Opinion
Rehearing Granted March 13, 1987.
Previously published at 189 Cal.App.3d 704
Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Suzan E. Hier, Deputy State Public Defender, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Robert R. Anderson, Supervising Deputy Atty. Gen., Carolyn D. Fuson, Deputy Atty. Gen., for plaintiff and respondent.
THOMPSON, Associate Justice.
Appellant Gregory Lee Harris has appealed from a judgment of conviction, after jury trial, of one count of robbery (Pen.Code, § 211) and a finding of one prior robbery conviction (Pen.Code, § 667, subd. (a)).
PROCEDURAL HISTORY
Appellant was charged with robbery (Pen.Code, § 211), and there was an allegation of use of a deadly and dangerous weapon, a knife (Pen.Code, § 12022, subd. (b)), and personally inflicting great bodily injury upon the victim (Pen.Code, § 12022.7). It was also alleged that in August 1981, he had previously been convicted of robbery.
On March 6, 1985, in appellant's first trial, his motion to exclude evidence of his prior conviction was granted. On March 8, after deliberations in that trial, the jury informed the court that it was deadlocked, and the court declared a mistrial.
Appellant was retried on the same charges. On March 11, 1985, when the case was called for retrial, the court ordered a transcript of the oral proceedings from the first trial. The case was eventually transferred to another department for trial.
On July 24, 1985, during the defense case, the defense moved, out of the presence of the jury, to preclude defendant's impeachment with his prior robbery conviction. The motion was denied. Appellant did not testify at trial, and the jury returned a verdict of guilty of robbery, but the allegations of use of a deadly weapon and infliction of great bodily injury were found not to be true.
This appeal followed.
FACTS
On October 20, 1984, at about 7:00 p.m., Richard Dobberthien drove from his home to the Commerce Club Poker Parlor, but when he arrived he was told there would be a wait of several hours before he could be seated. He decided to drive to downtown Los Angeles and find a bar in which to wait, and drove his car to the area of Los Angeles and Fifth Streets. He parked, bought some gum in a liquor store, and tried to enter the Plantation Club bar. He was not familiar with the area. A large man and woman blocked his entrance to the bar and did not respond to his requests to move. As he was trying to enter the bar, a man approached him with a handful of change and asked if he had a dollar bill. Mr. Dobberthien had a wallet full of money because he was going to play poker, and he told the man that he did not have a dollar bill. Mr. Dobberthien was then grabbed While Mr. Dobberthien was struggling with and facing appellant, he felt his wallet being lifted from his back pocket. After a few seconds, he freed himself from appellant and approached the other man and asked for his wallet. That man faced Mr. Dobberthien with a knife and said, " 'I don't have your wallet, the other guy does.' " Mr. Dobberthien testified that when he then grabbed at appellant, appellant cut him on the hand with a "shiny" object. (However, the jury found the allegations of use of a deadly weapon and infliction of great bodily injury not to be true.)
Appellant was walking away when Mr. Dobberthien signaled a passing police car. Appellant then began to run westbound on Fifth Street. Mr. Dobberthien told the police officers that appellant had robbed him, and they pursued appellant. Mr. Dobberthien saw appellant turn right and run down an alley. When appellant was captured, Mr. Dobberthien identified him as the man with whom he had struggled. On police instructions, Mr. Dobberthien looked through a nearby garbage can for his wallet, but he did not find it. The other man was never found. Mr. Dobberthien had no doubt that appellant was the man with whom he had struggled.
At about 9:00 p.m. on October 20, 1984, police officer Jerome Rilling was driving his patrol car westbound on Fifth Street when he saw Mr. Dobberthien across the street waiving his arms. When Officer Rilling drove over, Mr. Dobberthien pointed at appellant and said that appellant had taken his wallet. No one else was in the area then. Officer Rilling pursued appellant down an alley and around a few blocks, briefly losing sight of him a few times. When captured, appellant was lying under a parked car.
Mr. Dobberthien then ran up, yelling, " 'That's the man that took my wallet.' " Appellant answered, " 'Hey, man, I didn't take your wallet, the other guy has it.' " The two men started to argue, and Officer Rilling instructed Mr. Dobberthien to look for his wallet in the trash.
The defense consisted of testimony that when arrested appellant did not have a knife or the wallet, and of attacks on the credibility of Officer Rilling and Mr. Dobberthien through changes in their story.
CONTENTIONS
Appellant contends that: (1) "The trial court committed reversible error in ruling that appellant could be impeached with a prior robbery conviction"; (2) "The trial court improperly admitted the victim's prior consistent statement regarding the clothing of the other crime suspect"; (3) "Appellant's constitutional right to testify was infringed upon when trial counsel waived response to the juror's request for his testimony without consulting with or informing appellant"; and (4) "The trial court committed prejudicial error by failing to instruct the jury, sua sponte, on the lesser and necessarily included offenses of simple assault and attempted robbery."
DISCUSSION
I
THE PRIOR
Appellant contends that the court should have excluded evidence of his prior robbery conviction. On July 24, 1985, during the defense case, defense counsel moved to exclude the prior. The court was aware that, pursuant to People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 (opinion filed March 11, 1985), it had discretion under Evidence Code section 352 to balance the prejudicial effect of the prior against its probative value, and ruled that the prior was admissible for impeachment. The court was urged to consider whether the robbery conviction reflected on appellant's honesty, was not remote in time, and involved the same crime with which appellant In People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court held that Proposition 8 (Cal. Const., art. I, § 28(f)) did not abrogate the inherent power of the trial court to exercise its discretion to exclude relevant but prejudicial evidence pursuant to Evidence Code section 352. However, subject to this discretion, a criminal defendant may be impeached with any prior felony conviction which necessarily involves moral turpitude and shows a "readiness to do evil." (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.) In Castro, the court returned to the standards for exercising this discretion which were set forth in People v. Beagle (1972) 6 Cal.3d 441, 453-454, 99 Cal.Rptr. 313, 492 P.2d 1, and rejected the rigid rules in the line of cases decided after Beagle. (People v. Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)
The Beagle guidelines are: (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it involved the same or similar conduct for which defendant is on trial; and (4) what effect admission would have on defendant's decision to testify. (People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)
In People v. Barrick (1982) 33 Cal.3d 115, 129-130, 187 Cal.Rptr. 716, 654 P.2d 1243, the Supreme Court discussed the fourth Beagle factor and held that it has a "heightened significance" because the defendant's silence may deprive the jury of the testimony of the defendant who may have better personal knowledge of certain events, or may corroborate other witnesses who would otherwise seem suspect, and because the defendant's silence itself may be perceived by the jury as indicating guilt. In Barrick, supra, the court had "no way of knowing what defendant's testimony would have been," but, nevertheless, held that the trial court abused its discretion in allowing impeachment with the prior and that the error was prejudicial. (Id., at p. 130, 187 Cal.Rptr. 716, 654 P.2d 1243.)
In People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, the Supreme Court discussed the effect on a Beagle motion of defendant's decision not to testify, as follows: "Perhaps the most difficult to evaluate of the Beagle factors is the adverse effect on the administration of justice should a defendant elect not to testify for fear of impeachment. Such an evaluation must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant's guilt in the unique circumstances of the particular case. The trial court may be aided in making such evaluation should the defendant in support of his motion to exclude prior convictions make an offer of proof as to matters to which he will testify should the motion be granted. However, such an offer, although doubtless helpful to the court, is not a sine qua non to the court's duty to evaluate probative value against prejudicial effect and where as in the instant case the other Beagle factors dictate the exclusion of a prior conviction or convictions because their prejudicial effect manifestly overbalances their probative value it is an abuse of discretion to deny the motion to exclude. [Fn. omitted.]" (Id., at p. 222, 127 Cal.Rptr. 457, 545 P.2d 833.)
In People v. Collins (1986) 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173, the Supreme Court announced a new rule that error in denial of a Beagle motion cannot be reviewed unless defendant chooses to In People v. Collins, supra, 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173, the court preserved the Beagle factors and noted that Barrick, supra, and its predecessors represented the state of the law on review after erroneous denial of a Beagle motion followed by defendant's decision not to testify. "[B]ecause the reviewing court did not know what the defendant would have said if he had taken the stand, it had no basis for concluding that his testimony would not have affected the result and hence the conviction was per se a miscarriage of justice...." (Id., at p. 393, 228 Cal.Rptr. 899, 722 P.2d 173.)
The record in the present case shows that, aware of People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the trial court properly considered at least the first two of the above factors. Robbery is a felony that necessarily involves the required intent to do evil and, therefore, is not inadmissible as a matter of law. (People v. Collins, supra, 42 Cal.3d at p. 395, 228 Cal.Rptr. 899, 722 P.2d 173; People v. Brown (1985) 169 Cal.App.3d 800, 805, 215 Cal.Rptr. 494.) Robbery reflects on honesty and integrity, and the trial court did not abuse its discretion in so finding. Appellant's prior robbery conviction also was not remote in time. These factors permissibly outweighed the fact that appellant was again charged with robbery in this case.
However, the most difficult factor in this case is what effect the decision not to exclude the prior would have on appellant's decision to testify. Counsel informed the trial court that appellant likely would not testify. The trial court also said that in light of the evidence which had been introduced against appellant up to that point, the prior was prejudicial, but not unduly so.
In the present case, appellant did not expressly make an offer of proof of what his testimony would be with his Beagle motion. However, the trial court had available the transcript of the oral proceedings of appellant's first trial, which had resulted in a hung jury. Appellant had testified in that trial. It is apparent that it was an abuse of discretion to deny appellant's Beagle motion in the present case, given the effect of his testimony at the first trial.
As requested in appellant's brief, this court has taken judicial notice of that transcript, which is a part of the superior court file.
The fact that in a prior trial, without admission of evidence of a prior offense, the defense was acquitted or the jury was unable to reach a verdict, has been considered as a factor in determining that erroneous admission of the other offenses was prejudicial. (See People v. Rivera (1985) 41 Cal.3d 388, 393, fn. 3, 221 Cal.Rptr. 562, 710 P.2d 362; People v. Ogunmola (1985) 39 Cal.3d 120, 124, 215 Cal.Rptr. 855, 701 P.2d 1173.)
In this case, the balance was further tipped in favor of excluding the prior when one juror asked during deliberations, " 'Could we possibly have Mr. Harris testify concerning the events on the night in question?' " Appellant contends that when this question was presented to the trial court, it should have reconsidered its decision on appellant's Beagle motion. We need not go so far in order to find that the ruling must be reversed. The juror's question further indicates that if the trial court had considered the prejudicial effect of the jury's not hearing appellant's testimony, and particularly the prepared transcript of his testimony from the first trial, the Beagle motion should properly have been granted, and that the erroneous denial of the motion was prejudicial. Because of the availability of the transcripts of appellant's testimony from the first trial, we need not consider whether the remand procedure set forth in People v. Collins, supra, 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173, for cases in which the defendant does not testify following denial of a Beagle motion could be applied to this case. No such remand is necessary here.
We also need not consider which standard of review must be applied in a case such as this to determine whether error was prejudicial, as we find that the error herein must be deemed prejudicial even under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. It is certainly reasonably probable that a result more favorable to appellant would have occurred in the absence of this error.
Accordingly, we must reverse the judgment against appellant herein.
Because of our ruling, we need not reach appellant's contention that his attorney rendered ineffective assistance by failing to consult with appellant about whether to testify after the juror asked to hear appellant's testimony. However, there are two contentions raised by appellant which we shall deal with as they are likely to arise on retrial of this case.
II
VICTIM'S PRIOR CONSISTENT STATEMENT
Appellant contends Mr. Dobberthien's prior consistent statement to a police officer that the other man involved was wearing blue jeans and a white T-shirt should not have been admitted into evidence. On direct examination by the prosecution at trial, Mr. Dobberthien testified that he did not remember what appellant was wearing on the night he was arrested, and that it was the other man who was wearing blue jeans and a white T-shirt. He also testified that at the preliminary hearing on November 28, 1984, he had testified that appellant was wearing blue jeans and a white T-shirt, and that at "a prior proceeding" in March of 1985 (the first trial), he testified that he did not remember what appellant was wearing and that the other man was wearing the blue jeans and white T-shirt. He explained that he did not remember what appellant was wearing because during the incident, he was staring at appellant's face so hard that he remembered only his face.
On cross-examination by the defense, Mr. Dobberthien was again asked if he had testified at the preliminary hearing that appellant was wearing blue jeans and a white T-shirt, and those portions of the preliminary hearing transcript were read into evidence. Mr. Dobberthien said that he had testified incorrectly at the preliminary hearing about what appellant was wearing. He could not explain why he had testified at the preliminary hearing that appellant had on blue jeans and a white T-shirt. Defense counsel elicited testimony from Mr. Dobberthien that, after the preliminary hearing and before the prior trial, he had talked with the deputy district attorney who had shown him the police report and the preliminary hearing transcript and asked him if something in one of them was not correct. The district attorney had told him that the defense was basing its case on the fact that appellant was not wearing blue jeans and a T-shirt when he was arrested.
Officer Kammert was called as a witness by the defense, and on cross-examination by the prosecution he testified that on the night of the crime he had taken the information for the police report. The prosecution asked him what appellant was wearing, and he responded that the police report did not state what appellant was wearing and that he did not recall why the report was silent on that point. He was then asked what Mr. Dobberthien had told him the other person involved was wearing. The defense objected to this statement as hearsay, but the prosecution argued that it was admissible as a prior consistent statement because at the preliminary hearing Mr. Dobberthien had testified inconsistently that appellant was wearing blue jeans and a white T-shirt, whereas at trial he testified that it was the other man who was Appellant maintains that this statement should not have been admitted because it was not a prior consistent statement. Evidence Code sections 791 and 1236 govern the admission of prior consistent statements. Evidence Code section 1236 creates an exception to the hearsay rule for prior consistent statements complying with section 791.
Evidence Code section 791 reads, in pertinent part, as follows: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [p] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [p] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
The requirements of subdivisions (a) and (b) for admission of a prior consistent statement have been met. On cross-examination, the defense extensively impeached Mr. Dobberthien with his testimony at the preliminary hearing about what appellant was wearing and whether it was appellant or the other man who was wearing blue jeans and a white T-shirt. Defense counsel also elicited testimony from Mr. Dobberthien that he changed his testimony after the preliminary hearing, because the deputy district attorney showed him the police report which indicated that Mr. Dobberthien had said in the report that it was the other man, and not appellant, who was wearing blue jeans and a white T-shirt.
Mr. Dobberthien's credibility was attacked with evidence of a prior statement which was inconsistent with his testimony, and the defense had implied that his testimony was influenced by the improper motive of desire to conform his testimony to what was in the police report and that his testimony was recently fabricated, as a result. Thus, the requirements of Evidence Code section 791, subdivisions (a) and (b) were met. (See People v. Pic'l (1981) 114 Cal.App.3d 824, 862-863, 171 Cal.Rptr. 106; People v. Williams (1980) 102 Cal.App.3d 1018, 1033, 162 Cal.Rptr. 748.)
Appellant's contention attempts to narrow the issue to whether or not there was an inconsistency in Mr. Dobberthien's testimony about what the other individual was wearing. Appellant asserts that "there was no evidence put on that Dobberthien had made inconsistent statements regarding the second suspect's attire," and contends that "the defense only impeached Dobberthien with evidence that he made statements inconsistent with his trial testimony regarding defendant's attire...." However, as may be seen from the facts stated above, it was Mr. Dobberthien's explanation, taken as a whole, that at the time of the crime, he had said that it was the other man, and not appellant, who was wearing the blue jeans and white T-shirt.
Mr. Dobberthien attempted to explain that he had corrected his testimony at the preliminary hearing to say that the other man was wearing blue jeans and a white T-shirt. However, the prosecution stipulated that Mr. Dobberthien did not so testify at the preliminary hearing. Defense counsel himself phrased the stipulation as follows: "May it be stipulated that at the preliminary hearing the witness indicated that it was a person that pulled him to the ground who was wearing the white T-shirt and blue Levi's and nowhere in the preliminary hearing transcript is there any testimony that it was the individual that took the wallet that was wearing the blue Levi's and white T-shirt." There was no error in this case in admission of the prior statement which was consistent with the trial testimony.
III
INSTRUCTIONS ON ASSAULT AND ATTEMPTED ROBBERY
Appellant contends that the trial court was obligated to instruct the jury sua sponte on simple assault and attempted robbery as lesser included offenses.
In his reply brief, appellant concedes that under People v. Wolcott (1983) 34 Cal.3d 92, 99-100, 192 Cal.Rptr. 748, 665 P.2d 520, simple assault is not generally a lesser included offense of robbery. However, appellant also contends that the language of the particular accusatory pleading in this case does encompass the elements of assault, thus giving rise to a duty to instruct on that crime on the second ground set forth in Wolcott, that "the language of the accusatory pleading encompasses all the elements of the lesser offense." (Id., at p. 98, 192 Cal.Rptr. 748, 665 P.2d 520.) In People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456, cited in Wolcott, the Supreme Court held that instructions on a lesser offense should be given where such lesser included offense is specifically pleaded by the language of the accusatory pleading, even though it is not a lesser included offense within the statutory definition of the greater crime charged. (Id., at p. 406, 309 P.2d 456.)
Appellant bases this argument on the fact that the accusatory pleading charged that he "did wilfully, unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of Richard D. Dobberthien." (Emphasis added.) Thus, use of force was a necessary element of the offense charged against appellant. Appellant distinguishes Wolcott, supra, because its holding that assault was not a lesser included offense of robbery was based on the statutory definition of robbery, which is " 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' (Pen.Code, § 211.)" (Italics added.) (People v. Wolcott, supra, 34 Cal.3d at pp. 99-100, 192 Cal.Rptr. 748, 665 P.2d 520.) Thus, the court in Wolcott held that because the defendant can commit robbery without attempting to inflict violent injury, or having the present ability to use force, which is required for a criminal assault, the statutory definition of robbery does not require an instruction on assault as a lesser included offense. (Id., at p. 100, 192 Cal.Rptr. 748, 665 P.2d 520.)
An assault is "an unlawful attempt, coupled with a present ability, to commit a violent personal injury on the person of another." (Pen.Code, § 240.) The term "violent personal injury" includes "any wrongful act committed by means of physical force against the person of another." The term "violence" in connection with an assault is said to be synonymous with "physical force." (People v. Whalen (1954) 124 Cal.App.2d 713, 720, 269 P.2d 181.) In the present case, the language of the information required that appellant be found to have used force in committing the robbery. Thus, assault was a lesser included offense in this case.
A trial court must instruct sua sponte on necessarily included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, and there is evidence that would justify a conviction of the lesser included offense. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 352, 216 Cal.Rptr. 455, 702 P.2d 613; People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.) There was evidence in this case that appellant committed an assault against Mr. Dobberthien, as appellant was accused of grabbing Mr. Dobberthien and struggling with him, and later of cutting him on the hand. There was some question about whether, even if this assault occurred, appellant had robbed Mr. Dobberthien, as some one else lifted the wallet out of his pocket, and appellant did not have the wallet when he was arrested. Thus, We note that this holding is based upon the language of the accusatory pleading in this case, which does not follow the statutory definition of robbery in the one critical respect described above. We note also that the language in question in this accusatory pleading is part of a printed standard form of robbery information.
Appellant also contends that the court had a duty to instruct sua sponte on attempted robbery. "[E]very completed crime necessarily involves an attempt to commit it." (People v. Vanderbilt (1926) 199 Cal. 461, 463, 249 P. 867.) Respondent contends that there was no evidence which would support an attempted robbery instruction. However, as appellant has pointed out, there was some evidence from which the jury could conclude that appellant attempted to rob Mr. Dobberthien, but that some other person, who was not appellant's aider or abettor, actually took the wallet.
The fact that appellant's defense was misidentification does not remove the duty to instruct on these lesser offenses. (See People v. Wickersham (1982) 32 Cal.3d 307, 333, fn. 11, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Saldana (1984) 157 Cal.App.3d 443, 456, 204 Cal.Rptr. 465.)
We note that if this judgment had not been reversed, an issue would have arisen as to whether defense counsel expressly waived the giving of instructions on lesser offenses as a tactical choice. "[C]ounsel must express a deliberate tactical purpose in objecting to a particular instruction before the failure to give that instruction will be deemed invited error.... [p] ... [T]he absence of a request is not equivalent to an express tactical objection." The cases require "explicit statements" regarding this tactical choice. (People v. Wickersham, supra, 32 Cal.3d at p. 333, 185 Cal.Rptr. 436, 650 P.2d 311.) In the present case, the only record on this point is a statement by the prosecutor that "defense counsel has requested that no lesser included offenses be given," which was assented to by defense counsel. To avoid error in any retrial of this case, a record should be made that any such decision by defense counsel is for an express tactical purpose.
DISPOSITION
The judgment is reversed and remanded for further proceedings consistent with the views expressed herein.
LILLIE, P.J., and JOHNSON, J., concur.