People v. Castro

Opinion

KAUS, J.

A jury convicted defendant Maria Castro of receiving stolen property (Pen. Code, § 496). Before trial, the court denied a motion to bar impeachment with then unspecified priors, should defendant choose to testify. The court based its ruling on article I, section 28, subdivision (f) of the California Constitution,¹ concluding that it was more specific than subdivision (d)² and, therefore, controlled.³ The issues on appeal are (1) whether the court erred in ruling that defendant could be impeached with what proved to be prior convictions of possession of heroin and possession of heroin for sale, and (2) whether the error, if any, was prejudicial.

Defendant contends that article I, section 28, subdivision (f) of the Constitution—enacted in 1982 as part of the so-called Victims’ Bill of Rights (Proposition 8)—did not eliminate Evidence Code section 352 as a basis for excluding evidence of prior convictions. She also claims that to apply the subdivision to erase the trial court’s authority to exclude evidence of priors in criminal proceedings denies equal protection. As amicus curiae, the State Public Defender argues that the automatic admission of all prior felony convictions for impeachment under subdivision (f) is a denial of due process.

The Attorney General responds that the voters intended subdivision (f) to abolish all judicial discretion to restrict admission of prior convictions for impeachment and to require the admission of all such evidence subject only to federal constitutional restraints. It is also urged that admission of defendant’s prior convictions did not deny due process or equal protection.

The legislative and judicial history of sections 352 and 788, the circumstances under which article I, section 28, was enacted, the language of the enactment—concededly ambiguous—as well as certain policy considerations convince us that section 28 was not intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter—as, indeed, is provided by Evidence Code section 352.⁴

A further issue—tendered by the nature of defendant’s convictions and subdivision (d)’s recognition that only relevant evidence is admissible— is the nature of the prior convictions which may be used for impeachment of witnesses in criminal cases. We shall hold that—always subject to the trial court’s discretion under section 352—subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty. On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.

One vital point which must be made at the outset is this: Although the majority of decisions examining the use of prior convictions for impeachment of witnesses in criminal cases has involved situations in which the defendant himself was the witness, subdivision (f) is by no means confined to that situation, but applies to all witnesses—the prosecution’s, the defense’s, as well as the court’s own.

I

The history of section 352 compels the conclusion that at least until the adoption of section 28, section 352 was intended to apply across the board, excluding no relevant and otherwise admissible evidence from judicial weighing of prejudice against probative value. (For a review of the genesis of § 352, see People v. House (1970) 12 Cal.App.3d 756 [90 Cal.Rptr. 831], conc. opn., pp. 769-771.) Early decisions of the Courts of Appeal, however, did not recognize the full import of section 352 and, in a series of cases later disapproved in People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], held that section 788 of the Evidence Code was immune to the exercise of discretion under section 352.⁵ In Beagle we confirmed that section 352 did, indeed, apply to all relevant evidence and that the general rule that a judge may exclude evidence when its probative value is outweighed by the risk of undue prejudice, codified in section 352, was applicable to evidence of prior convictions to impeach: “We find nothing in the statutory language to exempt section 788 from the general evidentiary provisions applicable to all rules of admissibility, and conclude that when sections 788 and 352 are read together they clearly provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice.” (Id., 6 Cal.3d at pp. 452-453; italics added.)

Although Beagle made it clear that we did not intend to establish rigid standards to govern the exercise of discretion, the opinion did rely on Gordon v. United States (D.C.Cir. 1967) 383 F.2d 936, 940-941, for certain suggested factors to be considered in the exercise of discretion—namely, (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant’s decision to testify. We expressly recognized that the trial court’s decision was dependent on “sound” judicial discretion and, in fact, affirmed Beagle’s conviction, holding that the trial court had not erred in admitting a prior conviction to impeach.

Thereafter, in recognition of the fact that no discretion is so unbounded that it cannot be abused (e.g., People v. Malloy (1974) 41 Cal.App.3d 944, 952 [116 Cal.Rptr. 592]), we handed down a series of decisions delineating the boundaries of permissible discretion.

In People v. Antick (1975) 15 Cal.3d 79 [123 Cal.Rptr. 475, 539 P.2d 43], the first case to apply the Beagle “guidelines,” we found an abuse of discretion in the admission of prior convictions because of their remoteness.

In People v. Rist (1976) 16 Cal.3d 211, 218-223 [127 Cal.Rptr. 457, 545 P.2d 833], a robbery prosecution, we found an abuse of discretion in the admission of a prior robbery conviction suffered by defendant five months before trial, where two other dissimilar priors were available—one a two-year-old conviction of credit card forgery.

In People v. Rollo (1977) 20 Cal.3d 109 [141 Cal.Rptr. 177, 569 P.2d 771], we found error where, in a prosecution for receiving stolen goods, the court admitted only the fact of the prior, leaving to defendant the option of disclosing its nature (solicitation of murder).

In People v. Woodard (1979) 23 Cal.3d 329 [152 Cal.Rptr. 536, 590 P.2d 391], our first—and so far only—case involving a nonparty witness’ priors, we held that the court should have exercised its discretion under section 352; further, since neither prior (voluntary manslaughter and felon in possession of firearm) had any bearing on truthfulness, they should have been excluded.

In People v. Fries (1979) 24 Cal.3d 222 [155 Cal.Rptr. 194, 594 P.2d 19], we found an abuse of discretion where a robbery prior was admitted to impeach a defendant accused of robbery.

In People v. Spearman (1979) 25 Cal.3d 107 [157 Cal.Rptr. 883, 599 P.2d 74], we found an abuse of discretion in the admission of an identical narcotic prior which was not relevant to credibility.

And, lastly, in People v. Barrick (1982) 33 Cal.3d 115 [187 Cal.Rptr. 716, 654 P.2d 1243], we held that in a case charging auto theft, the trial court erred in “sanitizing” a prior auto theft conviction by calling it a “felony involving theft.”

In each of the cases, a dissenting opinion disputed the result on the issue of the trial court’s abuse of discretion. More important, however, the dissents expressed a minority view that the guidelines of Beagle had, in fact, become rigid limitations on the discretion of the trial court.

It was against the backdrop of the controversies raised by the Antick line of cases (excepting Barrick, decided in Dec. 1982) that article I, section 28 was framed. Whether or not we were correct in our interpretation of section 788 and in limiting the discretion of the trial court, there seems to be little doubt that the drafters of section 28 wanted a change and that the voters legislated it.

The question is, did they intend to throw out the baby with the bath? Assuming that the framers and voters were attempting to revitalize section 788 to counter the effect of the Antick line of cases, as decried by the dissenters, is there hard evidence that they intended to go further—to abrogate entirely the discretion of the trial court under section 352, a traditional, inherent and, in truth, indispensable tool of the law of evidence? (Smith v. Lewis (1975) 13 Cal.3d 349, 364 [118 Cal.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231]; Adkins v. Brett (1920) 184 Cal. 252, 258-259 [193 P.251]; People ex rel. Dep. Pub. Wks. v. Princess Park Estates, Inc. (1969) 270 Cal.App.2d 876, 885 [76 Cal.Rptr. 120].)

It must be reemphasized that subdivision (f) applies to all witnesses in criminal cases. Did the drafters really intend that all persons who choose or are compelled to testify, either for the defense or the prosecution, will inevitably be impeachable by prior convictions? Did they really intend that an elderly victim of a mugging cannot avoid being impeached by a conviction for conspiracy to disturb the peace (Pen. Code, §§ 182, 415) suffered in her youth? Did the framers really intend that a witness to a crime who, as a good citizen, comes forward to aid the police, must anticipate that any felony conviction suffered years before will be used against him if he testifies at a criminal trial? The prosecutor, of course, must disclose the prior criminal record of prosecution witnesses (In re Ferguson (1971) 5 Cal.3d 525 [96 Cal.Rptr. 594, 487 P.2d 1234]). If the framers intended that the trial court was to have no discretion to prevent impeachment with ancient offenses, have they not—to switch metaphors—cut off their noses to spite their faces? Even convicted felons may make a contribution to the search for truth.

These considerations are disturbing, but putting them aside for a moment we examine the enactment itself to determine whether the drafters intended to abolish the trial court’s power under section 352 or merely to revert to the rule that, subject to trial court discretion, priors are admissible to impeach. On its face, section 28 contains two subdivisions which need reconciling. Subdivision (d) states that “relevant evidence shall not be excluded in any criminal proceeding ...” but that “[njothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.” (Our italics.) Subdivision (f) provides in pertinent part: “any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” (Our italics.)

For resolution of the conflict we invoke settled principles of statutory construction. We are directed first to the “words themselves” (People v. Black (1982) 32 Cal.3d 1, 5 [184 Cal.Rptr. 454, 648 P.2d 104]) and cautioned to give to them their ordinary and generally accepted meaning. (In re Quinn (1973) 35 Cal.App.3d 473 [110 Cal.Rptr. 881].)

As the People note, subdivision (f) seems clear and absolute in its language—“any” means “any” and “without limitation” means “without limitation,” leaving no room for an interpretation which would preserve judicial discretion. On the other hand the Evidence Code is full of positive rules of admissibility, all of which are subject to section 352. (People v. House, supra, 12 Cal.App.3d 756, 771-772 (conc. opn.).) Most important of all, however, is the precise wording of the relevant passage in subdivision (d) relating to the preservation of section 352: “Nothing in this section shall affect . . . Evidence Code Sections 352, 782 or 1103.” (Our italics.) Of course, “this section” includes all of section 28 of article I, particularly, for present purposes, subdivision (f). The People attempt to escape from this plainest of meanings, by claiming—to put it bluntly—poor draftsmanship. While we may grant that in some instances the word “section” as used in Proposition 8 may mean “subdivision,” in other instances such an interpretation would be absurd.⁶

So much for the words of section 28. We look next to the extrinsic evidence. “[W]hen, as here, the enactment follows voter approval, the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246 [149 Cal.Rptr. 239, 583 P.2d 1281].) The voter’s pamphlet provides little aid in the determination whether the enactment was intended to abrogate or preserve the trial court’s discretion under section 352. The preamble (§ 28, subd. (a)) states that the goal of “highest importance” was that “persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged,” and to accomplish the goal “broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior . . . .”

According to the legislative analysis found in the pamphlet, “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 by the Legis. Analyst, Ballot Pamp., Proposed Amend. to Cal. Const., Primary Elec. (June 8, 1982) p. 54; italics added.)

In our view, the last sentence is a clear reference to the Antick line of cases, not to Evidence Code section 352. The arguments of the proponents and opponents in the voter’s pamphlet make no specific reference to the matter which concerns us here. One of the proponents suggested that “higher courts” had created additional rights for criminals and restricted law enforcement officers. (Id. at p. 34.) It was also argued that the initiative would “result in more criminal convictions” and thereby reverse the perceived trend that “our courts and professional politicians in Sacramento have demonstrated more concern with the rights of criminals than with the rights of innocent victims.” (Id. at p. 34.) We get no clue as to the framers’ or voters’ intention to abrogate or preserve section 352 discretion in the trial court or, as we suggest, their intention to revitalize section 788 to reestablish the general rule that priors are to be admitted for impeachment purposes.

The People and some Courts of Appeal, attempting to resolve the apparent conflict between subdivisions (d) and (f), have considered certain extrinsic evidence which we consider inappropriate. One of the aids to statutory interpretation is what has been called “legislative-administrative” construction. (Amador Valley Joint Union, supra, 22 Cal.3d at p. 246.) When an ambiguous statute or other enactment is implemented by the Legislature or construed by an administrative agency by the adoption of extensive regulations, the courts have traditionally accorded great weight to the legislative and administrative implementations in construing the enactment. (Amador Valley Joint Union, supra, 22 Cal.3d at p. 246; State of South Dakota v. Brown (1978) 20 Cal.3d 765, 777 [144 Cal.Rptr. 758, 576 P.2d 473].) The pronouncements relied on here do not fall into this category. In one instance, they are the opinion of the Attorney General that “section 352 cannot limit the constitutional mandate of subdivision (f) that priors may be used for impeachment without limitation.” (Attorney General’s Guide to Proposition 8 (June 9, 1982), reprinted in Cont.Ed.Bar Program Material, Criminal Practice After Proposition 8 (July 1982) at pp. 245-248.) Distributed after the election of June 8, 1982, there is no indication whatever that the voters were cognizant of the Attorney General’s opinion.

Other opinions which the People and the courts have relied on to determine the intent of the framers and voters are the majority and minority reports issued by the Assembly Committee on Criminal Justice. (Assem. Com. on Crim. J., Analysis of Proposition 8, The Criminal Justice Initiative (Mar. 24, 1982).) The majority report explained: “The purpose of the initiative proposition is to require use of prior felony convictions against a criminal defendant if he chooses to testify. . . . The initiative requires use of prior felony convictions no matter how remote, whether or not the crime is related to truthfulness and regardless of whether the offense has since been decriminalized or reduced to a misdemeanor.” (Id., at p. 30.) The report added that “[t]he initiative would require the use of prior felony convictions for impeachment purposes even though the probative value is outweighed by the danger of substantial prejudice.” (Id., at p. 31.) The minority members of the committee issued a publication in response stating that subdivision (f) “ ‘will end the abuse of justice associated with the prohibition against presenting to the jury felony records of witnesses. . . .’ (In Defense of the Victims of Crime, An Analysis of Proposition 8, The Criminal Justice Initiative (Mar. 24, 1982) p. 18.)”

The reports represent the opinions or understandings of individuals who happen to be legislators but who were not drafters of the proposed initiative. These opinions, of themselves, do not provide aid in determining the intent of the electorate. (See California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-700 [170 Cal.Rptr. 817, 621 P.2d 856].) None of the opinions was distributed to the electorate by way of the voter’s pamphlet, and we can only speculate on the extent to which the voters were cognizant of them.

The fact is that there is no indication from the extrinsic evidence that the drafters were aware of, or that the electorate was tuned to, the apparent conflict in the language of subdivisions (d) and (f). It remains for us to harmonize or reconcile, if possible, the two subdivisions without repealing one or the other.

The intention of the drafters of the initiative was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the Antick line of decisions. Our conclusion is based on the historical context of subdivisions (d) and (f) of section 28. The dissatisfaction of the proponents with the appellate courts was expressed in the literature that supported the initiative. It was also expressed in the mandatory nature of the language of the subdivisions (“relevant evidence shall not be excluded” in subd. (d) and prior convictions “shall ... be used” in subd. (f)). Nevertheless, the initiative itself expressed continued trust in the discretion of the trial courts; despite the mandatory admonitions, that discretion under section 352 was expressly retained.

Our resolution accords with policy considerations described earlier which suggest that the trial court should not be stripped of all discretion in ruling on the admissibility of evidence, and, most importantly, our resolution eliminates the conflict between subdivision (d) and subdivision (f), gives meaning to both, and, besides, “steers clear of constitutional obstacles. ” (Carlos v. Superior Court (1983) 35 Cal.3d 131, 152 [197 Cal.Rptr. 79, 672 P.2d 862]; see also People v. Smith (1983) 34 Cal.3d 251, 259 [193 Cal.Rptr. 692, 667 P.2d 149] and In re Jacqueline H. (1978) 21 Cal.3d 170, 178 [145 Cal.Rptr. 548, 577 P.2d 683].)

II

A.

Having determined that subdivision (f) did not abolish trial court discretion with respect to felony-impeachment, we turn to the next question; Subject to such discretion, what felonies are admissible to affect the credit of a witness?

The answer given by subdivision (f) is simple enough: “Any prior felony conviction . . . shall ... be used without limitation for purposes of impeachment . . . .” Since we are dealing with a state constitutional mandate, we can safely ignore section 350 of the Evidence Code to the effect that “[n]o evidence is admissible except relevant evidence.” What we cannot ignore, however, is the due process clause of the Fourteenth Amendment which, as interpreted by the United States Supreme Court, demands that even inferences—not just presumptions—be based on a rational connection between the fact proved and the fact to be inferred. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 792, 99 S.Ct. 2213]; Barnes v. United States (1973) 412 U.S. 837, 844-845 [37 L.Ed.2d 380, 387, 93 S.Ct. 2357]; Leary v. United States (1969) 395 U.S. 6, 46 [23 L.Ed.2d 57, 87, 89 S.Ct. 1532]; cf. People v. Roder (1983) 33 Cal.3d 491, 497-498 [189 Cal.Rptr. 501, 658 P.2d 1302].) In Barnes, supra, 412 U.S. 837, the court reiterated that “[c]ommon-law inferences, like their statutory counterparts, must satisfy due process standards in light of present-day experience.” (Id. at pp. 844-845 [37 L.Ed.2d at p. 387].) Paraphrasing the question to be asked—as formulated in Leary, supra, 395 U.S. 6—we must ask with respect to any particular felony conviction which is offered for impeachment: “Can it be said with substantial assurance that the credibility of a witness is adversely affected by his having suffered this conviction?” If the answer is “no,” impeachment is prohibited by due process: “An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. ” (Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6 [20 L.Ed.2d 476, 482, 88 S.Ct. 1620].)

Thus, while the historical basis for felony impeachment may well be the common law rule that a person convicted of any felony was totally incompetent as a witness (McCormick on Evidence (3d ed. 1984) § 43, p. 93), the modern justification for the practice must be that prior felony convictions may, somehow, be relevant to the witness’ veracity. It is, therefore, appropriate that we remind ourselves of the precise progression of inferences which may lead a trier of fact to conclude that proof of a felony conviction may affect the credibility of a witness. The classic statement of the rationale for felony impeachment is that of Justice Holmes, written when he was still a member of the Supreme Judicial Court of Massachusetts: “[W]hen it is proved that a witness has been convicted of crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction, may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in a particular case, and thence that he has lied in fact. The evidence has no tendency to prove that he was mistaken, but only that he has perjured himself, and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit. ” (Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78; italics added.)

The People point to no other rational justification for felony impeachment. It follows, therefore, that if the felony of which the witness has been convicted does not show a “readiness to do evil,” the fact of conviction simply will not support an inference of readiness to lie. We make no attempt to list or even further define such felonies. At this point it is enough to note that the codes are littered with them, if only because in this state it is a felony to conspire to commit a misdemeanor. (Pen. Code, § 182.)⁷

Since impeachment with felony convictions which do not involve “readiness to do evil”—moral turpitude, if you will—bears no rational relation to the witness’ readiness to lie, the due process clause of the Fourteenth Amendment necessarily cuts into the “without limitation” language of subdivision (f).⁸

Far more controversial than the elimination of felony convictions which do not denote moral turpitude of any kind is the use of convictions of crimes which involve moral depravity other than dishonesty: child molestation, crimes of violence, torture, brutality and so on.

While the case in which Justice Holmes explained the rational basis for felony impeachment did involve a prior conviction of a crime which implied dishonesty—“falsely personating” a United States revenue officer—Holmes’ reasoning does not depend on dishonesty being an element of the felony. Obviously it is easier to infer that a witness is lying if the felony of which he has been convicted involves dishonesty as a necessary element than when it merely indicates a “bad character” and “general readiness to do evil.” Nevertheless, it is undeniable that a witness’ moral depravity of any kind has some “tendency in reason” (Evid. Code, § 210) to shake one’s confidence in his honesty. We ourselves recognized this in People v. Rist, supra, where we said that “convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity.” (16 Cal.3d at p. 222.) “Not as heavily” does not, of course, mean “not at all.”

There is then some basis—however tenuous—for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known.⁹ Certainly the inference is not so irrational that it is beyond the power of the people to decree that in a proper case the jury must be permitted to draw it, if it wishes, and the “no limitation” language of subdivision (f) makes it abundantly clear that the people so decreed.¹⁰

There is, of course, a practical problem: since, as we have seen (Barnes v. United States, supra, 412 U.S. 837; Bruton v. United States, supra, 391 U.S. 123) the constitutional imperative of relevance prohibits impeachment with felonies which do not connote moral laxity of any kind, it will be necessary to determine with respect to each felony conviction offered for impeachment—difficult though this may prove to be—whether it does or does not involve moral turpitude.¹¹ If it does not, that is the end of it. If it does, it is prima facie admissible, subject to the exercise of trial court discretion. Naturally, the more tenuous the court finds the connection between the moral defect shown by the conviction and the only defect directly relevant—dishonesty—the more likely it is to disallow impeachment.

B

The next problem is familiar to us from other contexts. (See People v. Crowson (1983) 33 Cal.3d 623, 633-635 [190 Cal.Rptr. 165, 660 P.2d 389]; In re Finley (1968) 68 Cal.2d 389, 392-393 [66 Cal.Rptr. 733, 438 P.2d 381].) In order to determine the presence of moral turpitude, does the trial court look only to the elements of the offense of which the witness was previously convicted, or may it go behind the fact of the conviction and receive evidence on the underlying facts? To decide this issue, we must return to basics.

Wigmore points out that the reasons of auxiliary policy—avoidance of unfair surprise and confusion of issues—which generally prohibit impeachment of a witness with extrinsic proof of particular acts of misconduct, do not apply where the misconduct has ripened into a conviction. (3A Wig-more, Evidence (Chadbourn rev. ed. 1970) §§ 879, 880.) A witness ought to know what convictions he has suffered and their proof should not entail complicated factual questions. Obviously, however, if the conviction is only admissible if it evinces moral turpitude and such turpitude can only be established through extrinsic evidence, confusion of issues becomes inevitable and unfair surprise more than probable. Therefore, as in the Finley-Crowson line of cases, a witness’ prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude. We reemphasize that even such admissibility is subject to trial court discretion under section 352.

III

Defendant also challenges subdivision (f) on due process and equal protection grounds. The due process challenge proceeds on the assumption that the subdivision will be interpreted to deprive the court of discretion to prevent impeachment with irrelevant convictions. Since we have held that the court has discretion even with respect to relevant priors, the point falls away.

The equal protection challenge is based on the premise that the Constitution demands that the rules of evidence in criminal cases be the same as those which apply in civil litigation. No authority for such a proposition is cited and we know of none.¹² In any event, as we have interpreted subdivision (f) the differences between civil and criminal cases are nonexistent. Finally, even if there is an equal protection problem, it is not explained why subdivision (f)—part of the California Constitution—should take a backseat to the Evidence Code.

IV

Applying these precepts to the facts of this case, we hold that while simple possession of heroin does not necessarily involve moral turpitude (see In re Higbie (1972) 6 Cal.3d 562, 572 [99 Cal.Rptr. 865, 493 P.2d 97] and In re Fahey (1973) 8 Cal.3d 842, 849-850 [106 Cal.Rptr. 313, 505 P.2d 1369, 63 A.L.R.3d 465]), possession for sale does—though the trait involved is not dishonesty but, rather, the intent to corrupt others.¹³ Defendant should, therefore, not have been impeached with the conviction for simple possession at all, and the trial court erred in stating it had no discretion with respect to either conviction.

Were the errors prejudicial? The People’s case was strong: On June 14, 1982, silverware and other items, including two white pillowcases, were taken in a residential burglary. On June 18, 1982, defendant’s son, Richard, and his passenger, Gabriel, were stopped for a traffic violation. The officer saw a pillowcase under the driver’s seat and, with Richard’s consent, inspected the contents and found silver items wrapped in newspaper. The young men told the officer that the silver belonged to defendant. The three went to defendant’s home where, in response to the officer’s inquiries, defendant stated that she owned silverware, that she did not know that her son had it, and that it was missing from the place where she kept it. She described her silverware as a tea service, spoons and forks, wrapped in newspaper and contained in a pillowcase. When the officer brought the pillowcase and its contents into the house, defendant identified the silverware as hers. The items were subsequently identified as those stolen in the residential burglary of June 14.

As her first witness and over the People’s vigorous objection, defendant called William Huth, her parole officer. Huth testified that at defendant’s parole revocation hearing both Richard and Gabriel had testified that the silver belonged to Gabriel, that Gabriel tried to sell the silver to Richard, and that he did not inform Richard that the silver was stolen until after the police stopped Richard’s car. A defense investigator testified that Richard’s girlfriend told him that she had asked defendant to admit the silver was hers to protect Richard.

Defendant testified that she had identified the silver as hers because she did not have her glasses on and could not see well; she did own some silver, but it was packed away and, when the police were at her home, she did not feel like looking for it; she thought her son had taken the silver to pawn it, not to steal it. Defendant produced her “silver” at trial. It was pewter and stainless steel. On cross-examination, defendant testified that she had had more silver but it was stolen when she was incarcerated in CRC. She stated she had been in CRC and CIW and she admitted the two 1981 priors for possession of heroin and possession of heroin for sale. The jury was instructed to consider the priors only for the purpose of determining the credibility of the witness.

The defense, of necessity, had to explain defendant’s admissions regarding the silver. The defense also had valuable evidence which served to exculpate defendant although, unfortunately for defendant, it consisted of testimony that others had given at her parole revocation hearing. Thus, well before the prosecution disclosed the priors for impeachment purposes, the jury knew that defendant had a criminal past. Defendant herself volunteered that she had been incarcerated at CRC and the woman’s prison before any attempt was made to impeach her with the priors. As the Attorney General points out, identifying the nature of the prior felonies may well have operated to lessen the prejudice in their introduction, for the jury otherwise was free to speculate why defendant was on parole. (See People v. Rollo, supra, 20 Cal.3d at p. 119.) Further, the instructions restricting the use of priors for impeachment only may have prevented the jury from giving unwarranted significance to defendant’s parole status on the question of her guilt.

After a review of the entire record we are of the opinion that it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of error. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Affirmed.

Mosk, J., and Broussard, J., concurred.

1 Section 28, subdivision (f) provides: “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

2 Subdivision (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 post conviction 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.” (Italics added.)

3 The trial court commented: “I’m going to deny the motion, and I’ll explain why . . . Subsection (f) says that prior convictions are admissible, notwithstanding any other limitations of law. Subsection (d) says . . . that Section 352 applies to everything within the section. I believe that it is very poorly written, and either (d) controls (f), or (f) controls (d), and since (f) is more specific and refers only to the prior conviction issue, I’m going to hold that prior convictions are admissible. However, I hope and I’m sure that it will happen that the Court of Appeals will resolve this discrepancy in the law.”

4 Section 352 reads: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

5 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 . . . .” What the Courts of Appeal failed to consider was that section 788 was enacted merely as an exception to the rule of exclusion in section 787 which prohibits evidence of specific instances of conduct to impeach or rehabilitate a witness.

6 Obviously the word “section” as used in subdivisions (b) and (e) of section 667 of the Penal Code—also part of Proposition 8—can only mean “section.” On the other hand, in subdivision (b) of section 28—dealing with restitution—it is provided that “The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.” Apparently the first “section” in that sentence should read “subdivision.” There is, however, no rule of statutory construction to the effect that one instance of sloppy draftsmanship compels courts to presume a habit.

7 What moral turpitude follows from a conviction of conspiracy to tattoo a person under 18? (Pen. Code, § 653.)

8 A frequently cited case for the proposition that any felony conviction is impeaching is that of the Supreme Court of Washington in State v. Ruzicka (1977) 89 Wn.2d 217 [570 P.2d 1208, 1212]. There the court held that the Legislature could reasonably determine that there was a nexus between a person having committed crimes and that person’s propensity to lie. To the extent that this statement encompasses crimes not involving moral turpitude of any kind, we must disagree on due process grounds.

9 Compare the definition of “relevance” in rule 401 of the Federal Rules of Evidence (28 U.S.C.): “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would have been without the evidence.”

10 This was evidently also the view of the 1965 Legislature which enacted the Evidence Code. Section 788 as submitted by the Law Revision Commission would have restricted felony-impeachment to felonies with respect to which “an essential element ... is dishonesty or false statement.” (7 Cal. Law Revision Com. Rep. p. 142.) The commission commented: “Subdivision (a) modifies existing law, for under existing law any felony conviction may be used for impeachment purposes even though the crime involved has no bearing on the witness’ honesty or veracity. See Code Civ. Proc., § 2051. Section 788 substitutes for this undiscriminating treatment of felony convictions the requirement that the convictions be relevant to the purpose for which they are admitted, i. e., that the convictions tend to prove the witness’ dishonesty or lack of veracity. [1] ‘Dishonesty’ as used in Section 788 means ‘any breach of honesty or trust, as lying, deceiving, cheating, stealing, or defrauding. ’ Merriam-Webster, New International Dictionary (3d ed. 1961). ‘[T]he measure of [the] meaning [of dishonesty] is ... an infirmity of purpose so opprobrious or furtive as to be fairly characterized as dishonest in the common speech of men.’ Cardozo, C.J., in World Exchange Bank v. Commercial Casualty Ins. Co., 255 N.Y. 1, 173 N.E. 902, 903 (1930). Thus, convictions of felonies involving fraud, deception, and lying may, of course, be shown under Section 788. Cf. Hogg v. Real Estate Commissioner, 54 Cal.App.2d 712, 129 P.2d 709 (1942). All forms of larceny may also be shown. Cf. Brecheen v. Riley, 187 Cal. 121, 200 Pac. 1042 (1921). Similarly, other crimes involving the wrongful deprivation of another of his property and furtive, stealthy crimes (such as burglary) may be shown. [1] On the other hand, such crimes as felony drunk driving, manslaughter, arson (except for fraudulent purposes), assault, and possession of a deadly weapon do not involve dishonesty or false statement and may not be shown under Section 788.” The draft did not find favor, and section 788 became one of the few sections which were amended by the Legislature. (See People v. House, supra, 12 Cal.App.3d 756, 771, fn. 8 (cone, opn.).)

11 Permitting impeachment with crimes involving moral turpitude is not a new concept, though administratively it has proved awkward. It was adopted by Connecticut in Drazen v. New Haven Taxicab Co. (1920) 95 Conn. 500 [111 A. 861, 863-864], but abandoned 45 years later in Heating Acceptance Corporation v. Patterson (1965) 152 Conn. 467 [208 A.2d 341, 343-344],

Some of the problems may be ameliorated by the fact that, in connection with other statutes, considerable bodies of law concerning the characterization of felonies as involving or not involving moral turpitude have developed. (See for example, 1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 195; Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of §§ 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 USCS §§ 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime (1975) 23 A.L.R.Fed. 480.)

12 If defendant is correct, would it follow that the exclusionary rule is applicable in civil cases and that the right to confront witnesses affects the hearsay rule even in such litigation?

13 We note that possession of heroin for sale was the precise felony involved in People v. Spearman, supra, 25 Cal.3d 107. The inquiry there was whether the crime involved dishonesty. The majority's answer was in the negative. The question here is, of course, somewhat broader: does possession of heroin for sale necessarily evince any character trait which can reasonably be characterized as “immoral.”