People v. Wheeler

Opinion

BAXTER, J.

After a jury trial, defendant was convicted of sale of cocaine. (Health & Saf. Code, § 11352.) The Court of Appeal affirmed. We granted review to decide how Proposition 8’s “Truth-in-Evidence” amendment to the Constitution (Cal. Const., art. I, § 28, subd. (d) (hereafter section 28(d)) affects the statutory rule (Evid. Code, §§ 787, 788) that felony convictions are the only form of conduct evidence admissible to impeach the credibility of a witness.

We conclude that although section 28(d) abrogates the felony-convictions-only rule in criminal cases and gives criminal courts broad discretion to admit or exclude acts of dishonesty or moral turpitude “relevant” to impeachment, the fact of conviction of a misdemeanor remains inadmissible under traditional hearsay rules when offered to prove that the witness committed misconduct bearing on his or her truthfulness.

In this case, however, defendant failed to protest on hearsay grounds when the prosecution sought to impeach a defense witness with her admission that she had suffered a misdemeanor conviction for grand theft. Defendant therefore waived her hearsay objection, and the trial court’s decision to admit the theft conviction for impeachment was otherwise within its discretion. We therefore affirm the judgment of the Court of Appeal.

Facts

On the morning of November 15, 1989, Los Angeles Police Officer Anthony Lopez was working undercover in a San Fernando Valley neighborhood notorious for drug activity. Around 7 a.m„ Lopez stopped his car near defendant Jennifer Wheeler, who was standing in front of an apartment building at 9000 Orion Street. According to Lopez, defendant approached and asked what he wanted. Lopez replied “a 20,” meaning $20 worth of rock cocaine. Defendant summoned Pauline Burton, repeated Lopez’s order, and continued to talk with Lopez while Burton entered the building. Burton then returned and handed Lopez a piece of rock cocaine. Lopez paid Burton with a premarked $20 bill and signalled backup officers. Both women were arrested.

Burton testified for the defense. She admitted selling the cocaine and acknowledged that defendant was present, but she denied any participation by defendant in the sale. Burton said she noticed defendant talking to Lopez, walked over to ask Lopez what he wanted, and received the order for “a 20” directly from Lopez. Burton denied later telling a probation officer that defendant had conveyed Lopez’s order.

Burton admitted a felony conviction for this sale, as well as another felony drug sale conviction earlier in 1989. In a bench conference, the prosecution also proposed to impeach Burton with a 1987 misdemeanor conviction for grand theft.¹ The prosecutor cited People v. Harris (1989) 47 Cal.3d 1047 [255 Cal.Rptr. 352, 767 P.2d 619], apparently for the general principle that Proposition 8 abrogates the rule limiting impeachment evidence to prior felony convictions. Defense counsel objected, asserting that Harris was “limited to its facts.” Counsel also argued that the grand theft conviction was cumulative to the drug sale convictions already revealed, and that it was more prejudicial than probative. The court overruled the objection and Burton admitted the conviction.

Defendant testified in her own behalf. She stated she was moving out of 9000 Orion and had arrived on the morning of November 15 to pick up her things. Having found the front gate locked, she was waiting outside for a tenant to leave when Lopez stopped and made eye contact. She believed he had mistaken her for a prostitute and approached to ask what he wanted. After exchanging brief pleasantries with Lopez, she began to walk northward on Orion. As she did so, she noticed Burton approach Lopez’s car but paid no further attention.

In rebuttal, the People called Probation Officer Kittrell. Kittrell testified that during a postarrest interview, Burton told her defendant had “informed [Burton] that a guy wanted to buy cocaine.”

Defendant appealed her conviction for sale of cocaine. As in the trial court, defendant argued that Burton’s grand theft conviction was inadmissible to impeach her. Defendant urged that Proposition 8 had not abrogated the statutory prohibition on use of misdemeanor convictions for impeachment. In any event, defendant claimed, the trial court erred by failing to recognize a limitation to convictions involving “moral turpitude,” and by failing to weigh probative value against prejudicial effect.

The Court of Appeal affirmed. It reasoned as follows: Statutes which limit impeaching “conduct” evidence to felony convictions were repealed pro tanto by Proposition 8’s command that all relevant evidence be admitted in criminal trials. Misdemeanor convictions are relevant for impeachment to the same extent as felony convictions and may therefore be admitted for that purpose if they reflect “moral turpitude” or a “readiness to do evil.” Grand theft reflects dishonesty and is a crime involving moral turpitude. Moreover, the trial court considered the value of the proffered conviction and properly concluded that its probative force outweighed its potential for unfair prejudice.

As we will explain, the Court of Appeal’s analysis is correct as far as it goes. However, defendant now raises an argument not made below—that a misdemeanor conviction cannot be admitted for impeachment over a hearsay objection, which Proposition 8 expressly preserves. We find this contention persuasive, but defendant waived its application to her own case by failing to assert a hearsay objection at trial. The judgment of the Court of Appeal must therefore be affirmed.

Discussion

1. Proposition 8.

The common law has long imposed limits on the admission of evidence to discredit a witness. A witness’s past misdeeds may logically suggest an untrustworthy character, but jurisdictions have restricted such evidence, even if relevant to honesty, on policy grounds. The concern has been that without such limitations, trials would flounder on collateral issues, witnesses would be deterred by unfair surprise or fear of public humiliation, and testifying criminal defendants would incur the danger of conviction for past, not present, misconduct. (See, e.g., 1 McCormick, Evidence (4th ed. 1992) §§ 40-41, pp. 137-142; 3A Wigmore, Evidence (Chadbourn ed. 1970) § 979, pp. 826-827; see also People v. Castro (1985) 38 Cal.3d 301, 316-317 [211 Cal.Rptr. 719, 696 P.2d 111].)

The Legislature codified this state’s traditional resolution of the competing policy concerns. Evidence Code section 785 permits attacks upon the credibility of witnesses, but Evidence Code section 786 prohibits the use of evidence showing traits of a witness’s character “other than honesty or veracity.” Evidence Code section 787 states a general rule that “evidence of specific instances of. . . conduct relevant only as tending to prove a trait of [the witness’s] . . . character” is inadmissible for impeachment. However, Evidence Code section 788 permits a witness to be impeached with evidence “that he [or she] has been convicted of a felony . . . .”²

Before 1982, it was clear that Evidence Code section 787, consistent with prior case law, precluded the use of misdemeanors for impeachment. (People v. Lent (1975) 15 Cal.3d 481, 484-485 [124 Cal.Rptr. 905, 541 P.2d 545].) It was also clear that the statutory rule permitting impeachment with felony convictions was subject to Evidence Code section 352, which allows trial courts to exclude otherwise admissible evidence whose “probative value is substantially outweighed” by its potential for unfair prejudice, confusion, or undue consumption of time. (E.g., People v. Beagle (1972) 6 Cal.3d 441, 451-453 [99 Cal.Rptr. 313, 492 P.2d 1].)

In June 1982, the voters adopted Proposition 8, an initiative measure designed to make significant substantive and procedural changes in California criminal law. Among Proposition 8’s provisions was section 28(d), the so-called “Truth-in-Evidence” amendment to the Constitution. Section 28(d) declares that “relevant evidence shall not be excluded in any criminal proceeding” unless the Legislature provides otherwise by a two-thirds vote of each house. Section 28(d) makes clear, however, that “nothing in this section shall affect any existing statutory rule of evidence relating to . . . hearsay, or Evidence Code [section] 352, . . ,”³

We and the Courts of Appeal have consistently held that in criminal proceedings, section 28(d) supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of section 28(d) itself. (People v. Mickle (1991) 54 Cal.3d 140, 168 [284 Cal.Rptr. 511, 814 P.2d 290]; People v. Harris, supra, 47 Cal.3d 1047, 1080-1082, 1090-1091; People v. Taylor (1986) 180 Cal.App.3d 622 [225 Cal.Rptr. 733]; see In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744].) The appellate decisions reject arguments that section 28(d) was intended only to prevent courts from excluding evidence because its seizure violated the California Constitution (cf., In re Lance W., supra, at p. 890). Were that the sole purpose, the cases reason, there was no need to preserve some, but not all, existing statutory limitations on the admission of relevant evidence. Nor was it necessary to restrict the Legislature's power to enact new exclusionary rules. Indeed, both the plain language of section 28(d) and the ballot materials for Proposition 8 indicate an intent to make all relevant evidence admissible, subject only to specified exceptions. (Harris, supra, 47 Cal.3d at p. 1082, & fn. 16; see also In re Lance W., supra, 37 Cal.3d at p. 888.)

Harris and Mickle, both supra, employed this reasoning to conclude that statutory prohibitions on impeachment with conduct evidence other than felony convictions (see Evid. Code, §§ 787, 788) no longer apply in criminal cases. In Harris, we held that section 28(d) renders evidence of prior reliability as a police informant admissible to attack or support a witness’s credibility. (47 Cal.3d at pp. 1080-1082.) In Mickle, we noted that a jailhouse informant’s threats against witnesses in his own case implied dishonesty and moral laxity. Hence, we ruled, the threats were relevant and admissible to impeach him under section 28(d). (54 Cal.3d at p. 168.)

The reasoning of Harris and Mickle clearly governs the use of misdemeanor misconduct for impeachment. By its plain terms, section 28(d) requires the admission in criminal cases of all “relevant” proffered evidence unless exclusion is allowed or required by an “existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, [s]ections 352, 782 or 1103,” or by new laws passed by two-thirds of each house of the Legislature. (Italics added.) The limitations on impeachment evidence contained in Evidence Code sections 787 and 788 do not fall within any of section 28(d)’s stated exceptions to its general rule that relevant evidence is admissible. It follows that Evidence Code sections 787 and 788 no longer preclude the introduction of relevant misdemeanor misconduct for impeachment in criminal proceedings.⁴

Defendant contends, however, that article I, section 28, subdivision (f) of the California Constitution (section 28(f))—another provision of Proposition 8—demonstrates the voters’ intent to limit impeachment by conduct to prior felony convictions. Section 28(f), titled Use of Prior Convictions, provides in pertinent part that “[a]ny prior felony conviction . . . shall subsequently be used without limitation for purposes of impeachment ... in any criminal proceeding. . . .”

Defendant reasons as follows: Section 28(d) deals broadly with relevant evidence, while section 28(f) alone addresses the narrow subject of the use of prior crimes for impeachment. The specific enactment, section 28(f), should prevail over its more general counterpart, section 28(d). Section 28(f) mentions only felony convictions in the impeachment context, and does not purport to repeal the long-standing prohibition on the use of other forms of conduct evidence for that purpose. Hence, felony convictions remain the only conduct evidence admissible for impeachment.

Indeed, defendant points out, both the ballot materials for section 28(f) (see Analysis by Legislative Analyst, Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Primary Elec. (June 8, 1982) p. 54 [hereafter, Analysis]) and the section’s official title employ the term “Prior Convictions” without use of the qualifying word “Felony.” Use of the broader phrase, defendant argues, means the voters intended section 28(f) to be the “definitive word” on use of prior crimes and convictions for impeachment.

We disagree. The principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled. (Code Civ. Proc., § 1859; People v. Moroney (1944) 24 Cal.2d 638, 642 [150 P.2d 888]; People v. Whigam (1984) 158 Cal.App.3d 1161,1168 [205 Cal.Rptr. 227]; International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 976 [129 Cal.Rptr. 68].) Sections 28(d) and 28(f) are not irreconcilable on the subject of impeachment.

In criminal proceedings, section 28(d) states a plain and clear general rule that all relevant evidence is admissible in the trial court’s sound discretion, except as limited by certain “existing” exclusionary rules such as privilege and hearsay. On the other hand, as we explained in People v. Castro, supra, 38 Cal.3d 301, section 28(f )’s reference to “[un]limit[ed]” impeachment with felony convictions has a special history and purpose.

As we have seen, felony convictions were the only conduct evidence admissible for impeachment before 1982 (Evid. Code, §§ 787, 788), and even they were subject to trial court discretion under Evidence Code section 352 (People v. Beagle, supra, 6 Cal.3d 441). However, in a line of cases beginning with People v. Antick (1975) 15 Cal.3d 79 [123 Cal.Rptr. 475, 539 P.2d 43], this court had narrowed the statutory discretion over admission of felony convictions for impeachment by imposing rigid restrictions on the circumstances in which such convictions could be deemed more probative than prejudicial. After extensive review of the ballot materials explaining section 28(f), we concluded in Castro that this section was intended simply to restore the full pre-Antick measure of trial court discretion over admission of felony convictions for impeachment. (Castro, supra, 38 Cal.3d at pp. 307-313.)

Thus, section 28(f) sought to address special nonstatutory restrictions which had been placed on the use of statutorily admissible felony convictions. Nothing in section 28(f), so construed, is inconsistent with section 28(d)’s command that all relevant evidence, necessarily including misdemeanor conduct relevant to impeachment, shall also be admissible subject to Evidence Code section 352 and other specific exclusionary rules.

Defendant’s resort to the commonly used title for section 28(f) is also unpersuasive. As we recently observed, “[t]itle or chapter headings are unofficial and do not alter the explicit scope, meaning, or intent of a statute. [Citations.] Similarly, ballot materials can help resolve ambiguities in an initiative measure [citation], but they cannot vary its plain import.” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 602 [7 Cal.Rptr.2d 238, 828 P.2d 140].) The actual language of section 28(f) speaks on the narrow subject of “prior felony conviction[s]” (italics added) and does not purport to address broader categories of impeachment evidence. As Castro, supra, indicated, the ballot materials pertinent to section 28(f), read as a whole, indicate the section was intended only to remove prior judicial limitations on the use of felony convictions.⁵ In sum, we are persuaded that section 28(f )’s provision for admission of prior felony convictions “without limitation” for impeachment was not intended to foreclose other categories of relevant impeachment evidence under section 28(d).

Defendant invokes the maxim that the implied repeal of longstanding statutory doctrine is particularly disfavored. (See, e.g., People v. Siko (1988) 45 Cal.3d 820, 824 [248 Cal.Rptr. 110, 755 P.2d 294].) However, as we have seen, section 28(d) makes explicit the voters’ intent to eliminate all restrictions on the admission of relevant criminal evidence except those limitations, specifically including privilege, hearsay, and Evidence Code section 352, which section 28(d) itself expressly preserves.

Justices Mosk and Arabian urge that elimination of the bright-line felony-conviction rule is unwise because it will deter both defense and prosecution witnesses and will encourage protracted litigation of collateral impeachment issues. However, we must accept the plain meaning of section 28(d) whatever we may think of its wisdom. By replacing prior exclusionary rules with the clear general principle that evidence is admissible if relevant, the voters have elevated accuracy and reliability in criminal proceedings over the rigid application of competing evidentiary policies.

In any event, the dissenters’ fears appear exaggerated. As we discuss below, section 28(d) expressly leaves California trial courts free to exclude evidence which is irrelevant, or whose marginal relevance is outweighed by the unfair prejudice or other difficulties its introduction might cause. The voters have thus plainly stated the balanced principles by which the admission of evidence, including impeachment evidence, is to be decided in California criminal cases.

We therefore conclude that if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as “relevant” evidence under section 28(d).

2. Standard of admissibility.

California’s standard of relevance is set forth in Evidence Code section 210. This statute defines “relevant evidence” as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

Not all past misconduct has a “tendency in reason to prove or disprove” a witness’s honesty and veracity. However, as we explained in Castro, supra, “it is undeniable that a witness’ moral depravity of any kind has ‘some tendency in reason’ [citation] to shake one’s confidence in his honesty. . . . [f] There is . . . some basis ... for inferring that a person who has committed a crime which involves moral turpitude [even if dishonesty is not a necessary element]... is more likely to be dishonest than a witness about whom no such thing is known. Certainly the inference is not so irrational that it is beyond the power of the people to decree that in a proper cáse the jury must be permitted to draw it. . . .” (38 Cal.3d at p. 315, fn. omitted.)

The voters have expressly removed most statutory restrictions on the admission of relevant credibility evidence in criminal cases, including the rule that felony convictions are the only form of conduct evidence admissible for impeachment. Hence, they have decreed at the least that in proper cases, nonfelony conduct involving moral turpitude should be admissible to impeach a criminal witness.

As previously noted, section 28(d) does preserve the trial court’s discretion to exclude evidence whose probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Evid. Code, § 352.) Defendant contends that prior misconduct amounting only to a misdemeanor is inherently more prejudicial than probative on the issue of credibility. Therefore, she suggests, trial courts must always exclude such misconduct.

We disagree. Misconduct involving moral turpitude may suggest a willingness to lie (see People v. Castro, supra, 38 Cal.3d 301, 314-315; People v. White (1904) 142 Cal. 292, 294 [75 P. 828]; People v. Carolan (1886) 71 Cal. 195, 196 [12 P. 52]; Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78), and this inference is not limited to conduct which resulted in a felony conviction. While the trial court may weigh proffered impeachment evidence on its individual merit, there is no basis for a ruling that the court’s discretion may never be exercised to admit nonfelonious conduct.

Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.⁶ Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. By expressly preserving this authority, section 28(d) makes clear the voters’ determination to prevent such consequences.

When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. (See People v. Beagle, supra, 6 Cal.3d at pp. 453-454; see also People v. Castro, supra, 38 Cal.3d at p. 309.) But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.⁷

The trial court in this case consciously exercised its discretion under Evidence Code section 352, and it did so soundly. The court concluded that defense witness Burton’s relatively recent conviction for grand theft, an offense necessarily involving both moral turpitude and dishonesty, was highly relevant to Burton’s credibility. Like the Court of Appeal, we readily agree.⁸

The trial court also ruled that Burton’s acknowledgment of drug dealing did not render the theft offense cumulative on the issue of her credibility. Again, we concur. If anything, the theft was more directly pertinent to Burton’s veracity than the evidence that she trafficked in drugs. Thus, the trial court could properly conclude that the jury should consider the theft on the issue of Burton’s credibility.⁹

3. Hearsay.

For the first time in this court, defendant argues that even if Burton’s theft offense was “relevant” for impeachment under Proposition 8, a misdemeanor conviction itself is inadmissible hearsay when offered as evidence that a witness committed misconduct bearing on credibility. We agree.

In general, a statement offered for its truth, and made other than by a witness testifying at the hearing, is inadmissible hearsay. (Evid. Code, § 1200.) As the California Law Revision Commission (Commission) has explained, “[a]nalytically, a judgment that is offered to prove the matters determined by the judgment is hearsay evidence. [Citations.] It is in substance a statement of the court that determined the previous action [i.e., other than by a testifying witness] . . . that is offered ‘to prove the truth of the matter stated.’ [Citation.] Therefore, unless an exception to the hearsay rule is provided, a judgment would be inadmissible if offered in a subsequent action to prove the matters determined.” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1966 ed.) § 1300, pp. 342-343.)

As part of the 1965 recodification of evidentiary rules (Stats. 1965, ch. 299, p. 1297 et seq.), the Legislature enacted certain exceptions to the hearsay rule for felony convictions. For example, it adopted Evidence Code section 1300, which permits a conviction for a “crime punishable as a felony” to be introduced in a subsequent civil action to “prove any fact essential to the judgment. . . .” In promoting this change from prior law, the Commission stressed that despite its hearsay character, “the evidence involved is peculiarly reliable.” The “seriousness of the charge,” said the Commission, encourages its full litigation, and the reasonable doubt standard of conviction ensures “that the question of guilt will be thoroughly considered.” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code, supra, § 1300, p. 343.)

At the same time, the Legislature retained both the existing prohibition against use of prior conduct for impeachment (Evid. Code, § 787) and the exception for felony convictions (id., § 788). In this context, the Senate Judiciary Committee explained that “[a] judgment of conviction that is offered to prove that the person adjudged guilty committed the crime is hearsay. See Evidence Code §§ 1200 and 1300 and the Comments thereto. But the hearsay objection to the evidence specified in Section 788 is overcome by the declaration in the section that such evidence ‘may be shown’ for the purpose of attacking a witness’ credibility.” (Sen. Judiciary Com. com., 29B West’s Ann. Evid. Code, supra, § 788, p. 355.)

No similar statutory exception exists for the use of misdemeanor convictions. Hence, California decisions preceding Proposition 8 recognized that misdemeanor convictions are inadmissible hearsay when offered to prove the underlying criminal conduct. (E.g., People v. James (1969) 274 Cal.App.2d 608, 612 [79 Cal.Rptr. 182]; Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 888 [64 Cal.Rptr. 655]; cf. People v. Ferguson (1982) 129 Cal.App.3d 1014, 1024 [181 Cal.Rptr. 593].)

Nothing in Proposition 8 changes the long-established understanding that a misdemeanor conviction comes within the statutory rule of inadmissible hearsay (Evid. Code, § 1200) when offered for the truth of the charge. On the contrary, though section 28(d) states a general rule that relevant evidence is admissible in criminal proceedings, the section expressly preserves “any existing statutory rule of evidence relating to . . . hearsay . . . .” There can be no doubt that the hearsay objection to use of misdemeanor convictions remains valid.¹⁰

The People argue that a conviction offered for impeachment is not intended as evidence of misconduct; rather, they suggest, the fact of conviction alone is somehow relevant to credibility. Hence, the People reason, the hearsay rule does not make such evidence inadmissible for impeachment. They urge that the distinction between hearsay to impeach and hearsay for truth has been preserved in other instances. (E.g., Evid. Code, § 1202.)¹¹ They also point out that the elements necessary for conviction of a particular offense are not always directly related to bad overt acts committed by the witness.¹²

However, the pertinent legislative history indicates that Evidence Code section 788, which allows felony convictions for impeachment, is an exception to Evidence Code section 787, which generally prohibits the use of “specific instances of conduct” (italics added) to attack or support a witness’s credibility. This history further shows the Legislature’s understanding that a witness’s prior convictions are relevant for impeachment, if at all, only insofar as they prove criminal conduct from which the factfinder could infer a character inconsistent with honesty and veracity. (See Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code, supra, § 787, p. 343; Sen. Judiciary Com. com., 29B West’s Ann. Evid. Code, supra, § 788, p. 355.) Our reasoning in a line of cases extending from People v. Beagle, supra, 6 Cal.3d 441 to People v. Castro, supra, 38 Cal.3d 301, has proceeded from the same assumption. (See also 3A Wigmore, Evidence, supra, §§ 925-926, pp. 749-750; 1 McCormick, Evidence, supra, § 42, pp. 142-155.) The People’s claim that convictions are relevant for impeachment apart from the conduct they evidence is patently unpersuasive.

The People urge us to create a judicial hearsay exception allowing impeachment with misdemeanor convictions. Evidence Code section 1200 prohibits admission of hearsay to prove the matters asserted “[e]xcept as provided by law” (subd. (b)), and exceptions can therefore be created by “decisional law.” (Sen. Judiciary Com. com., 29B West’s Ann. Evid. Code, supra, § 1200, p. 36; see People v. Spriggs (1964) 60 Cal.2d 868, 873-874 [36 Cal.Rptr. 841, 389 P.2d 377].) However, the Legislature itself carefully weighed the distinction between felony and misdemeanor convictions when it decided to create a hearsay exception for felony convictions only. (See discussion, ante.) We decline the People’s invitation to usurp the Legislature’s considered judgment.¹³

Here, of course, evidence of witness Burton’s misdemeanor conviction was admitted through her personal concession that she had suffered it. But even if Burton’s testimony was competent to establish the fact of conviction, the conviction itself was inadmissible hearsay evidence of underlying criminal conduct relevant to impeachment. We therefore conclude that evidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witness’s credibility.¹⁴

However, defendant waived any hearsay claim by making no trial objection on that specific ground. (E.g., In re Marquez (1992) 1 Cal.4th 584, 599 [3 Cal.Rptr.2d 727, 822 P.2d 435]; People v. Anderson (1974) 43 Cal.App.3d 94, 103 [117 Cal.Rptr. 507]; People v. Bodkin (1961) 196 Cal.App.2d 412, 420 [16 Cal.Rptr. 506]; 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, §§ 2033-2034, pp. 1994-1996.) Accordingly, admission of Burton’s misdemeanor conviction to impeach her credibility cannot serve as grounds for reversal of the judgment against defendant.¹⁵

Conclusion

The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Panelli, J., Kennard, J., and George, J„ concurred.

1 Grand theft (Pen. Code, § 487) is punishable, in the court’s discretion, by either a jail or prison sentence. (See now id., § 489, subd. (b).) If a prison sentence is not imposed, the conviction is deemed a misdemeanor for all purposes. (Id., § 17, subd. (b)(1).)

2 Evidence Code section 787 provides: “Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.” Evidence Code section 788 provides in pertinent part: “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . .”

3 Section 28(d) provides: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and postconviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.”

4 Neither the impeachment statutes nor section 28(d) makes any distinction among categories of criminal witnesses. Under section 28(d), all persons who testify in a criminal case, including the accused, other defense witnesses, and those appearing for the People, are equally subject to the principle of impeachment with “relevant” evidence, including but not limited to relevant felony convictions.

5 The Legislative Analyst described section 28(f) as follows: “The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation to discredit the testimony of a witness, including that of a defendant. Under current law, such information may be used only under limited circumstances.” (Analysis, supra, p. 54, italics added.)

6 The People urge that the moral turpitude standard of relevance set forth in Castro, supra, 38 Cal.3d 301, was misguided and that all misdemeanor conduct should be admissible as “relevant” impeachment evidence. We recognize that other jurisdictions have taken various approaches to the admission of misconduct for impeachment. (See, e.g., Green v. Bock Laundry Machine Co. (1989) 490 U.S. 504, 508, fn. 4 [104 L.Ed.2d 557, 563,109 S.Ct. 1981]; 1 McCormick, Evidence, supra, §41, pp. 137-142, §42, pp. 144-145, fn. 9, and authorities therein cited.) Moreover, the United States Supreme Court recently cast doubt on Castro's assumption that federal due process standards of relevance limit impeachment to conduct demonstrating moral turpitude. In Green, supra, the high court held that the Federal Rules of Evidence, as then in effect, generally required admission for impeachment of any conviction for a crime whose punishment exceeds one year in prison. (490 U.S. at pp. 509-527 [104 L.Ed.2d at pp. 564-575], construing Fed. Rules Evid., former rule 609(a), 28 U.S.C.)

However, Castro, supra, also referred to California’s statutory “tendency in reason” standard of relevance for impeachment. (See Evid. Code, § 210; see also § 780.) Castro implied that the moral turpitude distinction, despite its awkwardness, was the outer limit of logical pertinence to credibility. (38 Cal.3d 301, 315.) The People fail to persuade us that this conclusion should be reexamined.

7 Problems of proof, unfair surprise, and moral turpitude are minimized when felony convictions are the sole proffered basis for impeachment. A felony conviction reliably establishes that the witness committed corresponding criminal acts; a party or witness is unlikely to be surprised by use of felony convictions for impeachment; and the court must determine moral turpitude solely from the “least adjudicated elements” of the conviction. (See Castro, supra, 38 Cal.3d atpp. 314-317.) But section 28(d) makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor. Indeed, misdemeanor convictions are subject to a hearsay objection when offered to prove the witness committed the underlying crimes. (See, post, at pp. 297-300.) Thus, impeaching misconduct now may, and sometimes must, be proven by direct evidence of the acts committed. These acts might not even constitute criminal offenses. Under such circumstances, fairness, efficiency, and moral turpitude become more complicated issues. Courts may take these facts into account when deciding under Evidence Code section 352 whether to admit evidence other than felony convictions for impeachment.

8 As a “wobbler,” Burton’s conviction would clearly have been admissible under preProposition 8 law if she had been sentenced to state prison. (Pen. Code, §§ 17, subd. (b)(1), 487, 489, subd. (b); Evid. Code, § 788; see fn. 1, ante.)

9 This was not a case in which the prosecution sought to impeach an accused witness with evidence of her prior crimes. Hence, there was no danger that the prior-crimes evidence would create unfair prejudice on the issue of guilt or innocence.

10 People v. Harris, supra, 47 Cal.3d 1047, included dictum suggesting that Proposition 8 makes misdemeanor convictions admissible for impeachment in criminal cases. (P. 1090, fn. 22.) However, no hearsay argument was raised or considered in Harris. The views herein expressed must prevail over any inconsistent or contrary implications in Harris.

11 Where hearsay has been admitted for its truth, Evidence Code section 1202 allows inconsistent statements by the hearsay declarant to be admitted for impeachment, but not for truth. (Compare Evid. Code, § 1235 [inconsistent hearsay statement of testifying witness may be admitted both for impeachment and for truth].)

12 The People note, for example, that one may be convicted of criminal conspiracy without having committed all the overt acts of the underlying crime.

13 The People also suggest that misdemeanor convictions are admissible under the business or official records exceptions to the hearsay rule. (See Evid. Code, §§ 1271, 1280.) But an admissible record is competent only to prove the act it records. Thus, while the documentary evidence of a conviction may be admissible to prove that the conviction occurred, the business or official records exceptions do not make the abstract of judgment admissible to show that the witness committed the underlying criminal conduct.

14 Our holding is a narrow one, confined to the specific issue whether under current law a misdemeanor conviction is admissible as direct evidence of criminal conduct. Nothing in the hearsay rule precludes proof of impeaching misdemeanor misconduct by other, more direct means, including a witness’s admission on direct or cross-examination that he or she committed such conduct. Nor is the Legislature precluded from creating a hearsay exception that would allow use of misdemeanor convictions for impeachment in criminal cases. Because such legislation would not create or expand an exclusionary rule, but rather would eliminate a rule of exclusion, the two-thirds majority clause of section 28(d) would not apply.

15 At oral argument, defendant’s appointed appellate counsel suggested in passing that the “waived” hearsay objection remains cognizable in the context of ineffective assistance of trial counsel. Assuming for argument’s sake that there could be no competent reason on this record for trial counsel’s omission (see People v. Fosselman (1983) 33 Cal.3d 572, 581-582 [189 Cal.Rptr. 855, 659 P.2d 1144]), reversal is still not warranted. Witness Burton’s moral character was already compromised in the jury’s eyes by her admission that she was a professional drug dealer. Moreover, Burton’s claim that she knew of no participation by defendant in the drug sale to Officer Lopez was directly rebutted by Probation Officer Kittrell. Under these circumstances, despite the undoubted probative force of the theft conviction on the issue of Burton’s credibility, counsel’s failure to seek exclusion of the conviction on hearsay grounds does not undermine confidence in the trial outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698, 104 S.Ct. 2052]; see Fosselman, supra, at p. 584.)