People v. Burns

[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 Bums, was apprehended in the vicinity of an apartment break-in. Jewelry belonging to the owner of the apartment was found in Bums’s possession. Bums was convicted of one count of burglary after a jury trial.

Prior to commencement of trial, Bums moved to exclude any evidence of his 1963 robbery conviction for impeachment purposes should he choose to testify. Bums 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 mled 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, mled Bums’s prior conviction admissible.2

Discussion

A. After Proposition 8, Remoteness Remains a Factor to Consider in Determining Whether to Admit Evidence of a Prior Felony Conviction

[737]In People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111] our Supreme Court concluded the term “without limitation,” in section 28, subdivision (f), did not abrogate the discretion conferred on the trial court under Evidence Code section 352 to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. (Id., at p. 306.) Section 28, subdivision (f) did change California law in two respects. It “restore[d] trial court discretion as visualized by the Evidence Code and ... rejected] the rigid, black letter rules of exclusion which [the Supreme Court] had grafted onto the code by the Antick line of decision.”3 (Id., at p. 312.) Second, subject to Evidence Code section 352, “[it] authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.” (Id., at p. 306; and see pp. 313-316.)