People v. Smith

the knife. The knife point was then no more than 36 inches away from Stanley. Appellant complied.

Stanley took appellant into custody and drove him to a location where he was met by Deputy Sheriff Douglas Koford. Koford testified that as he was driving appellant away from the area, appellant stated: “If that fucking pig wouldn’t have pulled his gun, I would have done him in.”

Appellant and Kevin Reid had been convicted of murder. (Pen. Code, § 187.) The trial court granted appellant’s Beagle motion to exclude the conviction as impeachment evidence against him. As to Kevin Reid, the court indicated that the felony could be used to impeach him if he should testify. Neither appellant nor Reid testified. Appellant contends that the court’s ruling as to Reid was prejudicial error. We disagree.

The discussion concerning the admissibility of the felony convictions took place between the court and counsel off the record. The court then went on the record. With respect to appellant, the court weighed the Beagle factors and ruled that his prior murder conviction could not be used for impeachment. However, following this ruling, as to the witness Reid, the record discloses the following colloquy:

“Mr. Wagner [Defendant’s counsel]: I believe, your Honor reached a contrary conclusion as to the witness Kevin Reed [sic]?

“The Court: Yes. There is a witness that is intended to be called on behalf of defendant in this case. He also has a conviction of a felony. The Court has ruled in this matter that if he does testify he may be asked, for impeachment purposes, if he’s been convicted of a felony . . . .” Respondent argues that the foregoing is not an adequate record to review this claim, i.e., that the record fails to show that appellant made a Beagle motion with respect to Reid’s conviction. Without question the record could have been clearer. However, the clear import of the discussion regarding admissibility of the murder convictions of appellant and Reid is that a Beagle motion had been made as to both. Moreover, the clerk’s transcript states that the court ordered appellant’s “Beagle motion as to a certain witness be denied.” This court is therefore satisfied that a Beagle motion as to Reid was in fact made and ruled upon.

On motion of a defendant to exclude evidence of his prior felony conviction for impeachment purposes, the trial court has a duty (1) to determine the probative value of the prior conviction on the issue of the de

fendant’s credibility as a witness, (2) to apprise the degree of prejudice the defendant would suffer from admission of the evidence, and (3) to weigh the foregoing two factors against each other and exclude the evidence “‘if its probative value [on the issue of credibility] is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, . . (Evid. Code, § 352).” (People v. Rollo (1977) 20 Cal.3d 109 , 116 [ 141 Cal.Rptr. 177 , 569 P.2d 771 ]; see People v. Beagle, supra, 6 Cal.3d at p. 453; People v. Rist (1976) 16 Cal.3d 211 , 218-219 [ 127 Cal.Rptr. 457 , 545 P.2d 833 ]; People v. Fries (1979) 24 Cal.3d 222 , 226-227 [ 155 Cal.Rptr. 194 , 594 P.2d 19 ].) The balancing process required by Evidence Code section 352 and the Beagle line of decisions applies to all witnesses, not just criminal defendants. (People v. Woodard (1979) 23 Cal.3d 329 , 337-338 [ 152 Cal.Rptr. 536 , 590 P.2d 391 ].) Hence, in this case, the trial court had the duty to weigh the probative value of Reid’s conviction against its potential for prejudice as it did with respect to appellant. The record, as to Reid, fails to show that the court engaged in this weighing process. (See People v. Rollo, supra, 20 Cal.3d at p. 117 [record raised doubts that court engaged in weighing process]; People v. Rist, supra, 16 Cal.3d at p. 223 [same]; cf. People v. Green (1980) 27 Cal.3d 1 , 25 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ] [record must affirmatively show court exercised its discretion under Evidence Code section 352].) Moreover, had the court exercised its discretion under Beagle it would have had to exclude the prior conviction-because it was for an offense which did not involve as a “necessary element an intent to deceive, defraud, lie, steal, etc., [which] impacts on the credibility of a witness.” (People v. Spearman (1979) 25 Cal.3d 107 , 115 [ 157 Cal.Rptr. 883 , 599 P.2d 74 ]; People v. Barrick (1982) 33 Cal.3d 115 , 123-124 [ 187 Cal.Rptr. 716 , 654 P.2d 1243 ].)

We thus conclude that the trial court’s ruling permitting evidence of Reid’s prior murder conviction was error, either for a failure to exercise discretion (see People v. Woodard, supra, 23 Cal.3d at pp. 338-339; People v. Rist, supra, 16 Cal.3d at p. 223; cf. People v. Green, supra, 27 Cal.3d at p. 25) or, if discretion was exercised, for an abuse thereof (People v. Woodard, supra, at p. 340).

The remaining question is whether the error was prejudicial. (People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].) Defense counsel stated for the record that as a result of the court’s ruling, he decided not to call Reid. However, no reason was given for the failure of appellant to testify. Appellant contends that because the court’s error deprived him of a witness who might otherwise have presented relevant exculpatory evidence, the error must be deemed prejudicial. We disagree.

When, as the result of the trial court’s erroneous Beagle ruling a defendant is deterred from testifying, the error is ordinarily deemed prejudicial. (Pe ople v. Barrick, supra, 33 Cal.3d at p. 130; People v. Spearman, supra, 25 Cal.3d at p. 119; People v. Fries, supra, 24 Cal.3d at pp. 223-224; People v. Rist, supra, 16 Cal.3d at p. 223.) This is because the reviewing court has no way of knowing what the defendant’s testimony would have been and thus, has no basis for concluding whether such testimony would have affected the result. (People v. Barrick, supra, 33 Cal.3d at p. 130; People v. Spearman, supra; People v. Fries, supra; People v. Rist, supra.) “ ‘[Ejrrors at a trial that deprive a litigant of the opportunity to present his version,of the case . . . are . . . ordinarily reversible, since there is no way of evaluating whether or not they affect the judgment.’ [Citation.]” (Pe ople v. Spearman, supra, 25 Cal.3d at p. 119.) Conversely, when the defendant does testify and is erroneously impeached by evidence of his prior conviction, the reviewing court reviews the record to determine whether the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d atp. 836; People v. Rollo, supra, 20 Cal.3d at pp. 120-121.)

The same test of prejudice likewise applies when a nonparty witness testifies and is impeached as a result of Beagle error. (People v. Woodard, supra, 23 Cal.3d at p. 341.) We are unaware, however, of any case that has considered Beagle error which results in the failure of a nonparty witness to testify. While such error results in the nonparty’s failure to testify, it does not prevent or deprive the defendant of the opportunity to present his testimony as to his version of the case. In the present case appellant had the opportunity to present his version to the trier of fact without fear of impeachment based on his prior felony conviction. The negative inferences which could be drawn from the failure of the defendant to testify (as outlined in Barrick, supra, 33 Cal.3d at pp. 129-130) do not exist when a nonparty fails to testify. The loss of the witness’ testimony, therefore, does not have the same impact on the factfinding process as does the failure of the defendant to testify, nor does it invariably leave the reviewing court with no basis for concluding that the testimony would not have affected the result of the trial (see People v. Spearman, supra, 25 Cal.3d at p. 119 [defendant’s failure to testify].) Accordingly, we conclude that when a defendant is deprived of the testimony of a nonparty witness as the result of the trial court’s erroneous ruling on the witness’ prior convictions, the Watson prejudicial error test is to be applied in determining whether the error is reversible.

In the present case the percipient witnesses were Deputy Stanley, appellant and Reid. As hereinbefore indicated, even though appellant’s Beagle motion to exclude evidence of his prior conviction was granted, he failed

to testify. There is nothing in the record to suggest that Reid was in a different or better position to view the encounter between appellant and Deputy Stanley than was appellant himself, nor does appellant advance such an argument. Because appellant did not testify or otherwise present a defense, this is not a case where the court’s ruling deprived the defendant of valuable corroborative evidence or of testimony that might be necessary to give a complete picture of events. (Cf. People v. Fries, supra, 24 Cal.3d at p. 228 [concerning defendant’s testimony].) In these circumstances, when the defendant could have testified to his version of events but did not, and when no defense of any kind was presented, the court’s error in ruling admissible a nonparty witness’ prior conviction was not prejudicial. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836.)

Appellant contends that the court erred in admitting evidence of his statement “[i]f that fucking pig wouldn’t have pulled his gun, I would have done him in,” as heard by the transportation deputy, Deputy Koford. Appellant’s attack on the admission of this statement is two pronged. He first alleges that the statement is irrelevant and therefore its admission was error, and secondly that the court’s apparent failure to weigh the prejudicial effect of the statement against its probative value was error. (People v. Green, supra, 27 Cal.3d at pp. 25-26.) We disagree.

A. Relevancy

Relying on People v. Hood (1969) 1 Cal.3d 444 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ] and People v. Rocha (1971) 3 Cal.3d 893 [ 92 Cal.Rptr. 172 , 479 P.2d 372 ], appellant argues that the statement was not relevant to show any intent element of the offense. Hood and Rocha stand for the principle that assault with a deadly weapon (Pen. Code, § 245) is a general intent, not a specific intent, crime. The cases establish further that the requisite general intent is the intent to attempt to commit a battery, i.e., “the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (People v. Rocha, supra, 3 Cal.3d at p. 899; People v. Hood, supra, 1 Cal.3d at p. 458.) Appellant’s statement that he would have “done him [Deputy Stanley] in” was relevant evidence of his wilful intent to attempt to commit a battery on the officer. The statement thus was admissible under the admissions exception to the hearsay rule. (Evid. Code, § 1220; People v. Lopez (1980) 110 Cal.App.3d 1010 , 1022 [ 168 Cal.Rptr. 378 ]; People v. Panky (1978) 82 Cal.App.3d 772 , 776-777 [ 147 Cal.Rptr. 341 ].)

B. Evidence Code section 352

Evidence Code section 352 permits the court in its discretion to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (People v. Quaintance (1978) 86 Cal.App.3d 594 , 599 [ 150 Cal.Rptr. 281 ].) In People v. Green, supra, the Supreme Court held that “on a motion invoking this ground the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value . . . .” (People v. Green, supra, 27 Cal.3d at p. 25.)

Here, the record does not disclose that the trial judge undertook the weighing process required by Green. However, appellant’s counsel did not move to exclude appellant’s statement under Evidence Code section 352. In fact during the discussion between court and counsel, this code section was never invoked or referred to by counsel. The discussion regarding the admissibility of the statement took place before commencement of the trial, out of the jury’s presence, as part of the in limine motions. During this hearing, when asked for an objection for the record, appellant’s counsel argued the lack of relevancy as hereinbefore noted. The objection ended with the comment, “the statements ... are prejudicial with no probative value.” At no time did he ask the court, if it should find the evidence relevant, to weigh its probative value against its prejudicial effect. In the absence of an objection based on Evidence Code section 352, or a specific request for the court to exercise the discretion granted it by that section, we hold that the trial court was not required “to make sua sponte an affirmative finding on the record to the effect that the probative value of the profferred evidence outweigh[ed] its prejudicial effect. A contrary interpretation of Evidence Code section 352, would amount to a requirement that trial judges make such affirmative findings upon every evidentiary ruling. Clearly the Legislature did not intend such an obviously onerous burden to be cast upon the trial judge.” (People v. Holt (1972) 28 Cal.App.3d 343 , 353 [ 104 Cal.Rptr. 572 ], disapproved on other grounds in Evans v. Superior Court (1974) 11 Cal.3d 617 , 625, fn. 6 [ 114 Cal.Rptr. 121 , 522 P.2d 681 ]; see People v. Quaintance, supra, 86 Cal.App.3d at p. 599 [record must affirmatively show that defendant asked the court to exercise its Evidence Code section 352 discretion]; cf. People v. Leonard (1983) 34 Cal.3d 183 , 187-188 [ 193 Cal.Rptr. 171 , 666 P.2d 28 ] [defense counsel explicitly argued that under section 352 court had to weigh probity against prejudice]; People v. Green, supra, 27 Cal.3d at p. 24 [defendant specifically invoked the court’s discretion under section 352]; see generally, 1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 22.1, p. 590.)