People v. Rollo

*124RICHARDSON, J.

I concur in the judgment, affirming defendant’s conviction. I respectfully dissent, however, from that portion of the majority opinion which holds that the trial court erred in admitting into evidence for impeachment purposes the fact that defendant had suffered a prior conviction. The issue presented is—may a prosecutor at trial impeach a criminal defendant by showing that he has been convicted of a felony of an undisclosed nature? Under the particular circumstances of this case in which the trial court carefully adhered to the constraints enunciated by us in People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], I conclude that the court did not abuse its discretion in permitting such impeachment.

The record discloses that before the jury was impanelled, and in an in-chambers conference between the court and counsel, the court was asked if it wished then to. decide whether defendant’s prior 1973 conviction of soliciting a murder (Pen. Code, § 653f) was a proper basis upon which to impeach defendant. The court stated that it would determine the issue when it arose at trial. Thereafter, defendant elected to take the witness stand and following defendant’s direct examination, and early in the cross-examination, a second in-chambers discussion was convened between court and counsel during which the impeachment by proof of a prior felony conviction was again considered. Defendant’s counsel argued that the prior conviction involved “a very serious felony,” and that disclosure of the conviction would be prejudicial to defendant, because the jurors “will think this guy would do anything if he will commit a murder.” While the trial court generally agreed that disclosure of the prior conviction would be prejudicial, it added, however, in addressing the prosecuting attorney, that “... you are entitled to ask if he has been convicted of a felony to attack his credibility.” The court thereupon ruled that the prosecution could introduce evidence that defendant had suffered a prior felony conviction of an undisclosed nature. Defense counsel objected to this procedure on the ground that the jury “. . . might think it [the prior conviction] is the same felony he is accused of here today.” The court acknowledged the problem, concluding that “if you [defense counsel] want to straighten out the type of conviction it was, you can do that in redirect.”

Thereafter, during cross-examination, the following testimony was elicited:

“Q. Mr. Rollo, you have been convicted of a felony yourself, haven’t you?
*125“A. Yes, I have.
“Q. When was it?
“A. I don’t know the exact date.
“Q. In 1973?
“A. Yes.”

Defense counsel declined the trial court’s in-chambers invitation to examine defendant further on redirect examination for the purpose of establishing that the prior conviction was not an offense similar in character to the offense for which defendant was being tried. The jury returned a verdict of guilty as charged.

Section 788 of the Evidence Code (all statutory references are to the Evidence Code unless otherwise indicated) contains broad statutory language authorizing impeachment by proof of any felony. It provides in pertinent part, “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . .” Section 352 vests the trial court, however, with discretion to exclude evidence the probative value of which is outweighed by a substantial danger of undue prejudice.

In People v. Beagle, supra, 6 Cal.3d 441, we considered the interaction of sections 788 and 352, emphasizing that the admission or exclusion of felony impeaching evidence “in each instance must depend upon the sound exercise of judicial discretion.” (P. 453.)

In Beagle we expressly declined to establish rigid standards controlling that discretion, but rather affirmed the propriety of those various considerations originally expressed in Gordon v. United States (D.C.Cir. 1967) 383 F.2d 936, 940-941 [127 App.D.C. 343]. These factors include: (1) the nature of the prior conviction, i.e., whether the crime in question involved “dishonest conduct,” as opposed to crimes of violence or passion, noting that “generally” the latter do not bear on credibility; (2) the temporal proximity or remoteness of the prior conviction; (3) the similarity of the prior conviction to the offense or offenses presently charged; and (4) the likelihood that admission of the prior conviction *126would inhibit the defendant from testifying, thus depriving the factfinder of hearing defendant’s version of events. (Beagle, supra, at p. 453.) In connection with the last factor we reaffirmed well established principles in cautioning that “No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity,” that “the general rule is that felony convictions bearing on veracity are admissible,” and that the reviewing courts should always give “careful consideration” to an exercise of trial court discretion under section 788 (Id, at pp. 453-454.)

In two subsequent cases, we have held, successively, that trial courts had abused their discretion in admitting, for impeachment purposes, certain “remote” felony convictions (People v. Antick (1975) 15 Cal.3d 79 [123 Cal.Rptr. 475, 539 P.2d 43]), and a “similar” prior conviction where other and dissimilar priors were available (People v. Rist (1976) 16 Cal.3d 211 [127 Cal.Rptr. 457, 545 P.2d 833]).

Although the majority herein elects not to reach the issue, defendant insists that solicitation of murder is not an offense of the type which bears directly upon his credibility, thus rendering the prior conviction inadmissible under section 788. I cannot agree, and am persuaded that the solicitation of a murder involves those elements of deceit and treachery which are indicative of a lack of both honesty and integrity. Solicitation of murder consists of secret, conspiratorial conduct, the goal of which is commission of the ultimate and most serious and heinous of all crimes.

Although the trial court did not expressly find that the prior conviction bore on credibility, we may fairly infer such a finding from the court’s ruling, which immediately followed its inquiry of counsel “Whether that type of crime [solicitation of murder] has strong probative value” as it. relates to “dishonesty and untruthfulness.”

In my opinion, the character of the prior conviction bore on defendant’s credibility, and was neither remote in time nor similar in nature to the present charge. No other priors were available for impeachment purposes. Defendant was not inhibited from testifying by the introduction of the prior, but rather, with full knowledge of the risk of impeachment, took the stand and did testify. Finally, the exclusion of the prior conviction would have given defendant at trial a “false aura of veracity” to which he was not entitled. Thus each of the various Beagle considerations were fully satisfied.

*127Nonetheless, the trial court recognized the considerable risk of prejudice to the defendant which existed in the event of disclosure of the particular felony for which he was convicted. Moved by this possibility, and fully consistent with each of the Beagle factors, the trial court exercised its careful discretion and fashioned a compromise, ruling that although the fact of defendant’s prior conviction could be introduced consistent with section 788, the nature of the prior offense should remain undisclosed for defendant’s own protection in harmony with section 352, unless defendant himself elected to reveal it.

Section 788 is silent on the question whether the nature as well as the fact of the prior conviction must be disclosed. There is ample authority, however, for the general proposition that impeachment under section 788 (and under its predecessor, Code Civ. Proc., § 2051) may extend to disclosure of the character of the particular prior conviction. We, ourselves, have so held. (People v. Smith (1966) 63 Cal.2d 779, 790 [48 Cal.Rptr. 382, 409 P.2d 222]; People v. David (1939) 12 Cal.2d 639, 646 [86 P.2d 811].) The rule has been expressed by one well respected commentator: “The witness may be asked whether he was convicted of a felony. [Citations.] It is also permissible to go one step further, and ask the nature of the crime, i.e., the particular felony. [Citations.]” (Witkin, Cal. Evidence (2d ed. 1966) § 1246, at pp. 1148-1149, italics in original.) However, I have found no authority, and the majority cites none, which has held that the trial court must, in the exercise of its discretion, require disclosure of the nature as well as the fact of the conviction.

It is readily apparent that at this point the discretion of a trial court is sorely taxed in weighing opposing considerations. On the one hand is the right of the criminal defendant to a fair trial which prompted enunciation of our Beagle safeguards against undue prejudice. In this connection I am of the view that invocation of section 788 as to a criminal defendant necessarily and always involves some risk of prejudice, for it seems fair to conclude that disclosure of any felony conviction may reduce the credibility of the witness in the eyes of the average juror to a greater or lesser extent depending upon the nature of the particular felony. Beyond that, however, the trial court, faithful to section 352, must exclude that evidence which “will create a substantial danger of undue prejudice.” On the other hand, to exclude all reference to a felony conviction is unfair to the prosecution which is authorized under the very broad language of section 788 to attack defendant’s credibility by introducing proof of any such convictions. It creates, as to the defendant, that “false *128aura of veracity” which Beagle specifically condemned. The trial court, weighing these considerations, reached a compromise.

Several post-Beagle appellate cases have suggested that the exact procedure employed by the trial court herein is proper in an appropriate case. (See People v. Roberts (1976) 57 Cal.App.3d 782, 790 [129 Cal.Rptr. 529]; People v. Taylor (1975) 46 Cal.App.3d 513, 536 [120 Cal.Rptr. 762]; People v. Obie (1974) 41 Cal.App.3d 744, 752-753 [116 Cal.Rptr. 283]; People v. Delgado (1973) 32 Cal.App.3d 242, 250, fn. 4 [108 Cal.Rptr. 399], disapproved on other grounds, People v. Rist, supra, 16 Cal.3d at p. 222, fn. 10.) In Roberts, for example, the Court of Appeal held that the trial court erred under Rist in admitting proof of prior convictions of offenses which were identical with, or similar to, the charged offenses. In acknowledging that the trial court had abused its discretion, however, the court nonetheless observed: “We do not, however, believe that the trial court was powerless under the circumstances of this case to deny to defendant that ‘false aura of veracity’ of which the court said in Beagle: ‘No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity. The general rule is that felony convictions bearing on veracity are admissible.’ (6 Cal.3d at p. 453.) Both of the convictions were of crimes which ‘rest on dishonest conduct.’ They were not so remote in time that their probative value for impeachment was destroyed. Under such circumstances, an appropriate manner of handling the matter would be for the court to permit proof by defendant’s admission (or by an expurgated version of the judgment) of the fact of defendant’s conviction of a felony, without specifying any further details.... The risk of the jury assuming the conviction is for a crime more damaging to defendant than the one of which he was in fact convicted can be avoided by permitting the defendant at his election to require specification of the crime or crimes upon which impeachment is based, and in the absence of such specification by admonishing the jury not to speculate that any particular felony is involved.” (People v. Roberts, supra, 57 Cal.App.3d 782 at p. 790, italics added.)

I am mindful that the price of the partial disclosure permitted by the trial court herein is to permit the jury to speculate on the nature of the prior conviction. This speculation may be termináted by the defendant himself who may elect, as noted in Roberts, to disclose the particular prior offense. Moreover, no reason appears why the court, in the exercise of its discretion, could not permit counsel to establish the dissimilar nature of the prior offense without disclosing to the jury its actual nature. Further, the jury ordinarily should be admonished that the impeaching *129evidence may be used only for purposes of evaluating credibility. In the usual situation in which the impeaching evidence by way of prior felony convictions meets the Beagle standards and is not unduly prejudicial, the better practice is to permit disclosure. However, a different approach is justified in those cases in which, ás here, the disclosure of the prior conviction because of its nature involves a substantial danger of undue prejudice to defendant. In such a situation, I would hold that once the trial court has carefully considered all of the various Beagle factors and has established that the impeaching evidence otherwise favors and permits admissibility, the fact of the prior conviction but not its nature may be admitted.

The majority continues its systematic dismantling of the principle, legislatively established in section 788, that a criminal defendant can be impeached by proof of conviction of a felony. Although accomplished in installments, by continuously narrowing trial court options, it has rather effectively erased section 788 from the Evidence Code.

The procedure adopted by the trial court is well within its discretion. It permits a reasonable accommodation of both defendant’s fair trial rights and the prosecution’s broad authority to dispel, at least in part, any “false aura of veracity.” The adoption, in all cases, of a flat rule of admission of the fact and nature of the prior conviction would in some instances unduly prejudice a defendant contrary to the intent of section 352. Conversely, a rigid rule of exclusion could mislead the jury regarding defendant’s credibility, and might well lead to the anomalous result that the more heinous the nature of the previous conviction, the more likely its exclusion because of its inflammatory and prejudicial nature. Such a result is flatly contrary to both the express letter and spirit of section 788. The trial court’s action, in my view, constituted a fair, reasonable and practical compromise of the interests of both parties and the purposes of both sections. I would conclude that the trial court’s ruling was within “the sound exercise of judicial discretion.” (Beagle, supra, at p. 453.)

Clark, J., concurred.