Landmark California Cases on Proposition 8

Since the 1982 enactment of article 1, section 28 of the California Constitution (Proposition 8), a testifying defendant may be impeached with prior conduct that involves moral turpitude (i.e., a readiness to do evil). (People v. Castro (1985) 38 Cal.3d 301, 306, 313-316; People v. Wheeler (1992) 4 Cal.4th 284, 290-297, & fn. 7.) Impeachment based on prior acts involving moral turpitude is premised on the recognition that "misconduct involving moral turpitude may suggest a willingness to lie." (People v. Wheeler, supra, 4 Cal.4th at p. 295.) Prior to Proposition 8, only felony convictions were available for impeachment; after Proposition 8, any misconduct involving moral turpitude is available for impeachment, subject to the trial court's exercise of its discretion under Evidence Code section 352 to balance probative value against undue prejudice. (People v. Wheeler, supra, 4 Cal.4th at pp. 290-297, & fn. 7.) Article 1, section 28, subdivision (f) states that any prior felony conviction may be used for impeachment. Article 1, section 28, subdivision (d) states that relevant evidence shall not be excluded in criminal proceedings, subject to several statutory exceptions. Additionally, prior to Proposition 8, the California Supreme Court had established a "black letter rule of exclusion" for impeachment under which "'identical prior offenses may not be used; and similar prior convictions should be used only sparingly.'" (People v. Foreman (1985) 174 Cal.App.3d 175, 180.) Proposition 8 repudiated this inflexible black letter rule; thus, the fact that a prior conviction is the same or similar to a charged offense does not compel its exclusion, and similarity is only one factor to consider when the court balances relevancy and prejudice. (Id. at pp. 180-182; People v. Tamborrino (1989) 215 Cal.App.3d 575, 590; People v. Green (1995) 34 Cal.App.4th 165, 183.) When evaluating whether to admit a prior conviction for impeachment, relevant factors to consider include whether the prior conviction reflects adversely on honesty or veracity, the nearness or remoteness of the prior conviction, whether the prior conviction is for the same or similar conduct as the charged offense, and the effect if the defendant does not testify because of fear of impeachment with the prior conviction. (People v. Green, supra, 34 Cal.App.4th at p. 182.) These factors should not be applied rigidly and other relevant circumstances may also be considered. (People v. Collins (1986) 42 Cal.3d 378, 391-392; People v. Foreman, supra, 174 Cal.App.3d at p. 181.) Although numerous prior convictions involving conduct similar to the charged offense can increase the risk of prejudice and support their exclusion, a trial court may reasonably exercise its discretion to admit numerous similar priors based on such factors as the high probative value of the priors and the need to prevent the defendant from testifying before the jury with a false aura of veracity. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647; People v. Dillingham (1986) 186 Cal.App.3d 688, 695; People v. Green, supra, 34 Cal.App.4th at p. 183; People v. Stewart (1985) 171 Cal.App.3d 59, 66; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1138-1139 court did not abuse its discretion in permitting impeachment based on prior conviction for assault with a deadly weapon on an officer in case charging attempted murder of officer; People v. Johnson (1991) 233 Cal.App.3d 425, 459 no abuse of discretion to permit impeachment based on unsanitized murder conviction in case charging murder.) When the immoral conduct admitted for impeachment is based on a misdemeanor (rather than felony) conviction or did not result in a conviction, additional factors may also be relevant under the court's Evidence Code section 352 analysis. (See People v. Wheeler, supra, 4 Cal.4th at pp. 296-297, & fn. 7.)