People v. Moten

Opinion

RACANELLI, P. J. Defendant was charged in Placer County with the crimes of murder and attempted robbery together with an allegation of firearm use. The special circumstance of murder in the attempted commission of a robbery was also alleged. However, the People elected not to seek the death penalty.

Following an order of change of venue to Alameda County, the jury returned a verdict finding defendant guilty of second degree murder and the firearm use allegation to be true.1

Defendant was sentenced to 15 years to life plus 2 years for firearm use. Defendant now appeals raising claims of instructional and procedural error. We will affirm for the reasons discussed hereafter.

Facts*

Discussion

I. Accessory After the Fact

II. Felony Impeachment

In the proceedings below, defendant filed a motion in limine to exclude for impeachment purposes his prior felony convictions for robbery, burglary and sale of heroin. The trial court ultimately ruled that defendant’s three [768]convictions for sale of heroin and two convictions for burglary would be admissible, but that his robbery conviction would be inadmissible.

Defendant now argues the trial court erred in permitting impeachment by defendant’s prior convictions for drug sales and burglary. His argument is two pronged: 1) the trial court erred in applying post-Proposition 8 law to this pre-Proposition 8 case; and 2) the priors were inadmissible under preProposition 8 law.

In denying defendant’s exclusion motion, the trial court explained that it had applied the ruling of People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111]. When defense counsel pointed out that the oifense here occurred before Proposition 8, the trial court declared that in its view, the law in effect at the time of trial controlled.

The Attorney General concedes that the trial court committed error in applying post-Proposition 8 law6 but argues the error was harmless. In applying Castro, it is argued, the trial court correctly engaged in the balancing process required under People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], Defendant, on the other hand, asserts that he is entitled to the benefit of the line of pre-Proposition 8 cases which restricted the trial court’s discretion rendering his priors inadmissible.