ROUSE, J. I respectfully dissent.
The case against the defendant was a very strong one. Charlotte Root, the victim of the rape and robbery, had ample opportunity to ob[967]serve defendant at close range over a prolonged period of time as she accompanied him through the various rooms in her home. Lighting conditions were excellent—it was approximately 10:30 a.m. on a “[n]ormal, sunny morning.” Mrs. Root testified that she made a special effort to concentrate on defendant’s appearance and clothing, because she wanted to furnish the police with a good description of her assailant. She gave the police a detailed description of defendant: a black male, approximately 5 feet 10 inches tall, approximately 30 to 35 years old, wearing dark brown slacks, a dark red shirt and a tan buckskin or suede jacket with a rip in the shoulder seam.
Mrs. Root was first shown a book of several hundred photographs of black male individuals. Defendant’s photograph was not in this book, and Mrs. Root made no identification of any of the photographs. Also, she made no identification when shown other groups of photographs which did not include defendant’s photograph. However, when shown a group of photographs which did include defendant’s photograph, she told the police that defendant looked “very, very much” like her assailant, although she could not be absolutely certain because defendant’s hair look different in the photograph. She told the police that she was 80 percent to 85 percent certain that the person in the photographs (the defendant) was her assailant.
Mrs. Root then positively identified defendant at a physical lineup. She testified that she recognized him as soon as he walked in: “when he walked in my heart started to beat, and I knew right away that was the man.” She said that there was no doubt in her mind.
Mrs. Root’s husband, crippled as the result of a brain tumor, testified that he went into a state of shock when defendant entered his home, and was never able to positively identify defendant; however, he did state that defendant was the individual in the physical lineup who most closely resembled the robber.
Two watches taken in the robbery of the Root home were found in pawnshops under pawn slips signed by Otis Harris and Michael Jarvis. When Harris was contacted by the police, he stated that he had obtained the watch which he had pawned from John George. John George, in turn, told the police that he had obtained two watches from an individual known to him only as “George.” Since John George did not know “George’s” last name, he was shown various mugshots. He identified defendant as “George.” John George told police that defen[968]dant was staying with him in May 1977, and that, on the morning of May 24th, defendant left the house and later returned with the two watches and various other items. At that time, defendant was wearing a suede jacket, and John George, who had previously been employed at a cleaner’s, stitched up a tear in the shoulder of the jacket when defendant returned that morning. John George testified that, later, he gave the two watches to Otis Harris and Michael Jarvis. John George then accompanied the two men to different pawnshops where the two watches were pawned. John George had retained the pawn slips and gave them to the police.
I agree that authorizing the use of defendant’s prior robbery conviction for impeachment purposes, under the circumstances of this case, constituted error under existing law. However, in view of the victim’s positive identification of defendant as her assailant and other corroborating evidence of his guilt, I must regard such error as harmless. (People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243].) I fear that, too often, we forget, or otherwise disregard, the mandate of article VI, section 13, of the California Constitution.1
In this instance, the trial judge ruled that if defendant elected to testify, then he would allow the validity of his testimony to be attacked by the prosecutor’s use of a prior robbery conviction. The judge reasoned that to do otherwise would mislead the jury by creating an aura of credibility to which defendant was not entitled, especially since defense counsel had been allowed to attack the credibility of a key prosecution witness by the use of the latter’s prior criminal record. Thus is repeated the unending saga of the trial judge’s dilemma in ruling upon the use or nonuse of a defendant’s prior conviction for impeachment purposes. True, guidelines have been formulated and set out in various decisions handed down from time to time, but, at the very least, they are confusing. It has been apparent for some time now that our high court has concluded that, no matter how thorough a judge’s instructions regarding the limited effect in the use of an accused’s record of prior conviction, the jury, nonetheless, is bound to be improperly influenced by its awareness of that conviction. I cannot disagree with such conclu[969]sion. Unfortunately, many criminal convictions are being reversed because of this problem, and victims, such as Mrs. Root in this case, are required to relive the trauma of a rape or robbery, in .a retrial of the case.
I suggest, therefore, that the time has come to cease “waffling” and confront the problem directly. Either we permit the unrestricted use of prior convictions or we disallow their use entirely for impeachment purposes. In the latter event, we eliminate the accused’s reason for not testifying in his own behalf, if, otherwise, he chooses to do so. More properly, this is a task for the Legislature, not the courts.
For reasons earlier set forth, I would affirm the judgment.
Article VI, section 13, California Constitution: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”