# People v. Wheeler

> California Supreme Court · December 17, 1992 · 4 Cal. 4th 284

URL: https://www.frixlaw.com/law-library/cases/9575889

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JENNIFER WHEELER, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 17, 1992
- **Citations:** 4 Cal. 4th 284; 14 Cal. Rptr. 2d 418; 92 Daily Journal DAR 17026; 841 P.2d 938; 92 Cal. Daily Op. Serv. 10156; 1992 Cal. LEXIS 6099
- **Precedential status:** Published
- **Opinion:** Dissent by Arabian
- **Judges:** Baxter, Mosk, Arabian
- **Cited by:** 410 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in People v. Duran.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9575889

## Opinion text

ARABIAN, J.
I dissent. Contrary to the majority, I would hold that a witness may not be impeached by evidence of specific acts of misconduct other than a prior felony conviction. Under today’s holding, a Pyrrhic victory for the prosecution, trial courts will inevitably become mired in extraneous, time-consuming matters, and potential witnesses throughout the state will suffer inestimable injury with little, if any, resulting benefit to the truth-finding process. The holding is lamentable for it is not mandated by the text of Proposition 8, as an analysis of the interplay between California Constitution, article I, § 28, subdivisions (d) and (f) (hereafter section 28(d), section 28(f)), demonstrates. In essence, by enacting Proposition 8, the electorate intended a return to the rule that a witness may be impeached by a felony conviction, not an unforeseen trip into the muddy fen of character assassination and witness bashing.
I.
Citizens who witness a crime, or otherwise possess information relevant to a criminal case, are required, once subpenaed, to testify at trial. The cooperation of potential witnesses is essential to the proper functioning of our criminal justice system. Today’s holding that any witness may be impeached by evidence of misconduct amounting, not to a felony, but only a misdemeanor (or perhaps not even a crime at all) will have a chilling effect on witnesses who may feel aversion at the spectre of impeachment attacks in open court on often trivial, but embarrassing, details.
These problems are particularly acute in the criminal law realm, an ironic result since only in that domain does the holding apply. As many witnesses to crime reside and operate within a criminal milieu, a relatively high percentage of potential attestants may have a criminal background. Thus, *306 precisely those whose cooperation is especially necessary to the production of evidence will be most adversely affected by the majority’s holding.
The majority intimates that trial courts should exercise their Evidence Code section 352 discretion by excluding impeachment evidence for misconduct less than a felony. (E.g., maj. opn., ante, at p. 297, fn. 7.) If the courts heed this hint, the damage might be mitigated, but it will not, indeed cannot, be eliminated. The dire Damoclean threat will be ever present. Impeachment by minor transgressions may be avoided in front of juries, but nothing can prevent detailed, possibly lurid, litigation outside the presence of the jury, but in open court in view of the public and press. The majority opinion is an open invitation to all parties to unearth whatever tarnish is available to besmirch adverse witnesses and to exploit it in an offer of proof before the trial court and, in a high profile case, the media.
Without a judicial impact report, it is also unclear what discovery duties this ruling engenders. If, for example, the prosecution learns that a key witness cheated on his or her spouse, or stole paper clips from the office, must that information be provided the defense as possible impeaching evidence? (Cf. Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378 [ 285 Cal.Rptr. 231 , 815 P.2d 304 ]; People v. Morris (1988) 46 Cal.3d 1, 29-30 [ 249 Cal.Rptr. 119 , 756 P.2d 843 ].) If so, what will happen to the candor between attorney and witness?
Under Evidence Code sections 787 and 788, a bright line had always existed. Convictions of felony, but nothing less, were admissible for impeachment. Elimination of the boundary will enmesh courts in litigation over the admissibility of extraneous matters. In limine hearings should concern significant matters, not impeachment marked by shallowness. If trial courts follow the majority’s path regarding Evidence Code section 352, little new evidence will actually be admitted at criminal trials, but the needless expenditure of burdened judicial resources and potential harassment of citizen witnesses will surely occur.
Further, the majority’s hearsay analysis makes the result particularly troublesome. It concludes that a felony conviction may be admitted for impeachment as an exception to the hearsay rule, but not a misdemeanor conviction. Proof of a conviction, of course, would be significantly less time consuming and disruptive than putting on witnesses to prove misconduct. As the majority itself recognizes, “impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation [and, I might add, undue harassment of witnesses] which felony convictions do not present.” (Maj. opn., ante, at p. 296.) Today’s holding not *307 only permits but requires such problematical proof of the underlying facts, but only for less serious misconduct. Thus, the less serious the misconduct, the more time-consuming and potentially embarrassing the necessary proof.
A conviction also “reliably establishes that the witness committed corresponding criminal acts.” (Maj. opn., ante, at p. 297, fn. 7.) I suggest that a conviction is generally far more reliable evidence than witnesses testifying about minor misconduct, possibly years later. Thus, the majority also prohibits the more reliable evidence and requires instead the less reliable, but again only for less serious misconduct.
Possibly realizing the anomaly of this muddled result, the majority suggests the Legislature might correct the problem. (Maj. opn., ante, at p. 300, fn. 14.) It otherwise professes itself unable to “usurp the Legislature’s considered judgment.” (Maj. opn., ante, at p. 300.) However, the only “considered judgment” the Legislature made was to allow impeachment by a felony conviction and nothing less (Evid. Code, §§ 787, 788), a judgment that, as explained below, I believe the electorate ratified in passing Proposition 8.
II.
The majority claims it “must accept the plain meaning of section 28(d) whatever we may think of its wisdom.” (Maj. opn., ante, at p. 294.) I agree and wish some plain meaning could be found in this case. We must, however, read every portion of Proposition 8 with reference to the entire scheme of which it is a part, so that the whole may be harmonized and given effect. (People v. Pieters (1991) 52 Cal.3d 894, 899 [ 276 Cal.Rptr. 918 , 802 P.2d 420 ].) Section 28(d) is not the only constitutional provision in Proposition 8. The drafters of that Proposition also included, and the voters who approved it considered, section 28(f), which provides in pertinent part: “Any prior felony conviction of any person . . . shall subsequently be used without limitation for purposes of impeachment. . . .” (Italics added.) This provision may not be ignored in construing the whole.
Section 28(f) speaks specifically to the question of impeachment by misconduct. It is most reasonably construed as a return to the settled law, before judicial restrictions on the use of felony convictions, which allowed impeachment by convictions for felonies, but nothing less. By expressly allowing impeachment with felony convictions, that section impliedly prohibits other impeachment, despite the general language of section 28(d).
Section 28(f) must have a meaning independent of section 28(d); it was not an exercise in redundancy. The majority divests the section of meaning. *308 Surely it was not the intent of the electorate to state only that felony, but not misdemeanor, convictions constitute an exception to the hearsay rule. If that had been the intent, it could have been, and surely would have been, stated less obliquely.
The caption for the text of section 28(f), as presented to the electorate in the ballot materials (and in the Constitution itself) reads: “Use of Prior Convictions.” (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 300 [ 186 Cal.Rptr. 30 , 651 P.2d 274 ], italics and underlining in original.) This caption, although certainly not conclusive, may be considered in aid of interpreting a provision in the absence of an express prohibition of such use. (Progress Glass Co. v. American Ins. Co. (1980) 100 Cal.App.3d 720, 726 [ 161 Cal.Rptr. 243 ].) The caption significantly refers to use of prior convictions, not prior felony convictions. Thus, the electorate would reasonably believe that the provision they were approving would cover the entire field of impeachment with convictions.
The majority argues that sections 28(d) and (f) may be reconciled. I agree, but I would give meaning to both sections, not merely the more general section 28(d). We need not search far to discover a logical and mutually consistent meaning. As the majority notes, section 28(d) contains an exception for Evidence Code section 352; relevant evidence may still be excluded if its probative value is outweighed by the danger of undue consumption of time or prejudice. Section 28(f) is a specific application of this exclusion—a determination that misconduct evidenced by something less than a felony conviction is either irrelevant for purposes of impeachment or, if marginally relevant, that its probative value is inherently outweighed by the danger of undue consumption of time, prejudice, confusion of issues or misleading the jury.
The majority recognizes that when a party seeks to prove impeaching misconduct by direct evidence of the acts committed, “fairness, efficiency, and moral turpitude become more complicated issues.” (Maj. opn., ante, at p. 297, fn. 7.) What could be more inherently time-consuming, confusing and prejudicial than a parade of witnesses testifying to immoral misconduct which “might not even constitute criminal offenses” (ibid.) and which, again to borrow from the majority, “is a less forceful indicator of immoral character or dishonesty than is a felony”? (Maj. opn., ante, at p. 296.)
The majority would force trial courts to decide these “complicated issues” in every case. They would thus also force witnesses to endure litigation regarding the admissibility of whatever embarrassing facts the opposing party might uncover. I believe, however, that the electorate, in enacting *309 section 28(f) as well as section 28(d), intended, quite wisely, that only one specific type of impeachment by acts of misconduct be allowed—evidence of a felony conviction. Anything less is excludable as a matter of law, not merely on a case-by-case basis subject to the varying vagaries of trial judges.
III.
In sum, I would hold that the trial court erred in admitting over objection the misdemeanor conviction as impeachment evidence. Since this view has not prevailed, it is left to the Legislature to undo the damage and to restore what I believe was the intent of the electorate in enacting section 28(f). I therefore urge that co-equal branch of government to enact appropriate legislation reinstating the interrelationships of section 28(f) and Evidence Code sections 787 and 788.
Appellant’s petition for a rehearing was denied February 11, 1993. Mosk, J., and Arabian, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9575889. Public record. Not legal advice.