Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 201801
Richman, J.
Defendant Derrick Gaines appeals from his conviction of selling oxycodone, a controlled substance (Health & Saf. Code, § 11352, subd. (a); see also § 11055, subd. (b)(1)(N)) on the ground that the court improperly allowed him to be impeached with a prior robbery conviction sustained in 1991. He claims the court either should have excluded the conviction entirely or else allowed him to testify to the details of his prior robbery to let the jurors know his conduct was not as violent and premeditated as they might imagine. We find no abuse of discretion in the trial court’s evidentiary rulings and conclude that any arguable error in excluding defendant’s testimony was harmless.
FACTUAL BACKGROUND
The prosecution’s case
At 10:45 p.m., on June 29, 2006, San Francisco Police Officers Shaughn Ryan and Arshad Razzak were working undercover in the Tenderloin, near the intersection of Turk and Jones, in an area known as “Pill Hill” because of the ready availability of illegal prescription drugs. Ryan had three previously marked $20 bills, which he hoped to use for a drug purchase.
As Ryan and Razzak were walking on Jones Street, they passed Roy Rayford, a man in his fifties, who made eye contact with Ryan and said, “Do you want to buy some OC 80’s?” (street parlance for 80-milligram tablets of Oxycontin, the brand name for oxycodone). Ryan negotiated to buy two pills for $60, and Rayford led him a few feet down the street, where they made contact with defendant.
Defendant immediately accused Ryan of being a “cop” and asked him who Razzak was. Ryan denied being a police officer and told defendant Razzak was “just some Latin guy” who had been following him around “trying to sell [him] crack.” Ryan motioned for Razzak to get away from him, and Razzak crossed to the opposite side of the street.
Apparently satisfied with this explanation, defendant placed two green oxycodone pills on the edge of a nearby dumpster for Ryan to examine. Defendant refused to take the money Ryan offered for the pills and told Ryan to give it to Rayford. Ryan complied, while giving a surreptitious “bust signal” to tell Razzak he had made a drug purchase. Razzak apprehended defendant as he was crossing the street, and Ryan arrested Rayford.
The marked bills were still in Rayford’s hand, and two tablets of Vicodin (hydrocodone, a controlled substance) were found in his possession. (§11055, subd. (b)(1)(J).) Seventy dollars in cash was found on defendant, but no marked city funds.
Defendant was charged with sale of a controlled substance. Rayford, though arrested, developed high blood pressure while in custody and was hospitalized. He was never prosecuted.
The defense
Rayford testified for the defense, denying that he played any role in selling oxycodone to Ryan. He claimed a blonde-haired man, inferably Ryan, had approached him asking to buy some pain killers. Rayford simply asked a few of the locals if they could fulfill Ryan’s request. Someone, possibly defendant, told Rayford that Ryan was a police officer, but Rayford “disregarded” it.
Rayford testified that as soon as he and Ryan approached, defendant headed across the street. Ryan then called out to Razzak to “grab” defendant, which Razzak did. Ryan tried to put some money into Rayford’s hand, but Rayford refused it. Rayford admitted he had seen two pills on the edge of the dumpster, but he did not see defendant anywhere near the pills and did not see him put the pills on the dumpster.
Rayford also testified he had been using a cane to assist in walking since he had a stroke in 2006. He claimed Ryan grabbed his cane during the arrest and may have hit defendant across the chest with it.
Rayford claimed he did not recall having any Vicodin pills when he was arrested. He was impeached with a 2004 conviction of sale of a controlled substance, which he also had difficulty recalling.
Defendant testified in his own defense. He admitted being a crack cocaine addict since he was 13 years old. He said he had become clean and sober in 1993 after going to the California Rehabilitation Center (CRC) and had stayed clean until 2004. In 2004 he relapsed with crack and had been smoking crack with Rayford just minutes before he was arrested. After his arrest he had again achieved sobriety through a recovery program in Berkeley called Concepts for Freedom and had been clean and sober “ever since, ” with the exception of smoking marijuana.
With respect to the current allegations, defendant claimed he had not provided the pills that Ryan bought. He was standing a few feet away when Ryan approached Rayford asking for OCs. Defendant claims Ryan had a bulge in his clothing that looked like a walkie-talkie or a gun and wore a beaded chain around his neck to carry his police badge, so defendant knew right away he was a “narc.” Defendant said he “wised up” Rayford and then crossed the street, heading toward a liquor store. He was then arrested by Razzak, who walked him back across the street to where Ryan had detained Rayford. Ryan was holding Rayford’s cane as they approached, and when defendant denied being involved in the drug sale, Ryan hit him across the chest with the cane.
Defendant thought he had some crack and a crack pipe on him that night, but said he did not have any oxycodone. He testified he did not sell any drugs to Ryan, did not receive any money from Ryan, was not near the dumpster, did not place any pills on the edge of the dumpster, and had not sold drugs to anyone else that night. He also acknowledged that drug sellers sometimes use another person―a “worker” or “runner”―to bring customers over for a drug transaction, and sometimes the “runner” takes the money to “insulate” the seller from the buyer. He denied, however, that Rayford was acting as his “runner” on the night of their arrest.
On cross-examination defendant admitted he had been convicted of felony theft, second-degree burglary, and robbery in 1991 (all tried together), felony theft in 1990, and sale of a controlled substance in 2002.
Rebuttal and Surrebuttal
Ryan and Razzak did not recall Rayford having a cane at the time of the arrest. Razzak did not see Ryan hit defendant with a cane. Razzak testified that Ryan wore his police identification on a shoelace around his neck, not on a beaded chain as some officers do.
To counter defendant’s claim of newfound sobriety, the prosecution presented the testimony of another San Francisco Police Officer, Stephen Coleman, who had arrested defendant on January 31, 2009 (the Saturday night before opening statements). Defendant was arrested in a hotel room where a plateful of brown powder, suspected of being heroin, was found. Defendant, who was handcuffed and sitting on the floor, kicked over the table where the plate of heroin sat, scattering the powder so that a prosecution was not possible. Defendant claimed, “We are all just users in here, ” apparently to deny the heroin was possessed for sale.
Defendant testified on surrebuttal that he had been in the hotel room to get a tattoo, he did not know about any heroin in the room, Coleman pushed him into the table, and he did not make the statement Coleman attributed to him.
Defendant was convicted of sale of a controlled substance and sentenced to three years in prison.
DISCUSSION
I Procedural Background
The People moved in limine to admit defendant’s prior felony convictions to impeach him if he elected to testify, namely a 1988 conviction for sale of a controlled substance (cocaine) (Health & Saf. Code, § 11352, subd. (a)); a 1990 conviction for grand theft from the person (former Pen. Code, § 487.2); 1991 convictions for felony theft (former Pen. Code, § 487.1), second degree burglary (Pen. Code, §§ 459, 460.2), reckless evasion of a police officer (Veh. Code, § 2800.2), and second degree robbery (Pen. Code, §§ 211, 212.5); and a 2002 conviction for sale of a controlled substance (crack cocaine) (Health & Saf. Code, § 11352, subd. (a)).
The court found all of the priors involved moral turpitude. It then weighed their probative value against their prejudicial effect under Evidence Code section 352. It excluded the prior conviction of evasion of a police officer (Veh. Code, § 2800.2) and the 1988 drug sale (Health & Saf. Code, § 11352, subd. (a)), but ruled the other priors admissible under the balancing test of section 352. (See § 352; People v. Castro (1985) 38 Cal.3d 301, 308-313, 317 (Castro).)
Undesignated statutory references are to the Evidence Code, except “section 28” refers to article I, section 28 of the California Constitution.
Defense counsel argued the 1991 robbery was a “Phillips robbery” that had begun as a shoplifting and only escalated into a robbery when defendant and the store security guard “got into it” after defendant had stolen ten coats from the store. Counsel also pointed out that defendant served no prison time for the robbery, but instead was sent to CRC for one of the other crimes prosecuted in the same docket.
People v. Phillips (1962) 201 Cal.App.2d 383, 384-387; see also, People v. Estes (1983) 147 Cal.App.3d 23, 25-27.
The court refused to exclude the prior robbery conviction but offered to “sanitize” it by calling it a “theft-related felon[y].” Defense counsel declined this offer, saying, “No. If it comes in, Your Honor, we would bring the whole thing in.” The court then made its ruling more explicit, saying the evidence would not include “how he went off to CRC or he was granted probation.” “[T]he jurors are not going to be getting into how it was disposed... or it’s a Phillips robbery. It’s just straight-up robbery....”
Nevertheless, defense counsel, early in his opening statement, began describing to the jury the facts surrounding the 1991 robbery: “You are going to hear―he is going to testify, .... Back in 1991 he got arrested in what was a shoplifting from a store over in the Richmond area in the East Bay with the lady who was his wife at the time. She has since passed.” The prosecutor objected. The court reminded defense counsel of its earlier ruling and instructed him to “move on.”
Again, at the close of the People’s case, the court―on its own initiative―admonished defense counsel, “I made it real clear in the motions in limine about the priors that were going to come in. We are not going to relitigate the priors.... [T]o go into the background of it was a Phillips robbery and I went to CRC and I have been clean and sober, and I had a drug issue for 15 years and that led up to it. We are not going to get into that.... [A]t this time [the priors] are only used for one limited purpose, and that purpose alone is to judge the credibility of any witness. [¶] So right now if there is going to be any testimony from Mr. Gaines about... how he acquired [the priors], his particular defenses and the reason why they occurred, that’s not going to happen....[¶]... [T]o get into the facts of [the priors], how they happened, that’s not going to be permissible.”
Defense counsel argued that the jurors needed to know “the circumstances of that robbery conviction” so they could “understand [defendant’s] problem” with “long-term addiction to crack cocaine.” He said defendant had just recently conquered his drug problem and had “been clean and sober for a number of years.” Because it was a “Phillips robbery which started as a shoplifting” that “really did get out of hand, ” defense counsel argued the details of the prior robbery were “all relevant.” He did not want the jury to think defendant had gone “up to somebody with a gun and take[n] their wallet or something like that.” The court said it had considered the defense argument but ruled, “we are not going to get into the merits” or “into the facts” of the prior convictions.
II Defendant’s claims on appeal
Defendant claims the trial court erred in allowing his prior robbery conviction as impeachment, arguing it was more prejudicial than probative under section 352. He further argues that if the robbery prior was properly admitted, the trial court’s exclusion of his testimony about the circumstances of that robbery violated the Truth-in-Evidence provision of the state constitution, adopted by the voters as part of Proposition 8 in 1982. (Cal. Const., art. I, § 28, subd. (f), par. 2.) He claims the trial court’s failure to accord him an opportunity to clarify the details of his prior robbery conviction also violated his right to present a defense under the federal constitution. (U.S. Const., 6th & 14th Amends.)
The Attorney General suggests the constitutional claims were forfeited by failure to assert them in the trial court. Defense counsel argued at trial that the evidence was “relevant, ” but not that it was admissible as a matter of state or federal constitutional right. Since the state constitutional claim turns on relevance, we find it would tread largely the same ground as the relevance inquiry and address it on the merits. (See, e.g., People v. Partida (2005) 37 Cal.4th 428, 435-439; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.)
III Admission of the prior robbery conviction
At the same time the Truth-in-Evidence provision was adopted, Proposition 8 also expanded the admissibility of prior convictions in the following language: “Any prior felony conviction... shall subsequently be used without limitation for purposes of impeachment... in any criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f), par. 4.) Therefore, subject to the court’s discretion under section 352, a witness may be impeached with any prior felony conviction that involves moral turpitude―that is, the “ ‘readiness to do evil’ ”―even if the immoral trait is one other than dishonesty. (Castro, supra, 38 Cal.3d at pp. 306, 314-315; People v. Green (1995) 34 Cal.App.4th 165, 182.)
We review the trial court’s decision to admit such prior convictions for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 259, fn. 1; People v. Clair (1992) 2 Cal.4th 629, 655.) The court does not abuse its discretion unless its determination “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65; accord, Green, supra, 34 Cal.App.4th at pp. 182 183; People v. Muldrow (1988) 202 Cal.App.3d 636, 643-644.)
Robbery, which involves the wrongful deprivation of another’s property, is a crime of dishonesty that reflects directly on credibility. “ ‘In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.’ ” (People v. Beagle (1972) 6 Cal.3d 441, 453.) Because robbery is essentially larceny aggravated by assault (People v. Collins (1986) 42 Cal.3d 378, 395), it has long been “universally recognized as [a] proper subject[] of impeachment.” (People v. Thomas (1988) 206 Cal.App.3d 689, 697 (Thomas); see also, e.g., People v Mendoza (2000) 78 Cal.App.4th 918, 925; People v. Brown (1985) 169 Cal.App.3d 800, 805-806.)
Nor did the trial court abuse its discretion in finding the probative value of the prior robbery conviction was not substantially outweighed by its prejudicial effect. Although the conviction was sustained in 1991, some 15 years before the current offense, the court expressly relied upon the fact that defendant had suffered “periods of incarceration” and had “not led a trouble-free life” in the interim. Both factors mitigate remoteness in assessing the probative value of a prior conviction. (E.g., People v. Carpenter (1999) 21 Cal.4th 1016, 1055-1056; People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926.)
There is no numerical limit on the prior convictions that may be admitted as impeachment. (Muldrow, supra, 202 Cal.App.3d at p. 649, fn. 6.) The fact that defendant had other prior convictions available to impeach him gives us no reason to find the court abused its discretion. A series of crimes is more probative of a witness’s lack of credibility than a single crime would be. (People v. Hinton (2006) 37 Cal.4th 839, 888; Green, supra, 34 Cal.App.4th at p. 183; Muldrow, supra, 202 Cal.App.3d at p. 649; People v. Stewart, supra, 171 Cal.App.3d at p. 66.)
Defendant argues repeatedly that the robbery prior “unfairly impl[ied] he is a violent person” and that he “sustained undue prejudice from the violent implications of a robbery conviction.” Any such prejudice, however, was of his attorney’s own making. Defense counsel specifically rejected the court’s offer to “sanitize” the prior conviction by calling it simply a “theft-related felony.” This was a tactical decision, and the court’s compliance with defense counsel’s request, if error at all, was invited error. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1139; People v. Johnson (1993) 6 Cal.4th 1, 49; People v. Douangpanya (2010) 184 Cal.App.4th 606, 611; People v. Delgado (1973) 32 Cal.App.3d 242, 254.)
Nor do we agree with defendant that the term “theft-related felony” was so amorphous that the court’s proposed solution would have done more harm than good. Unlike the explanation defendant would have offered, which merely minimized the violence of the prior offense, the sanitized term would have completely eliminated any implication of violence. (See, e.g., People v. Carpenter, supra, 21 Cal.4th at p. 1055 [“ ‘felonies involving theft’ ”]; People v. Gray (2007) 158 Cal.App.4th 635, 642 [sanitizing prior convictions “reduced the potential prejudice”]; People v. Massey (1987) 192 Cal.App.3d 819, 822, 825 [proper to sanitize prior sexual convictions as “felonies”].) Finally, as discussed in section IV.D., post, defendant was not prejudiced by admission of his 1991 robbery conviction.
IV. Exclusion of defendant’s testimony about details of his prior robbery
A The Truth-in-Evidence provision of the California Constitution
Article I, section 28, subdivision (f), paragraph 2 (section 28(f)(2)) of the California Constitution―the Truth-in-Evidence provision―begins with the mandate that “relevant evidence shall not be excluded in any criminal proceeding.” Defendant claims this provision was violated by the court’s refusal to allow him to testify about the facts underlying his 1991 robbery conviction in order to minimize the impeaching effect of that conviction. He argues that, in criminal cases, California’s longstanding judicial policy disallowing evidence of the details of a prior conviction admitted on the issue of a witness’s credibility has not survived the adoption of section 28(f)(2), at least when such details are offered by a criminal defendant to support his credibility.
Section 28(f)(2)-which prior to November 2008 was numbered section 28(d)-reads in pertinent part: “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.... 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.” Many of the cases cited in this opinion refer to this provision as “section 28(d).”
Defendant fails to acknowledge, however, the final sentence of section 28(f)(2), which reads: “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.” This reaffirmation of the viability of section 352 specifically reserves to trial courts the discretion to exclude otherwise relevant evidence based on a weighing of probative value versus prejudicial effect, as well as based on general policy concerns, such as undue consumption of time or confusion of the jury. (Castro, supra, 38 Cal.3d at pp. 306, 314 315.)
B. Pre-Proposition 8 limitations applicable to impeachment with prior convictions
“The common law has long imposed limits on the admission of evidence to discredit a witness. A witness’s past misdeeds may logically suggest an untrustworthy character, but jurisdictions have restricted such evidence, even if relevant to honesty, on policy grounds. The concern has been that without such limitations, trials would flounder on collateral issues, witnesses would be deterred by unfair surprise or fear of public humiliation, and testifying criminal defendants would incur the danger of conviction for past, not present, misconduct.” (People v. Wheeler (1992) 4 Cal.4th 284, 290.)
Prior to Proposition 8, section 787 prohibited the use of specific instances of past conduct either to attack or support the credibility of a witness. An exception for prior felony convictions has been recognized since the earliest days of statehood, and is now embodied in section 788. (People v. David (1939) 12 Cal.2d 639, 646; People v. Eldridge (1905) 147 Cal. 782, 786; see Robbins v. Wong (1994) 27 Cal.App.4th 261, 268-274 [historical development of rule].)
Section 788 provides as follows: “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 unless:
The prior conviction exception originally derived from the common law rule that one convicted of a felony was not competent to testify at all. (Castro, supra, 38 Cal.3d at p. 314.)After that rule was abolished, prior convictions became routinely admissible to discredit a witness, based in part on the notion that a felony conviction (or at least one involving moral turpitude) proves conduct sufficiently indicative of a generally poor character that a jury may reasonably draw negative credibility inferences from the conviction alone. (Id. at pp. 306, 314-315; § 780, subd. (e).) The exception is also based in part on the fact that the record of conviction itself establishes the prior misconduct, which is not subject to relitigation, and therefore not lead to a mini-retrial of the witness’s past acts. (3A Wigmore, Evidence (Chadbourne ed. 1970) § 980, p. 828, fn. omitted; see generally, e.g., People v. Reed (1996) 13 Cal.4th 217, 222 [facts “necessarily adjudicated” as elements of prior conviction are subject to collateral estoppel]; People v. Alfaro (1986) 42 Cal.3d 627, 633-636, overruled on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 356; Arneson v. Fox (1980) 28 Cal.3d 440, 449.) Thus, the public policy allowing prior felony convictions as impeachment favors introduction of only so much evidence as is not reasonably subject to dispute and will not confuse the issues or consume inordinate time.
Section 788 allows proof of a prior conviction by introduction of the record of the judgment or by testimony of the witness himself or herself. California courts have long held that such testimonial evidence “is restricted to the name or type of crime and the date and place of conviction.” (People v. Allen (1986) 42 Cal.3d 1222, 1270 (Allen); see also, e.g., People v. Smith (1966) 63 Cal.2d 779, 790.) Testimony about any matters that would appear on the face of the record of judgment is allowed, but not evidence concerning the underlying conduct. (People v. Smith, supra, 63 Cal.2d at p. 790; see also People v. McClellan (1969) 71 Cal.2d 793, 809; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462-463; People v. Terry (1974) 38 Cal.App.3d 432, 446.) Although most often applied to a prosecutor’s attempt to inquire into the details of a defendant’s prior convictions or those of a defense witness (People v. Swayze (1963) 220 Cal.App.2d 476, 493-494 & fns. 4 & 5), the rule has also been applied where the defense sought to elicit aggravating details from a prosecution witness about a prior conviction (Allen, supra, 42 Cal.3d at p. 1270). It has also been suggested that the traditional rule excluding details of a prior conviction precludes a defendant from testifying about the mitigating details of his or her own prior conviction. (People v. Moore (1945) 70 Cal.App.2d 158, 164.)
This rule is not universal. Some jurisdictions allow such testimony, even to the point of permitting the witness to proclaim his or her innocence. (See Annot., Right of Witness Whose Credibility Has Been Impeached by Evidence of Previous Conviction, Charge of Crime, or Arrest, to Assert Innocence or to Explain or Show Circumstances (1947) 166 A.L.R. 211, 216-246.) Wigmore calls it a “harmless charity” to allow a witness impeached with a prior conviction to explain the surrounding circumstances. (4 Wigmore, Evidence, supra, § 1117, p. 251.)
C. The effect of the Truth-in-Evidence amendment on admissibility of details underlying a prior conviction admitted as impeachment
The parties have not cited, and we have not located, any case expressly holding how, if at all, Proposition 8 has affected the longstanding policy excluding factual details of a prior conviction admitted for impeachment purposes, much less one dealing with its effect on a witness’s testimony in rehabilitation.
By operation of section 28(f)(2), evidence of specific instances of prior conduct relevant to a witness’s credibility is no longer inadmissible per se in criminal trials, but rather is admissible in the court’s discretion under section 352. (People v. Mickle (1991) 54 Cal.3d 140, 168 (Mickle); People v. Harris (1989) 47 Cal.3d 1047, 1080-1082.) Defendant relies on these cases to support his theory that details underlying a prior conviction are now admissible, at least if offered by a criminal defendant to rehabilitate his credibility after being impeached with a prior conviction.
Neither Harris nor Mickle is on point. In Harris, supra, 47 Cal.3d 1047, the Supreme Court held that an informant’s prior reliability could be elicited by the prosecutor to support his credibility as a witness. (Id. at pp. 1080-1082.) Likewise, Mickle, supra, 54 Cal.3d 140, held that under section 28(f)(2), defendant should have been allowed to impeach the credibility of his former cellmate, who had testified for the prosecution, by cross-examining him about threats he had made against witnesses in other cases. (Id. at p. 167.) However, Mickle found no prejudice in the refusal to allow such cross-examination because the additional evidence “would not have painted a materially different picture of [the witness’s] credibility.” (Id. at p. 169.)
On the specific issue of the use of prior convictions for impeachment, both parties seem to treat Allen, supra, 42 Cal.3d 1222―holding such evidence “is restricted to the name or type of crime and the date and place of conviction” (id. at p. 1270)―as having decided that issue under post-Proposition 8 law. Defendant claims, however, that more recent Supreme Court cases have “trended towards” “broaden[ing] the scope of evidence admissible in criminal cases to impeach a witness.” Regardless of any such trend, if Allen, in fact, interpreted post-Proposition 8 law, and if its facts are materially indistinguishable, then we would, of course, be bound to follow Allen. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Allen, however, does not state post-Proposition 8 law on this issue. Allen held that a defendant was not entitled to cross-examine a prison inmate who had testified for the prosecution about the details of his prior murder conviction in order to further attack his credibility. (Allen, supra, 42 Cal.3d at p. 1270.) The witness had killed a small child and, because he had received threats in prison, offered to testify against defendant in exchange for being transferred to protective custody. (Id. at pp. 1267-1268.) Although the witness testified generally about his fear of being harmed in prison and his felt need for protective custody, the Supreme Court upheld the trial court’s ruling prohibiting cross-examination about the details of his prior conviction. (Id. at pp. 1268-1270.)
Though Allen was decided after the effective date of Proposition 8, it involved crimes committed before that date. (Allen, supra, 42 Cal.3d at pp. 1236, 1239 1244.) The Truth-in-Evidence provisions therefore did not apply. (People v. Smith (1983) 34 Cal.3d 251, 258.) In fact, Allen did not mention Proposition 8 at all, nor did it deal with the scope of rehabilitation evidence allowable when a witness has been impeached with a prior conviction, which is our precise concern. Therefore, we do not deem Allen binding on the question before us, and no other controlling case has been cited.
A similar argument was made in People v. DeSantis (1992) 2 Cal.4th 1198, 1250, but the court declined to reach it because the crimes predated the effective date of Proposition 8. In People v. Smith (2003) 30 Cal.4th 581, 633, the court obliquely acknowledged the argument raised by defendant here, concluding that it “need not decide whether [the] rule [prohibiting details underlying a prior conviction] still applies” because the prosecutor in that case did not inquire about the underlying details of the prior offense. Most recently, the court declined to decide whether the prosecutor could ask a defense witness who had suffered a prior federal conviction about the length of his prison sentence, finding any error non-prejudicial. (People v. Watson (2008) 43 Cal.4th 652, 685-686.) In that case, the evidence was also independently admissible to prove the witness had “nothing to lose” by testifying falsely in favor of his friend, the defendant. (Ibid.)
The cases which most directly address the issue do so in footnotes and were not cited by either party. First, in People v. Marsh (1985) 175 Cal.App.3d 987, 995, the Fourth District held that a 29-year-old defendant on trial for the murder of a two and one half-year-old child, who was impeached with a prior armed robbery conviction committed when he was 20 years old, was improperly precluded from testifying about his rehabilitation and crime-free life following that conviction. This evidence tended to prove his character at the time of trial, and not simply to rehash the facts of the prior conviction. (See People v. Costello (1963) 223 Cal.App.2d 748, 753.) Marsh opined in a footnote, however, that if the testimony had concerned the details of defendant’s prior conviction “the trial court’s determination of admissibility should be determined by the factors stated in Evidence Code section 352.” (Marsh, supra, 175 Cal.App.3d at p. 995, fn. 2.)
In Thomas, a panel of this Division discussed at greater length whether a criminal defendant should be allowed to testify about details of his own prior conviction to rehabilitate himself after impeachment. (Thomas, supra, 206 Cal.App.3d at pp. 700 701, fn. 6.) Reasoning that the rule precluding the elicitation of details of a prior conviction “is for the protection of the defendant, ” Thomas opined that a defendant could “waive the protection if his explanation will tend to minimize the inference of moral turpitude otherwise deducible from the fact of conviction.” (Ibid.) In “those rare extenuating circumstances which might negate the moral turpitude ordinarily associated with the offense, ” Thomas opined that the defense is not precluded from eliciting from the witness the facts underlying the prior offense. (Ibid.) “Arguably any such explanation in the past would have contravened section 787, rendering inadmissible evidence of specific instances of conduct to support as well as to attack the credibility of a witness. However, section 787 was invalidated in criminal cases by another provision of the same Victim’s [sic] Bill of Rights that broadened the use of prior convictions for impeachment.” (Ibid.)
We question the dictum in Thomas to the extent it suggests that criminal defendants have a greater right to explain the circumstances of their prior convictions than do other witnesses in a criminal trial. Such a rule would run counter to the purposes of the Truth-in-Evidence provision. (See Cal. Const., art. I, § 28, subds. (a)-(e).) We oversimplified the matter when we said in Thomas that the traditional rule was intended “for the protection of the defendant.” (Thomas, supra, 206 Cal.App.3d at p. 700, fn. 6.) The rule excluding details of prior convictions was intended for the benefit of all witnesses, not just criminal defendants. (Castro, supra, 38 Cal.3d at p. 309.) It was also based largely on institutional concerns beyond the interests of the parties before the court. Since section 28(f)(2) turns on the concept of relevance, it would seem to allow no special right of criminal defendants to testify about the facts underlying a prior conviction that would not be available to other witnesses in a criminal trial (cf. People v. Lankford (1989) 210 Cal.App.3d 227, 237), although the consideration of prejudice to a criminal defendant might well affect the balancing under section 352.
Although the footnote in Thomas seems to suggest it was the provision currently numbered section 28(f)(4) that invalidated section 787, it was actually the provision now numbered section 28(f)(2) that had that effect. (Harris, supra, 47 Cal.3d at pp 1080 1082; People v. Adams (1988) 198 Cal.App.3d 10, 17-18.)
Thus, Thomas long ago presaged defendant’s argument here, yet no case of which we are aware has followed up on that dictum by actually holding that such explanation is allowable. We, too, need not decide that issue, since we conclude that even if the proposed testimony were admissible, defendant was not prejudiced by its exclusion.
The view expressed in footnote 6 of Thomas has also been endorsed by more than one commentator. (1 Jefferson, Cal. Evidence Benchbook (Cont. Ed. Bar 4th ed. 2010) Attacking and Supporting Credibility of Witnesses, § 29.71, p. 631; see also, id., § 29.70, p. 630; Scallen & Weissenberger, California Evidence Courtroom Manual (2009) § 788, p. 455 [“As a rehabilitative device, nothing in the statute prohibits an ‘explanation’ by the witness of extenuating circumstances of the conviction. Some courts permit ‘brief protestations’ of innocence or testimony of extenuating circumstances to explain away the implication of a conviction.”].)
D. Defendant was not prejudiced by the court’s evidentiary rulings on his prior robbery conviction
As in Mickle, exclusion of the proffered evidence was at most harmless error, as it “would not have painted a materially different picture of [defendant’s] credibility.” (Mickle, supra, 54 Cal.3d at p. 169.) Contrary to defendant’s argument, his credibility would not have been rehabilitated if the jury knew that his 1991 crime was a “Phillips robbery” rather than some other kind. That he had stolen ten coats from a store prior to his physical altercation with the security guard would, standing alone, have seriously damaged his credibility. His willingness to employ physical force to escape with the stolen merchandise adds to the poor reflection on his character. Attempting to downplay the force or fear element of robbery would not have materially altered the jury’s overall impression of defendant’s credibility or its verdict.
The robbery conviction was just one of four theft-related convictions that defendant had sustained, as well as a 2002 prior conviction of sale of a controlled substance. Though the prior convictions in the aggregate may have contributed to the jury’s rejection of defendant’s story, we have no reason to believe the robbery prior in particular unduly influenced its decision. Defendant was not on trial for robbery or another violent offense. (Cf. Beagle, supra, 6 Cal.3d at p. 453.) Nothing was said at trial to create an exaggerated impression of the degree of violence involved in his prior robbery, and it was not mentioned at all by the prosecutor in closing argument. Finally, the jurors were properly instructed on the limited purpose of the evidence, and we presume they followed those instructions. (People v. Ervine (2009) 47 Cal.4th 745, 776.)
The defense case was weak. Defendant’s denial that he sold Ryan the oxycodone pills was supported to some extent by Rayford’s testimony. But Rayford was a problematic witness. Not only was he biased-being defendant’s crack-smoking buddy and uncharged co-participant in the drug sale-but he had a prior conviction for a felony drug sale and had smoked crack just ten or fifteen minutes before the encounter with Ryan. Rayford could not understand many of the questions put to him, had difficulty remembering his own prior conviction, and admitted his “mind ain’t that good.” We doubt the jury placed much credence in his testimony.
In addition, because both Rayford and defendant denied participating in the drug sale, the theory of defense was that the police had planted the drugs and committed perjury at trial. We find it highly unlikely the jury would have rejected two police officers’ sworn account of the events in favor of the improbable testimony of Rayford and defendant, both of whom had a strong motive to lie.
Defendant emphasizes a glitch in the evidence in that “before” and “after” photocopies of the marked city funds used for the drug transaction were admitted in evidence, but the photocopies were, in fact, identical. The police witnesses forthrightly admitted a mistake had been made in labeling the exhibits, as did the district attorney. We do not see this clerical error as having any likely effect on the jury’s verdict.
In light of the whole record, we conclude defendant’s robbery conviction would have had no appreciable bearing on the jury’s verdict. It is far more likely the jury doubted defendant’s credibility―including his story that he had been “clean and sober” “ever since” his 2006 arrest―largely because he admitted being a “user” during a heroin bust that occurred while the trial on the current offense was underway. He also testified that he was clean and sober from 1993 until 2004, a claim that surely was discredited by his conviction of selling a controlled substance in 2002. These palpable lies on the witness stand undoubtedly damaged defendant’s credibility far more than his 1991 robbery conviction.
Even if regarded as error under the state constitution, the admission of defendant’s prior robbery conviction, and the refusal to allow him to explain the circumstances, would be governed by the forgiving miscarriage of justice standard. (Cal. Const., art. VI, § 13 [applies to “the improper admission or rejection of evidence”]; People v. Watson, supra, 43 Cal.4th at p. 686; People v. Watson (1956) 46 Cal.2d 818, 836.) Under that standard, any evidentiary error was harmless.
V. Defendant’s federal constitutional claims were forfeited and are without merit
Defendant’s claim that he had a right to explain his prior conviction as part of the right to present a defense under the Sixth and Fourteenth Amendments to the federal Constitution has been forfeited. (See Partida, supra, 37 Cal.4th at p. 435.) The issue is not, as defendant claims, a pure question of law, but rather requires an examination of the law as applied to the specific facts of defendant’s proposed testimony.
Even if it had not been forfeited, defendant’s federal claim is without merit. The federal Constitution “leaves to the judges who must make these decisions ‘wide latitude’ to exclude evidence that is ‘repetitive..., only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, or confusion of the issues.’ ” (Crane v. Kentucky (1986) 476 U.S. 683, 689 690.) Although a defendant is entitled “to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy.” (People v. Marshall (1996) 13 Cal.4th 799, 836; see also, Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [constitutional right of cross examination for impeachment is limited to those matters that would give the jury “a significantly different impression of [the witness’s] credibility”].)
Moreover, “ ‘application of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) We are confident there was no violation of defendant’s federal constitutional rights in excluding the proffered evidence, and even if error occurred, for the reasons previously discussed, it must be deemed harmless even under the stringent federal standard. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J.Haerle, J.
“(a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.
“(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.
“(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.
“(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”