People v. Green

DRAPER, P. J.

A jury found defendant guilty of two counts of first degree burglary. He had admitted five previous felony convictions, but was found not to be an habitual criminal. He was sentenced to consecutive terms on the two counts and appeals.

Two dwellings were entered by an intruder in the early morning hours of different nights. Two occupants of one house, and one of the other, saw the intruder, and all testified that he was appellant. The controverted issue at trial was that of identity. Each of the three householders was cross-

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examined vigorously as to her identification, but each remained firm. Defendant did not testify.

Appellant first asserts misconduct of the prosecution in

voir dire

of the jury. Defense counsel at trial (not the attorney appearing here) asked one prospective juror whether she would be able to limit use of evidence admitted only for a special or narrow purpose. Shortly thereafter, the prosecution referred to this defense question, and asked another venireman several questions as to his ability to apply that rule to evidence of prior felonies admitted only for the limited purpose of impeachment.

Although the questions were stated to be wholly hypothetical, and the prosecutor did not state that there would be such impeachment of appellant, we believe the inquiry to be error (cf.

People

v.

Sanchez,

35 Cal.2d 522 [219 P.2d 9]). There is no suggestion that the prosecutor expected any of his witnesses to be impeached in this way, and none was. Assumption that he was but solicitous of appellant’s rights could well be unrealistic, and surely would open the door to future extension of the claimed right to suggest prior convictions on

voir dire.

We do not, however, find that there was prejudice to appellant. The experienced and able deputy public defender who tried the case did not object on the ground of improper suggestion of prior conviction. He sought neither admonition of the jury nor mistrial. He did not move for new trial. We are reluctant to attach greater importance to this incident than did trial counsel. No further reference to prior convictions was made. On review of the entire record, we conclude that no result more favorable to appellant was reasonably probable in the absence of this error.