People v. Antick

Opinion

Defendant Frank John Antick was charged by an amended information (hereafter information) with burgláry (Pen. Code, § 459) 1 (count I), grand theft (§ 487) (count II), assault with a deadly weapon upon a peace officer (§ 245, subd. (b)) (count III), murder (§ 187) (count IV), and two prior felony convictions. 2 With respect to counts I and II, it was alleged that at the time of the commission of said offenses, defendant was armed with a deadly weapon within the meaning of section 12022. 3 He pleaded not guilty and admitted the prior convictions. A jury found defendant guilty as charged and determined (§ 1157) that the burglary and the murder were of the first degree. (§ 460, subd. 1; § 189.) As to each count, defendant was sentenced to state prison for the term prescribed by law, such sentences to run consecutively with each other. The court further determined that section 3024, subdivision (d), 4 was applicable and made defendant’s minimum term in state prison 10 years. Defendant appeals from the judgment.

*83 On September 28, 1973, between 7 and 10 p.m., property having a value in excess of $200 was taken from the Valentine residence in Upland, San Bernardino County. This property included an adding machine, a typewriter, a check writer, a two-speaker stereo and a Spanish style television set. 5 The Valentines, who were not at home at the time, were unable to furnish a description of the burglar.

About 9 p.m. on the same evening Officers Smeaton and Petronzio of the Upland Police Department, on patrol in a marked police vehicle, noticed a Cadillac automobile- in traffic with furniture or a stereo in the back seat and furniture in the trunk, whose lid was open and blocking the rear view mirror. The officers saw two people in the car; both driver and passenger appeared to be white male adults. At trial neither officer could identify defendant as an occupant of the vehicle.

After losing sight of the Cadillac for a short time in the traffic, the officers came upon it in a parked position with its motor turned off. Officer Smeaton approached the driver’s side of the vehicle while Officer Petronzio stationed himself near' the front of the police car. Only the driver, Donald Bose, was in the Cadillac; but Smeaton saw another person about 30 feet away approaching a nearby house. At trial the officer described the person as a white male, about 5 feet 10 inches tall, 145 pounds, with dark brown collar length hair. 6 He could not identify defendant as the individual he had seen. Officer Petronzio did not notice anyone in the general vicinity.

When questioned by Officer Smeaton, Bose gave evasive answers and made a furtive movement, apparently stuffing something underneath his leg. The officer ordered him out of the vehicle and to the front of the police car so as to frisk him. Seeing a revolver and holster on the front seat of the Cadillac and drawing his own gun, Officer Smeaton ordered Bose to put his hands on the hood of the police car. At this point the officer saw the other suspect approaching the Cadillac. Bose then pulled another gun from his waist and fired at Smeaton. The officer returned the fire and Bose started running. Petronzio ordered him to stop and when he failed to do so fired again. Bose staggered and fell. He later died of the bullet wound.

*84 A search of the Cadillac revealed the television set and other personal property that had been taken from the Valentine home. A green sweater and a set of car keys were also found in the car.

In the early morning hours of September - 29, 1973, investigating officers went to Bose’s home in Banning. They informed Bose’s mother that her son had been killed in the shoot-out and that they were looking for defendant, whose Mustang was parked outside the Bose home and matched the car keys found .in the Cadillac. Bose’s mother told them that defendant had been living there for several months but that she did not know where he was.

Later that morning, defendant, learning of these developments, took Bose’s other car from a neighborhood garage, drove to Bose’s residence, removed most of his belongings, and proceeded to his father’s home in San Pedro. He was arrested in San Pedro a few days later.

There was evidence at the trial that defendant had lived in Bose’s home for several months and that during this period neither man was regularly employed. Neighbors testified that the pair were frequently together and that they came home late at night or in the early hours of the morning. Bose’s mother testified that on September 28 both men left in the Cadillac about 4:30 p.m., at which time defendant was carrying the green sweater later found in the car.

Detective Wulf of the Upland Police Department testified that certain statements volunteered by defendant after his arrest were inaccurate. Defendant allegedly had told Wulf that he had last seen Bose at 4:30 p.m. on September 28 when the latter was leaving by himself in the Cadillac. He also stated that on the night in question he had hitchhiked to Cucamonga to get a “fix” of heroin from a contact known to him only as “Juan.” At first denying that he had returned to Banning on the following morning, defendant finally admitted that he had arrived there at 5 a.m. on September 29 and picked up Bose’s other car at the garage. He neglected to mention his subsequent activities, including his return to Bose’s home and his removal of his belongings.

Over defense objection, Wulf also testified that various items of personal property recovered from defendant’s room at the Bose residence and from defendant’s person after his arrest had been identified as stolen property. The owner of this property stated that his home had been burglarized on September 8, 1973, and confirmed that the items in *85 question were among those which had been taken. He was unable to identify either defendant or Bose as a perpetrator of the burglary. These items were admitted into evidence without further objection.

Defendant presented an alibi defense. He admitted that on September 28 he and Bose had left the latter’s home in the late afternoon. However, he claimed that they had parted company about 6 or 7 p.m., after Bose had refused to assist him in looking for some heroin. According to his testimony, defendant then hitchhiked to Cucamonga and, unable to obtain any heroin hitchhiked back to Banning, where he arrived about 8:30 or 9 a.m. on September 29. Learning from Bose’s mother what had happened and apprehensive because of past experience with the authorities, he removed his belongings from the Bose house and in Bose’s car drove to his father’s home in San Pedro.

Defendant denied that he had participated in the charged or any other burglary. He testified that he did not own the green sweater found in Bose’s car and neither wore, nor carried it with him on September 28. While admitting that the car keys were his, he stated that he had placed them in the Cadillac on September 28 but had neglected to take them with him when he left Bose later that evening. He claimed that the items of stolen property found in his room and on his person were gifts from Bose. He also claimed that his prior statements to police authorities regarding his activities on September 28 were consistent with his trial testimony.

Explaining his relationship with Bose, he testified that they had known each other for two and one-half years when Bose bought the Banning residence. The home needed landscaping and repairs and defendant agreed to do this work in exchange for room, board and a small salary, ranging from $50 to $200 per month. During the six-month period in which he lived with Bose, he also spent part of his time at his father’s home in San Pedro. While on occasion he and Bose went out together socially, for the most part they led independent lives. Under cross-examination, defendant admitted two prior forgery convictions.

Defendant contends: (1) that his conviction on the murder charge was erroneous as a matter of law; (2) that the court committed error in admitting evidence of a prior offense of burglary and of two prior convictions of forgery; (3) that the evidence is insufficient to support any of the verdicts; and (4) that the court erred in various respects in imposing sentence.

*86 I. The murder conviction.

Count IV of the information charged defendant with murder in that on September 28, 1973, “during the perpetration of the burglary alleged in Count I of the information his copartner in the burglary, Donald Joseph Bose, initiated a gun battle which was the direct and unlawful cause of the death of the said Donald Joseph Bose.” Count I charged defendant with the burglary of the Valentine residence on the same day. Thus count IV charged defendant with the murder of Bose committed during the burglary of the Valentine house.

On the murder count, the trial court instructed the jury on murder (CALJIC No. 8.10), malice (CALJIC No. 8.11), first degree felony murder (CALJIC No. 8.21) and murder based on the theory of vicarious liability (based on Taylor v. Superior Court (1970) 3 Cal.3d 578, 582-583 [91 Cal.Rptr. 275, 477 P.2d 131]). We set forth the last two instructions in the margin. 7 Under these instructions, defendant’s conviction of first degree murder may have been based upon either of two theories: (1) his participation in the commission of a burglary which resulted in the death of his accomplice, or (2) his vicarious liability for the crimes of his accomplice. Defendant contends that on the present record he cannot be convicted of murder under either theory.

Our consideration of defendant’s contention requires us at the start to briefly review the basic principles underlying the crime of murder, the felony-murder doctrine and the theoiy of accomplice liability. A defendant is not guilty of murder unless he.is legally chargeable, either by virtue of his own conduct or that of an accomplice, with the two component elements of the crime: its actus reus, a homicide, and its *87 mens rea, malice. 8 “Homicide is the killing of a human being by another human being.” (Perkins on Criminal Law (2d ed. 1969) Offenses Against the Person, § 1, p. 28; see People v. Gilbert (1965) 63 Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365]; revd. on other grounds, 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951].) Malice is the state of mind of one who has “an intent to kill or an intent with conscious disregard for life to commit acts likely to kill.” 9 (People v. Washington (1965) 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130].) In addition, “[t]he felony-murder doctrine ascribes malice ... to the felon who kills in the perpetration of an inherently dangerous felony.” 10 (Id.)

The imputation of malice by application of the felony-murder doctrine has been limited by this court to those cases in which the actual killing is committed by the defendant or his accomplice. (Taylor v. Superior Court, supra, 3 Cal.3d 578, 582; People v. Gilbert, supra, 63 Cal.2d 690, 703; People v. Washington, supra, 62 Cal.2d 111, 781.) “When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words ‘murder ... which is committed in the perpetration . . . [of] robbery . . .’ beyond common understanding.” (People v. Washington, supra, 62 Cal.2d at p. 781.)

However, we have been careful to point out that this limitation upon the felony-murder doctrine does not shield a defendant from criminal liability for murder when the elements of the crime, a homicide plus malice, can be established without resort to this doctrine. Thus, “[w]hen *88 the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. . . . [T]he victim’s self-defensive killing or the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust.upon the victim or the policeman by the intentional act of the defendant or his accomplice.” (People v. Gilbert, supra, 63 Cal.2d at pp. 704-705.) Under these circumstances, “it is unnecessary to imply malice by invoking the felony-murder doctrine.” ^_(People v. Washington, supra, 62 Cal.2d at p. 782; fn. omitted.)

Where a murder committed in this manner is attributable not to the acts of the defendant himself, but rather to the acts of his accomplice, the defendant’s vicarious liability for the killing is based upon “the rules defining principals and criminal conspiracies .... [For the defendant] [t]o be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design.” (People v. Gilbert, supra, 63 Cal.2d at p. 705; italics added.)

The operation of these principles can best be illustrated by the following example. Three persons agree to commit a robbery, and during its commission one of them initiates a gun battle in which the victim or a police officer in reasonable response to such act kills another of the Since the immediate cause of death is the act of the victim or the officer, the felony-murder rule is not applicable to convert the killing into a murder. Nevertheless, the robber initiating the gun battle and the third accomplice are guilty of murder. The former commits a homicide, since his conduct is the proximate cause of the death of another human being; the intervening act of the victim or police officer is not an independent superseding cause, eliminating responsibility for the killing. Furthermore, in initiating the shootout the robber acts with malice, having intentionally and with conscious disregard for life engaged in conduct likely to kill. That this malice is directed at someone other than his crime partner who as a proximate result of the robber’s acts is eventually killed “does not prevent the killing from constituting the offense of murder . . . [since] the law transfers the felonious intent from the original object of his attempt to the person killed and the homicide so committed is murder.” (People v. Leslie (1964) 224 Cal.App.2d 694, *89 704 [36 Cal.Rptr. 915]; see also People v. Sears (1970) 2 Cal.3d 180, 189 [84 Cal.Rptr. 711, 465 P.2d 847].) Since in the posited situation the robber initiating the gun battle is acting in furtherance of the common design of all three participants, the third robber as well may be held vicariously liable for the murder. (People v. Gilbert, supra, 63 Cal.2d at p. 705.)

On the other hand, neither the felony-murder doctrine nor the theory of vicarious liability may be used to hold a defendant guilty of murder solely because of the acts of an accomplice, if the accomplice himself could not have been found guilty of the same offense for such conduct. In People v. Ferlin (1928) 203 Cal. 587 [265 P. 230], the defendant was charged with and convicted of the murder of one Skala, whom he had hired to burn insured property. Skala accidentally killed himself while perpetrating the arson and the defendant was charged with arson, destruction of insured property, and murder upon a theory of felony murder. In holding as a matter of law that the crime of murder had not been established under any theory of the evidence, this court stated: “It would not be seriously contended that one accidentally killing himself while engaged in the commission of a felony was guilty of murder. If the defendant herein is guilty of murder because of the accidental killing of his co-conspirator then it must follow that Skala was also guilty of murder, and if he had recovered from his burns that he would have been guilty of an attempt to commit murder. .. . [¶] It cannot be said from the record in the instant case that defendant and deceased had a common design that deceased should accidentally kill himself. Such an event was not in furtherance of the conspiracy, but entirely opposed to it.” (Id., at pp. 596-597.)

The Ferlin holding was aptly explained by the Court of Appeal in Woodruff v. Superior Court (1965) 237 Cal.App.2d 749 [47 Cal.Rptr. 291]: “We believe the rationale of that decision to be that section 189 was inapplicable because there was no killing by the accused felon and no killing of another by one for whose conduct the accused was vicariously responsible. . . . [¶] . . . [I]n Ferlin ‘the coconspirator killed himself while he alone was perpetrating the felony he conspired to commit’ and ‘it was held in substance and effect that inasmuch as [deceased] killed himself Ferlin could not be held criminally responsible for his death,’ ” (Id., at p. 751.)

Similar reasoning compelled our recent decision in People v. Taylor (1974) 12 Cal.3d 686 [117 Cal.Rptr. 70, 527 P.2d 622]. There Taylor was *90 convicted of the murder of his accomplice Smith who was shot and killed by the victims during a robbery at their liquor store. Smith and one Daniels entered the store while Taylor remained in the getaway car. Taylor was found guilty on a theory of vicarious liability for the acts of his confederate Daniels who by threatening the life of one of the victims had provoked in response their return fire which killed Smith. However, Daniels had been separately tried and acquitted of the murder charge. Reversing Taylor’s murder conviction but affirming his robbery conviction, we held that the doctrine of collateral estoppel precluded “the conviction of an accused based on his vicarious responsibility for the acts of a previously acquitted confederate.” (12 Cal.3d at p. 694.) We reasoned that our decision was essential “to prevent the compromising of the integrity of the judicial system .... Few things undermine the layman’s faith in the integrity of our legal institutions more than the specter of a system which results in a person being punished for the acts of another, when the actor himself under identical charges had been previously exonerated from responsibility for those very acts. This is particularly so under the facts of the instant case when the.People seek to punish defendant, who was not even present on the immediate scene, for the death of an accomplice caused by the acts of another confederate who himself has been exonerated.” (Id., at pp. 695-696.)

Applying these principles to the case at bench, we first observe that on the uncontradicted evidence defendant himself did not participate in the immediate events which preceded his accomplice’s death. Under the People’s version of the facts, which we accept as accurate for purposes of this discussion, Bose initiated a gun battle with the police in order to escape apprehension for a burglary which he and defendant had recently committed. The police officer responded by killing Bose. As the immediate cause of death was the act of the officer, it is clear that the felony-murder rule does not operate to convert the killing into a murder for which defendant may be liable by virtue of his participation in the underlying burglary. 11 (People v. Washington, supra, 62 Cal.2d 111, 781.)

Nor may defendant be held legally accountable for Bose’s death based upon his vicarious liability for the crimes of his accomplice. In order to predicate defendant’s guilt upon this theory, it is necessary to prove that Bose committed a murder (People v. Taylor, supra, 12 Cal.3d 686, 697), *91 in other words, that he caused the death of another human being and that he acted with malice. (People v. Gilbert, supra, 63 Cal.2d at p. 705.)

It is well settled that Bose’s conduct in initiating a shootout with police officers may establish the requisite malice. As we have noted on a number of occasions, a person who initiates a gun battle in the course of committing a felony intentionally and with a conscious disregard for life commits an act that is likely to cause death. (Taylor v. Superior Court, supra, 3 Cal.3d at pp. 582-584; People v. Gilbert, supra, 63 Cal.2d at pp. 703-704; People v. Washington, supra, 62 Cal.2d at p. 782.) However, Bose’s malicious conduct did not result in the unlawful killing of another human being, but rather in Bose’s own death. The only homicide which occurred was the justifiable killing of Bose by the police officer. Defendant’s criminal liability certainly cannot be predicated upon the actions of the officer. As Bose could not be found guilty of murder in connection with his own death, it is impossible to base defendant’s liability for this offense upon his vicarious responsibility for the crime of his accomplice.

In summary defendant’s conviction of the murder of his accomplice Bose cannot be upheld either on the doctrine of felony murder or on a theory of vicarious liability. We are therefore compelled to conclude that on the instant record defendant as a matter of law cannot be found guilty of murder and that the verdict of the jury to that effect is against the law and the evidence.

We emphasize that this conclusion is not inconsistent with the core of our decision in Taylor v. Superior Court, supra, 3 Cal.3d 578 (hereafter Taylor I). That case was a predecessor of People v. Taylor, supra, 12 Cal.3d 686 (hereafter Taylor II) and involved the same underlying facts which we previously described. In Taylor I, the defendant was seeking a pretrial order setting aside the information charging him with murder on the ground that his conviction was precluded by our decision in People v. Washington, supra, 62 Cal.2d 777. In declining to grant the relief requested, we simply reaffirmed our position in Washington that an accomplice “would be vicariously responsible for any killing attributable to the intentional acts of his associates committed with conscious disregard for life, and likely to result in death,” (Taylor v. Superior Court, supra, 3 Cal.3d at p. 583, fn. omitted) even though the immediate cause of death was the act of a third party. We took the position that the conduct of the defendant’s accomplice Daniels which resulted in accomplice Smith’s death “was sufficiently provocative of lethal resis *92 tance” to support a finding of implied malice. (Id., at p. 584.) Therefore, Daniels could be held criminally responsible for Smith’s death, although the actual killing was committed by the resisting victims, and the defendant Taylor could be vicariously liable for Daniels’ crimes.

In the case at bench, the situation is quite different. Defendant was convicted.of murder based upon his vicarious liability for the acts of an accomplice who could not himself have been guilty of that offense. We note once again that in Taylor II, we found that the defendant could not be held legally accountable for Smith’s death after Daniels was acquitted of an identical charge. In a like manner, defendant in the instant case may not be held vicariously liable for a crime which his accomplice did not commit. 12

2. Evidence of other offenses.

Defendant contends that the trial court committed prejudicial error in admitting over his objection (a) evidence of a prior uncharged burglary for the purpose of identifying defendant as the accomplice of Bose in the charged crimes and (b) evidence of his prior forgery convictions for the purpose of impeaching his credibility. We proceed to consider these contentions in the above order.

*93 (a) The prior uncharged burglary.

Over defense objection, Police Officer Jeriy Wulf testified that certain items of personal property recovered from defendant’s room at the Bose residence or found on his person at the time of his arrest had been identified as property stolen in a prior burglary in Diamond Bar, California. The burglary victim, called as a witness on behalf of the prosecution, testified that the items in question in fact had been taken from his home on September 8, 1973. The property was admitted into evidence only for a limited purpose and the jury was instructed accordingly. 13 (Evid. Code, § 1101.)

Since defendant relied entirely on an alibi defense, the only issue upon which the evidence was arguably relevant was that of identifying him as a perpetrator of the charged burglary and grand theft. 14 (People v. Thornton (1974) 11 Cal.3d 738, 755 [114 Cal.Rptr. 467, 523 P.2d 267].)

The basic rules governing the admissibility of other-crimes evidence in these circumstances were set forth in detail by this court in People v. Haston (1968) 69 Cal.2d 233, 244-247 [70 Cal.Rptr. 419, 444 P.2d 91], and need not be repeated here. In People v. Thornton, supra, 11 Cal.3d 738, we summarized the guiding principles which Haston established: “[T]he probative value of such evidence on the issue of identity is dependent upon the extent to which it raises an inference that the perpetrator of the uncharged offense was the perpetrator of the charged offense, and ... the *94 determination as to the presence and strength of such an inference proceeds through an evaluation of marks shared by the uncharged and charged crimes. ... ‘It is apparent that the indicated inference does not arise . . . from the mere fact that the charged and uncharged offenses share certain marks of similarity, for it may be that the marks in question are of such common occurrence that they are shared not only by the charged crime and defendant’s prior offenses, but also by numerous other crimes committed by persons other than defendant. On the other hand, the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together. Thus it may be said that the inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.’ . . . [BJecause the probative value of other-crimes evidence on the issue of identity depends wholly upon the strength of the inference, and because the prejudicial effect of such evidence is always manifest, the court’s discretion should be exercised in favor of exclusion if the inference of identity is weak....

“To recapitulate, only common marks having some degree of distinctiveness tend to raise an inference of identity and thereby invest other-crimes evidence with probative value. The strength of the inferenóe in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” (Id., at p. 756.)

Examining the facts of the instant case in light of these considerations, we conclude that the evidence of the Diamond Bar burglary should have been excluded. We are unable to discern any distinctive common marks shared by the charged and uncharged crimes, which would justify the admission of such evidence to prove identity. The fact that both offenses involved the removal of personal property from a private residence during the owner’s absence cannot seriously be asserted as a distinctive and signature-like feature setting “the charged and uncharged offenses apart from other crimes of the same general variety . . . .” (People v. Haston, supra, 69 Cal.2d at p. 246.) Nor was any evidence introduced to prove that the uncharged offense was committed by defendant and Bose *95 in concert, so as to indicate that the two were crime partners in a series of burglaries. (See, e.g., People v. Haston, supra, 69 Cal.2d at p. 250.) In short, the evidence presented failed to raise any “logical inference that the perpetrators of the [Diamond Bar burglary]... were the perpetrators of the charged offenses.... Tf admission of proof of other crimes were to be hinged upon a showing of methods common to most or many . . . [burglary] practitioners, then application of the inclusionary rule would be so broad as to nullify the principle that a defendant is not to be convicted because the prosecution can prove, on his prior (or subsequent) record, that he is a bad man. Assertion of the principle of exclusion as a preliminary to its avoidance becomes mere pretense.’ ” (Id., at p. 248.)

The People do not attempt to justify the admission of this evidence under the established rules heretofore discussed. Rather, they assert that defense counsel failed to object at trial to the testimony of the victim of the prior burglary and therefore may not raise such objection on appeal. (Evid. Code, § 353, subd. (a); People v. Pearson (1969) 70 Cal.2d 218, 222 [74 Cal.Rptr. 281, 449 P.2d 217].)

Our independent review of the record, however, reveals that defense counsel did object to the introduction of evidence relating to the Diamond Bar incident when the prosecution first offered it through the testimony of Officer Wulf. Indeed, cognizant of the potential prejudicial effect of this line of proof upon the interests of his client, counsel made sure that the arguments on its admissibility were held out of the presence of the jury. During this discussion, the prosecutor specifically stated that he intended to call the burglary victim as a witness on behalf of the People. Defense counsel thereafter reasserted his objection, which was overruled by the court. Once having had this issue resolved against him, defense counsel was not required to repeat his objection when the burglary victim actually testified and when the items of property were admitted into evidence. (See Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1294, pp. 1197-1198.) It has long been the rule that “[w]here a party has once formally taken exception to a certain line or character of evidence, he is not required to renew the objection at each recurrence thereafter of the objectionable matter arising at each examination of other witnesses; and his silence will not debar him from having the exception reviewed.” (Green v. Southern Pac. Co. (1898) 122 Cal. 563, 565 [55 P. 577].)

*96 (b) The prior forgery convictions.

In the course of cross-examining defendant, the prosecution, over defense objection, 15 questioned him regarding two prior forgery convictions which he had suffered in 1955 and 1957. The jury was instructed to consider this evidence, only for the purpose of determining defendant’s credibility as a witness. 16 Defendant contends that the trial court abused its discretion in permitting use of this evidence for impeachment purposes, arguing that its probative value was substantially outweighed by its prejudicial effect upon the minds of the jurors. We agree.

As a general rule, evidence of specific instances of a person’s conduct is inadmissible to prove that on a particular occasion he acted in conformity with the trait of character indicated by his prior specific acts. (Evid. Code, §§ 1101, subd. (a), 787.) 17 Thus, such evidence may not generally be introduced as proof of a witness’ character for honesty or veracity, or their opposites, for the purpose of supporting or attacking the witness’ credibility. (Evid. Code, § 787.) Evidence Code section 788, however, creates an exception to this general rule and authorizes the use of prior felony convictions for impeachment purposes. 18

*97 In People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], this court determined that section 788 does not embody a mandatory rule, requiring the trial judge to permit the use of such impeachment evidence in every case. (Id., at p. 452.) Rather, we interpreted the permissive language of the statute to mean that the introduction of evidence of a prior conviction, like the introduction of other relevant evidence, is subject to the exclusionary rule embodied in section 352. (Id., at p. 453.) This provision invests the trial judge with broad discretion to reject evidence otherwise admissible “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

In Beagle we also recognized that the use of prior felony convictions to impeach the credibility of a witness is particularly susceptible of exclusion under Evidence Code section 352 where the witness is also the defendant in a criminal case. (Id., at p. 453.) Such circumstances present a unique risk of undue prejudice and confusion of issues. Despite limiting instructions, the jury is likely to consider this evidence for the improper purpose of determining whether the accused is the type of person who would engage in criminal activity. This is particularly likely where the prior conviction is for the same crime as that which forms the basis of the charges against defendant. (Id., at p. 453.) The probability of such misuse also increases where the prosecution’s case is weak. (Jefferson, Cal. Evidence Benchbook (1972) Special Problems Related to Relevancy, § 22.2, p. 297.) In these circumstances, only the most disciplined minds would be able to restrict their use of the prior felony evidence to assessing the defendant’s credibility as a witness and disregard its obvious implications with respect to his tendencies in the area of unlawful conduct.

In addition to the problems of confusion of issues and undue prejudice inherent in the evidence itself is the possibility that the accused will refuse to testify in order to keep this information from the jury. “ ‘Even though a judge might find that the prior convictions are relevant to *98 credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant’s version of the case than