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Name: People v. Gray
Case #: B192564
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 12/31/2007

It is the role of the court, not the jury, to determine whether a prior felony conviction involved moral turpitude, and moral turpitude is not restricted to dishonesty. Appellant was convicted of first degree burglary and sentenced to 25 years to life as a “third striker.” At trial he testified that he was acquainted with the victim and had her permission to be in the residence. He was impeached with four prior “sanitized” convictions and a conviction for arson. The appellate court found that the trial court judge erred in modifying CALCRIM No. 316 to direct the jury to determine whether the prior conviction involved moral turpitude; to limit the definition of moral turpitude to dishonesty; and because the modified instruction conflicted with CALCRIM No. 226, which instructed the jury in evaluating a witness’s testimony. Although finding error, the appellate court determined that under the facts of this case, it was harmless because the evidence of the convictions was relevant and properly admitted; the felonies involved were ones of moral turpitude; and the jury was not required to find the appellant dishonest but was merely allowed to consider the convictions in evaluating his testimony. Additionally, both the prosecutor and the court were careful to instruct the jury not to misuse the impeachment evidence.