In what circumstances will a defense witness be impeached on cross-examination with a prior conviction for conspiracy to commit grand theft and receiving stolen property?

In Samarjian, a defense witness was impeached on cross-examination with a prior conviction for conspiracy to commit grand theft and receiving stolen property. The witness did not serve any time in and had not been sentenced to state prison as a result of the conviction. (People v. Samarjian, supra, 240 Cal.App.2d at pp. 22-23, 49 Cal.Rptr. 180.) On appeal, the defendant claimed it was error to permit impeachment of the witness because he had not been convicted of a felony.

The court held there was no error because there was no evidence the witness's

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"The general rule as set out in 1 Witkin, California Crimes (1963) section 41, at page 44, is that where the offense is alternatively a felony or misdemeanor, it is regarded as a felony for every purpose until judgment. The judge can make it a misdemeanor by a misdemeanor sentence, but if no judgment is pronounced it remains a felony. [Citations.] 'The necessary inference to be drawn from the language of section 17 of the Penal Code that "when a crime [is] punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison" is that the offense remains a felony except when the discretion is actually exercised and the prisoner is punished only by a fine or imprisonment in a county jail.' " (People v. Samarjian, supra, 240 Cal.App.2d at p. 23, 49 Cal.Rptr. 180; accord Barker v. California-Western States Life Ins. Co. (1967) 252 Cal.App.2d 768, 774, 61 Cal.Rptr. 595; see People v. Banks (1959) 53 Cal.2d 370, 381-382, 1 Cal.Rptr. 669, 348 P.2d 102.)