Civic Center Courthouse
Anne Costin
Judge
Family Law
U San Francisco School of Law
This article and accompanying self-study quiz will discuss to what extent a misdemeanor can be used to impeach the credibility of a witness in a criminal case. Readers will learn about impeachment with misdemeanors that resulted in convictions, the extent to which misdemeanor conduct where no conviction occurred can be used to impeach, and a judge's options to limit or exclude impeachment and to provide a limiting instruction. Also explored will be the thorny issue of whether impeachment with a misdemeanor conviction can occur through a court's taking judicial notice.
Overview
Both misdemeanors and felonies are considered crimes. (Pen. Code, § 16.) The Penal Code sets forth the difference between the two: "A felony is a crime that is punishable with death, by imprisonment in the state prison, or, notwithstanding any other law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170 [of the Penal Code]. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions." (Pen. Code, § 17, subd. (a).)
Evidence Code section 788 has long provided that the credibility of a witness can be impeached with a felony conviction. Impeachment with misdemeanors has been permissible since 1982 following the passage of Proposition 8, the Truth-in-Evidence amendment to Constitution article I, section 28, subdivision (f).
This article summarizes when and how misdemeanor impeachment may occur. Importantly, by its own terms, the Truth-in-Evidence amendment applies only to criminal cases. That means impeachment with misdemeanors in civil cases is still barred. (Simons, Cal. Evidence Manual (2024), § 3:58.)
Moral turpitude requirement
To be eligible for impeachment, the misdemeanor must amount to a crime of moral turpitude. (People v. Castro, 38 Cal.3d 301 (1985).) Under Castro, a court looks at the elements of the misdemeanor statute, not to the witness' actual conduct or the charging document, to determine if moral turpitude is present.
There are two categories of moral turpitude crimes: (1) those where dishonesty is an element of the crime - fraud, perjury, etc.; and (2) those where the crime indicates a "general readiness to do evil" from which a readiness to lie can be inferred - i.e. acts of baseness, vileness, or depravity. (Castro. For a list of crimes involving moral turpitude, see Cal. Crim. Procedure and Practice, § 24.46; Simons, Cal. Evidence Manual, § 3:56.)
Impeachment through testimony
Impeachment is allowed with a misdemeanor conviction; it does not matter if the conviction was the result of a trial or a guilty or no contest plea. (See People v. Rauen, 201 Cal.App.4th 421 (2011).) Further, the same misdemeanor impeachment rules apply to all witnesses, not just situations when the defendant is the witness. (Castro.)
It is well established that impeachment can properly occur by an attorney introducing testimonial evidence of the underlying conduct which led to a misdemeanor conviction. (People v. Wheeler, 4 Cal.4th 284 (1992).) However, an attorney cannot simply ask a witness on cross-examination if they have been convicted of a misdemeanor; i.e., there is no hearsay exception for testimonial evidence of a misdemeanor conviction. (People v. Cadogan, 173 Cal.App.4th 1502 (2009).) For example, it is permissible to ask a witness on direct or cross-examination whether they forged documents or stole something (i.e., committed the conduct for which they were later convicted), but it is not permissible to ask whether they have been convicted of forgery or theft. (Wheeler; Cadogan.)
Impeachment through judicial notice
Evidence Code section 452.5 provides that a court can take judicial notice of an official certified record of conviction (as well as electronic copies thereof, and any computer-generated official court records that relate to criminal convictions). Unlike "standard" judicial notice (where notice is taken of the document itself but not the hearsay contents), if admitted under 452.5, the record of conviction alone is sufficient to prove not only the fact of conviction itself, but also that the offense reflected in the record occurred. (People v. Duran, 97 Cal.App.4th 1448 (2002).) This means no live testimony is required; "If a matter judicially noticed is a matter which would otherwise have been for determination by the jury, the trial court may, and upon request shall, instruct the jury to accept as a fact the matter so noticed." (Evid. Code, § 457; People v. Wesson, 138 Cal.App.4th 959 (2006).)
There is no question that judicial notice pursuant to Evidence Code section 452.5 may be used with felony convictions. However, for reasons set forth below, there is uncertainty about whether Evidence Code section 452.5 applies to misdemeanors. This author's research supports that it likely does, and it is likely that impeachment with a misdemeanor conviction can occur through judicial notice. (See Duran; see also People v. Lopez, 129 Cal.App.4th 1508 (2005).)
The uncertainty about the application of Evidence Code section 452.5 to misdemeanors is best explained through review of a timeline showing how caselaw developed:
Prior to 1982 - Impeachment with a misdemeanor not allowed (note: felony convictions were treated differently given the hearsay exception created by Evid. Code, § 788).
1982 - Proposition 8's "Truth-in-Evidence" amendment to the Constitution.
1992 - Wheeler: confirms that Proposition 8 allows impeachment with conduct amounting to a misdemeanor offense, but holds that misdemeanor convictions are still inadmissible hearsay when offered for the truth of the charge. Wheeler expressly states "Nor is the Legislature precluded from creating a hearsay exception that would allow use of misdemeanor conviction for impeachment in criminal cases."
1996 - Section 452.5 added to Evidence Code (through AB 1387 "Criminal Convictions Records Act").
2002 - Duran: examined admission of a felony conviction under Section 452.5, and held that a certified minute order and other qualifying court records were admissible to prove not only the fact of that felony conviction, but also that the offense reflected in the record occurred. The Duran opinion seemed to presume section 452.5 applies to misdemeanor convictions as well: "Wheeler noted, however, that the Legislature was not precluded from creating a hearsay exception that would allow the use of misdemeanor convictions for impeachment in criminal trials. ... In 1996, the Legislature enacted Evidence Code section 452.5, which provides the type of hearsay exception contemplated in Wheeler." (Duran, emphasis added.)
2005 - Lopez: cites to Duran for the proposition that "Subsequently enacted Evidence Code section 452.5 creates an exception to this hearsay rule and allows prior misdemeanor conduct to be proved by official records of misdemeanor convictions."
2006 - People v. Chatman, 38 Cal.4th 344 (2006): reviews a 1988 trial following a 1987 murder and robbery, wherein the defendant sought to impeach a witness with a misdemeanor conviction for giving false information to a peace officer. The trial court excluded the evidence pursuant to Evidence Code 352. On appeal the Chatman court upheld the ruling, and cited to Wheeler for the proposition that "Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion." Notably, the Chatman opinion made no mention of section 452.5 - possibly because the trial in question took place prior to 1996 when section 452.5 was added to the Evidence Code.
2007 and after - Unpublished cases begin citing to Chatman, questioning whether 452.5 does not apply to misdemeanors, even though the Chatman case makes no reference to 452.5 and related to a trial and conduct that took place before 452.5 was passed.
2009 - Cadogan: notes the conflicting language in Duran versus Chatman but does not resolve the conflict created.
Given the timeline above, and that the trial in Chatman occurred before Evidence Code section 452.5 was enacted, in this author's view, Evidence Code section 452.5 likely applies to misdemeanors as suggested by Duran and referenced with support by Lopez. As such, while the issue awaits definitive resolution through a published appellate opinion or further legislation, judicial notice is, in this author's opinion, another manner in which impeachment with a misdemeanor conviction can occur. (Duran; see also Lopez.)
Impeachment with conduct not resulting in a conviction
Even if the conduct at issue did not result in a misdemeanor conviction, it still may be admissible to impeach if the conduct itself evinces moral turpitude. (People v. Lepolo, 55 Cal.App.4th 85 (1997).)
If there was no conviction, the only way the witness can be impeached is by the testimony of witnesses to the prior conduct. (People v. Ayala, 23 Cal.4th 225 (2000).) This, of course, may cause consumption of time and confusion of the issues[DB1] under Evidence Code section 352. (People v. Clark, 52 Cal.4th 856 (2011).) This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. (Wheeler; see also Clark and People v. Lightsey, 54 Cal.4th 668 (2012) ["evidence of [a witness's] misdemeanor conduct--striking her ex-husband with a rock during a dispute-- [did] not strongly demonstrate moral turpitude, i.e., a '"general readiness to do evil"' [citation]"].)
Evidence Code section 352
Because evidence of a misdemeanor is less probative of dishonesty than a felony, a court should conduct and make a record of a Section 352 analysis, deciding under the statute if the evidence's "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." (Castro; Wheeler; Clark.)
The best practice is to state a fact-based analysis on the record, as opposed to merely reciting the summary conclusion that the decision was the result of 352 weighing. (People v. Little, 206 Cal.App.4th 1364 (2012).) Factors to be considered for the 352 analysis (per People v. Beagle, 6 Cal.3d 441 (1972)), include:
- Does the prior reflect adversely on honesty or veracity?
- Is it near or remote in time? For example one can consider the age of the witness at the time of prior and subsequent conduct, and whether they generally led a law-abiding life.
- Is the prior for conduct substantially similar to the current charge? (Prior similar to current offence may be more probative of credibility, but danger of prejudice is higher for same/similar offense.) If similar, the court can "sanitize" it by allowing only a generic reference, i.e., "felony involving theft." (People v. Massey, 192 Cal.App.3d 819 (1987)).
- Will impeachment influence a defendant's decision to testify? Note, however, no witness, including a defendant who elects to testify in the witness's own behalf is entitled to a false aura of veracity. Although possible impeachment may make the choice of whether to testify difficult for a defendant, it does not create a denial of due process. (Beagle.)
Giving a limiting instruction
Although there is no sua sponte duty to instruct on limited admissibility, it is a good practice to instruct that the evidence should be considered for credibility purposes only. (CALCRIM Nos. 303 and 316; Little; see also Clark.) Such an instruction must be given on request. (CALCRIM Nos. 303 & 316; see also CALJIC No. 2.09; Clark.) The court can use a limiting instruction stating to the effect that the evidence could be considered for credibility purposes only. (Little.)
Instructing the jury on the limited use of evidence for impeachment rather than propensity is sufficient: "The jury received instruction regarding what it could use evidence of defendant's prior conviction for, specifically, in determining his believability as a witness only. "'The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.' [Citation.]"" (People v. Chavez, 84 Cal.App.4th 25 (2000).)