People v. Carr

California Court of Appeal May 30, 1973 No. Crim. 1363Published

Before: Gargano

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Holding. A trial court has the discretion under Evidence Code sections 788 and 352 to exclude evidence of a witness's prior felony conviction for impeachment purposes if the probative value of such evidence is substantially outweighed by the risk of undue prejudice. This discretion applies to prosecution witnesses as well as to defendants in criminal actions.

Issues

Whether a trial court has the discretion to exclude evidence of a prosecution witness's prior felony conviction for impeachment purposes.
Whether the rule in People v. Beagle, which allows for the exclusion of prior felony convictions, is restricted only to defendants who testify.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the impeachment of witnesses with evidence of prior convictions is a statutory right and, as at common law, is restricted to felonies.”

“Acts of violence . . . generally have little or no direct bearing on honesty and veracity.”

[702]

Opinion

GARGANO, J.

After jury trial appellant, Marion A. Carr, was convicted of assault with a deadly weapon while he was incarcerated in state prison for a term less than life in violation of Penal Code section 4501. He was sentenced to state prison for the term prescribed by law, the sentence to run consecutively with any other sentence he was then serving. This appeal followed.

Appellant was an inmate at the Sierra Conservation Center in Tuolumne County. On December 2, 1971, appellant and Ronald Smith, a fellow-inmate at the center, got into a fight and Smith kicked appellant in the teeth. Later Smith apologized and sought amends, but Carr said that he would not forget the incident.

On December 15, 1971, at about 8:15 a.m., Ronald Smith was stabbed repeatedly in the chest, back and arms as he lay asleep fully clothed on .his bunk in Dorm 42; the attacker was a black man of slender build, similar physically to appellant Carr. Smith knocked the assailant’s sunglasses off, managed to arm himself with a chair and chased the man from the room.

At appellant’s trial Joseph Marcelino, the only other inmate who was in the dormitory at the time of the stabbing, testified for the People. Marcelino said that he was asleep on a bunk when he was awakened by a loud noise and saw Smith and Carr, both of whom he knew, fighting. Marcelino watched as Smith chased Carr out of the room with a chair; Smith was bleeding heavily and moaning. The witness testified that he helped Smith to his bunk and applied a tourniquet to the wounded man’s arm. Then he notified the prison officials.

During the cross-examination of. Joseph Marcelino by defense counsel, the witness was asked, “What are you in prison for?” Marcelino answered, “I don’t think I have to answer that do I?” Persisting, defense counsel inquired, “Is it murder?” At that point the prosecutor interrupted, saying, “Well, Your Honor, I don’t think he does.” The court replied, “I don’t either. Sustain the objection.” It is this colloquy upon which appellant’s appeal is predicated.

Appellant concedes that the only possible purpose for his trial counsel’s questions was to show that the witness had been convicted of a murder charge in order to impeach him. Appellant insists that he was entitled to impeach Marcelino in this manner under the authority of Evidence Code section 788. The section states that “[f]or the purpose of attacking the

People v. Carr

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GARGANO, J.

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