Can a prosecutor cross-examine a witness with the facts of the underlying conviction?

634.) Improperly impeaching a witness with the facts of the underlying conviction is error and requires reversal where there is a reasonable probability the defendant would have received a more favorable result absent the error. (People v. Heckathorne (1988) 202 Cal.App.3d 458, 463-464.)

The prosecutor's questions in this case went beyond the nature of the offense. Specifically, the prosecutor asked defendant if he had used a gun to rob and kill someone and if he "consider[ed] killing someone before actually doing it." These questions went beyond the facts which appeared on the face of the judgment. Defendant's 2002 abstract of judgment was admitted in the proceedings and established he was convicted of first degree murder with an arming enhancement as well as robbery with an arming enhancement. However, the abstract reflected an arming enhancement under former section 12022, subdivision (a), which may be violated without the defendant being personally armed. (Former 12022, subd. (a)(1) ["This additional term shall apply to any person who is a principal in the commission or attempted commission of a felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm."].) Likewise, although the abstract reflects a first degree murder conviction, the conviction does not necessarily encompass a premeditated murder. One could be found guilty of first degree felony murder that does not require a finding of premeditation and deliberation. ( 187, subd. (a); People v. Seaton (2001) 26 Cal.4th 598, 671.)

Finding the questions at issue were improper does not end the inquiry, we must determine what, if any, prejudice defendant suffered from the questions. In People v. Heckathorne, supra, 202 Cal.App.3d 458, the court addressed the issue of improper impeachment during cross-examination. There, the prosecutor asked the defendant if he had previously been convicted of felony assault with a deadly weapon, which was entirely proper. After the defendant tried to clarify his conviction by saying the assault was with an automobile, the prosecutor then asked, "'Did you try to assault somebody with this automobile?'" (Id. at p. 462.) The court explained this question was

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