What is the test for impeaching a defendant under section 352 of the Criminal Code?

The law is now clear a trial court vested with section 352 discretion must determine probative value, appraise prejudicial effect, and weigh one against the other. The record must affirmatively show the trial judge did in fact weigh prejudice against the probative value. (People v. Green (1980) 27 Cal.3d 1, 25-26, 164 Cal.Rptr. 1, 609 P.2d 468.) Further, in permitting impeachment, the trial court must explicitly determine the risk of undue prejudice did not substantially outweigh the probative value. Where a trial court fails to exercise section 352 discretion in the manner required by Green, error occurs.

In the instant case, the trial court did not address the relevancy question and, further, failed to engage in the weighing process required under section 352. Defense counsel specifically stated on the record his client would not testify in view of the trial court's ruling it would allow impeachment by defendant's prior felony conviction in the event defendant testified on his own behalf. Further, defendant made an offer of proof as to what his testimony would otherwise be, a complete denial of the charge as well as the confession.

In People v. Barrick, supra, 33 Cal.3d 115, 130, 187 Cal.Rptr. 716, 654 P.2d 1243, the court stated: