Fisher

Introduction

Defendant Terry Fisher (defendant and/or Fisher) appeals from his conviction, following a jury trial, of robbery (Pen. Code, § 211; count I) and assault with a deadly weapon (Pen. Code, § 245, subd. (a); count II). The findings that he used a firearm and intentionally inflicted great bodily injury during the commission of the offenses were found to be true (Pen. Code, §§ 12022.5, 12022.7). He admitted having been previously convicted of a felony (Pen. Code, § 667.5, subd. (a)). We affirm the judgment.

The Facts

The People’s case consisted of the following evidence. Henry Parker, the victim, testified that on the evening of February 13, 1982, at about 10 p.m., he was coming out of Snappy’s Liquor Store at the corner of 41st and Main Streets in Los Angeles when defendant Fisher approached him. Parker recognized Fisher, having seen him in the area on previous occasions. Defendant Fisher demanded of Parker, “‘Give it here,”’ and brandished an up and over shotgun. Parker asked defendant, “ ‘What are you talking about, man?”’ and the defendant replied, “‘Goddamnit. I said give it here.’” Parker attempted to grab defendant’s shotgun, and defendant shot him in the…

—I respectfullydissent. The erroneous denial of appellant’s motion to exclude evidence of his robbery convictions constituted prejudicial error requiring reversal of the judgment. The record expressly reveals that appellant’s decision not to testify was caused by the court’s denial of the motion and the likelihood of appellant’s impeachment with identical priors should he take the stand. (Cf. People v. Broder (1983) 147 Cal.App.3d 572, 575-576 [ 195 Cal.Rptr. 264 ]; People v. Burdine (1979) 99 Cal.App.3d 442, 450 [ 160 Cal.Rptr. 375 ].)

Our Supreme Court has repeatedly held that evaluation of the impact on the jury of testimony a defendant would have given but did not give is ordinarily beyond the ability of an appellate court. {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 Cal.Rptr. 19 ]; People v. Rist (1976) 16 Cal.3d 211, 223 [ 127 Cal.Rptr. 457 , 545 P.2d 833 ].)

At the heart of this case is a credibility conflict between the two prosecution witnesses, Henry Parker and Andree…

HANSON (Thaxton), J. —

Defendant Terry Fisher (defendant and/or Fisher) appeals from his conviction, following a jury trial, of robbery (Pen. Code, § 211; count I) and assault with a deadly weapon (Pen. Code, § 245, subd. (a); count II). The findings that he used a firearm and intentionally inflicted great bodily injury during the commission of the offenses were found to be true (Pen. Code, §§ 12022.5, 12022.7). He admitted having been previously convicted of a felony (Pen. Code, § 667.5, subd. (a)). We affirm the judgment.

The People's case consisted of the following evidence. Henry Parker, the victim, testified that on the evening of February 13, 1982, at about 10 p.m., he was coming out of Snappy's Liquor Store at the corner of 41st and Main Streets in Los Angeles when defendant Fisher approached him. Parker recognized Fisher, having seen him in the area on previous occasions. Defendant Fisher demanded of Parker, "`Give it here,'" and brandished an up and over shotgun. Parker asked defendant, "`What are you talking about, man?'" and the defendant replied, "`Goddamnit. I said give it here.'" Parker attempted to grab defendant's shotgun, and defendant shot him in the…