OPINION
RUBIN, J.
Defendant The Salesian Society (the Society) appeals from the judgment entered after a jury determined it was negligent for failing to protect plaintiff Joseph Piscitelli from childhood sexual abuse at the hands of one of the Society's priests. We reject the Society's contention that the trial court erred by admitting evidence of another cleric's sex abuse conviction in order to impeach that cleric's testimony, and therefore affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In July 2006 a jury awarded Joseph Piscitelli $600,000 for sexual abuse he suffered from 1969 through 1971 at the hands of Father Joseph Whelan, who was the vice-principal of the Society-run high school Piscitelli attended at that time.
Billante's testimony was relevant to whether Piscitelli's negligence claim against the Society was barred by the statute of limitations. Piscitelli claimed his action was timely under the one-year revival period that was in place during 2003. (Code Civ. Proc., § 340.1, subds. (b)(2), (c).) Those provisions revived previously time-barred claims against entities that employed a victim's abuser despite being on notice of his unlawful sexual conduct, and which took no steps to safeguard children under their care from the employee. At the time Whelan abused Piscitelli, Billante was in charge of a Society-run Boys Club that was adjacent to the Society's high school. Piscitelli said he sometimes went to the club to shoot pool after school. According to Piscitelli, twice he saw Whelan masturbating at the club while
During his deposition, Billante denied having seen Whelan masturbate at the Boys Club. In 1989, Billante was convicted of committing a lewd act with a child under the age of 14. (Pen. Code, § 288a.) Anticipating that Piscitelli would impeach Billante at trial with that conviction, the Society moved in limine to bar its admission at trial. Although the Society acknowledged that a witness's character for honesty can be impeached by showing the witness was a convicted felon (Evid. Code, § 788), it argued that Billante's conviction should be excluded under Evidence Code section 352 because its prejudicial impact far outweighed any probative value it might have.
The trial court rejected Piscitelli's contention that Billante's conviction had any relevance to the liability issues. It believed that Billante could be impeached with the fact that he was a convicted felon, but added that if this had been a criminal trial, it would exclude the nature of the conviction. The court wrestled with whether it should also tell the jury about the nature of Billante's conviction, noting that the "prejudicial effect is obvious." Despite its "reservations and trepidation," the court appeared to give two reasons why it believed the jury should also be told about the nature of Billante's crime: First because "it is an offense of moral turpitude ... [i]t does go to his credibility," and second because it goes "to his credibility in terms of denial of witnessing the events that are described or will be described by Mr. Piscitelli."
Piscitelli called Billante as a hostile witness. (§ 776.) Piscitelli did not directly ask Billante to admit or deny whether the two masturbation incidents occurred, but did ask him whether he believed it would have been physically impossible to commit an act of sexual misconduct in the Boys Club's game room. Billante said that given the layout of the room and the number of people who were usually there, it would have been impossible to get away with such conduct. Piscitelli's lawyer also questioned Billante about whether Billante recalled ever seeing Whelan or Piscitelli at the Boys Club and whether Billante's duties at the time included safeguarding the welfare of the students who would go there and reporting any sexual misconduct had he observed it. At the end of his direct examination, Billante was asked about, and admitted, the fact of his 1989 conviction. On cross-examination by the Society, Billante flatly denied that the two masturbation incidents ever occurred. The jury was instructed that Billante's 1989 conviction was for conduct in 1987 or 1988 that took place at a different location many years after the alleged abuse occurred, that the evidence had no bearing on the issue of whether Whelan in fact abused Piscitelli, and that it was to be used solely to evaluate Billante's credibility.
DISCUSSION
The Society's opening appellate brief discusses only the first category of credibility evidence—the use of a felony conviction as character evidence under section 788. Piscitelli's responsive appellate brief raises both types—section 788 character evidence and evidence of bias under section 780. In its reply brief, the Society contends Billante's conviction was not admissible to show bias because (1) to do so would violate section 786, which makes inadmissible evidence of a witness's character for traits other than honesty or veracity;
The Society is correct that no reported California decisions have expressly authorized the use of a witness's prior convictions to show bias, but a few have come close. In People v. Adams (1983) 149 Cal.App.3d 1190, 1194-1195, the court held that the potential bias of a prosecution witness in a forgery case could be shown by evidence that he was on probation following his juvenile adjudication of grand theft because his status as a probationer left him vulnerable to law enforcement pressure. In People v. Bradley (1981) 115 Cal.App.3d 744 [171 Cal.Rptr. 487], the defendant on trial for armed robbery was not allowed to ask a prosecution eyewitness about the witness's one-year-old Texas conviction for car theft. The defendant argued the evidence was relevant to show the bias of the witness, who the defendant claimed had been the actual robber. The appellate court noted that the defendant had "correctly state[d] the law," but refused to find error because instead of barring the evidence, the trial court simply deferred the matter for further inquiry into both the nature of the Texas conviction and the facts required to show the existence of bias. (Id. at p. 749.)
In People v. Gonzalez (1990) 51 Cal.3d 1179, 1210 [275 Cal.Rptr. 729, 800 P.2d 1159], the defendant complained that the trial court erred by failing to instruct the jury that the prosecution testimony of a jailhouse informant should be viewed with distrust. The Supreme Court disagreed, holding that the standard credibility instructions were sufficient because the jurors knew the informant was a convicted murderer with a motive to lie.
In People v. Buzzell (1940) 15 Cal.2d 654 [104 P.2d 503], a defendant's alibi witnesses were impeached generally for veracity with certain prior felony convictions. On appeal, the defendant complained that the prosecutor went too far by asking those witnesses about how those convictions involved
Federal and other state courts have made explicit what is implicit in these California decisions. In United States v. Lawson (2d Cir. 1982) 683 F.2d 688 (Lawsori), the court held it was error for the district court to prevent the defendant from cross-examining a prosecution witness about her conviction for prostitution and about whether another prosecution witness had been her pimp. While the evidence would not have been admissible under the rule that permitted evidence of a witness's prior conviction involving an act of dishonesty or false statement if offered to show her character for truthfulness (Fed. Rules Evid., rule 609(a)(2), 28 U.S.C.), it was admissible in that case because it "was designed to show not that [she] was a prostitute, and, therefore, a liar, but that she was a prostitute and that [the other witness], as her pimp, might have caused her to lie about [defendant's] involvement" because the other witness had animus toward the defendant and had not yet been sentenced on his negotiated plea deal. (Lawson, at p. 693.) In Howard v. State (Fla.Dist.Ct.App. 1981) 397 So.2d 997, 998, the court held that no error occurred when a defense witness in a trial for battery on a peace officer and resisting arrest was impeached with her obstruction of justice conviction because it was relevant to show the witness had a bias against the police. In Scott v. Com. (1997) 25 Va.App. 36 [486 S.E.2d 120, 122-123], the court held that error occurred, albeit harmless under the circumstances, when defense counsel was not allowed to question a prosecution jailhouse informant about the nature of his several convictions unless they involved moral turpitude. Although Virginia law allowed impeachment by prior felony and misdemeanor convictions involving moral turpitude in order to undermine a witness's character for veracity, that rule did not apply when considering such evidence in order to show witness bias. (Id., 486 S.E.2d at p. 122.)
That leaves for resolution two issues: Whether Billante's conviction was probative of his potential bias and whether, despite its probative value, the evidence should have been excluded under section 352. We tackle the bias issue first.
The Society's section 352 analysis does not address prejudice in the context of impeachment evidence introduced to show bias under section 780. Instead, it is confined to the prejudicial effect of felony conviction evidence admitted under section 788 to show a witness's general character for truthfulness. Relying on several criminal law decisions applicable in that context,
The Society's contention that a child molestation conviction is not necessarily a good indicator of a witness's propensity to lie is inapplicable because it is strictly part of a 352/788 analysis. As discussed above, assuming that Billante's conviction was not admissible to show he was generally untrustworthy, it was relevant to his potential bias for Whelan and prejudice against Piscitelli and other plaintiffs like him.
We recognize that admitting evidence of Billante's conviction posed some risk that the jury would find it easier to believe that many of the Society's clerics, including Whelan, were child molesters. However, the court instructed the jury to use the evidence only for the purpose of evaluating Billante's credibility. The Society contends that this instruction somehow caused more harm than good. We presume the jury followed that carefully worded instruction, and it was within the trial court's discretion to determine whether it could do so. (Rufo, supra, 86 Cal.App.4th at pp. 598-599, and cases cited therein.)
Finally, the Society's contention that the evidence might lead the jury to conclude that Billante would be inclined to lie for an associate charged with the same misconduct is precisely the reason the evidence was appropriately probative. With all this in mind, given the relevance of Billante's conviction to his potential bias, we cannot conclude that the trial court exceeded the bounds of reason and abused its discretion by allowing the impeachment evidence.
DISPOSITION
For the reasons set forth above, the judgment is affirmed. Respondent shall recover his costs on appeal.
Cooper, P. J., and Flier, J., concurred.
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