Court Limits Appeal Rights for Defendants With Record

The California Supreme Court, in a victory for prosecutors, held Monday that defendants who do not testify cannot later appeal a trial judge’s decision to allow their prior convictions to be used to impeach their credibility before the jury.

The justices, ruling in a related issue in the case, also established a set of detailed procedures for lower courts to use in reviewing dozens of criminal appeals pending in the wake of a ruling last year that limited to certain crimes the prior convictions that could be introduced to impeach a defendant’s testimony.

The court held in March, 1985, that under Proposition 8, the anti-crime initiative passed by the voters in 1982, prior convictions involving crimes of “moral turpitude” could be introduced at the discretion of the judge.

In Monday’s case, the court, following a U.S. Supreme Court precedent and comparable rulings in several other states, refused by a vote of 4 to 3 to allow defendants who had not testified to appeal a ruling allowing their prior offenses to be used against them.

The court majority rejected the contention that such a rule placed a defendant in the unfair position of choosing between testifying--and risk having the jury doubt his credibility because of his prior convictions--or remain silent and give up his chance to appeal a judge’s finding that the prior convictions could be used for impeachment.

Justice Stanley Mosk, writing for the majority, said that no witness--including a criminal defendant-- “has the right to give testimony immune from such challenge” to his credibility.

Mosk was joined in the majority by Justices Malcolm M. Lucas and Joseph R. Grodin and Sacramento Superior Court Judge Ronald B. Robie, sitting temporarily by designation.

In dissent, Justice Allen E. Broussard, joined by Chief Justice Rose Elizabeth Bird and Justice Cruz Reynoso, said it was unfair to require a defendant to testify--and thus risk his credibility before the jury--to protect his right to appeal a judge’s ruling allowing his prior convictions to be used.

“The rule is an oppressive one, putting a defendant to a forced choice between prejudicing his right to a fair trial or his right to appeal,” Broussard wrote.

The second part of the court’s decision was adopted unanimously, with the justices establishing a series of complex guidelines for lower courts to use in reviewing pending cases that were tried before their 1985 ruling to see whether they required retrial.

The court ordered further proceedings in the lower courts to review the Los Angeles burglary conviction of Alonzo Collins, who had challenged a ruling allowing his prior convictions to be introduced before jurors.

Deputy State Atty. Gen. Ernest Martinez praised that part of the court’s ruling barring appeals from defendants who do not testify. “We’re very, very pleased with that part of the decision,” he said. “Many defendants come to trial with prior convictions--and the ruling is very important in that respect.”

On the other side, Dennis A. Fischer of Santa Monica, an attorney who represented the defendant in the case before the court, said the procedures the court adopted for handling pending cases are “reasonable.” He added, however, that he expects the new guidelines to result in “only a very few” retrials.