Opinion
Review Granted Oct. 17, 1985.
Opinions on pages 1127-1306 omitted.
[215 Cal.Rptr. 640]Thomas W. Perley, Berkeley, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Herbert F. Wilkinson, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
ANDERSON, Presiding Justice.
Defendant Pierre Vincent Bynum (appellant or Bynum) appeals from a conviction for armed robbery.
On January 29, 1982, Rex S., a minor, attended a birthday party at the home of Rebecca Rebukas. Ms. Rebukas lived on East Ninth Street in Pittsburg, California. Shortly after 9 p.m., Rex left the party and headed for home, first walking down Ninth Street, then crossing over to Tenth Street. As he was crossing the street he noticed a car pull up in front of Brent's Bar and stop, its engine still running. Presently, a man who appeared intoxicated emerged from the bar and headed toward the stopped vehicle. The man, who was swearing in a loud voice, approached Rex when he walked past the bar. The man was appellant, Pierre "Peter" Bynum.
As Rex passed by, appellant approached him, asked "What's going on," and then extended his hand toward Rex introducing himself as "Peter." Rex continued walking. Undeterred, appellant inquired whether he wanted to buy some marijuana, to which Rex responded in the negative. Appellant then began to accompany Rex as he continued walking. They traversed a city block together.
As they were moving ahead, appellant asked Rex whether he wanted to "go in on some beer." Rex replied that he did not; that he was going home and that he wished to be left alone. Appellant then asked if he had any money; Rex replied that he did not.
When they reached the bowling alley near the end of the street block, appellant stopped and again declared that he was "Peter," and thrust his hand toward Rex. Rex shook his hand, introduced himself and then asked appellant to get off his back. Somewhat agitated, appellant stopped for a few seconds and then responded, " 'Oh, man, why do you want to be like that?' "
Proceeding ahead, Rex glanced over his shoulder at appellant, who was racing up behind him and jumped on his back, knocking him to the ground. Appellant pulled a knife with a three- or four-inch blade and stabbed Rex in the stomach, saying " 'Where is the money, you white mother fucker. I know you got it.' " Holding the knife in front of Rex' face, appellant searched his pocket and removed a wallet, loose money, keys and some other personal items and threw them on the ground.
Just about that time a young woman appeared and attempted to grab appellant's arm, pleading "It's not worth it. It's not worth it. Just don't do it." She called appellant Peter. Ignoring the girl, appellant again demanded money from Rex, stating " 'All you white mother fuckers are the same.... All you white mother fuckers want to do away with us....' " Meanwhile, the girl hung to appellant's arm and tried to pull him off of Rex.
When both appellant and Rex got up, appellant struck Rex in the face with the knife. The blade caused a deep, slicing wound extending from inside of Rex' nose up to his temple. Rex then fled. Appellant followed him for a short time, then rejoined the young woman who was picking up Rex' possessions from the sidewalk. They both got into a car and drove away.
Rex saw the young woman the next day at Rebukas' house where he and his girlfriend, Donnie A., were visiting. He exclaimed, " 'You were the one ... last night ... you were there.' " The young woman, Tanya Covarrubias (Tanya), repeatedly apologized to Rex but refused to divulge the assailant's name.
Two police officers who were acquainted with appellant testified that he also goes by the name of "Peter." This was confirmed by defense witnesses Beatrice Threatt, appellant's [215 Cal.Rptr. 641] cousin, and Brenda Battle, a family friend.
Although Rex was not able to select Bynum's photograph from a file box of 200 photographs shown him the evening after he was stabbed (in part because he was "high" on pain medication), he was "positive" in his identification of appellant as his assailant at both the preliminary hearing and trial. His identification was made upon his recollection of the events on January 29, 1982, and his observation of appellant's facial features, height, build, etc. Rex had plenty of opportunity to make the above observation because the entire incident (from the time appellant approached him until the latter fled) lasted about eight to ten minutes. Rex also recognized Tanya in an exhibit as the woman who was present that night and blocked appellant's arm that had the knife.
Appellant's defense was misidentification and alibi. Police Lieutenant Aaron Baker testified at trial that on January 30, 1982, the day after the incident, Rex was shown approximately 200 photographs, including appellant's, but was unable to make an identification. Police Detective Robert Greenberg likewise stated that although 17 days after the stabbing he displayed a 22-photograph lineup to Rex, he failed to select appellant's photograph.
Beatrice Threatt, testifying for the defense, stated that on the night of the robbery she was attending a wake at appellant's family's house. Threatt, who was in charge of the food for the gathering, maintained that appellant was in and out of the kitchen all evening. In her opinion appellant was never absent from the house for a sufficiently long time to have enabled him to reach the bowling alley three-quarters of a mile away where the robbery occurred. She also testified that appellant did not appear intoxicated that evening, and that she had never seen him at Brent's Bar.
Under cross-examination Threatt stated that the wake was in honor of appellant's brother who had been killed by a police officer. She conceded that the people were angry about the killing, and that appellant shared this sentiment. She reiterated her earlier testimony that she observed appellant at the house throughout the evening, estimating that she saw him about every 10 or 15 minutes.
Defense witness Brenda Battle testified that she, too, saw appellant at the Bynum house throughout the evening, as often as every 10 or 15 minutes. At no time did appellant appear to her intoxicated; in fact, appellant's father disapproved of liquor. She also testified that to her knowledge none of appellant's friends had a car.
Based upon the above facts Bynum was charged with robbery (PEN. CODE, § 211) . The information also alleged that appellant used a deadly weapon (a knife) in the commission of the offense ( § 12022, subd. (b)) and that he intentionally inflicted great bodily injury on Rex S. ( § 12022.7). A jury found appellant guilty as charged and also found the weapon-use and great bodily injury allegations to be true. At the sentencing hearing probation was denied and appellant was sentenced to state prison for an aggregate term of seven years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.
Bynum contends on appeal that the trial court committed reversible errors: (1) by granting the prosecution's motion to discover defense materials pursuant to section 1102.5; and (2) by ruling that if he testified, appellant could be impeached by two prior robberies committed in 1979. While we hold that the ruling of the trial court was erroneous in both instances (as determined by case law subsequent to trial), we do not find these errors require reversal and, therefore, we affirm the judgment.
1. Prosecutorial Discovery
After defense witnesses Brenda Battle and Beatrice Threatt testified on direct examination, the prosecution moved to discover defense counsel's investigative notes with respect to prior statements each witness had made to the public defender's investigator. The motion was made pursuant to newly enacted section 1102.5 which [215 Cal.Rptr. 642] allows prosecutorial discovery of the statements of defense witnesses for the purpose of impeachment. The trial court, after an in camera hearing, granted the motion and subsequently the defense witnesses' statements to the public defender's investigator were available to the prosecutor. Appellant claims that the prosecutorial discovery in this case was unlawful because the underlying statute allowing such discovery is unconstitutional.
Section 1102.5 provides in part: "(a) Upon motion, the prosecution shall be entitled to obtain from the defendant of his or her counsel, all statements, oral or however preserved, by any defense witness other than the defendant, after that witness has testified on direct examination at trial. At the request of the defendant or his or her counsel, the court shall review the statement in camera and limit discovery to those matters within the scope of the direct testimony of the witness. As used in this section, the statement of a witness includes factual summaries, but does not include the impressions, conclusions, opinions, or legal research or theories of the defendant, his or her counsel, or agent."
I express no opinion on the effect of the erroneous prosecutorial discovery.
In In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637, our Supreme Court has just held that section 1102.5 is unconstitutional inasmuch as it violates the defendant's privilege against self-incrimination. (Id., at p. 558, 213 Cal.Rptr. 569, 698 P.2d 637.) It follows that the ordering of prosecutorial discovery pursuant to this unconstitutional statute must be held erroneous. The crucial issue thus arises whether the error was of such magnitude as to require a reversal of the conviction. We think not.
A close review of the record reveals that the defense material discovered and used by the prosecutor could not be, and in fact was not, injurious to appellant's cause. Ms. Battle, one of the alibi witnesses, testified on direct examination that she observed appellant at the residence on and off throughout the evening; that she saw him at 10- to 15-minute intervals; and that appellant could have gone over to Vogue Lanes on Tenth Street if he was pretty quick. Although the prosecutor discovered Ms. Battle's prior statement made to the public defender, he did not use it in cross-examining Ms. Battle.
The pertinent part of the record reads as follows:
Mrs. Threatt, the other alibi witness, testified on direct examination that she saw Peter throughout the course of the evening; that he was in and out of the kitchen; and that he could not have gone to Vogue Lanes without her noticing it. On cross-examination Mrs. Threatt elaborated that on the night in question appellant was in and out at least once an hour, but on further questioning, Mrs. Threatt added that while she could not say the exact time intervals when she observed appellant, it was every 10 or 15 minutes rather than hours. [215 Cal.Rptr. 643] Thereupon the prosecutor proceeded to read from a statement made by Mrs. Threatt to a defense investigator on January 13, 1983, about one week prior to trial, in which she said in essence that "She cannot estimate the amount of time that elapsed between her sightings of the defendant, but she recalls seeing him throughout the evening either in the den, the kitchen or at the gate in front of the house."
The pertinent part of the record is set out as follows:
It is clear from the cited portions of the record that the pretrial statement made by Mrs. Threatt was not fundamentally inconsistent with her trial testimony; that the two statements could be readily reconciled; and that as a consequence the impeaching effect of her pretrial statement was negligible. The latter proposition is borne out by the attitude of both the prosecutor and trial counsel. In an apparent recognition that impeachment of Mrs. Threatt by her prior statement was less than adequate, the prosecutor argued to the jury that even if appellant had not left the house for longer than 15-20 minutes, he, by taking a car, could have gotten to Vogue Lanes, committed the assault and robbery and returned without being noticed by the witnesses. Ms. Caldwell, counsel for appellant, also argued that there were no inconsistencies in Ms. Battle's testimony; that the prosecution failed to prove inconsistencies also in Mrs. Threatt's testimony; and that Mrs. Threatt's pretrial testimony could be reconciled with her pretrial statement.
The illustrative portions of trial counsel's argument may be set out as follows: "Try as he might, you will recall the cross-examination that Mr. Belcher could not find inconsistencies in Mrs. Battle's testimony. [p ] She testified that she saw Pierre. She figured on the average of every ten to 15 minutes throughout the evening.... [p ] And there are no inconsistencies between that testimony and the testimony of Beatrice Threatt. [p ] Ladies and Gentlemen, you saw Mrs. Threatt and Mrs. Battle testify. You watched them. You heard them. You saw their mannerisms. You heard what they said. You know whether they are lying or not and you know they are not. [p ] Mrs. Threatt testified that she was in charge of the kitchen during this period of time. [p ] She remembers Pierre being there. He was in and out of the refrigerator all the time. [p ] The District Attorney in his questions seemed to agree with the idea that one's memory fades with time as he went into the idea that she had made a statement some 11, 12 days before she testified that was slightly different. [p ] What was that difference? On direct examination she testified that she figured she saw Pierre somewhere around every hour and had seen him through the evening, that he did not appear to be intoxicated. She did not remember his hair. [p ] The District Attorney read into the record a line from her statement earlier, 12 days earlier, that she couldn't estimate the time that elapsed between her seeing the defendant, but she recalls seeing him throughout the evening either in the den, the kitchen, or the gate or in front of the house. [p ] This is not in and out, ladies and gentlemen. This is upstairs and downstairs and into the front yard. Not necessarily inconsistent."
Appellant contends that the prosecutor's burden of proving its case in chief against him was lightened by the discovery, and he "strenuously argued to the jury during closing jury arguments that evidence of Ms. Threatt's prior inconsistent statements supported his argument that she was lying on the witness stand in order to protect appellant"; the contention is simply untrue.
The record reveals that in all of 21 pages of opening argument (by the prosecutor), the sole reference to the discovered statement was these few words: "Now, a prior statement which can be considered by you for the truth of the matter that she gave to an investigator for the Public Defender's Office was that she didn't remember the times." In 20 pages of closing argument there is but one reference by the prosecutor to the discovered statements: "That was what she told the defense investigator 11 days ago, and then what happens?" And in neither opening nor closing [215 Cal.Rptr. 644] argument does the prosecutor label this discovered statement inconsistent with the witness' testimony at trial. Further, the record fails to show that appellant objected to the alleged improper argument or requested curative instructions or an admonishment. It is axiomatic that a defendant cannot complain on appeal of prosecutorial misconduct unless he made a timely objection thereto at trial and requested that the jury be instructed to disregard the improper remark. (People v. Green (1980) 27 Cal.3d 1, 27-28, 164 Cal.Rptr. 1, 609 P.2d 468.)
Because our Supreme Court has clearly held the prosecution discovery statute in violation of the California Constitution, California Constitution, article VI, section 13, governs our review. Applying that test we perceive no miscarriage of justice. This use of the fruits of the subsequently declared forbidden discovery is, however, under any standard of review, harmless. (See discussion, infra. )
"Because we hold the statute unconstitutional under the state privilege against self-incrimination, we need not address petitioner's alternative claims." (In re Misener, supra, 38 Cal.3d 543 at p. 546, 213 Cal.Rptr. 569, 698 P.2d 637, emphasis added.)
2. Beagle Error
At the conclusion of an in limine hearing, the trial court ruled that appellant could not be impeached by a 1982 section 12021 conviction but that he could be by two 1979 robbery convictions. In so ruling the trial court stated it "does not feel that the provisions of section 352 outweigh ... the relevance and the provisions of Prop. 8. The court does not find that pursuant to 352 that there is an outweighing, and I believe under Proposition 8 it does come in at this point."
Article I, section 28, subdivision (f) of the California Constitution provides in pertinent part: "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 ... in any criminal proceeding...." (Emphasis added.)
Appellant's second contention on appeal is that the admission of priors constituted reversible error because (1) they were identical to the charged offense, (2) the crime predated passage of Proposition 8, and (3) appellant was deterred from testifying at trial. (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1; see also People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19.)
Appellant's contention that the admission of the priors was erroneous is correct. In People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149, our Supreme Court held that "Proposition 8 applies only to prosecutions for crimes committed on or after its effective date." Since the offenses committed by appellant occurred on January 29, 1982, that is before June 9, 1982, the effective date of Proposition 8, the trial court's decision to apply Proposition 8 to the instant case was clearly improper. Furthermore, the ruling of the trial court was erroneous under the balancing test set out in Beagle and its progeny (i.e., the law applicable at the time of the commission of the offenses) inasmuch as the priors were identical to the offense charged and appellant did not testify. (People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Spearman, supra, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19.) Nevertheless, we conclude that this error was not so prejudicial as to require a reversal of appellant's conviction.
California Constitution, article 6, section 13, provides that "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after [215 Cal.Rptr. 645] an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Emphasis added.) As the case law explains, miscarriage of justice occurs if based upon the entire record the court concludes that it is reasonably probable that a result more favorable to appellant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243.) Consistent therewith, the cases dealing with improper admission of prior felony convictions for impeachment purposes unanimously hold that the so-called Beagle error is not prejudicial per se, but rather subject to the harmless error rule set out in Watson; and that the judgment of conviction will be reversed on that ground only if in light of the record as a whole, a more favorable verdict to the defendant would have been reached. (People v. Barrick, supra, 33 Cal.3d at p. 130, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Spearman, supra, 25 Cal.3d at p. 118, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d at p. 234, 155 Cal.Rptr. 194, 594 P.2d 19; see also People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771; People v. Betts (1980) 110 Cal.App.3d 225, 231, 167 Cal.Rptr. 768.) The very same principle obtains where, as here, the Beagle error has resulted in a refusal of the defendant to take the stand on his behalf. Although in such an instance the evaluation of the prejudicial effect of the error is more difficult because in many cases there is no clue as to what the defendant's testimony would have been had he testified (People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Spearman, supra, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19), nonetheless the harmless error test applies and the judgment must be affirmed if the evidence against the defendant is so airtight and convincing that it is all but obvious that the testimony of the defendant would not have affected the outcome of the trial. (People v. Fisher (1984) 153 Cal.App.3d 826, 200 Cal.Rptr. 683; People v. Logan (1982) 131 Cal.App.3d 575, 182 Cal.Rptr. 543; People v. Betts, supra, 110 Cal.App.3d 225, 167 Cal.Rptr. 768; People v. McFarland (1980) 108 Cal.App.3d 211, 166 Cal.Rptr. 429.)
The case at bench falls within the latter stated category. As set out in detail supra, Rex S., the victim of the crimes, positively identified appellant as his assailant at both the preliminary hearing and trial. The robbery was not a brief incident taking but a few fleeting moments; Rex and appellant were together about eight to ten minutes, walking a long city block next to each other. During this period of time Rex had an excellent opportunity to, and did in fact, observe the robber, his demeanor, manner of speaking, facial features, height, build, etc. Indeed, Rex testified that his positive identification was based on his recollection of the events and his personal observation of appellant.
Moreover, appellant identified himself by the name of "Peter" several times. Appellant's female associate, Tanya, also called him "Peter." When confronted by Rex at Rebukas' house the next day, Tanya failed to deny that "Peter" was the assailant even though she refused to reveal appellant's full name. Significantly enough, Tanya, who admitted her presence at the crime scene to Rex, did not testify at trial; presumably she could have provided crucial rebuttal evidence concerning the description of the assailant if that did differ from appellant's.
In addition, evidence introduced at trial established that appellant's residence was less than a mile from the scene of the robbery; that appellant had racial motivation to commit the crime because his brother, whose wake was then in progress, had been killed by the local police a couple of days before; and that the entire Bynum family, including appellant, did not think it was necessary for him to be killed, and people were angry about it.
Appellant's argument that prejudice was established as a matter of law because he did not have the opportunity to present his version of the events and that in the absence [215 Cal.Rptr. 646] of his testimony it is hard, if not impossible, to evaluate what his testimony would have been (People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Spearman, supra, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19) is not persuasive.
Such contention has merit only where there is no clue concerning what appellant's defense would have been had he testified. Contrariwise, where the appellant's testimony would have been only corroborative or cumulative of other testimony already given, the per se rule does not apply. (People v. Lassell (1980) 108 Cal.App.3d 720, 730-731, 166 Cal.Rptr. 678; see also People v. Fisher, supra, 153 Cal.App.3d 826 at p. 834, 200 Cal.Rptr. 683.) Herein appellant produced alibi testimony of two witnesses: Mrs. Threatt and Ms. Battle; both asserted that they had observed appellant at his home throughout the evening of the wake. (See discussion, supra.) Since appellant's defense was based on misidentification and alibi, his testimony, to be consistent with this defense, could only have been that he was not the perpetrator of the crime because he had been at home with all his family during the entire evening. This, of course, would have been merely cumulative to the alibi testimony already provided by the witnesses; considering the strength of the evidence to the contrary, it would not in all reasonable probability have affected the outcome of the trial.
Directly in point is People v. Fisher, supra, 153 Cal.App.3d 826, 200 Cal.Rptr. 683. In Fisher the defendant was charged with robbery and assault with a deadly weapon. The trial court ruled that under Proposition 8 two identical robbery convictions could be used for impeachment purpose should the defendant choose to testify. Defendant refused to take the stand and claimed prejudicial error on appeal. The reviewing court held that while the admission of identical priors was erroneous, the error was harmless. In so holding the court pointed out that the Beagle error (including admission of identical offenses and a refusal of the defendant to testify) does not require a per se reversal; that whether such error is prejudicial depends on the strength of the evidence and the unique circumstances of the case; and that where the defense is based on misidentification and alibi and the defendant produces alibi witnesses, the defendant's testimony may be considered corroborative or cumulative and not essential to the presentation of his defense. Consistent therewith, the court affirmed the judgment on the ground that appellant's testimony would not have affected the result of the trial because " 'appellant's alibi defense was fully presented to the jury and his own testimony was not essential to it. Any detrimental effect of his failure to testify was therefore insignificant....' " (People v. Fisher, supra, 153 Cal.App.3d at p. 837, 200 Cal.Rptr. 683; accord People v. Lassell, supra, 108 Cal.App.3d at pp. 730-731, 166 Cal.Rptr. 678; People v. Anjell (1979) 100 Cal.App.3d 189, 198-199, 160 Cal.Rptr. 669.)
We lastly note that the cases cited by appellant are distinguishable from the present situation. In Barrick, the evidence supporting the conviction was largely circumstantial and the court had no way of knowing what the defendant's testimony would have been had he testified. In Spearman, the evidence was likewise rebuttable and appellant might have presented independent (not cumulative) exculpatory testimony. Finally, in Fries, the reviewing court had no clue as to what appellant would have testified to had he taken the stand. By contrast, in the case at bench the evidence was overwhelming and consisted of both direct and circumstantial proof; appellant did produce alibi testimony by way of two defense witnesses and his testimony would have been only cumulative to the evidence already presented; and since appellant's defense was based upon misidentification and alibi, we do have a clue as to what he would have testified to and are able to evaluate the effect of his potential testimony.
[215 Cal.Rptr. 647]In sum, based upon the entire record of the case, we conclude that neither the introduction of the discovered defense material, nor the admission of prior robbery convictions constituted error of reversible magnitude. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d 818 at p. 837, 299 P.2d 243.)
The judgment is affirmed.
SABRAW, J., concurs.
POCHE, Associate Justice.
I respectfully dissent.
I have in the past made known my views on the standard of prejudice to be applied in the situation where Beagle error 1 results in the defendant not taking the stand. (See, e.g., People v. Pickett (1985) 163 Cal.App.3d 1042, 1049-1050, 210 Cal.Rptr. 85.) Although I believe that as a matter of stare decisis (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) appellate courts do not have the power to speculate on the effect the defendant's testimony would have had on the jury (see, e.g., People v. Barrick (1982) 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Spearman (1979) 25 Cal.3d 107, 118-119, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries (1979) 24 Cal.3d 222, 233-234, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 545 P.2d 833) my colleagues continue to read the law much differently. (See also People v. Forster (June 21, 1985, A022318) 169 Cal.App.3d 519, 215 Cal.Rptr. 218.) For the reasons set forth in People v. Pickett, I would reverse the judgment on the basis of the Beagle error. 2
"Q. Did you see Peter on or off through that evening?
"A. Yes.
"Q. How much time would you say passed between times that you saw him?
"A. Uh, it was like short time, because it was like the young adults, well, were like upstairs mostly in the kitchen and the kids and some of the younger people were downstairs, and the older people were like in the living room, and I had my two boys with me, and you know how boys are.
"...
"Q. Could Peter have left and gone over to--let me back up.
"Do you know where Vogue Lanes is?
"A. I think it's on Tenth Street.
"Q. Could he have left the house, gone over there and come back without your having notice that?
"A. Well, if he--it would have been to be pretty quick if he, you know.
"Q. How much time at most passed between your seeing him that evening?
"THE COURT: You mean seeing him and not seeing him?
"MS. CALDWELL [counsel for appellant]: Q. Seeing him, not seeing him, and then seeing him again, how much time at the most?
"A. Of us interacting each other? Oh, maybe ten, 15 minutes."
"Q. And when you testified in front of the jury here, you are telling the truth when you said that you had a very clear idea in your mind of how much time Peter was in and out of the home?
"A. He was in and out of the kitchen at least once an hour.
"Q. Do you recall talking to an investigator on the 13th of January?
"A. Yes.
"Q. Would you please read the seventh line from the bottom?
"A. (Witness complies.)
"Q. Does that refresh your recollection as to how much time there was between the times that you saw Peter that night?
"A. Yes.
"Q. And what is your recollection now?
"A. I saw Peter off and on the whole night.
"Q. And what is your recollection as to
"A. How much time? I couldn't say. Ten minutes or 15 minutes, but I know it wasn't hours."