People v. Burns

189 Cal.App.3d 734 (1987) 234 Cal. Rptr. 547 THE PEOPLE, Plaintiff and Respondent,

v.

HERBERT BURNS, Defendant and Appellant.

Docket No. B007046. Court of Appeals of California, Second District, Division Seven.

February 18, 1987. [735] COUNSEL

Joseph F. Walsh, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Gary R. Hahn and Patra Woolum, Deputy Attorneys General, for Plaintiff and Respondent.

[736] OPINION

JOHNSON, J.

The sole issue on appeal is whether, after Proposition 8, the trial court retains discretion to exclude evidence of a remote prior conviction offered to impeach the testimony of a witness in a criminal trial.[1]

We hold the trial court does retain such discretion. Because the trial court understandably, but erroneously, failed to exercise its discretion and because defendant did not testify, we reverse the judgment and remand the case to the trial court with directions to follow the procedures set forth in People v. Collins (1986) 42 Cal.3d 378, 393-395 [228 Cal. Rptr. 899, 722 P.2d 173].

FACTS AND PROCEEDINGS BELOW

In 1983, defendant, Herbert Burns, was apprehended in the vicinity of an apartment break-in. Jewelry belonging to the owner of the apartment was found in Burns's possession. Burns was convicted of one count of burglary after a jury trial.

Prior to commencement of trial, Burns moved to exclude any evidence of his 1963 robbery conviction for impeachment purposes should he choose to testify. Burns argued in judging the veracity of his testimony the probative value of a 20-year-old conviction was slight compared to its prejudicial effect on the jury. The prosecution countered with the argument the term "without limitation" means just what it says, and the People may impeach with any prior felony conviction regardless of its age. The trial judge ruled that even after Proposition 8 the prior felony has to have some relation to credibility. If the conviction meets that test it must be allowed in, even though it is remote. The trial court found robbery has a strong bearing on credibility and, for that reason alone, ruled Burns's prior conviction admissible.[2]