Coffey

Concurring and Dissenting.

I concur in the judgment and the opinion of the court except for the holding that an erroneous impeachment of defendant by an unconstitutional prior felony conviction would be harmless beyond a reasonable doubt as to counts 5 and 6.

Although there is more evidence of felonious intent on counts 5 and 6 than on counts 3, 4, 7, and 8, there is a direct conflict on all counts between defendant’s testimony and the prosecution’s evidence of felonious intent. Since any evidence introduced to impeach defendant’s credibility would apply to all counts, it is highly unlikely that a jury would assess defendant’s credibility on a count-by-count basis. (See Code Civ. Proc., § 2061, subd. 3.) When a defendant’s credibility is in issue, error affecting his credibility as to any count necessarily affects all counts in which credibility is in issue. (People v. Torres, 61 Cal.2d 264, 267 [ 37 Cal.Rptr. 889 , 391 P.2d 161 ].) If, as the majority opinion correctly concludes, the jury might not have been convinced beyond a reasonable doubt that defendant’s testimony was false as to counts 3, 4, 7, and 8, in the absence of the impeaching evidence, it likewise might not have…

Defendant was charged by information with four counts of assault with intent to commit murder (Pen. Code, § 217); with four counts of assault with a deadly weapon upon the person of a police officer (Pen. Code, § 245, subd. (b)); with being armed at the time of said offenses with a pistol capable of being concealed upon the person without having a license to carry such pistol (see Pen. Code, § 12022) j 1 and with having suffered a prior felony conviction in the State of Oklahoma.

At trial the prosecution produced substantial evidence to the following effect: On Saturday, October 31, 1964, about 5:30 p.m. Officers Norenberg and Martin of the Anaheim Police Department went to the home of defendant to question him about an alleged misdemeanor hit-run violation. Failing to see the vehicle reported to them as belonging to Coffey, the officers parked about a block away and waited. About 6 p.m. defendant drove up in a car answering the description given *209 the police. The officers activated the red lights on their patrol car and followed defendant who parked in the, driveway, emerged from the automobile, and started toward the door of his home.

Officer Norenberg called to defendant…