KAUS, P. J. I concur in all parts of the court’s opinion, except with respect to part II, where I concur in the result only. Whether or not we are bound by Court of Appeal decisions in which the Supreme Court has denied a hearing,1 People v. Romero, 272 Cal.App.2d 39 [77 Cal.Rptr. 175], was decided by another division of this very court and it would be an intolerable situation for the judges and attorneys trying cases in this district, to be faced with conflicting decisions.
Romero holds that prior felony impeachment is not subject to discretionary exclusion raider section 352 of the Evidence Code2 because “[t]he rule in this state is now (§ 788, Evid. Code) and always has been that any felony conviction is admissible to impeach the credibility of defendant if he takes the stand. [Citation omitted.] In substance, section 788, Evidence Code, simply restates the rule expressed by former section 2051, Code of Civil Procedure. . . (People v. Romero, supra, 272 Cal.App.2d at p. 45.)
This rationale disturbs me. What can be said about former section 2051 of the Code of Civil Procedure, seems equally applicable to any other rule of admissibility transplanted from that code to the Evidence Code, such as, for example, the Evidence Code equivalents of the dozen or so former sections of the Code of Civil Procedure stating exceptions to the hearsay rule. (See People v. Spriggs, 60 Cal.2d 868, 872-873 [36 Cal.Rptr. 841, 389 P.2d 877].)
Before the courts become unalterably committed to the Romero rule, I would like to draw attention to certain considerations of public policy which appear to militate against the rule in the situations to which it most directly applies. I would also like to review the genesis of section 352, in order to make the point that the Legislature intended it to apply, without [769]judicially created exceptions, to otherwise admissible evidence of every sort.
My concern based on public policy is quickly stated. The reported cases so far have concerned themselves with witnesses, actual (People v. Sneed, 8 Cal.App.3d 963, 966 [88 Cal.Rptr. 32]) or potential (People v. Romero, supra), who were also defendants in the criminal proceedings in which the point came up; however, I can see no possible way to restrict the rule of Romero to such witnesses. It applies to all witnesses in all proceedings to which section 788 applies. We deplore the tendency of people to avoid getting involved in other peoples’ problems. Every trial lawyer, including prosecutors, has suffered from the reluctance of witnesses to come forward. Even convicted felons may occasionally make a contribution to the search for the truth. A rule to the effect that, come what may, a witness may have his prior felony convictions thrown at him, is counterproductive. I realize, of course, that the number of witnesses who would make themselves available for the sole reason that section 352 qualifies section 788 is small indeed; but such a rule might go far in giving the witness stand a better community reputation. I believe that it is precisely such a policy consideration which underlies section 765 of the Evidence Code. It reads, in pertinent part, as follows: “The court shall exercise reasonable control over the mode of interrogation of a witness, so as . . . to protect the witness from undue harassment and embarrassment.”3
Policy considerations aside, I do not believe that the history of section 352 permits us to depart from its plain meaning and to create areas of judicial impotence to exclude prejudicial evidence.4
Section 352 is the direct lineal descendant of rule 303 of the much maligned Model Code of Evidence. (See 19 State Bar J. 262.) That section read as follows: “(1) The judge may in his discretion exclude evidence if he finds that its probative value is out-weighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) cre[770]ate substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or (c) unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered. (2) All Rules stating evidence to be admissible are subject to this Rule unless the contrary is expressly stated.” (Italics added.)
Obviously if section 352 of the Evidence Code contained an express direction such as rule 303(2) of the Model Code, it could not possibly be contended that section 788 is not limited by section 352. Because it may be thought significant that no similar provision can be found in section 352, it becomes necessary to note how it came to be omitted.
Rule 303 was transmuted into rule 45 of the Uniform Rules of Evidence, approved in 1953. That rule read as follows: “Except as in these rules otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or (c) unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.” (Italics added.)
The phrase “except as in these rules otherwise provided,” while perhaps not as strong as rule 303(2) of the Model Code, is obviously its equivalent. In its tentative recommendation (6 Cal. Law Revision Com. Rep. 612), the California Law Revision Commission recommended that the phrase be deleted as unnecessary because “[t]he only exception to the rule is found in URE Rule 47, which has been revised to eliminate that exception.”5 It seems perfectly obvious that the recommended deletion of the phrase for the sole reason that it became unnecessary because of the concurrent deletion of the only provision to which it applied, indicates the Law Revision Commission’s belief that rule 45 was an umbrella section applicable .to all admissible evidence.
Rule 45 as tentatively recommended to the Legislature read as follows: “The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.” (6 Cal. Law Revision Com. Rep. 612.) In the final recommendation, rule 45 [771]became section 352 of the proposed Evidence Code in substantially identical language. It was adopted by the Legislature without any change.
The omission from section 352 of the substance of rule 303(2) of the Model Code is therefore without significance. On the contrary the treatment of rules 45 and 47 of the Uniform Rules by the Law Revision Commission,strongly suggests that section 352 of the Evidence Code was intended to apply across the board.
Nor do I believe that it is properly arguable that prior felony impeachment is excepted from the application of section 352, because section 788 affirmatively allows it. Analytically the only reason why it was necessary to provide specifically for such impeachment is this: section 1100 permits, in the absence of the statute to the contrary, proof of character by “evidence of specific instances of . . . conduct.” Section 787, however, prohibits such evidence to impeach or rehabilitate a witness. Thus, in order to preserve impeachment with prior felony convictions, it was necessary to put section 788 into the code.6 The truth is that the Evidence Code contains many sections making certain types of evidence specifically admissible which are admittedly redundant in view of section 351, stating that all relevant evidence is admissible.7 Other such sections are in. the code because, like section 788, they are exceptions to some rule of exclusion.8 Into the latter category fall such matters as certain types of character evidence [772]( § § 1102-1104), and certain exceptions to the hearsay rule.9 Why are those portions of the code not immune from section 352? In asking this rhetorical question I assume, as a matter of course, that they are not. What prompts me to take the time to write this appendix to the court’s opinion is my fear that, by the use of reasoning similar to that employed in Romero, section 352 will become a dead letter in other instances where the Evidence Code contains affirmative language of admissibility.
Romero relies chiefly on People v. Kelly, supra, 261 Cal.App.2d 708, a case which admittedly did not involve the question of the existence of a discretion with respect to section 788, but merely with a claimed abuse thereof. The Romero court, at page 46, emphasized the following language from Kelly: “It was the right of the prosecution to attack appellant’s credibility as a witness, and for that purpose to show his prior felony convictions.” (People v. Kelly, supra, 261 Cal.App.2d at p. 712.) The Kelly court, however, had then reviewed the language and legislative history of section 788 and had held that “the trial court did not err or abuse its discretion in receiving this evidence.” (People v. Kelly, supra, 261 Cal.App.2d at p. 713. Italics added.)
In any event, what the Kelly court said about the “right” of the prosecution to attack appellant’s credibility as a witness by showing his prior felony convictions, can with equal fervor be said about the “right” of a defendant in a criminal case to call character witnesses (§ 1102), his “right” to prove any relevant character trait of his victim (§1103) or the “right” of any party to a lawsuit to besmirch or glorify the character of any witness. (§§ 786, 790, 1100.)
Unless section 352 is to be confined to a few innocuous situations, such “rights” simply do not exist in the sense that, to deny them, is automatically error. I do not for one moment suggest that trial court discretion under section 352 is not subject to appellate control.10 Thus it is hard to imagine [773]a set of circumstances which would authorize a trial court to prevent a defendant in a criminal case from calling character witnesses or proving that the prosecution’s principal witness has a community reputation for being a pathological liar. Nevertheless, there is nothing in the statutory language to indicate that even with respect to evidence of that kind the Legislature did not extend to the trial courts a residual power to exercise discretion to exclude under section 352. It should be remembered that the section is the only provision in the code which authorizes the exclusion of cumulative evidence.11 (People v. Cavanaugh, 69 Cal.2d 262, 269-270 [70 Cal.Rptr. 438, 444 P.2d 110].) Even impeachment of a prosecution witness or evidence concerning a defendant’s good character can reach the point of vanishing returns.
Prior felony impeachment, by contrast to the type of evidence just mentioned, seems an excellent candidate for consideration under section 352.12
When the Legislature refused to accept the Law Revision Commission’s recommendation that prior felony impeachment be limited to felonies containing as an essential element, “dishonesty or false statement” (see fn. 8, ante), it opened the door to impeachment by the proof of convictions for felonies involving no moral turpitude of any kind! We cannot, of course, read the Legislature’s mind, but it seems highly likely that one of the reasons why it rejected the recommendation is that it felt that any prejudice which the commission’s recommendation sought to prevent, could be obviated on a case by case basis, through an intelligent application of section 352.
It should, perhaps, be mentioned that nothing in any opinion of our Supreme Court of which I am aware justifies the piecemeal application of section 352 suggested by Romero. All the indications are to the contrary. Quite recently in In re Lifschutz, 2 Cal.3d 415 [85 Cal.Rptr. 829, 467 P.2d 557], the court discussed the so-called patient-litigant exception to the patient-psychotherapist privilege. (Evid. Code, § 1016.) While denying that the psychotherapist could assert a privilege to withhold information concerning a patient who had waived his own privilege the court said: “When the questioning of the psychotherapist or patient as to confidential communications occurs at the trial itself, the danger of publicity and em[774]barrassment is increased. Of course, unless the information sought is directly relevant to the issue as revealed by the evidence at trial, the communication is privileged and no disclosure can be compelled. Moreover, as with any evidence, the court retains discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will ...(b) create substantial danger of undue prejudice. . . .’ (Evid. Code, § 352.) [Footnote omitted.] In this area, the careful exercise of this discretion is necessary to provide substantial protection for the patient’s legitimate interests; [footnote omitted] without this element of court supervision intensive examinations of psychotherapists and patients may often ultimately result in substantially more harm than benefit.” (In re Lifschutz, 2 Cal.3d 415, 438 [85 Cal.Rptr. 829, 467 P.2d 557].)
More to the point, perhaps, is an alternative ground for the decision in People v. Sam, 71 Cal.2d 194 [77 Cal.Rptr. 804, 454 P.2d 700]. There the trial court had admitted evidence of prior criminal acts which the Supreme Court held not to be sufficiently distinctive to be admissible to prove a modus operandi. Then the court went on: “Even if we assume a relevance which we fail to perceive, the evidence would properly have been excludible as unduly prejudicial under the discretion allowed by Evidence Code section 352. We have elsewhere recognized the substantial prejudicial effect inherent in evidence of prior offenses (People v. Haston (1968) supra, 69 Cal.2d 233, 246 [70 Cal.Rptr. 419, 444 P.2d 91]), for which reason such evidence may be excluded despite apparent relevance. This case is a dramatic illustration of the prejudice that can be injected into a trial through the device of demonstrating prior criminal acts.” (People v. Sam, 71 Cal.2d 194, 206 [77 Cal.Rptr. 804, 454 P.2d 700].)
The similarity of the prejudicial effect of evidence of other crimes which is admitted on the merits and such evidence which is admitted to impeach a witness who happens to be also the defendant in a criminal case, leads me to believe that the question raised by Romero is still an open one as far the Supreme Court is concerned.
Nothing in this concurring opinion is intended to suggest that, in this particular case, the trial court’s discretion was abused by permitting the challenged impeachment. Nor do I criticize the trial court for stating that it had no discretion. The trial took place well after People v. Romero, supra, had become final.
Appellant’s petition for a hearing by the Supreme Court was denied December 30, 1970. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.
See cases collected in Witkin, California Procedure (1954) Appeal, section 222 and 1967 Supplement.
Henceforth, unless otherwise noted, all statutory references are to the Evidence Code.
Certainly that was the suggestion in a dictum contained in People v. Dukes, 241 Cal.App.2d 488, 493, fn. 7 [50 Cal.Rptr. 609]. Since I was the author of that dictum, I can at least claim that if I am in error, I am consistent.
The Law Revision Commission’s comment to section 325 states that the section “expresses .a rule recognized by statute and in several California decisions.” It then refers to Code of Civil Procedure, section 1868, dealing with “collateral facts,” and Code of Civil Procedure, section 2044, the predecessor of section 765. It cites Adkins v. Brett, 184 Cal. 252, 258 [193 P. 251]; and Moody v. Peirano, 4 Cal.App. 411, 418 [88 P. 380]. The correctness of the comment is open to doubt. One has difficulty reconciling it with cases such as Martin v. Pacific Gas & Elec. Co., 203 Cal. 291, 299 [264 P. 246] and Mohn v. Tingley, 191 Cal. 470, 491-492 [217 P. 733]. In any event, if the comment is correct, then prior felony impeachment under Code of Civil Procedure, section 2051 has been subject to judicial discretion all along. We just did not know it. If it is incorrect, section 352 changed the law.
URE rule 47 provided that in criminal actions rule 45 could not be used to exclude evidence “of a trait of an accused’s character as tending to prove his guilt or innocence ...” I need not dwell on the significance of the fact that the Law Revision Commission— and later the Legislature—eliminated the Uniform Rules’ only exception to rule 45.
Another, purely technical, reason for an affirmative statement permitting prior felony impeachment probably was to give the draftsman a jumping off point for the exceptions contained in section 788.
See for example sections 780 and 1100 and the Law Revision Commission comments thereto.
Section 788 is one of the relatively few sections of the Evidence Code which were not enacted in the form of the Law Revision Commission’s recommendations. It recommended that the felony used to impeach a witness had to be one which contained, as an essential element, “dishonesty or false statement.” (People v. Kelly, 261 Cal.App.2d 708, 712 [68 Cal.Rptr. 337]; People v. Stewart, 240 Cal.App.2d 1, 7 [50 Cal.Rptr. 26].) During hearings before the Assembly Interim Committee on Judiciary, held on December 16 and 17, 1964, substantial opposition to this departure from tradition and statute (Code Civ. Proc., § 2051), developed. (Assembly Interim Committee on Judiciary, Transcript of Proceedings on Proposed Code of Evidence, pp. 117-127, 137-139, 150.) The section was then rewritten in its present form. Were it not for the legislative history of section 788 it would be quite arguable that the three felonies with which defendant was impeached should not have been used for that purpose as a matter of law. Section 786 applies to all character evidence used to attack or support the credibility of a witness. It limits the traits of character which can be thus used to “honesty or veracity, or their opposites.” As already noted the only reason why it was necessary to provide specifically that felony convictions could be used to impeach a witness was section 787, which prohibits the admission of specific instances of conduct “as tending to prove a trait” of the witnesses’ character. Nothing suggests that in section 787 the Legislature visualized traits of character other than those mentioned in section 786. That being so, the exception in section 788 only covers felonies which do involve a trait of dishonesty or mendacity.
While most exceptions to the hearsay rule state that the evidence in question “is not made inadmissible by the hearsay rule,” sections 1224, 1225, 1282 and 1283 state in positive terms that the evidence covered by those sections “is . . . admissible” or “shall be received.”
The comment to section 45 of the Uniform Rules reads as follows: “This applies to frequently arising situations where the trial may get out of hand by the injection of collateral issues having only slight probative value and which would tend to confuse the jury, or have illegitimate emotional appeal. Obviously the judge should have some discretion to prevent the trial from going off on tangents of relative unimportance. Likewise some protection is needed from unfair surprise with respect to such matters. This represents the sort of thing which the trial judge does every day in actual practice and which is sanctioned here, in the assurance that the results of rare and harmful abuse of discretion will be readily corrected on appeal. It is a rule of necessity. Its sanction cannot be escaped if we are to have orderly and efficient trial procedure.” (Italics added.)
Arguably section 765 which enjoins the court to make the examination of a witness “as rapid, as distinct, and as effective for the ascertainment of the truth, as may be,” can be used to control the production of some cumulative evidence. Section 723 only applies to expert witnesses.
Guidelines for the exercise of such discretion can be found in Gordon v. United States, 383 F.2d 936, 940-941 [127 App. D.C. 343], The case, together with its predecessors, Luck v. United States, 348 F.2d 763, 768-769 [121 App. D.C. 151]; Brown v. United States, 370 F.2d 242, 243-245 [125 App. D.C. 220], are cases decided by the Washington, D.C. Circuit which in Luck, established a nonstatutory discretion to exclude prior felony impeachment, in spite of a statute (14 D.C. Code § 305), permitting it.