People v. Spearman, Cr. 20024

• Decision Date: 30 August 1979
• Docket Number: Cr. 20024
• Citation: 599 P.2d 74,25 Cal.3d 107,157 Cal.Rptr. 883
• Court: California Supreme Court
• Parties: , 599 P.2d 74 The PEOPLE, Plaintiff and Respondent, v. Albert SPEARMAN, Defendant and Appellant.

Page 883

157 Cal.Rptr. 883

25 Cal.3d 107, 599 P.2d 74

The PEOPLE, Plaintiff and Respondent, v. Albert SPEARMAN, Defendant and Appellant.

Cr. 20024.

Supreme Court of California, In Bank.

Aug. 30, 1979.

Byron E. Countryman, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender and Jonathan B. Steiner, Deputy State Public Defender, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., Alexander W. Kirkpatrick and Ann Rushton, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This court must determine whether a person may be impeached with a prior conviction of possession of heroin for sale when he is being tried for that same offense.

I

Appellant, Albert Spearman, was arrested by Pasadena Police Officer Martin on April 22, 1975. A substance containing heroin was discovered in a hole in the rear bumper of a car appellant was driving. He was charged with possession of heroin for sale (Health & Saf.Code, § 11351), transportation of heroin (Health & Saf.Code, § 11352), and a prior conviction in 1973 of possession of heroin for sale.

At the trial, Officer Martin testified that both appellant and the car he was driving were searched at the time of the arrest. No contraband was found in the car's interior or trunk, or on appellant. The car was placed on a hoist in a local garage and several officers searched under it. Their attention was drawn to several holes in the rear bumper, in two of which Officer Martin found 2 United States Treasury checks, 7 Los Angeles County checks, and a cellophane balloon sack containing one packet with 13 grams of diluted heroin and another with 23 to 24 grams of a white powder resembling lactose. The officer concluded the heroin was possessed for sale. On cross-examination, he stated the car was parked on many occasions in front of the residence of a Larry Howard. He had twice seen Howard, a heroin user, riding in the car. On six occasions in 1973, he saw another heroin user, James Bluett, driving the car. Bluett in fact was the registered owner of the car, but was confined in jail when appellant was arrested. During a cursory examination of appellant, Officer Martin noticed no signs indicating appellant was under the influence of or had recently injected heroin.

United States Secret Service Agent Colley testified that appellant admitted placing the Treasury checks in the bumper after receiving them from a Larry Brooks. Colley said appellant stated that he "didn't want anything to do with them." Colley knew Brooks possessed many similar checks. Officer Martin verified in later testimony that Brooks was a heroin user.

Appellant called Pasadena Police Officer Prodonovich, who testified that he saw Bluett driving the car three to four months before appellant's arrest. Howard had driven the car a week or two before appellant's arrest, and according to the officer, it was frequently parked outside Howard's residence.

Outside the jury's presence, appellant admitted his 1973 conviction and moved to prevent its use for impeachment purposes. The trial judge denied the motion and as a result, appellant chose not to testify. Appellant stipulated to familiarity with and prior use of heroin.

A police chemist was called to testify. He stated the diluted heroin was 5 percent pure, the strength of heroin then being sold "on the street." The nature or weight of the white powder was not covered in the testimony.

After over five hours of deliberations, the jury convicted appellant of transporting heroin. The jury requested further instructions on the second charge and an hour and a half later, they returned a verdict of conviction for possession of heroin for sale.

II

This court unanimously held in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 that although Evidence Code section 788 ¹ authorizes the use of a prior felony conviction to impeach the credibility of a witness, a trial court must, when requested, exercise its discretion as provided for by Evidence Code section 352 ² and exclude this impeachment evidence when the probative value of the prior conviction is outweighed by other considerations, such as the risk of undue prejudice. (Accord, People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Woodard (1979) 23 Cal.3d 329, 334-335, 152 Cal.Rptr. 536, 590 P.2d 391; People v. Rollo (1977) 20 Cal.3d 109, 115-116, 141 Cal.Rptr. 177, 569 P.2d 771; People v. Rist (1976) 16 Cal.3d 211, 218-219, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Antick (1975) 15 Cal.3d 79, 97, 123 Cal.Rptr. 475, 539 P.2d 43.)

Beagle also enumerated several of "the more important factors that must be considered by trial courts . . ." in deciding whether to admit a prior felony conviction to impeach a witness' credibility. (6 cal.3d at p. 453, 99 cal.rptr. at p. 320, 492 P.2d at p. 8.) since the purpose of the introduction of prior felony convictions is to impeach credibility, the first factor which the trial court must evaluate is whether the prior conviction reflects adversely on an individual's honesty or veracity; if it does, the degree of probative value of the conviction must be determined. (People v. Woodard, supra, 23 Cal.3d at pp. 335-336, 152 Cal.Rptr. 536, 590 P.2d 391; see also People v. Fries, supra, 24 Cal.3d at p. 226, 155 Cal.Rptr. 194, 594 P.2d 19.) Second, the trial court must consider the nearness or remoteness in time of the prior conviction. (People v. Antick,supra, 15 Cal.3d at p. 99, 123 Cal.Rptr. 475, 539 P.2d 43; People v. Beagle,supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)

These two factors establish the probative value, if any, of the prior conviction, and must be weighed against the probability that their admission "will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid.Code, § 352.) This court has previously identified several such counter-balancing considerations which are of particular importance in a criminal case when the witness to be impeached is the defendant: (1) the unique risk of undue prejudice and confusion of issues which occurs when the prior conviction is admitted to impeach the credibility of an accused who testifies, and (2) the adverse effect on the administration of justice when an accused elects not to take the stand in order to keep information about his prior felony conviction from the jury. (See People v. Fries, supra, 24 Cal.3d at p. 227, 155 Cal.Rptr. 194, 594 P.2d 19.) Application of these now-settled principles to the case at bench compels the conclusion that the trial court's ruling was erroneous.

The threshold question is whether a prior conviction for possession of heroin for sale is relevant to a determination of an accused's credibility. (Evid. Code, § 350; People v. Woodard, supra, 23 Cal.3d at pp. 335, 340-341, 152 Cal.Rptr. 536, 590 P.2d 391.) Past decisions of this court have established that a prior conviction must involve dishonesty i. e., it must have as a necessary element of the offense the intent to lie, defraud, deceive, steal, etc. in order to reflect on a witness' credibility. For example, in Woodard, this court stated, "Since the offense of voluntary manslaughter does not involve any element of fraud, deceit, or dishonesty, evidence of th(at prior) conviction should have been excluded." (Id., at p. 340, 152 Cal.Rptr. at p. 543, 590 P.2d at pp. 397-98.) Woodard also held "(t)he conviction for felon in possession of a concealable firearm should . . . have been excluded (because) nothing in the elements of this offense . . . involves a showing of dishonesty." (Ibid.)

The appropriate focus has always been on the Elements of the offense itself : thus, in Beagle, this court found that issuing a check without sufficient funds (Pen. Code, § 476a) reflects on credibility, since a necessary element of this offense is the "intent to defraud." (6 Cal.3d at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.) ³ Similarly, in People v. Fries, supra, 24 Cal.3d at page 229, footnote 7, 155 Cal.Rptr. at page 199, footnote 7, 594 P.2d at page 24, footnote 7, this court explained that "only some of the elements of robbery are relevant to impeachment; the others are irrelevant. Therefore, a prior conviction of robbery is only 'partly relevant to credibility.' " (Accord People v. Rist, supra, 16 Cal.3d at p. 220, 127 Cal.Rptr. 457, 545 P.2d 833.) It is irrelevant that an offense may show a "disrespect for law" or a "character trait of willingness to do anything." (People v. Rollo, supra, 20 Cal.3d at p. 117, 141 Cal.Rptr. at p. 180, 569 P.2d at p. 774, emphasis omitted.) Nor does the moral heinousness of an offense make it relevant on the issue of credibility. (People v. Woodard, supra, 23 Cal.3d at p. 340, 152 Cal.Rptr. 536, 590 P.2d 391.) Only a conviction which has as a necessary element an intent to deceive, defraud, lie, steal, etc., impacts on the credibility of a witness. ⁴

Respondent virtually concedes that the offense defined by Health and Safety Code section 11351 does not fall within this category of convictions, since, in respondent's own words, a conviction for that offense "imparts neither a direct aspect of larceny nor an irrefutable showing of a mendacious character trait." Under the decisions discussed above, this concession is itself sufficient to find error in the ruling of the trial court below.

Nevertheless, respondent urges that acts of theft and deception commonly occur in the heroin trade. He then attempts to substitute this "fact" for the offense itself. The defect in this approach is that, in order for the evidence of a prior conviction to be relevant, jurors would have to assume the commission of acts...