People v. Thomas

• Decision Date: 15 December 1988
• Docket Number: No. H002981,H002981
• Citation: 206 Cal.App.3d 689,254 Cal.Rptr. 15
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie E. THOMAS, Defendant and Appellant.

Page 15

254 Cal.Rptr. 15

206 Cal.App.3d 689

The PEOPLE, Plaintiff and Respondent, v. Willie E. THOMAS, Defendant and Appellant.

No. H002981.

Court of Appeal, First District, Division 2, California.

Dec. 15, 1988.

Certified for Partial Publication ^*

Rehearing Denied Jan. 13, 1989.

Review Denied March 23, 1989.

Michael A. Kresser, Chief Appellate Atty., Conflicts Admin. Program in association with Rosemary S. Morrison, Palo Alto, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Matthew P. Boyle, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

POLLAK, Associate Justice, Assigned.

Willie Edward Thomas appeals his conviction of possession for sale and transportation of cocaine. He argues the trial court erred in permitting a prior aggravated assault conviction to be used for impeachment purposes. Appellant also objects to various other rulings of the trial court that will be discussed in the unpublished portion of this opinion.

STATEMENT OF THE CASE

Appellant was charged with possession of cocaine for sale and transportation of cocaine. (Health & Saf.Code, §§ 11351, 11352.) The information also alleged that appellant had been convicted of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) within the meaning of Penal Code section 667.5, subdivision (b). Additionally, two other felony convictions for possession of marijuana for sale were alleged.

Appellant pleaded not guilty and denied the prior convictions.

A jury convicted appellant of both charged offenses. The trial court found the priors were valid and appellant had served a prison term. The court sentenced appellant to four years for transportation of cocaine with a one-year enhancement; the term for possession of cocaine for sale was stayed. Appellant filed a timely notice of appeal.

FACTS ^**

I. Admission of the Section 245 Conviction for Impeachment

Appellant contends that the trial court erred in permitting him to be impeached with a prior conviction for assault with a deadly weapon. (Pen.Code, § 245, subd. (a)(1).) At the commencement of trial, appellant requested an order preventing the district attorney from impeaching him with the prior assault conviction and with two prior convictions for the possession of marijuana for the purpose of sale. (Health & Saf.Code, § 11359.) The court ruled that the aggravated assault conviction could be used, as it in fact was when appellant testified. The trial court also felt that the possession-for-sale offenses were usable for impeachment purposes but, under Evidence Code section 352, concluded that their potential for prejudice outweighed their probative value and precluded the People from using them for impeachment in this case. On appeal, appellant renews his argument that the trial court should not have permitted the assault-with-a-deadly-weapon conviction to be used for impeachment.

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court held that the newly enacted subdivision (f) of article I, section 28, of the California Constitution, enacted in 1982 as part of the so-called Victim's Bill of Rights (Proposition 8), was subject to due process limitations imposed by the United States Constitution. Subdivision (f) provides that in any criminal proceeding "[a]ny prior felony conviction ... shall ... be used without limitation ... for purposes of impeachment," but due process, the court held, precludes "impeachment with felony convictions which do not involve 'readiness to do evil'--moral turpitude...." (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.) The court reasoned that the rationale for using prior felony convictions for impeachment "must be that ... [they] may, somehow, be relevant to the witness' veracity." (Id.) Quoting from an opinion of Justice Holmes, the court observed: " '[W]hen it is proved that a witness has been convicted of crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in a particular case, and thence that he has lied in fact.' " (Ibid., quoting Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78, emphasis in original.)

Refusing to hold that only offenses involving an element of dishonesty reflect adversely on a witness' veracity, the court held that convictions which are "assaultive in nature," although less relevant than convictions based on dishonesty, nonetheless have some relevance to credibility. There is "some basis--however tenuous--for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known. Certainly the inference is not so irrational that it is beyond the power of the people to decree that in a proper case the jury must be permitted to draw it, if it wishes ...," as the court observed the voters had done in adopting subdivision (f). (People v. Castro, supra, 38 Cal.3d 301, 315, 211 Cal.Rptr. 719, 696 P.2d 111, fn. omitted.) The court held that "it will be necessary to determine with respect to each felony conviction offered for impeachment--difficult though this may prove to be--whether it does or does not involve Under this approach, neither simple assault, simple battery, nor even felony battery are offenses involving moral turpitude. To constitute an assault, all that is required is an attempt to commit a battery, coupled with the present ability to commit the battery. (Pen.Code, § 240; CALJIC No. 9.00 (1983 rev.).) Since the "least touching" will suffice to constitute a battery, "a simple assault does not necessarily show moral turpitude." (People v. Cavazos (1985) 172 Cal.App.3d 589, 594, 218 Cal.Rptr. 269.) Similarly, a person need not have an intent to injure to commit a battery, but only the general intent to commit the act (Pen.Code, § 242; CALJIC No. 16.140 (4th ed. 1979)); therefore, "a simple battery does not necessarily show readiness to do evil or necessarily involve moral turpitude." (People v. Mansfield (1988) 200 Cal.App.3d 82, 88, 245 Cal.Rptr. 800.) Similarly, felony battery is but a simple battery which results in serious bodily injury (Pen.Code, § 243, subd. (d); CALJIC No. 9.09 (1981 rev.)); since the use of force likely to have caused the serious bodily injury is not an element of the offense, "[i]t follows that because simple battery is not a crime involving moral turpitude, battery resulting in serious bodily injury necessarily cannot be a crime of moral turpitude because it also can arise from the 'least touching.' " (People v. Mansfield, supra, 200 Cal.App.3d at p. 88, 245 Cal.Rptr. 800.)

                moral turpitude."  (Id., at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.)   Finally, and of critical importance with respect to the proper characterization of an offense, in making this determination the court is to look only to the elements of the offense and not to the underlying facts.  "[A] witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude."  (Id., at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)
                

Several courts have held that assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) does necessarily involve moral turpitude. (People v. Valdez (1986) 177 Cal.App.3d 680, 223 Cal.Rptr. 149; People v. Means (1986) 177 Cal.App.3d 138, 222 Cal.Rptr. 735; People v. Armendariz (1985) 174 Cal.App.3d 674, 220 Cal.Rptr. 229; People v. Cavazos, supra, 172 Cal.App.3d 589, 218 Cal.Rptr. 269, see also People v. Elwell (1988) 203 Cal.App.3d 171, 253 Cal.Rptr. 480 [assault by means of force likely to produce great bodily injury necessarily involves moral turpitude].) A recent concurring opinion of Justice Crosby has cast some doubt, however, on the rationale underlying these decisions. (People v. Heckathorne (1988) 202 Cal.App.3d 458, 464, 248 Cal.Rptr. 399.)

The rationale for treating aggravated assault as a crime of moral turpitude was explained in People v. Cavazos as follows: "Assuming, as we must, that an assault with a deadly weapon does not require proof of a specific intent to harm another, it nevertheless does require proof of an unlawful attempt to inflict physical force upon another person. The jury is so instructed. (CALJIC No. 9.00 (4th ed. 1979).) Because an attempt to commit a battery requires a specific intent to commit the battery and a direct but ineffectual act done towards its commission (Pen.Code, § 664; 1 Witkin, Cal.Crimes, op. cit. supra, § 93, pp. 90-91) and because a deadly weapon is used to effectuate the attempted battery, it follows that the 'least adjudicated elements' of the crime of an assault with a deadly weapon involve some degree of moral turpitude. It is the use of the deadly weapon which elevates the assault to a moral turpitude crime." (172 Cal.App.3d 589, 595, 218 Cal.Rptr. 269; second emphasis added.) That is, use of the weapon permits the inference that the actor realized the likelihood of injuring the other person and therefore demonstrated a readiness to do evil. ¹ As the court observed in People v. Means, supra, 177 Cal.App.3d Assuming that moral turpitude is displayed in virtually every case of an assault with a deadly weapon, there is nonetheless a disturbing analytical question with this reasoning under the rules of Castro, as Justice Crosby has perceptively demonstrated in Heckathorne. (See also People v. Coad (1986) 181 Cal.App.3d 1094, 1114, 226 Cal.Rptr. 386 (conc. and dis. opn. of Kline, P.J.) Under the "least adjudicated elements" standard, he asserts, the test is not whether moral turpitude is involved in most instances in which the offense is committed, but whether because of the manner in...