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Name: People v. Carkhum-Murphy
Case #: C085347
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/21/2019

Trial court did not abuse its discretion by allowing prosecution to introduce evidence of defendant’s prior convictions to impeach his exculpatory hearsay statement, which was initially introduced by the prosecution. Defendant was charged with robbery based on evidence that he took money during a transaction at a liquor store and pointed a gun at the store cashier when she tried to retrieve the money. At trial, the prosecution introduced defendant’s statements, which he made during a police interview, that he took the money from the store but did not have a gun. Defendant did not testify, but his girlfriend testified and corroborated the statements he made to police. Over the defense’s objection, the trial court allowed the prosecution to impeach defendant with two prior convictions. Defendant appealed, arguing the prosecution should not have been allowed to impeach these statements. Held: Affirmed. Evidence Code sections 788 and 1202, taken together, provide that evidence of a prior felony conviction is admissible to impeach a criminal defendant’s hearsay declaration. (People v. Jacobs (2000) 78 Cal.App.4th 1444, People v. Little (2012) 206 Cal.App.4th 1364.) Jacobs and Little involved the defense presenting exculpatory hearsay statements by the defendant. Here, defendant argued Jacobs and Little did not apply because his statements about taking the money were inculpatory. The Court of Appeal disagreed. Defendant’s statements were exculpatory by asserting he committed the lesser included offense of misdemeanor theft but did not commit the serious and violent felony of robbery. The fact that the prosecution introduced defendant’s hearsay statements had no bearing on the admissibility of impeachment evidence. The court concluded Evidence Code sections 1202 and 785 allow a prosecutor to use a prior conviction to partially impeach a hearsay statement the prosecutor had previously introduced. (See People v. Osorio (2008) 165 Cal.App.4th 603, 616-617.) [Editor’s Note: The trial court ruled the prior convictions were admissible to impeach defendant after his girlfriend testified. But the exculpatory part of her testimony (that defendant did not have a gun) was based on her observation rather than a statement by defendant. In a footnote, the Court of Appeal noted that, since the convictions were admissible to impeach defendant’s statements, any error in ruling that they were admissible to impeach the girlfriend’s testimony was irrelevant, as the court reviews the correctness of the trial court’s decision rather than its reasoning in getting there.]

The full opinion is available on the court’s website here: