. The prosecution's case can be briefly summarized. On October 27, 1977, Mrs. Patricia Froio saw a car pull up beside the house of her neighbor and two men walked toward the neighbor's front door. Suspicious, Mrs. Froio attempted to telephone her neighbor. Receiving no answer, she called the police. While on the phone with the police she saw a third man, later identified as Allen Tobia, exit the car and run toward the neighbor's house. A minute or two later, she saw the car pull into the driveway of the house, and then after a few minutes back out and head up the street. At about that time, Officer Reed of the Fremont Police Department responding to the radio broadcast of Froio's telephone call, arrived on the scene. He saw the car pull out of the driveway and proceed up a hill. He gave chase and stopped it. The driver turned out to be McFarland. McFarland told another officer, Barton, that he was in the area looking for a "man that lived (there) by the names of James Adrich." Barton noticed an odor of alcohol about McFarland from which Barton concluded that he had been drinking but that he was not intoxicated. Meanwhile another police officer, Officer Dorsey, searched the wooded area near the house and found Tobia hiding in the bushes. Dorsey asked Tobia if "he had any partners," and Tobia responded that he had been with another person who was driving a dark GTO and who had told Tobia to run. When Mrs. Froio's neighbor returned home that evening she found that her front door had been forced and the bedroom ransacked. A television set and other articles were near the front door in apparent readiness for transportation.

McFarland offered no evidence at trial. At closing argument, his counsel suggested that McFarland was too intoxicated to have formed the specific intent necessary to burglary, i. e., too intoxicated to have realized what his companions were doing.

1. Did the court err in denying McFarland's motion to preclude use of his prior convictions for impeachment?

At trial, McFarland moved to preclude use of three prior convictions to impeach his credibility: a 1971 violation of Penal Code section 487, subdivision 2 (grand theft person), a 1969 violation of section 496 (receiving stolen property), and a 1963 violation of section 459 (burglary). The court denied McFarland's motion with respect to all three convictions, but the prosecutor indicated that he would not use the 1963 conviction if McFarland were to take the stand. We therefore focus upon the two more recent convictions, and review the exercise of the trial court's discretion in light of the four factors set forth in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, as clarified by subsequent judicial illumination, particularly People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, and People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19.

While theft-related offenses have been declared "less probative" of credibility than offenses such as perjury, they are nonetheless probative. (People v. Fries, supra, 24 Cal.3d at p. 229, fn. 7, 155 Cal.Rptr. 194, 594 P.2d 19.) In Beagle, the court stated that " '(i)n common human experience acts of deceit, fraud, cheating, or stealing . . . are universally regarded as conduct which reflects adversely on a man's honesty and integrity.' " (6 Cal.3d at p. 453, 99 Cal.Rptr. at 320, 492 P.2d at 8, quoting from Gordon v. United States (1967) 383 F.2d 936, 940.) And this appellate district has recently sustained the use of prior convictions of grand larceny and receiving stolen property as "reflective of a person's honesty and integrity, and . . . therefore probative for purposes of impeachment." (People v. Anjell (1979) 100 Cal.App.3d 189, 196, 160 Cal.Rptr. 669, 672.)

Beagle requires that the probative value of a prior conviction be discounted by the passage of time, and the fact that the priors in question were seven and nine years old is a factor to be weighed in the balance. As stated recently in People v. Benton (1979) 100 Cal.App.3d 92, 161 Cal.Rptr. 12, sustaining use of a 13-year-old conviction for burglary, it is only one of the factors to be considered.

McFarland argues that substantial prejudice would have occurred from the use of these priors because of their similarity to the charged offense, and relies heavily upon People v. Banks (1976) 62 Cal.App.3d 38, 44-45, 132 Cal.Rptr. 751, which contains dicta to the effect that the similarity between the prior crime of receiving stolen property and the charged offense of burglary with intent to commit theft would, in the case of a jury trial, point toward exclusion of the evidence. We note, however, that in People v. Kyllingstad (1978) 85 Cal.App.3d 562, 149 Cal.Rptr. 637, the court found the trial court's decision not to limit impeachment to a receiving stolen property offense "particularly mystifying," in light of the fact that it was "dissimilar to the offense charged," in that case second degree burglary. (Id., at p. 569, 149 Cal.Rptr. 751; cf. People v. Anjell, supra, 100 Cal.App.3d at p. 197, 160 Cal.Rptr. 669.) Again, the degree of similarity is but one of the factors to be considered.

Finally, the trial court was obliged to consider the adverse effect on the administration of justice should the defendant (as here) elect not to testify for fear of impeachment. (People v. Fries, supra, 24 Cal.3d at p. 228, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Rist, supra, 16 Cal.3d at pp. 222-223, 127 Cal.Rptr. 457, 545 P.2d 833.) In the absence of some offer of proof from the defendant as to matters as to which he would testify should the motion be granted, such an evaluation "must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant's guilt in the unique circumstances of the particular case." (People v. Rist, supra, at p. 222, 127 Cal.Rptr. at p. 465, 545 P.2d at p. 841.)

Balancing multiple factors is always a difficult exercise, and necessarily involves some degree of subjectivity. We regard the potential admission of these prior convictions as being very close to the line of impermissibility. We conclude, nevertheless, that the trial court did not abuse its discretion in deciding to admit them.

2. Did the trial court commit prejudicial error in its instructions to the jury?

McFarland contends that the trial court gave the jury two improper instructions. The first instruction in dispute was CALJIC No. 2.03, which permits the jury to use a false statement made by the defendant before trial as evidence of consciousness of guilt on his part. 1 The apparent reference of the instruction in the context of these facts is to McFarland's statement to Officer Barton that he was in the neighborhood looking for Mr. Adrich. McFarland argues that the giving of that instruction is justified only if there exists evidence that defendant prefabricated a story to explain his conduct (People v. Rubio (1977) 71 Cal.App.3d 757, 769, 139 Cal.Rptr. 750, 758 (overruled on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 439, 149 Cal.Rptr. 396, 584 P.2d 533)), and no such evidence appears. The court in Rubio, however, was concerned with the prejudice which may occur from such an instruction where the defendant testifies in a manner consistent with a prior statement. In such a situation, "the instruction of necessity casts specific doubt on a defendant's credibility as a witness and singles out defendant's testimony as subject to more particular scrutiny than that attached to prosecution witnesses." (Ibid.) Here, the defendant did not testify, and introduced no evidence in support of his statement to Officer Barton. From the other evidence in the case the jury could well believe, and presumably did believe, that McFarland's statement to Officer Barton was a prefabrication. To instruct the jury that it could use the statement of consciousness of guilt on the part of McFarland probably adds little to the analysis, since the same evidence which would lead the jury to conclude that the statement was a prefabrication would lead the jury to conclude that McFarland was guilty of the crime charged. In that light the instruction was redundant, but not prejudicial.

The other instruction to which McFarland objects was based on CALJIC No. 22 (rev.), which the California Supreme Court in People v. Brigham (1979) 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 100, disapproved. Conceding this was error, respondent contends that the error was harmless and we agree. A close review of the record reveals...

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