*1 Dist., No. 17820. First Div. Three. Feb. [Crim. 1979.] PEOPLE, THE Plaintiff and Respondent, SHERREN,
GREGORY Defendant and Appellant.
Counsel Defender, the Court of Denvir, under State Public Quin appointment Defender, Harriet Jeffers, Assistant State Public R. Chief Clifton Appeal, Hirsch, Neiman, Carol Jean and State Public Wiss Ryan Tanya Deputy Defenders, and for Defendant Appellant. Winkler, General, Chief Assistant Jack R.
Evelle J. Younger, Attorney General, O’Brien, General, Edward P. Assistant Attorney Attorney General, Laurence M. Derald E. Attorneys May, Deputy Granberg for Plaintiff Respondent.
Opinion of Penal Code was convicted of a violation
FEINBERG, J.Appellant He was sentencеd firearm).1 (felon section 12021 Thereafter, this followed several issues. state presenting prison. appeal Be A. the Prosecution Accept May Required Defendant’s He Been Convicted Fact That Had Felony Stipulation When the Prior Conviction Be From That Felony Jury Kept the Crime Conviction Is Element Charged? of section 12021. An element of with violation was charged *4 At the outset had been convicted of is that
that offense felony. appellant conviction. He trial, to admit the offered prior felony appellant thе the of the information the court that moved charging portion informed in and that the not be not be read to the jury jury the verdict of the manner, therein the form of including any aas offered to waive further conviction. any irregularity, Appellant was denied. motion in the form of the verdict. Appellant’s consequence, advised the that read to the The information jury jury appellant trial, At in a felon in with possession gun. open being being had been convicted of a In court, that it was felony. аppellant stipulated the adverted to the to its briefly jury, prosecution argument conviction. to to the is not stipulate required
Generally,
prosecutor
“[a]
where
crime he is
elements of the
prove
existence
attempting
any
case and
the effectiveness of
will
prosecutor’s
impair
stipulation
theories”
a conviction under
his
to obtain
foreclose
differing
options
166,
205,
466 P.2d
2
213
Cal.3d
(1970)
v. Robles
Cal.Rptr.
[85
(People
state’s case of its
is a
for “there
710])
strong
against depriving
policy
and forcefulness by forcing
prosecutor
accept
persuasiveness
evidence in its
that soften
entirety” (People
impact
stipulations
31,
793,
allegedly possessed proscribed is, that he what heroin not offers to knows may stipulate had that the defendant been seek to that evidence knowledge by on some other occasion but must convicted of or sale of heroin unless that conviction relevant and probative accept stipulation, case. v. Gonzаles 262 (1968) some other issue disputed 286, 578]; (1968) v. People Gregg Cal.App.2d Cal.Rptr. [68 v. Perez 920]; (1974) Cal.App.2d Cal.Rptr. People Cal.App.3d [71 760, 766 see also v. Guzman 195], (1975) Cal.Rptr. People however, 389-390 Typically, advised of the stipulation.
Another line of cases relevant to the issue here has developed involving theft with section Carlton Cal. prior). (petit with a a violation of larceny prior, 666.2 admitted the arraignment. Appellant It determination of the fact of the convicted. appears and, сourse, conviction was not submitted to the jury passed upon it was the who enough, jury. Interestingly argued to the that it was error should have been submitted question *5 It out that under to do so. The court the rejected argument. pointed if a now) 1158 the fact of conviction section (then, previous alleged, the conviction was suffered the must find whether previous jury Further, noted the the court the admitted unless allegation. defendant conviction is 1093 it that when now) section does (as prior provided admitted, clerk, to the shall in reading charge jury, alleged Thus, the to the court read the conviction prior jury. allegation conviction, concluded, there had admitted since prior or be made aware of was no need for the pass jury upon question Cal. v. 73 We (1887) 548.) conviction. (Accord Meyer prior People 76 v. (1963) move forward now some People Gallinger years Cal.App.2d 472]. with a was with theft prior defendant charged petty Gallinger, trial, outside 666). At the onset
(§
Gallinger,
presence
While no evidence
conviction.
admitted the
jury,
theft
adduced,
the trial court instructed
charge
jury
had admitted the
that the defendant
prior.
far
so
years,
over the
changes
past
2WhiIe
666 has
a number
undergone
section
concerned,
the same.
it has remained substantially
as the issue involved here is
from his
that since he had
Upon appeal
Gallinger argued
admitted
should not have been
prior,
apprised
prior.
However,
The court
its ratio decidendi went
the Carlton
agreed.
beyond
decision,
conviction is not an element of the crime but represents only enhanced then sections 1025 and 1093 do (See also punishment, apply. v. 156 Cal. P. court People Oppenheimer out that there were several views as to the pointed conflicting proper in a under section 666 and held that procedure such a case should be tried “as the former misdemeanor conviction is nоt an if element of the crime of (Italics added.) (212 at felony.” 856.) p.
Another line of cases
under section 4500 and its
developed
predecessor,
(assault
life
wherein was held that even
prisoner),
defendant had
he was a life-termer at
though
admitted
arraignment,
trial,
was still
at
that the defendant
awas
required
prove,
Thus,
life-termer.
sections 1093 and 1025 do not
v.
apply. (People
739;
Robles,
Finally, squarely conviction, under section the fact of the prosecution prior felony defendаnt, even admitted the not withheld from though may jury.
The seminal case in this to be v. Forrester (1931) sequence appears People Forrester, 240 P.2d the defendant was Cal.App. 558]. a felon in of a concealable firearm in violation of being the statute to section 12021. Defendant but precursor pleaded guilty trial, admitted the At sworn, conviction. after the prior the information was read to the therein over defendant’s jury, including the that defendant had been convicted of objection, аllegation felony. trial, At the was allowed to over defendant’s prove, again the fact of the conviction. Defendant was found objection, guilty. the court held that section 1025 did not
In affirming judgment, “a substantive of the offense” for where the conviction is part apply prior ever to convict the defendant otherwise “it would be to hold impossible Further, the admission of the 242.) at on this (Id., despite charge.” p. defendant had in issue guilty, put by pleading and, hence, conviction prove required before the jury. said, a further court if gun reconciling ground
Finally, control since and section 1025 control statute gun necessary, 1025, it “is of to section in time of enactment was much later statute tanto, 242.) of said section 1025.” (Id., necessity, repeal pro rather, for its its cited no Forrester pronouncement authority holding; of an dixit. to be in the nature seems ipse the cases followed.3 would be served
No detailing purpose v. in this that we have found is case most recent People reported sequence The court there Morrison (1977) 650]. is an element of the offense where the held that charged, the fact of the cannot be from precluded proving prosecutor to the fact. defendant’s offer conviction before stipulate jury by Robles, 205, 213, the Morrison Cal.3d from Quoting “ to the existence is not court said stipulate prosecutor required ‘[a] crime he is where elements of the stipulation attempting any case ....’” (Italics added.) will prosecutor’s impair еffectiveness of (At p. our own We now analysis. attempt cases the line of distinction between involving can see no
1. We legal of whether 12021 in the and section section 666 aspect It is true that in the offense an element conviction is charged. theft, involved, i.e., case, there is another offense section 666 firearm, of a concealable whereas in the section charge, possession without a offense. But this is distinction se a criminal is not per case, is not if the differеnce. In a section proven, *7 457, 833], 545 P.2d in discussing 211 v. Rist 16 Cal.3d 3In People that its the court out points convictions for impeachment purposes, use of prior uses, such other use of convictions for permissible not relate to the discussion does 222, 10.) (Id., But at fn. Rist element of the offense. p. where conviction is an the prior discuss, at bench here. a the issue much less suggest holding, does section be found cannot charge violating defendant guilty of theft. the defendant did commit finds that even if the jury find the defendаnt circumstances could in such It is true that jury because theft but that is 484-488) of (§§ the misdemeanor of petty guilty of the section included offense a lesser theft is necessarily petty a course, of is, different from This of allegation offense quite charged. a For if to enhance conviction example, punishment. simply conviction is alleged, is
defendant robbery he will be committed the the defendant find robbery, should the jury conviction is of whether the thereof proven found regardless guilty or not prоven. in a section correct in we are If
2. asserting under sections offense, then an element of prosecutions involves an characteristic—each this common 666, and 12021 have Robles, in is what the court of the offense where an element supra, offense offender, i.e., a life 205, status” of the called the 2 Cal.3d alleged “legal 12021, under 4500, under section a convicted felon under section prisoner a term of which offense for theft for a conviction section Robles, аt Cal.3d confinement was served. supra, Forrester, Thus, 3. advanced Cal.App. argument supra, would seem be of illusory regarding impossibility 666 where the under of the convictions light from the
admitted kept jury. Robles, i.e., 4. If we take the rule to be as stated in an element of the offense cannot be compelled stipulate where such effectiveness stipulation might impair prosecution’s theories, under different case or restrict the proving guilt possibility if none of these untoward would seem to be then it implicit refusal to were and if the apprehended, prosecution’s consequences before the results in the introduction into the enter stipulation error. evidence, would be then there prejudicial bench, we this test to the case note that the 5. Applying would that to force such “consider General asserts stipulation Attorney for to ask “a to find weaken the position, prosecution’s ably” different than someone handgun considerably guilty possession to find a felon them guilty handgun.” asking [sic] assertion, does not how the the naked explicate respondent Beyond case would weaken probably good prosecution’s stipulation *8 The it case is that it reason. “weakens” the avoids only prosecution’s way a that defendant is prejudicial, impact upon knowing in no felon. affects the felony way orderly case, i.e., on the evidence sole issue in did presentation disputed a A the defendant firearm? to the stipulation possess not whiсh a conviction would foreclose could be any theory guilt upon Nor can we how the obtained. conviction has apprehend any law value on issue of whether the defendant probative recognized fact, In as evidence of the fact of possessed gun. tends to show a it criminal is black letter possession, only disposition Code, law that for such it would be inadmissible. (Evid. § purpose subd. (b).) short, when the defendant offers to to the fact of the stipulate conviction in seсtion 12021 he has to the prosecution, given benefit, were, all as it that could
prosecution prosecution if had to obtain the conviction the introduction of legitimately prove by evidence. All that the is denied is the stipulation effect that defendant is a felon. upon knowing view, in our
Accordingly, required accept and the trial court erred in not as if the stipulation proceeding conviction was not an of the offense under section 12021.4 element Morrison,
While we our from the rule in recognize departs holding 425,5 it, and the cases that we believe our supra, preceded are in views accord with the decisions cases narcotics and in the note, too, cases discussed above. We Court Supreme did not that “status” cases be different from reject possibility might cases where the defendant offers a as to factual stipulation disputed Robles, issue. (See Cal.3d at to the form that 4As of verdict be could might employed, consideration given verdicts, 1150, 1152-1155, sections or the using special verdict could defendant was allege a member of a class could possess concealable firearm. We are lawfully in the trial confident out an work circumlocution and ability judges elegant artful solutions to the problem. 5Morrison has been criticized as follows: “Morrison, however, was decided clearly Its untenable incorrectly. plainly holding and indefensible. The court § Morrison Evid C which defines ignored simply ‘relevant evidence’ as evidence that has a in reason to or ‘tendency disprove any prove fact’ in an If a fact is action. evidence offered fact disputed disputed, irrelevant. And Evid C 350 evidence § is admissible relevant provides except ‘[n]o evidence.’ “Evidence Code 210 makes no for criminal Its § actions. exception plain language evidence makes offered on an issue in action—civil criminal—irrele- undisputed any *9 We have said that error of a nature was committed. the error
Doеs reversal? require The error was not of constitutional dimension v. Texas (1967) (Spencer 385 U.S. L.Ed.2d 87 S.Ct. whether 648]),6 therefore, reversal whether a result more favorable to depends upon requires was if the error had not occurred. appellant reasonably probable v. Watson Cal.2d 818 P.2d we
For this evidence. briefly recapitulate purpose, officers, vehicle, Two uniformed in a were directed to a certain police area. out of their car when arrived. One offiсer heard a They got they sound in a area as were over a fence backyard though person climbing and He informed the other officer who then encountered running. the comer anof establishment known as the Carioca rounding
Club, breath, not out of from direction which walking rapidly, though could been have where the sound came from. was detained later, and in the car. A few moments a woman placed police approached the officer and told him the she hаd been seated in an following: automobile and had seen the man detained around a comer of being peer Club, the Carioca and then a dark with white place object something bush; around it on small then walked to the end of the nearby and, as it as he turned the comer building developed, apprehended vant and hence inadmissible court should of Evid C 350. The express provisions § Morrison have held that Evid C 210 and 350 constituted a §§ bar to the prosecution’s introduction of evidence of D’s commission of the once D conceded the forgery existence (Jefferson, of that element of the offense him.” Cal. Evidence Benchbook charged against 20.2, (1978 170-171.) § Supp.) pp. criminal) 6In the case (habitual at issue were Texas recidivist Spencer statutes. Spencer was indicted for murder with malice. It was also that he had been alleged previously law, of murder with convicted malice. Under Texas if the conviction were proved, whereas, for the imprisonment, the рrior murder was death or life if the punishment conviction were not then the death for not imprisonment proved, punishment Texas, less than fixed the two'years. punishment. offered to admit his over his but in accordance Spencer objections law, with Texas of the indictment read to portion alleging thereafter evidence introduced to conviction. held that the did the defendant due Texas majority procedure deny procedural of law. process Chief Justice Warren threе held that defendant other dissenting joined by justices was denied due process. The Chief Justice’s in this context would reasoning penalty-enhancing-prior-conviction case, seem to to the case at bench even in the instant apply equal cogency though, Warren, (Dis. J.) conviction is an element of the offense. C. opn. On bush out the bush. The woman pointed top building. *10 loaded 7.65 caliber semi-automatic
Italian-made pistol wrapped white later, club, area the a live round A little in an behind of was found. gloves also found. оf identical caliber was ammunition the who woman as the The identified objects placed person appellant bush, scene, on not at the at the but trial. only who, as one familiar with the offered one witness The defense only at the area, scene time as to the testified topography merely general had at the time of The witness not been event in present question. was adduced on behalf of No evidence the incident. other appellant. took more than of the case no The approximately aspect evidentiary about 11 hours before it arrived at its deliberated hours. seven jury at considerable deliberated verdict. length considering Though jury trial, us result not that a more it does appear brevity if the had not been would have been favorable probable jury appellant he a felon. informed that was the woman his identification rested
The case upon against appellant on who witness as objects (pistol gloves) placed person did, her, verdict shows as their If believed appellant bush. they jury hand, If, on the other reasonable doubt. any beyond guilty It does her, would have believe appear likely did not acquitted. they affect one or the other a felon could that the fact way witness. credibility conclude, therefore, that the error did not result We miscarriage Const., is, therefore, VI, art. (Cal. reversible. § justice B. Was It Error the Court to Have Taken Notice Judicial That and, Had Failed to аat Pretrial Premised Appellant Appear Hearing Failure, Instruction, That to Have Given a CALJIC
Upon “Flight” 2.52? No. this case was filed in June 1975. failed to
The information in on 1975. The hearing hearing August appear pretrial A failed to bench warrant was one week and he continued again appear. for his arrest. issued trial,
At the court to take notice of prosecution requested judicial the failure to over the court did so. appear, appellant’s objection, There was no evidence as failed why appellant appear.
In his advised that it could closing argument, prosecutor infer from failure to that the reason therefor was that appellant’s appear knew he was and wanted to evade trial. The court guilty gave CALJIC 2.527 No. on a consciousness of showing flight guilt. the evidence was irrelevant because
Appellant complains *11 occurred so after the commission of the offense and the long presentation accusation, aof formal and was other susceptible many interpretations; whatever had, value the (2) evidence it was its probative outweighed by effect; no (3) instruction should have been but the prejudicial flight given, 105, one v. 120, Hill 67 Cal.2d footnote 9 (1967) approved by People [60 234, 429 586], P.2d the CALJIC instruction Cal.Rptr. preferable which was Hill version (The substitutes for last sentence of the given. “ CALJIC the or ‘Whether not evidence of shows a following: flight consciousness and the to be attached to such a guilt, significance circumstance, are for matters determination.’ ”) your as
(1) assertion to the of the failure to Appellant’s relevancy appear, did information, some of time after the of the coming length filing evidence, to a its goes question weight admissibility.
Whether absence showed a consciousness of and the appellant’s guilt to be accorded are such evidence matters reserved for the weight jury. 508, v. (1971) Olea 515-516
(People Cal.App.3d Cal.Rptr. We cannot that (2) trial court should have exercised its say discrеtion under section of the Evidence Code to exclude the evidence on that the effect of the noticed ground prejudicial judicially absence its value. If the drew the inference outweighed probative from failure had a consciousness of appellant’s appear then, value was substantial. On the other guilt, obviously, probative hand, if the inference, did not draw such an effect of juiy had missed court would be jury knowing appearance, minimal. commission 7CALJIC 2.52 “The aftеr the No. provides: flight person immediately crime, committed, sufficient in or after he is of a that has been is not accused crime which, itself to establish his if be considered in the by you but is fact guilt, proved, may of all in his innocence. The other facts light proved guilt deciding question to which such is a matter to determine.” weight circumstance entitled for the jury instruction, As between the Hill and CALJIC versions flight no former
there is authority position preferable appellant’s 388, Guzman, 380, which says, except People however, v. Hill that “the instruction ... may approved instruction cases where defendant offers to the standard preferable for his which is not the evidence of other flight” possible explanations no here. we find error case here. Accordingly, under to be noted. matter remains One conviction under section addition, he 12021. recites the 969, The abstract fact he admitted. which judgment conviction under section 12021 and conviction under section 969 is the same under section 969. But of the sеction 12021 This that was element prosecution. v. Edwards (1976) the one conviction is dual use of improper P.2d should be 995]) 18 Cal.3d stricken. *12 is modified by striking finding judgment 969, within the of section
suffered a conviction meaning felony modified, is affirmed. as so the judgment J.,
White, P. concurred. result, with the I in the but SCOTT, J. concur disagree majority’s a defendant’s must that the proffered stipula- accept holding of Code with a violation Penal he is a felon when tion that charged In so firearm). of a (felon holding majority law. v. Forrester (See of settlеd People from nearly years departing The most recent case P.2d 558].) reaffirming (1931) Cal.App. [2 Morrison Cal.App.3d the contrary principle Court, wherein the court denied 650], Supreme hearing conviction was “The 427-428): existence stated felony (at pp. Thus, firearms count. in the of the offense an element out of the not, conviction could presence admitting ‘by it was [citations], evidence.’ where its introduction into jury, preclude on a of theft conviction held that admission charge petty petty theft theft with precludes proof because, instance, in that conviction is an augmenta- ‘is tion not an element crime’ penalty Here, conviction was an element of the prior felony presently Hence, offense. was entitled to establish that fact prosecutor
before the No clearer of the rule reasons therefor jury.” expression be made. need
A for a I, was denied March Scott, 1979. was of petition rehearing that the should opinion petition granted. Respondent’s petition Clark, J., Court was denied 1979. hearing by Supreme April Richardson, J., were should.be opinion petition granted.