Defendant’s failure to testify at trial precludes him from challenging trial court’s finding that impeachment evidence was admissible. A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). On appeal he challenged the trial court’s decision to admit prior misconduct evidence (Evid. Code, §§ 1101, 352) for impeachment purposes. He argued that legal precedent that precludes him from raising this issue unless he testified at trial was inapplicable because he expressly informed the trial court that if it admitted the evidence, he would not testify and the court failed to consider the impact of its ruling on his decision to testify. Held: Affirmed. The U.S. and California Supreme Courts have held that a defendant must testify in order to preserve an appellate challenge to the trial court’s admission of prior convictions for impeachment purposes (Luce v. U.S. (1984) 469 U.S. 38; People v. Collins (1986) 42 Cal.3d 378). In People v. Sims (1993) 5 Cal.4th 405, the court extended the Collins rule to prior misconduct impeachment evidence. Defendant asserts that these and other cases did not address the impact of allowing such evidence on a defendant’s decision whether to testify. However, the rationale of Luce applies here. In order to balance the probative value of the prior misconduct evidence against its prejudicial effect, the court must know the nature of the defendant’s testimony. Any harm from the trial court’s ruling is otherwise speculative, since the trial court might alter its ruling as evidence is adduced. The defendant’s testimony is critical for the trial court’s Evidence Code section 352 analysis and the appellate court’s review of the trial court’s exercise of its section 352 discretion. An offer of proof is not sufficient.

Given that any error that occurred involves state evidentiary rules, not a constitutional right, it is amendable to harmless error analysis. Defendant argued that the failure to consider the impact of the trial court’s ruling on his decision whether or not to testify is structural error, which is reversible per se. However, any arguable error was one involving state evidentiary rules, not a constitutional right, and is amenable to harmless error analysis. Defendant was not precluded from testifying, but based on the trial court’s ruling, was subject to impeachment with prior misconduct evidence if he did so. His failure to testify makes harmless error review impossible and he is therefore precluded from raising the trial court’s ruling on appeal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078933.PDF