People v. Kemper (125 Cal. App. 3d 451, 1981)

Opinion

RAGAN, J.

Winston Hillard Kemper appeals from a judgment of imprisonment which was rendered after a jury found him guilty of violating Penal Code section 459, first degree, enhanced by his admission of a prior felony conviction of Penal Code section 496.

Facts

After properly securing all doors of an empty sorority house, the housemother activated the burglar alarm system and went to sleep. She was awakened at 4:30 a.m. by the sound of the burglar alarm. She called the police who responded and found the appellant hiding on the floor of a closet under some robes.

Discussion

I. Was impeachment of appellant’s credibility by use of a prior conviction of Penal Code section 496 properly allowed?

During trial, appellant moved to exclude the use of a prior conviction of Penal Code section 496 (receiving stolen property) for purposes of impeachment. He argued several bases for the exclusion: (1) the prior conviction was six years old; (2) the prior is closely related and similar to the charge of burglary; and (3). it was a closely balanced case. The trial judge spent much time deciding this issue and took into consideration the applicable criteria for allowing its use for purposes of impeachment.

The trial court specifically found that this six-year-old prior conviction was not too remote. (See People v. Boothe (1977) 65 Cal.App.3d 685 [135 Cal.Rptr. 570].) The record before the trial court revealed that appellant admitted a subsequent prior 1977 conviction for burglary, establishing that he had not lived a legally blameless life since the 1974 prior conviction, a factor that should be considered iiidetermining remoteness. (See People v. Beagle (1972) 6 Cal.3d 441, 53 [99 Cal.Rptr. 313, 492 P.2d 1]; People v. Wilson (1975) 50 Cal.App.3d 811, 818-819 [123 Cal.Rptr. 663].)

Though the crimes of receiving stolen property and burglay have certain similarities, both relating to theft, cases hold that violtion of Penal Code section 496 reflects adversely upon the perpetrator’ honesty and integrity and bears significantly on the issue of credibity and have allowed it for impeachment of a defendant in a burglay case. (People v. Lassell (1980) 108 Cal.App.3d 720 [166 Cal.Rpt. 678]; People v. Banks (1976) 62 Cal.App.3d 38 [132 Cal.Rptr. 751.)

The trial court went through a balancing procedure, findin that it was not a close case and that the appellant was going to testify regardless of the impeachment by the use of the prior conviction, a actor to consider. (People v. Keating (1981) 118 Cal.App.3d 172, 80 [173 Cal.Rptr. 286].) A prior felony conviction of a witness my be introduced for the purpose of attacking the credibility of tha witness (Evid. Code, § 788). The trial court is invested with discretin to exclude it when its probative value is outweighed by the risk >f undue prejudice. (People v. Beagle, supra, 6 Cal.3d 441.) Among tb factors weighing against admissibility are remoteness in time and sinilarity to the charged offense. (People v. Roberts (1976) 57 Cal.App.3d 782, 788-789 [57 Cal.Rptr. 782].)

The trial court properly exercised its discretion.

On appeal, an additional argument is presented, namely, th£ parts of Penal Code section 496 relate to liability of secondhand ealers in which traits of honesty and veracity are not directly involvec and for this reason it should not be used for impeachment without theprosecution establishing the actual subdivision of Penal Code section496 that was violated.

Appellant made no claim of this below, which would have jven the district attorney an opportunity to rebut it, nor is there anyividence that he was convicted as a secondhand dealer.

An appellate court ordinarily will not consider erróneos rulings in connection with relief sought or defenses asserted where an Ejection could have been, but was not presented to the trial court. It isunfair to the triq judge and to the adverse party to take advantage of an error on appeal ¡vhen it could easily have been corrected at the trial. The law casts uion the party the duty of looking after his legal rights and of calling ¡he judge’s attention to any infringement of them. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184 [151 Cal.Rpt. 837, 588 P.2d 1261]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 276, pp. 4264-4265.)

However, People v. Keating, supra, 118 Cal.App.3d 172, decided by ttis court, has held it is the prosecution’s burden to show that the prior co|viction did involve theft, in a case where the prior was a burglary. (See contra, People v. Stewart (1973) 34 Cal.App.3d 244, 247-248 [109 Cal.Rptr. 826] (Second District); People v. Benton (1979) 100 Cal.App.3d 92, 97 [161 Cal.Rptr. 12] (Second District).)

Therefore, we find it necessary to determine whether or not subdivisions 2 áid 3 of Penal Code section 496 involve the trait of dishonesty so as to pear significantly on the issue of credibility.

As wiii subdivision 1 of Penal Code section 496, the subdivisions relating tq secondhand dealers (and swap meet vendors) require the element jf knowledge that the goods are stolen. The difference is in the manner