People v. Holt

BIRD, C. J.

I concur in the result. I write separately for two reasons. First, I cannot endorse the holding of People v. Duran (1983) 140 Cal.App.3d 485, 500 [189 Cal.Rptr. 595], that a court may properly admit *460more than one prior felony conviction to impeach a witness’ credibility. Second, I disagree with the majority’s holding that the removal of persons opposed to the death penalty did not deprive appellant of a representative jury. (See my dissenting opinion in People v. Fields (1983) 35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680].)

The trial court’s admission of five prior convictions here was erroneous, since the court failed to weigh the prejudicial effect of four of these priors against whatever probative value they might have had. (Evid. Code, § 352,1 see maj. opn., ante, at pp. 457-458.) The dictum found in the majority opinion that such cumulative evidence could properly have been admitted, had the court followed the requisite section 352 weighing process, is incorrect.

Well-established precedent from this court is contrary to the majority’s view. “By now it should be clear to all that when a defendant makes a timely objection to the introduction of evidence of a prior felony conviction for the purpose of impeaching his testimony, the trial court is under a duty (1) to determine the probative value of that evidence on the issue of the defendant’s credibility as a witness, (2) to appraise the degree of prejudice which the defendant would suffer from admission of the evidence, and (3) to weigh the foregoing two factors against each other and exclude the evidence ‘if its probative value [on the issue of credibility] is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, . . .’ (Evid. Code, § 352).” (People v. Rollo (1977) 20 Cal.3d 109, 116 [141 Cal.Rptr. 177, 569 P.2d 771], brackets in original.)

Multiple prior felony convictions carry little, if any, additional probative value in determining the credibility of a witness. Under the criteria set forth in People v. Beagle (1972) 6 Cal.3d 441, 453 [99 Cal.Rptr. 313, 492 P.2d 1], and its progeny (see, e.g., People v. Spearman (1979) 25 Cal.3d 107, 113-116 [157 Cal.Rptr. 883, 599 P.2d 74]; People v. Woodard (1979) 23 Cal.3d 329, 340-341 [152 Cal.Rptr. 536, 590 P.2d 391]) one recent prior is sufficient under section 788 to determine credibility. The witness should be stripped of any “false aura of veracity” (People v. Beagle, supra, 6 Cal.3d at p. 453) and the jury should be informed that the witness has already compromised honesty to the extent of incurring a felony conviction for dishonest conduct.

Cumulative priors have great potential for prejudice and for “confusing the issues, or . . . misleading the jury.” (§ 352.) This court has repeatedly pointed out that even with a single prior, “there is a widely acknowledged *461danger that this evidence will be misused by the trier of fact. ‘Despite limiting instructions, the jury is likely to consider this evidence for the improper purpose of determining whether the accused is the type of person who would engage in criminal activity.’ [Citation.] As the United States Supreme Court has noted in a related context, evidence of a ‘defendant’s prior trouble with the law ... is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.’ [Citation.] This tendency to prejudge the issue of guilt denies an accused the presumption of innocence and lessens the burden of the prosecutor to prove guilt beyond a reasonable doubt.” (People v. Fries (1979) 24 Cal.3d 222, 227-228 [155 Cal.Rptr. 194, 594 P.2d 19], fn. omitted.)

When a jury is told about more than one prior, the danger of confusion and prejudice is all the greater. In People v. Jardine (1981) 116 Cal.App.3d 907 [172 Cal.Rptr. 408], the court strongly suggested that only one prior should be admitted for this purpose under section 352. “Allowing one prior offense to be used would have been adequate to impeach [the accused’s] character if such impeachment was to be allowed at all under the Rollo [People v. Rollo, supra, 20 Cal.3d at p. 116] standard. By ruling that all three priors would be available for impeachment, the trial court apparently did not take into account the degree of prejudice that [the accused] would suffer from admission of the evidence. If the trial court came to the conclusion that appellant’s criminal activity was like a wheel turning it is not unlikely that the jury could and would come to the same conclusion, and the presumption of innocence would be seriously eroded.” (People v. Jardine, supra, 116 Cal.App.3d at p. 916.)

The majority rely on People v. Duran, supra, 140 Cal.App.3d 485, for the proposition that multiple priors are admissible to impeach credibility. However, in that opinion, the cumulative nature of a second prior and its magnified potential for prejudice and confusion of the issues were never even considered.

The Duran majority observed that “[a] series of crimes relevant to character for truthfulness is more probative of credibility than a single lapse . . . .” {Duran, supra, 140 Cal.App.3d at p. 500.) Yet evidence of even one recent lapse serves to “impeach [] [the accused’s] credibility for all the purposes legitimately contemplated by Evidence Code section 788.” (Id., at p. 504 (dis. opn. of Rattigan, J.).) As noted above, this “single lapse” forces an accused to testify before the jury as one who had already suffered a felony conviction for his dishonesty. More than one prior is surely cumulative.

*462Furthermore, the prejudice and confusion of issues caused by informing a jury that an accused is a recidivist criminal was never considered in Duran. A jury so informed is likely to view the accused as “the type of person who would engage in criminal activity.” (People v. Antick (1975) 15 Cal.3d 79, 97 [123 Cal.Rptr. 475, 539 P.2d 43].) Since “ ‘[t]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice ’ . such results should not be encouraged. (People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal.Rptr. 165, 647 P.2d 569].)

Two other decisions from the Duran Court of Appeal are instructive. Both found it error to inform the jury of more than one prior conviction when the accused’s credibility was in issue. People v. Zimmerman (1980) 102 Cal.App.3d 647 [161 Cal.Rptr. 669, 14 A.L.R.4th 214], and People v. Morrison (1977) 67 Cal.App.3d 425 [136 Cal.Rptr. 650] involved charges of possession of a firearm by an ex-felon. (Pen. Code, § 12021.) The prosecutor sought to impeach the accused’s credibility with a prior felony conviction other than the conviction which established the “ex-felon” element of the new charge. In both cases, the court held that the prosecutor should have been required to use the same prior to establish the ex-felon element of the charged offense and to impeach the accused’s credibility.

A single prior was found to be adequate for each purpose and more than one was held to be unnecessarily prejudicial. “By analogy to the procedure directed by the Supreme Court in People v. Beagle, supra, the trial court should have controlled the situation so as to give the prosecutor adequate scope to establish beyond question that there had been a prior conviction and, at the same time, to prevent unnecessary prejudice to the defense by proving more than one of the priors.” (People v. Morrison, supra, 67 Cal.App.3d at p. 428, accord People v. Zimmerman, supra, 102 Cal.App.3d at p. 657, fn. 5.)

The majority’s decision marks a retreat from Beagle and section 352 principles which forbid the use of more than one prior conviction to impeach credibility. Since Duran fails to apply these principles in any reasoned manner, I regret that this court has seen fit to endorse that inadequate decision.

MOSK, J.

I agree with the majority opinion that several errors were committed during the course of the trial. While not one of the errors alone would necessarily require reversal of the conviction and a retrial, cumulatively they add up to a serious question whether under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error[s].”

*463On the other hand, this was a heinous offense, the participation of defendant was deliberate, and whether he or his confederate actually fired the fatal shot, the culpability of each for the armed robbery and its fatal consequences is manifest. There was a sufficiency of evidence for conviction. The issue, in doubt in my mind after the reversal proposed by the majority, is whether the evidence also supports a finding of special circumstances and imposition of the death penalty. (Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862].)

This crime took place in February 1979, more than five and a half years ago. It would be remarkable if some witnesses have not disappeared and memories of others have not grown dim in the interim. While the interests of justice clearly prevent a dismissal after the majority’s order for reversal-based on errors of law and not insufficiency of evidence—a retrial may be difficult after the passage of so many years.

Therefore, to achieve the Watson requirement of “a result more favorable” to defendant, and also to serve the ends of justice, I would exercise our statutory authority not to reverse the conviction and require a retrial, but to reduce the judgment to guilt of first degree murder and of robbery, without special circumstances, and remand to the trial court for resentencing. However, if the district attorney were to file with this court within 30 days of the issuance of the remittitur a declaration of his ability and desire to retry the case pursuant to the original charges, I would then join the majority in simply reversing the judgment.

The authority of this court to reduce a judgment in a criminal case is contained in Penal Code section 1260, which provides that on appeal the reviewing court may “reverse, affirm, or modify a judgment or order appealed from, or reduce . . . the punishment imposed, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may . . . remand the cause to the trial court for such further proceedings as may be just under the circumstances.” (Italics added.) (People v. Schueren (1973) 10 Cal.3d 553, 561 [111 Cal.Rptr. 129, 516 P.2d 833]; People v. Odle (1951) 37 Cal.2d 52, 57 [230 P.2d 345].)

There is also authority vested in appellate courts by Penal Code section 1181, subdivision 7. It provides that a trial court may modify a verdict “by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed. ” (Italics added.) Justice Peters and I advocated use of this section in our dissenting opinions in People v. Mabry (1969) 71 Cal.2d 430, 446-458 [78 Cal.Rptr. 655, 455 P.2d 759].

*464In People v. Jackson (1955) 44 Cal.2d 511 [282 P.2d 898], this court found serious errors and misconduct committed by the trial court and the prosecutor, but since the overwhelming weight of credible evidence established guilt, the judgment was reversed with directions to the trial court to reduce a death penalty to life imprisonment. The majority relied on the miscarriage of justice section of the California Constitution (then § 4 Vi, now § 13, of art. VI).

In a number of cases our predecessors on this court have eschewed exercise of the statutory authority clearly given by section 1260, but they have never provided a convincing rationale for doing so; rather they appear to adopt a summary rejection of that authority. (See, e.g., People v. Howk (1961) 56 Cal.2d 687, 700 [16 Cal.Rptr. 370, 365 P.2d 426]; People v. Linden (1959) 52 Cal.2d 1, 26 [338 P.2d 397]; People v. Green (1956) 47 Cal.2d 209, 235 [302 P.2d 307]; People v. Carmen (1954) 43 Cal.2d 342, 351 [273 P.2d 521]; People v. Dessauer (1952) 38 Cal.2d 547, 555 [241 P.2d 238]; People v. Thomas (1951) 37 Cal.2d 74, 77 [230 P.2d 351].) I would overrule the portions of the foregoing opinions that declare this court may not reduce punishment imposed in a criminal case.

There has been similar reluctance in the past to use section 1181, subdivision 7. In People v. Lookadoo (1967) 66 Cal.2d 307, 327 [57 Cal.Rptr. 608, 425 P.2d 208], this court declared that only the trial court, not this court, may reduce punishment. The opinion relied on People v. Mitchell (1966) 63 Cal.2d 805, 821 [48 Cal.Rptr. 371, 409 P.2d 211]. In neither opinion, however, was there any discussion other than the conclusory statement in Mitchell that “This court has uniformly rejected requests to reduce the penalty from death to life imprisonment.” There was no suggestion that the court lacked the power to so act. I would overrule the portions of Lookadoo and Mitchell that declare this court may not reduce punishment imposed in a criminal case.

While we should exercise this power with restraint, the authority to act in an appropriate case is clearly provided by law. This is such a case.

All statutory references are to the Evidence Code unless otherwise noted.