People v. Clarida

POCHÉ, J., Concurring.

I write separately to nail down what I perceive to be clear error: the trial court’s failure to state on the record its reasoning process in denying defendant’s motion to exclude the prior conviction.

Unlike my colleagues, I find nothing confusing about the California Supreme Court’s “signals” regarding what a trial court is required to do when presented with an Evidence Code section 3521 objection in any context. (Cf. maj. opn., ante, p. 553.)

The starting place is People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468],2 wherein the court held that “on a motion invoking [§ 352] the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value.” (Id. at p. 25.)

*555The most recent pronouncement is by Chief Justice Lucas who, writing for the court in People v. Montiel (1985) 39 Cal.3d 910 [218 Cal.Rptr. 572, 705 P.2d 1248], repeated the rule without modification or qualification: “We reiterated in People v. Green, supra, that ‘on a motion invoking [§ 352 grounds] the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value .... [T]he reason for the rule is to furnish the appellate courts with the record necessary for meaningful review of any ensuing claim of abuse of discretion; an additional reason is to ensure that the ruling on the motion “be the product of a mature and careful reflection on the part of the judge," . . .’ (27 Cal.3d at p. 25.)” (People v. Montiel, supra, at p. 924.)

All California Supreme Court cases falling in between Green and Montiel state the rule in the same manner. (See, e.g, People v. Frank (1985) 38 Cal.3d 711, 731-732 [214 Cal.Rptr. 801, 700 P.2d 415]; People v. Holt (1984) 37 Cal.3d 436, 451-453 [208 Cal.Rptr. 547, 690 P.2d 1207]; People v. Leonard (1983) 34 Cal.3d 183, 187-189 [193 Cal.Rptr. 171, 666 P.2d 28].) Thus in Frank, the high court did not hesitate to find error on a record identical to the one before this court: “Applying Green to the case at bar, we observe that during his argument in opposition to the admission of the other-crimes evidence defense counsel invoked section 352 several times. Although the objection was thus clearly before the court, it failed to make an explicit finding on the record that the probative value of the evidence outweighed the risk ofprejudice. Under the rule of Green this was error. (People v. Frank, supra, at p. 732, italics added.)

The rule is both settled and clear: a trial court errs in admitting evidence challenged under section 352 “without making an explicit determination that [the] risk of undue prejudice did not substantially outweigh the probative value of the evidence.” (People v. Green, supra, 27 Cal.3d at p. 26; accord People v. Montiel, supra, 39 Cal.3d at p. 924; People v. Frank, supra, 38 Cal.3d at p. 732; People v. Holt, supra, 37 Cal.3d at pp. 451-453; People v. Leonard, supra, 34 Cal.3d at pp. 187-189.) Thus making this determination on the record is much more than the “better practice” as my colleagues put it (see maj. opn., ante, p. 553), it is the plain, unvarnished law which binds both the trial courts and appellate courts of this state under the doctrine of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)

I would therefore follow the lead of the Courts of Appeal in People v. Flanagan (1986) 185 Cal.App.3d 764, 770 [230 Cal.Rptr. 64], People v. Hoze (1987) 195 Cal.App.3d 949, 953-954 [214 Cal.Rptr. 14] [petn. for review pending] and hold that the trial court erred in admitting the prior *556conviction for impeachment purposes because it failed to articulate on the record its reasons for doing so.

However, for the reasons expressed in the majority opinion I agree that the error did not result in a miscarriage of justice, and therefore does not require reversal. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Unless otherwise indicated, all further statutory references are to the Evidence Code.

Disapproved on another point in People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3 [226 Cal.Rptr. 112, 718 P.2d 99],