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25 Cal. 3d 107

599 P.2d 74

People v. Spearman

California Supreme Court

Decided August 30, 1979

California Supreme Court · decided 1979-08-30

Key passage — most relied on by later courts

“the majority has steadily and unnecessarily circumscribed the application of section 788 to the point where little remains of a clear legislative expression.”

quoted by 1 later decision, including 33 Cal. 3d 115 - People v. Barrick

“Only a conviction which has as a necessary element an intent to deceive, defraud, lie, steal, etc., impacts on the credibility of a witness.”

quoted by 1 later decision, including 33 Cal. 3d 115 - People v. Barrick

Applies CA EVID § 788

Relies on 6 Cal. 3d 441 - People v. Beagle · Gordon v. United States · 15 Cal. 3d 79 - People v. Antick

Good law ✅— No negative treatment on recordhow we know

Decided 1979-08-30

How this case has been cited

Cited by 125 later decisions — most recently July 2002 · most notably 38 Cal. 3d 301 - People v. Castro (1985), 28 Cal. 4th 557 - People v. Gurule (2002)

125 state decisions

11001979198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

RICHARDSON, J.

¶1I respectfully dissent. For the reasons stated in my dissenting opinion in People v. Fries (1979) 24 Cal.3d 222 at page 234 [155 Cal.Rptr. 194, 594 P.2d 19], I disagree with the majority’s conclusion that a defendant’s credibility may no longer be impeached by admission of a prior conviction of an offense identical or similar to the offense charged.

¶2My principal objection to the majority opinion, however, is that it holds that a defendant’s previous conviction of possession of heroin for sale does not affect his credibility as a witness. I think that it does.

¶3Section 788 of the Evidence Code (unless otherwise indicated, all statutory references are to that code) provides that for the purpose of *120attacking credibility it may be shown that the witness has been convicted of a felony. In People v. Beagle (1972) 6 Cal.3d 441, 453 [492 P.2d 1], we said that a trial court must exercise its discretion in accordance with the guidelines expressed in section 352 wherein probative value is measured against prejudice. In four successive cases, Fries, supra,24 Cal.3d 222 [155 Cal.Rptr. 194, 594 P.2d 19], People v. Rollo (1977) 20 Cal.3d 109 [141 Cal.Rptr. 177, 569 P.2d 771], People v. Rist (1976) 16 Cal.3d 211 [127 Cal.Rptr. 457, 545 P.2d 833], and People v. Antick (1975) 15 Cal.3d 79 [123 Cal.Rptr. 475, 539 P.2d 43], the majority has steadily and unnecessarily circumscribed the application of section 788 to the point where little remains of a clear legislative expression. The majority carefully adheres to a portion of our Beagle holding while studiously omitting several other equally important Beagle principles. For example, we stated in that case that “We do not purport to establish rigid standards to govern that which in each instance must depend upon the sound exercise of judicial discretion.” (P. 453.) Furthermore, we stressed that “No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity. The general rule is that felony convictions bearing on veracity are admissible.” (Ibid., italics added.)

¶4Having just recently decided in People v. Fries, supra,24 Cal.3d 222, that the commission of a robbery bears only partially on a witness’ credibility, the majority now excludes a prior conviction for possession of heroin for sale because it fails to disclose “an intent to deceive, defraud, lie, steal, etc., [which] impacts on the credibility of a witness” (ante, p. 115). I think the majority is dead wrong.

¶5What is meant by the term “credibility” as it is used in section 788, and as we have expressed it in Beagle and succeeding cases? Webster’s Third New International Dictionary (1961) page 532, defines “credibility” as “the quality or power of inspiring belief . . .; worthiness of belief . . .; capacity for belief. . . .” In similar fashion the term “credible” is defined as “capable of being credited or believed : worthy of belief. . . : entitled to confidence : .trustworthy . . . : credulous ; creditable, reputable.” (Ibid.) Under section 786 the honesty or veracity of a witness or the lack thereof is admissible on the issue of credibility.

¶6The essential inquiry here is whether the witness is honest and capable of being believed. Any conduct which reflects adversely on a person’s honesty affects his “credibility” within the statutory use of the term. I readily agree that the commission of certain kinds of crimes, such as assaultive behavior per se, or crimes against the public peace, generally *121do not reflect on the actor’s honesty and, accordingly, convictions thereof do not speak of the felon’s “credibility.” The majority errs, however, when it attempts to catalogue by class those kinds of offenses which do reflect on credibility. The danger in such an attempt is that some kinds of offenses will be omitted. Thus, when the majority insists that our case law now demonstrates that “The only relevant consideration is whether the prior conviction itself contains as a necessary element the intent to deceive, defraud, lie, cheat, steal . . .” (ante, p. 116) the majority must necessarily tack on to the list the term “etc.” (et cetera). This leaves the majority’s standard entirely open-ended. The enigmatic “etc.” is conveniently fuzzy and pleasantly vague. In an area requiring definitional precision it is a meaningless catchall. If, however, we interpret the term “etc.” to include “any felony which reflects adversely on the witness’ honesty,” the result is reasonable. This is what we meant in Beagle when we said “convictions which rest on dishonest conduct relate to credibility . . . .” (6 Cal.3d at p. 453.) This common sense construction saves the principle from the ethical and conceptual dead end rapidly approached by the majority, in which it finds, on the one hand, that issuing a check without sufficient funds {Beagle) reflects adversely on credibility and is therefore impeaching, whereas, on the other hand, possession of heroin for sale (or, presumably, the sale of heroin) does not reflect adversely on credibility and is not impeaching. The majority has seized on Beagle language which had quoted, as illustrative only, the “deceit, fraud, cheating, or stealing” expression from Gordon v. United States (1967) 383 F.2d 936, 940-941 [127 U.S.App.D.C. 343],

¶7One could readily argue that the crime of possession of heroin for sale necessarily is loaded with deception, the first alternative ingredient described by the majority. One could also assert that the possessor of heroin for sale “steals” the health, or sanity, or liberty of the victim. But the majority’s principal error is in its increasingly and excessively narrow definition of impeaching crimes. In applying an “et cetera” standard to determine whether the prior conviction bears on credibility the majority employs an 18-inch yardstick. The measuring test which it uses is incomplete and inadequate.

¶8The offense of possession of heroin for sale involves four elements: (1) Actual or constructive possession of the narcotic, (2) for the purpose of sale with knowledge, (3) of its presence, and (4) of its narcotic character. (People v. Newman (1971) 5 Cal.3d 48, 52-53 [95 Cal.Rptr. 12, 484 P.2d 1356]; Williams v. Superior Court (1974) 38 Cal.App.3d 412, 421 [112 Cal.Rptr. 485].) The felony, therefore, involves the knowing possession of *122a very dangerous and unlawful drug with the intent to sell it for pecuniary gain or commercial profit and with full knowledge of its narcotic and addictive nature. It seems self-evident that one who possesses heroin intending illegally to sell it to another, when the tragic consequences of heroin use are so fully known and documented, may fairly and properly be deemed a “dishonest” person. In addition to several other things, such a person may reasonably be deemed “unworthy of belief,” “untrustworthy,” and not “entitled to confidence.”

¶9When a witness, whether defendant or otherwise, in court during trial, raises his hand and swears or affirms “ ‘that the evidence you shall give . . . shall be the truth, the whole truth, and nothing but the truth, so help you God’ ” (Code Civ. Proc., § 2094), the witness thereby assumes both a moral and legal obligation. A jury, if it was permitted to learn, might reasonably question the honesty or veracity and therefore the credibility of those who deliberately and knowingly shun the common standards of decent and legal behavior by choosing to profit from the sale of heroin. A jury could reasonably ask itself, will an individual who has freely chosen to reject the responsibility of laws in this manner also choose to reject the responsibility of an oath? A jury often has a difficult task of measuring what weight it should give to the individual witnesses who give testimony, frequently conflicting. Information about a witness’ respect, or the lack thereof, for his civic responsibilities outside the courtroom, as demonstrated by a criminal conviction of this type, may aid a jury in determining how seriously the witness is taking his responsibilities under his oath inside the courtroom. This information, properly, may assist a jury in deciding what weight should be accorded his testimony. Certain kinds of crimes are inherently, and by their very nature, ones which speak eloquently of the credibility of those committing them. Possession for sale of heroin is one of them.

¶10I cannot join the majority in concealing from a jury, in its difficult, search for the truth, information which bears directly upon, and so closely affects, the credibility of the witness. To deprive the jury of this knowledge is to permit the witness to assume that “false aura of veracity” which we expressly deplored in Beagle.

¶11In a nutshell, the majority has concluded that it is possible to be an honest, trustworthy, heroin pusher. There is no such person, for the terms are wholly incompatible and irreconcilable. This was the precise conclusion reached in People v. Hughes (1975) 50 Cal.App.3d 749, 753 [123 Cal.Rptr. 747], a recent case in which we denied a hearing but which the *123majority very unfortunately now rejects. In speaking for a unanimous court in Hughes, Justice Caldecott in my opinion was precisely on target when he concluded, “we cannot say that a person who steals is more likely to lie than a seller of heroin. Certainly, the seller of heroin is as lacking in integrity as is the thief.” The very same may be said of the possessor of heroin for sale.

¶12Defendant’s conviction should be affirmed.

¶13Clark, J., concurred.

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