Collins

In People v. Castro (1985) 38 Cal.3d 301 [ 211 Cal.Rptr. 719 , 696 P.2d 111 ], we held that article I, section 28, subdivision (f), of the Constitution (hereinafter section 28(f)), adopted as part of Proposition 8 on the June 1982 Primary Election ballot, authorizes the impeachment of a witness in a criminal trial by a prior felony conviction that necessarily involves moral turpitude, but that the trial court retains its discretionary power under Evidence Code section 352 (hereinafter section 352) to exclude any such conviction when its probative value is outweighed by the risk of undue prejudice. 1 In reviewing this conviction of burglary, we adopt a procedure for applying the Castro rule to cases tried before the date of that decision and still pending on appeal. Under that procedure, we reverse the judgment of the Court of Appeal with directions.

Defendant was charged with committing, on April 2, 1983, either the crime of burglary of an automobile (Pen. Code, § 459) or the crime of receiving stolen property (id., § 496). The information further alleged that *382 on November 1, 1982, defendant had suffered a prior conviction of burglary. He pleaded not guilty and…

I thought this court was wrong in People v. Castro (1985) 38 Cal.3d 301 [ 211 Cal.Rptr. 719 , 696 P.2d 111 ], when it held that trial court discretion to exclude prior felony convictions for purposes of impeachment survived Proposition 8 (see my conc. & dis. opn., id., at pp. 319-322), and I still think so. Like the trial court in this case— and most others, judging from the number of cases on appeal which involve “Castro error” 1 —the language and intent of the initiative in this respect seemed to me quite clear.

I agree with former Chief Justice Traynor, however, that once a dissenter has expressed his views “he has had his day. He should yield to the obligation that is upon him to live with the law as it has been stated. He may thereafter *397 properly note that he is concurring under compulsion ... but he should regard dearly enough the stability of the law that governs all the courts in the state not to renew the rataplan of his dissent.” (Traynor, Some Open Questions on the Work of State Appellate Courts (1957) 24 U.Chi.L.Rev. 211, 219.)

Accordingly, and under compulsion of this court’s decision in Castro , I agree that the trial court erred in failing to exercise its…

I concur in all parts of the majority opinion except its assertion that future appeals should be governed by the rule of Luce v. United States (1984) 469 U.S. 38, 42 [ 83 L.Ed.2d 443, 448 , 105 S.Ct. 460, 464 ]. The Luce rule provides that a defendant cannot challenge on appeal an erroneous ruling admitting prior convictions for purpose of impeachment unless he has testified, and suffered impeachment, before the jury trying his case. The primary purpose of the rule is to provide the appellate court with a record sufficient to enable it to assess the prejudicial effect of the trial court’s ruling. That goal, however, can be achieved in a way less destructive of defendant’s rights: by permitting defendant to testify outside of the presence of the jury.

When a trial court rules that it will permit a prior conviction to be used for impeachment, the defendant faces a dilemma. As we explained in People v. Fries (1979) 24 Cal.3d 222 [ 155 Cal.Rptr. 194 , 594 P.2d 19 ], “[i]f a defendant testifies and is impeached by means of a prior felony conviction, there is a widely acknowledged danger that this evidence will be misused by the trier of fact. ‘Despite limiting instructions, the jury…

I concur in the judgment, but only under the compulsion of People v. Castro (1985) 38 Cal.3d 301 [ 211 Cal.Rptr. 719 , 696 P.2d 111 ], a case in which I dissented. (See id. at p. 322.) The majority’s complicated review and remand procedure would be entirely unnecessary if in Castro we had followed the clear intent underlying Proposition 8 and held that all prior convictions are admissible “without limitation” for impeachment purposes.

Nonetheless, given Castro’s holding, the majority’s present remand procedure appears a satisfactory way to determine whether any prejudicial error has occurred. Certainly, such a remand is preferable to a rule of per se reversal for Castro error. In addition, with respect to future cases, I fully concur with part I of the majority opinion which adopts the rule of Luce v. United States (1984) 469 U.S. 38 [ 83 L.Ed.2d 443 , 104 S.Ct. 460 ], that denial of a motion to exclude a prior conviction is not reviewable on appeal unless the defendant took the stand to testify in his defense.

In People v. Castro (1985) 38 Cal.3d 301 [ 211 Cal. Rptr. 719 , 696 P.2d 111 ], we held that article I, section 28, subdivision (f), of the Constitution (hereinafter section 28(f)), adopted as part of Proposition 8 on the June 1982 Primary Election ballot, authorizes the impeachment of a witness in a criminal trial by a prior felony conviction that necessarily involves moral turpitude, but that the trial court retains its discretionary power under Evidence Code section 352 (hereinafter section 352) to exclude any such conviction when its probative value is outweighed by the risk of undue prejudice. [1] In reviewing this conviction of burglary, we adopt a procedure for applying the Castro rule to cases tried before the date of that decision and still pending on appeal. Under that procedure, we reverse the judgment of the Court of Appeal with directions. [2]

Defendant was charged with committing, on April 2, 1983, either the crime of burglary of an automobile (Pen. Code, § 459) or the crime of receiving stolen property ( id., § 496). The information further alleged that on November 1, 1982, defendant had suffered a prior conviction of burglary. He pleaded not…