People v. Wheeler

MOSK, J.

I dissent.

Unless compelled, I would not embrace the conclusion that the majority have reached. To be sure, their “rule” has equal application to botih the People and the criminal defendant. But it also threatens equal mischief. By exposing witnesses to impeachment with all manner of misconduct and thereby deterring them from testifying, it may not infrequently prevent the People from meeting their burden of proof beyond a reasonable doubt and/or preclude the criminal defendant from mounting a defense. As I shall explain, there is no compulsion to embrace the majority’s conclusion. Indeed, their “rule” must be rejected.

I

Defendant was charged in the Los Angeles Superior Court with the sale of cocaine in violation of Health and Safety Code section 11352. She pleaded not guilty. Trial was by jury. The People introduced evidence to show that defendant and one Pauline Burton were both involved in the sale. Defendant took the stand and denied participation. She also called Burton, who supported her testimony. On cross-examination, the People sought to introduce a misdemeanor conviction for grand theft that Burton had suffered for the purpose of impeaching her credibility as a witness. In pertinent part, they argued to the effect that Burton’s misdemeanor conviction was “relevant evidence” under article I, section 28, subdivision (d) of the California Constitution (hereafter article I, section 28(d)). Defendant objected on grounds including irrelevancy. The court overruled the objection. It then allowed the impeachment. The jury returned a guilty verdict. The court entered judgment accordingly.

*302Division Five of the Court of Appeal for the Second Appellate District affirmed. It concluded that the superior court did not err: Burton’s misdemeanor conviction was indeed “relevant evidence” under article I, section 28(d).

II

Article I, section 28(d)—entitled “Right to Truth-in-Evidence”—was added to the California Constitution when the voters at the June 8, 1982, Primary Election approved an initiative constitutional amendment and statute designated on the ballot as Proposition 8, the self-styled “Victims’ Bill of Rights.” It provides in pertinent part that “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.”

A single question will prove dispositive in the case at bar. It is undisputed and indisputable that “relevant evidence” under article I, section 28(d) includes misconduct offered for impeachment if such misconduct has been reduced to a felony conviction. The issue here is whether “relevant evidence” includes misconduct not satisfying that condition. As will appear, the answer is negative.

When, as in this matter, we set out to construe an initiative constitutional amendment, we seek to determine the intent of the voters. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934]; see County of Fresno v. State of California (1991) 53 Cal.3d 482, 488 [280 Cal.Rptr. 92, 808 P.2d 235].) To do so, we look to the words of the provision. (Delaney v. Superior Court, supra, at p. 798; ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 866 [210 Cal.Rptr. 226, 693 P.2d 811].) In conducting our review, we presume that the voters intended legal terms to have their legal compass. (See Oakland Paving Co. v. Hilton (1886) 69 Cal. 479, 491 [11 P. 3] [holding that when “technical words or words of art. . .are employed [in a constitutional provision], we must assume that they are used in their technical meaning”]; cf. 2A Sutherland, Statutes and Statutory Construction (5th ed. 1992 rev.) Intrinsic Aids, § 47.30, p. 262 [stating that, as a general matter, “legal terms in a statute are presumed to have been used in their legal sense”].)

As stated, article I, section 28(d) declares as pertinent here that “relevant evidence shall not be excluded in any criminal proceeding . . . .”

*303“Relevant evidence,” of course, is a legal term. Of that there can be no doubt. Its legal compass must be delimited.

From California’s first days, “relevant evidence” has been deemed not to include misconduct offered for impeachment if it has not been reduced to a felony conviction.

In 1872, the Legislature enacted the Code of Civil Procedure. Derived from the common law as declared by this court in early cases, section 2051 of that code provided in pertinent part that “[a] witness may [not] be impeached ... by evidence of particular wrongful acts, except that it may be shown . . . that he had been convicted of a felony.”

The rule that misconduct is irrelevant for impeachment, absent a felony conviction, has a manifest basis. Such misconduct has insufficient, if any, bearing on credibility. In other words, it is either nonprobative in a strict sense or only marginally probative and unduly prejudicial as a matter of law. Indeed, in its Recommendation Proposing an Evidence Code, the California Law Revision Commission commented that only convictions of felonies that “necessarily indicate . . . dishonesty or lack of veracity” should be admissible for impeachment. (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 142.) It explained: “Other convictions . . . have little or no tendency to prove . . . [untrustworthiness] and frequently . . . have an unduly prejudicial effect.” {Ibid.)

In 1965, the Legislature enacted the Evidence Code. (Stats. 1965, ch. 299, § 2, pp. 1297-1356.) Section 787 of that code declares the general rule: “[Ejvidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.” Section 788 of that same code states the exception: “For the purpose of attacking the credibility of a witness, it may be shown . . . that he has been convicted of a felony . . . In the same statutory measure, the Legislature repealed Code of Civil Procedure section 2051. (Stats. 1965, ch. 299, § 126, p. 1366.) It plainly intended its action to have no effect of consequence, here. The California Law Revision Commission commented: “The provision of [Code of Civil Procedure] Section 2051 excluding evidence of particular wrongful acts is continued in Evidence Code Section 787.” (Evidence Code With Official Comments (Aug. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 1319.)

It might perhaps be argued that misconduct, even without a felony conviction, is not irrelevant for impeachment. Such an argument, however, would lack persuasive force. “Relevant” is defined as “having any tendency *304in reason to prove or disprove any disputed fact that is of consequence to the determination of the action,” including the “credibility of a witness . . . (Evid. Code, § 210.) To be sure, misconduct, even without a felony conviction, may conceivably have some bare “tendency” to prove untrustworthiness. But what is required is a “tendency in reason”—i.e., a reasonable tendency. (E.g., People v. Stein (1979) 94 Cal.App.3d 235, 239-240 [156 Cal.Rptr. 299]; People v. Simms (1970) 10 Cal.App.3d 299, 311 [89 Cal.Rptr. 1].) That is lacking.

In any event, misconduct, absent a felony conviction, is not sufficiently relevant for impeachment. It is, at best, only marginally probative and unduly prejudicial as a matter of law.

If, as the California Law Revision Commission explained, even nonfelony convictions “have little or no tendency to prove . . . [untrustworthiness] and frequently have an unduly prejudicial effect” (Recommendation Proposing an Evidence Code, supra, 7 Cal. Law Revision Com. Rep., supra, p. 142), the same must be true, a fortiori, of simple misconduct. Thus, a witness’s sexual peccadilloes as a youth are, at best, only marginally probative and unduly prejudicial as a matter of law. Hence, they cannot assist the trier of fact in assessing the credibility of the witness’s testimony. But they can obviously keep the witness from testifying at all.1

In view of the foregoing, I conclude that “relevant evidence” under article I, section 28(d) does not include misconduct offered for impeachment if such misconduct has not been reduced to a felony conviction. We presume that the voters intended the legal term in question to have the legal compass described. Their intent controls. I would therefore disapprove People v. Harris (1989) 47 Cal.3d 1047, 1080-1082, 1090, footnote 22 [255 Cal.Rptr. 352, 767 P.2d 619] and People v. Mickle (1991) 54 Cal.3d 140, 168 [284 Cal.Rptr. 511 [814 P.2d 290], to the extent that they are to the contrary.2

In conducting their analysis, the majority generally proceed with great care. Regrettably, their first step—passing over the question of the scope of “relevant evidence” under article I, section 28(d)—is a misstep, and a fatal *305one at that. As a result, the bulk of their discussion proves unnecessary. Hence, the points considered therein need not be addressed.

Ill

I turn to the case at bar. To my mind, the superior court erred by allowing the People to introduce Burton’s misdemeanor conviction for purposes of impeachment. Only relevant evidence is admissible. (Evid. Code, § 350.) Under the foregoing analysis, a misdemeanor conviction is not such.

Because the Court of Appeal affirmed the superior court’s judgment on the ground that there was no error, I would vacate its judgment and remand the cause with directions to consider whether the error was reversible.

I recognize that Evidence Code section 787 provides that as a general matter, “evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.” Its words neither state nor imply that misconduct, even without a felony conviction, is indeed relevant for impeachment.

In arriving at my conclusion, I have not relied on extrinsic aids. We resort to materials of this sort only when the words of the constitutional provision at issue are ambiguous. (ITT World Communications, Inc. v. City and County of San Francisco, supra, 37 Cal.3d at p. 868.) That condition does not obtain here. All the same, I have reviewed the available extrinsic aids and have found nothing to undermine my views.