People v. Washington

• Decision Date: 06 June 1989
• Docket Number: No. A039608,A039608
• Citation: 211 Cal.App.3d 207,259 Cal.Rptr. 307
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cecil Burrell WASHINGTON, Defendant and Appellant.

Page 307

259 Cal.Rptr. 307

211 Cal.App.3d 207

The PEOPLE, Plaintiff and Respondent, v. Cecil Burrell WASHINGTON, Defendant and Appellant.

No. A039608.

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

June 6, 1989.

Certified for Partial Publication ^*.

Review Denied Sept. 21, 1989.

[211 Cal.App.3d 209] George L. Schraer, Berkeley, for defendant and appellant.

Laurence K. Sullivan, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

STATEMENT OF THE CASE

An information charged Cecil Burrell Washington, the appellant, with one count of forcible rape and a second count of assault with a deadly weapon, a wrench. (Pen.Code, §§ 261, subd. (2); 245, subd. (a)(1).) ¹ The rape count additionally alleged that appellant was armed with a deadly weapon and inflicted great bodily injury on his victim, Linda S. ( §§ 12022.3 and 12022.8.) The information further alleged a prior serious felony conviction for which appellant served a prison term. ( §§ 667, subd. (a) and 667.5, subds. (a), (b) and (i).) Appellant pleaded not guilty and denied all the enhancement allegations.

A jury found appellant guilty of rape and simple assault. ( § 240.) It found that neither the deadly weapon nor great bodily injury allegation was true. At the separate court trial the priors were found true. The court sentenced appellant to the eight-year upper term for the rape, with a consecutive five-year term for the prior prison term. A six-month sentence for the assault conviction was stayed pursuant to section 654. This timely appeal followed.

STATEMENT OF FACTS ^**

DISCUSSION

I.

The Trial Court's Handling of the Motion to Exclude The Priors Did Not Constitute Reversible Error

Prior to trial appellant moved to exclude for purposes of impeachment evidence of three prior convictions: 1975 convictions for felony assault ( § 245) and rape and a 1984 conviction for embezzlement. The People opposed the motion for the reason At a hearing on June 2nd before Judge Herbert W. Walker, to whom the case had by then been reassigned for trial, the parties informed the court of the pendency of the motion to exclude. On June 4th, after considering the matter, Judge Walker stated that on the authority of People v. Collins (1986) 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173 and Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the court "is not going to make a decision with respect to this [motion] at this time, and will only make a decision following the Defendant's testimony in this case."

among others, that it was premature because it had not been established that appellant would take the stand. At a pretrial hearing in March before Judge W. Scott Snowden, who was originally assigned the case for trial, appellant agreed to defer the matter, but insisted upon his right to a ruling prior to trial. At a subsequent pretrial hearing in April before Judge Snowden, appellant again sought a ruling that the prior convictions--particularly the rape conviction, which was identical to the charged offense--were inadmissible. The People renewed their contention that the motion was premature because it was not clear either that appellant would testify or that the court's ruling would affect his decision whether to take the stand. The court rejected the People's argument, stating: "I think you are entitled to know, in advance of trial, what the ruling is going to be, so that you can make a determination as to whether your client is going to take the stand or not."

After trial commenced, but before the People rested, defense counsel presented additional legal argument on this issue, contending that the court in Collins did not adopt the language in Luce suggesting that a trial judge could defer ruling on the admissibility of prior convictions for impeachment purposes until after the defendant testified. Unpersuaded, the trial court reaffirmed its earlier ruling. The following day, in order to make certain that the record was clear, Judge Walker restated that he "was going to defer ... ruling until such time as the Defendant ha[s] taken the stand and testified to this matter." Defense counsel made no further argument and appellant did not testify.

Preliminarily, we reject the People's claim that we cannot review the trial court's ruling because it was only tentative. The cases the People rely upon discuss waiver of issues due to the trial court's failure to rule and the moving party's failure to press for a dispositive ruling. (People v. Hoover (1986) 187 Cal.App.3d 1074, 1085, 231 Cal.Rptr. 203; People v. Alaniz (1986) 182 Cal.App.3d 903, 907, 227 Cal.Rptr. 575; People v. Obie (1974) 41 Cal.App.3d 744, 750, 116 Cal.Rptr. 283 (disapproved on another point in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4, 141 Cal.Rptr. 177, 569 P.2d 771.) The fact that the trial court's denial of defense counsel's motion in this case was "without prejudice to the defendant renewing the motion at anytime" does not render the disposition tentative. The court clearly determined that it would not decide the impeachment issue until after appellant testified. Defense counsel's silence when the court invited subsequent resubmission of the question "does not disturb the finality of the trial court's ruling." (Lozoya v. Superior Court (1987) 189 Cal.App.3d 1332, 1340, fn. 5, 235 Cal.Rptr. 77.) Because the court below did not make a tentative ruling appellant can now raise the issue.

No California case explicitly addresses the propriety of postponing a ruling on a motion to exclude the use of prior convictions for purposes of impeachment until after a defendant testifies. It is clear, however, that such a postponement is unusual. In People v. Delgado (1973) 32 Cal.App.3d 242, 108 Cal.Rptr. 399 (disapproved on another point in People v. Rist (1976) 16 Cal.3d 211, 221-222, 127 Cal.Rptr. 457, 545 P.2d 833), Justice Kaufman stated that "the time most appropriate for the motion to exclude evidence of prior convictions for impeachment purposes is at the close of the People's case in chief or thereafter before the defendant takes the stand to testify. [Citations.]" (Id., 32 Cal.App.3d at p. 252, 108 Cal.Rptr. 399, emphasis added, fn. omitted.) Justice Kaufman went on to note Requiring the trial court to rule on the admissibility of prior convictions before the defendant testifies is consistent with important considerations that go beyond adherence to the balancing test defined by Beagle and endorsed by Collins. A defendant's right to testify on his own behalf is implicit in constitutional protections afforded criminal defendants. Faretta v. California (1975) 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 recognized this when it held that a defendant has the right to represent himself without an attorney's assistance: "The right to defend is personal." Just as the right not to have an attorney is part of the Sixth Amendment right to the assistance of counsel (ibid.), the right to testify must be implicit in the right to remain silent. "The threat of impeachment by a prior felony conviction has significant coercive force when the witness' liberty is at stake." (People v. Barrick (1982) 33 Cal.3d 115, 129, 187 Cal.Rptr. 716, 654 P.2d 1243.) The state cannot force an attorney on an unwilling defendant; likewise, it should not be able to coerce silence. ³ Just as waiver of the right to an In many cases there is, as a practical matter, no need for the trial court to hear a defendant's testimony before making an informed determination as to whether a prior conviction will be more probative than prejudicial. After all, prior convictions relate to credibility. (Evid.Code, §§ 788 and 1101, subd. (c).) The rationale for allowing them to be used for impeachment "must be that [they] may, somehow, be relevant to the witness' veracity" because they support an inference of "readiness to lie." (People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111, quoting Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78.) The probative value of a prior conviction with respect to a defendant's readiness to lie can be determined independently of his testimony in the present trial. The prejudicial effect can also be evaluated without hearing the defendant's testimony if, as is often the case, it is obvious what his testimony would be. In those cases in which the prejudicial effect cannot be determined without judicial knowledge of the nature of the defendant's testimony, the defendant could make an offer of proof or testify at an in camera hearing, as described by Justice Kaufman in Delgado and Justice Burger in Gordon. (See discussion, ante, at p. 309, fn. 3.)

                that if in a particular case it is not obvious what the defendant's testimony would be and the trial court could not fairly evaluate the danger of undue prejudice without such testimony, the "defendant should testify to his version of the facts in an in camera hearing, and should he do so, such testimony would not be admissible in evidence for any purpose except for impeachment should defendant ultimately elect to take the stand and testify."  (Id., at p. 253, 108 Cal.Rptr. 399, citing Gordon v. United States (D.C.Cir.1967) 383 F.2d 936, 941.) 2  The conventional procedure described in Delgado derived from People v. Beagle (1972) 6 Cal.3d [211 Cal.App.3d 212] 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1, which listed the chance that the defendant will not testify as one of the four factors a trial court should use when weighing the relative prejudice and probative value of a prior conviction sought to be used for impeachment purposes.  The Supreme Court later explained that although Proposition 8, as interpreted by Castro, abolished rigid post-Beagle rules about the trial courts' discretion over admissibility of prior convictions, Castro intended to "retur[n] to the view of [Evidence Code] section 352 taken in Beagle, i.e., that the four factors mentioned in that case

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