Bailes

Appellant, Michael Lynn Bailes, appeals from a judgment rendered after a jury convicted him of burglary.

Appellant made a motion to exclude the testimony of a police officer on the ground that the prosecution had lost or destroyed photographs allegedly crucial to appellant’s defense. This motion was denied. Also denied was appellant’s motion to dismiss the information due to insufficient evidence.

Before trial, the court indicated that it would permit the prosecution to impeach the defendant, should he testify, with a prior felony conviction for robbery from 1976. The prosecution did not attempt to use a prior felony conviction for burglary from 1978.

Facts

Don Beedle left his Fresno home at about 9 a.m. on July 23, 1979, to go shopping. When he returned at about 11 a.m., he noticed that several lights were on inside the home. He looked in the bedrooms and saw that they had been ransacked. The window of the master bathroom had been shattered and the screen bent to the side. The window was large enough to allow a man to enter. Beedle immediately phoned the police.

Upon further examination, Beedle noticed that a sliding glass door opening from the master bedroom onto…

I dissent from that portion of the majority opinion entitled “No Beagle Error.”

Robbery, the accomplishment of theft by assault, reflects adversely against an individual’s honesty and veracity to the extent it is a larcenous crime. “[A] conviction for robbery is only partly relevant to credibility ....” (People v. Fries (1979) 24 Cal.3d 222, 229 [ 155 Cal.Rptr. 194 , 594 P.2d 19 ].) The court must weigh the credibility factor against the probability that admission of such evidence will create a “substantial danger of undue prejudice ....” (Id., at p. 227.)

If we spread out all of the larcenous crimes in a spectrum as indicative of a propensity to lie, high on the list would be crimes of embezzlement, where the offender has violated a position of trust. (Pen. Code, §§ 503, 506. 1 ) Forgery, where one passes a false document as true and genuine (§ 470), would be nearby, as would theft by false pretense. (§§ 484, 532.) Somewhere in the middle would be receiving stolen property. (§ 496.) Below that would be burglary (§ 459), which usually involves a surreptitious entry. 2 Far down on the list, perhaps *284 next to joyriding (§ 499b), 3 would be robbery, which is neither a crime of…

The majority opinion has discussed fairly the exercise of the trial court’s discretion within the Beagle case in ruling on the admissibility of the prior conviction. The trial judge could not, under the Spearman case, admit the prior burglary; however, as to the admission of the prior robbery, under the total circumstances before the judge and present case law, we cannot say that the court abused its discretion. The dissent appears to be an attack upon Evidence Code section 788 and should be directed to the Legislature rather than to the trial judge. (See People v. Hickman (1981) 127 Cal.App.3d 365, 370, 372 [ 179 Cal.Rptr. 541 ].)

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney

General, and Gregory W. Baugher, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

KLEIN (A.E.), J. [*]

Appellant, Michael Lynn Bailes, appeals from a judgment rendered after a jury convicted him of burglary.

Appellant made a motion to exclude the testimony of a police officer on the ground that the prosecution had lost or destroyed photographs allegedly crucial to appellant's defense. This motion was denied. Also denied was appellant's motion to dismiss the information due to insufficient evidence.

Before trial, the court indicated that it would permit the prosecution to impeach the defendant, should he testify, with a prior felony conviction for robbery from 1976. The prosecution did not attempt to use a prior felony conviction for burglary from 1978.

Don Beedle left his Fresno home at about 9 a.m. on July 23, 1979, to go shopping. When he returned at about 11 a.m., he noticed that several lights were on inside the home. He looked in the bedrooms and saw that they had been ransacked. The window of the master bathroom had been…