People v. Wheeler, S021961

• Decision Date: 17 December 1992
• Docket Number: No. S021961,S021961
• Court: California Supreme Court
• Parties: , 841 P.2d 938 The PEOPLE, Plaintiff and Respondent, v. Jennifer WHEELER, Defendant and Appellant.

Page 418

14 Cal.Rptr.2d 418

4 Cal.4th 284, 841 P.2d 938

The PEOPLE, Plaintiff and Respondent, v. Jennifer WHEELER, Defendant and Appellant.

No. S021961.

Supreme Court of California In Bank.

Dec. 17, 1992.

Rehearing Denied Feb. 11, 1993. ^*

Quin Denvir, Sacramento, under appointment by the Supreme Court, and Judith Rochlin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Kenneth I. Clayman, Public Defender, and Neil B. Quinn, Deputy Public Defender, Ventura, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Edward T. Fogel, Jr., and Carol Wendelin Pollack, Asst. Attys. Gen., Richard B. Cullather, Donald E. de Nicola and Joan Comparet, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

After a jury trial, defendant was convicted of sale of cocaine. (Health & Saf.Code, § 11352.) The Court of Appeal affirmed. We granted review to decide how Proposition 8's "Truth-in-Evidence" amendment to the Constitution (Cal. Const., art. I, § 28, subd. (d) (hereafter section 28(d)) affects the statutory rule (Evid.Code, §§ 787, 788) that felony convictions are the only form of conduct evidence admissible to impeach the credibility of a witness.

We conclude that although section 28(d) abrogates the felony-convictions-only rule in criminal cases and gives criminal courts broad discretion to admit or exclude acts of dishonesty or moral turpitude "relevant" to impeachment, the fact of conviction of a misdemeanor remains inadmissible under traditional hearsay rules when offered to prove that the witness committed In this case, however, defendant failed to protest on hearsay grounds when the prosecution sought to impeach a defense witness with her admission that she had suffered a misdemeanor conviction for grand theft. Defendant therefore waived her hearsay objection, and the trial court's decision to admit the theft conviction for impeachment was otherwise within its discretion. We therefore affirm the judgment of the Court of Appeal.

[841 P.2d 940] misconduct bearing on his or her truthfulness.

FACTS

On the morning of November 15, 1989, Los Angeles Police Officer Anthony Lopez was working undercover in a San Fernando Valley neighborhood notorious for drug activity. Around 7 a.m., Lopez stopped his car near defendant Jennifer Wheeler, who was standing in front of an apartment building at 9000 Orion Street. According to Lopez, defendant approached and asked what he wanted. Lopez replied "a 20," meaning $20 worth of rock cocaine. Defendant summoned Pauline Burton, repeated Lopez's order, and continued to talk with Lopez while Burton entered the building. Burton then returned and handed Lopez a piece of rock cocaine. Lopez paid Burton with a premarked $20 bill and signalled backup officers. Both women were arrested.

Burton testified for the defense. She admitted selling the cocaine and acknowledged that defendant was present, but she denied any participation by defendant in the sale. Burton said she noticed defendant talking to Lopez, walked over to ask Lopez what he wanted, and received the order for "a 20" directly from Lopez. Burton denied later telling a probation officer that defendant had conveyed Lopez's order.

Burton admitted a felony conviction for this sale, as well as another felony drug sale conviction earlier in 1989. In a bench conference, the prosecution also proposed to impeach Burton with a 1987 misdemeanor conviction for grand theft. ¹ The prosecutor cited People v. Harris (1989) 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P.2d 619, apparently for the general principle that Proposition 8 abrogates the rule limiting impeachment evidence to prior felony convictions. Defense counsel objected, asserting that Harris was "limited to its facts." Counsel also argued that the grand theft conviction was cumulative to the drug sale convictions already revealed, and that it was more prejudicial than probative. The court overruled the objection and Burton admitted the conviction.

Defendant testified in her own behalf. She stated she was moving out of 9000 Orion and had arrived on the morning of November 15 to pick up her things. Having found the front gate locked, she was waiting outside for a tenant to leave when Lopez stopped and made eye contact. She believed he had mistaken her for a prostitute and approached to ask what he wanted. After exchanging brief pleasantries with Lopez, she began to walk northward on Orion. As she did so, she noticed Burton approach Lopez's car but paid no further attention.

In rebuttal, the People called Probation Officer Kittrell. Kittrell testified that during a postarrest interview, Burton told her defendant had "informed [Burton] that a guy wanted to buy cocaine."

Defendant appealed her conviction for sale of cocaine. As in the trial court, defendant argued that Burton's grand theft conviction was inadmissible to impeach her. Defendant urged that Proposition 8 had not abrogated the statutory prohibition on use of misdemeanor convictions for impeachment. In any event, defendant claimed, the trial court erred by failing to recognize a limitation to convictions involving "moral turpitude," and by failing to weigh probative value against prejudicial effect.

The Court of Appeal affirmed. It reasoned as follows: Statutes which limit impeaching "conduct" evidence to felony convictions As we will explain, the Court of Appeal's analysis is correct as far as it goes. However, defendant now raises an argument not made below--that a misdemeanor conviction cannot be admitted for impeachment over a hearsay objection, which Proposition 8 expressly preserves. We find this contention persuasive, but defendant waived its application to her own case by failing to assert a hearsay objection at trial. The judgment of the Court of Appeal must therefore be affirmed.

                [841 P.2d 941]  were repealed pro tanto by Proposition 8's command that all relevant evidence be admitted in criminal trials.  Misdemeanor convictions are relevant for impeachment to the same extent as felony convictions and may therefore be admitted for that purpose if they reflect "moral turpitude" or a "readiness to do evil."   Grand theft reflects dishonesty and is a crime involving moral turpitude.  Moreover, the trial court considered the value of the proffered conviction and properly concluded that its probative force outweighed its potential for unfair prejudice
                

DISCUSSION

1. Proposition 8.

The common law has long imposed limits on the admission of evidence to discredit a witness. A witness's past misdeeds may logically suggest an untrustworthy character, but jurisdictions have restricted such evidence, even if relevant to honesty, on policy grounds. The concern has been that without such limitations, trials would flounder on collateral issues, witnesses would be deterred by unfair surprise or fear of public humiliation, and testifying criminal defendants would incur the danger of conviction for past, not present, misconduct. (See, e.g., 1 McCormick, Evidence (4th ed. 1992) §§ 40-41, pp. 137-142; 3A Wigmore, Evidence (Chadbourn ed. 1970) § 979, pp. 826-827; see also People v. Castro (1985) 38 Cal.3d 301, 316-317, 211 Cal.Rptr. 719, 696 P.2d 111.)

The Legislature codified this state's traditional resolution of the competing policy concerns. Evidence Code section 785 permits attacks upon the credibility of witnesses, but Evidence Code section 786 prohibits the use of evidence showing traits of a witness's character "other than honesty or veracity." Evidence Code section 787 states a general rule that "evidence of specific instances of ... conduct relevant only as tending to prove a trait of [the witness's] ... character" is inadmissible for impeachment. However, Evidence Code section 788 permits a witness to be impeached with evidence "that he [or she] has been convicted of a felony...." ²

Before 1982, it was clear that Evidence Code section 787, consistent with prior case law, precluded the use of misdemeanors for impeachment. (People v. Lent (1975) 15 Cal.3d 481, 484-485, 124 Cal.Rptr. 905, 541 P.2d 545.) It was also clear that the statutory rule permitting impeachment with felony convictions was subject to Evidence Code section 352, which allows trial courts to exclude otherwise admissible evidence whose "probative value is substantially outweighed" by its potential for unfair prejudice, confusion, or undue consumption of time. (E.g., People v. Beagle (1972) 6 Cal.3d 441, 451-453, 99 Cal.Rptr. 313, 492 P.2d 1.)

In June 1982, the voters adopted Proposition 8, an initiative measure designed to make significant substantive and procedural changes in California criminal law. Among Proposition 8's provisions was section 28(d), the so-called "Truth-in-Evidence" amendment to the Constitution. Section 28(d) declares that "relevant evidence shall not be excluded in any criminal proceeding" unless the Legislature provides otherwise by a two-thirds vote of each house. Section 28(d) makes clear, however, that "nothing in this section shall affect any existing statutory rule of evidence relating to ... hearsay, or Evidence Code [section] 352,..." ³

We and the Courts of Appeal have consistently held that in criminal proceedings, section 28(d) supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of section 28(d) itself. (People v. Mickle (1991) 54 Cal.3d 140, 168, 284 Cal.Rptr. 511, 814 P.2d 290; People v. Harris, supra, 47 Cal.3d 1047, 1080-1082, 1090-1091, 255 Cal.Rptr. 352, 767 P.2d 619; People v. Taylor (1986) 180 Cal.App.3d 622, 225 Cal.Rptr. 733; see In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.) The appellate decisions reject arguments that section 28(d) was intended only to prevent courts from excluding evidence because its seizure violated...