Lead Opinion
Appellant was convicted of a violation of Penal Code section 12021 (felon in possession of a firearm).
A. May the Prosecution Be Required to Accept Defendant’s Stipulation That He Had Been Convicted of a Felony and the Fact of That Conviction Be Kept From the Jury When the Prior Felony Conviction Is an Element of the Crime Charged?
Appellant was charged with a violation оf section 12021. An element of that offense is that appellant had been convicted of a felony. At the outset of the trial, appellant offered to admit the prior felony conviction. He moved the court that the portion of the information charging the prior conviction not be read to the jury and that the jury not be informed in any manner, including therein the form of the verdict of the prior conviction. Appellant further offered to waive any irregularity, as a consequence, in the form оf the verdict. Appellant’s motion was denied.
The information as read to the jury advised the jury that appellant was being charged with being a felon in possession of a gun. At trial, in open court, it was stipulated that appellant had been convicted of a felony. In its argument to the jury, the prosecution briefly adverted to the conviction.
Generally, “[a] prosecutor is not required to stipulate to the existence of any elements of the crime he is attempting to prove where the stipulаtion will impair the effectiveness of the prosecutor’s case and foreclose his options to obtain a conviction under differing theories” (People v. Robles (1970)
Another line of cases relevant to the issue here has developed involving section 666 (petit theft with a prior). In People v. Carlton (1881)
In Gallinger, defendant was charged with a petty theft with a prior (§ 666). At the onset of the trial, Gallinger, outside the presence of the jury, admitted the prior conviction. While no evidence of the prior was adduced, the trial court instructed the jury that the charge was petty theft with a prior and that the defendant had admitted the prior.
Another line of cases developed under section 4500 and its predecessor, section 246 (assault by a life prisoner), wherein it was held that even though defendant had admitted he was a life-termer at arraignment, the prosecution was still required to prove, at trial, that the defendant was a life-termer. Thus, sections 1093 and 1025 do not apply. (People v. Oppenheimer, supra,
Finally, a series of cases have arisen that have squarely held that in a prosecution under section 12021, the fact of the prior felony conviction, evеn though admitted by defendant, may not be withheld from the jury. The seminal case in this sequence appears to be People v. Forrester (1931)
Finally, the court said, if a further ground for reconciling the gun control statute and section 1025 was necessary, since the gun control statute was much later in time of enactment to section 1025, it “is of necessity, pro tanto, a repeal of said section 1025.” (Id., at p. 242.)
Forrester cited no authority for its holding; rather, its pronouncement seems to be in the nature of an ipse dixit.
No purpose would be served in detailing the cases that followed.
We now attempt our own analysis.
1. We can see no legal distinction between the line of cases involving section 666 and section 12021 in the aspect of whether the prior conviction is an element of the offense charged. It is true that in the section 666 case, there is another offense involved, i.e., the petty theft, whereas in the section 12021 charge, possession of a concealable firearm, is not per se a criminal offense. But this is a distinction without a difference. In a section 666 case, if the prior сonviction is not proven, the
2. If we are correct in asserting that the prior conviction in a section 666 prosecution is an element of the offense, then prosecutions under sections 666, 4500 and 12021 have this common characteristic—each involves an offense where an element of the offense is what the court in Robles, supra, 2 Cal.3d 205, called the “legal status” of the alleged offender, i.e., a lifе prisoner under section 4500, a convicted felon under section 12021, under section 666, a conviction for petty theft for which offense a term of confinement was served. (People v. Robles, supra, 2 Cal.3d at p. 213.)
3. Thus, the argument advanced in Forrester, supra,
4. If we take the rule to be as stated in Robles, supra, i.e., that the prosecution cannot be compelled to stipulate to an element of the offense where such stipulation might impair the effectiveness оf the prosecution’s case or restrict the possibility of proving guilt under different theories, then it would seem to be implicit that if none of these untoward consequences were to be apprehended, and if the prosecution’s refusal to enter into the stipulation results in the introduction before the jury of prejudicial evidence, then there would be prejudicial error.
5. Applying this test to the case at bench, we note that the Attorney General asserts that to force such a stipulation wоuld “considerably” weaken the prosecution’s position, for to ask “a jury to find someone guilty of possession of a handgun is considerably different than [sic] asking them to find a felon guilty of possession of a handgun.” Beyond the naked assertion, respondent does not explicate how the stipulation would weaken the prosecution’s case and probably for good
In short, when the defendant offers to stipulate to the fact of the prior felony conviction in a section 12021 prosecution, he has given to the prosecution all the benefit, as it were, that the prosecution could legitimately obtain if it had to prove the conviction by the introduction of evidencе. All that the prosecution is denied by the stipulation is the prejudicial effect upon the jury of knowing that defendant is a felon.
Accordingly, in our view, the prosecution was required to accept the stipulation and the trial court erred in not proceeding as if the prior conviction was not an element of the offense under section 12021.
While we recognize our holding departs from the rule in Morrison, supra, 61 Cal.App.3d 425,
The error was not of constitutional dimension (Spencer v. Texas (1967)
For this purpose, we briefly recapitulate the evidence.
Two uniformed officers, in a police vehicle, were directed to a certain area. They got out of their car when they arrived. One officer heard a sound in a backyard area as though a person were climbing over a fence and running. He informed the other officer who then encountered appellant rounding the comer of an establishment known as the Carioca Club, walking rapidly, though not out of breath, from a direction which could have been where the sound came from. Appellant was detained and placed in the police car. A few moments later, a woman approached the officer and told him the following: she had been seated in an automobile and had seen the man being detained peer around a comer of the Carioca Club, and then place a dark object with something white around it on a nearby small bush; appellant then walked to the end of the building and, as it developed, was apprehended as he turned the comer
The woman identified appellant as the person who placed the objects on the bush, not only at the scene, but at trial.
The defense offered one witness only who, as one familiar with the general area, merely testified as to the tоpography of the scene at the time of the event in question. The witness had not been present at the time of the incident. No other evidence was adduced on behalf of appellant.
The evidentiary aspect of the case took no more than approximately seven hours. The jury deliberated about 11 hours before it arrived at its verdict. Though the jury deliberated at considerable length considering the brevity of the trial, it does not appear to us that a result more favorаble to appellant would have been probable if the jury had not been informed that he was a felon.
The case against appellant rested upon his identification by the woman witness as the person who placed the objects (pistol and gloves) on the bush. If the jury believed her, as their verdict shows they did, appellant was guilty beyond any reasonable doubt. If, on the other hand, the jury did not believe her, they would have acquitted. It does not appear likely that the fact that appellаnt was a felon could affect one way or the other the credibility of the witness.
We conclude, therefore, that the error did not result in a miscarriage of justice and is, therefore, not reversible. (Cal. Const., art. VI, § 13.)
B. Was It Error for the Court to Have Taken Judicial Notice That Appellant Had Failed to Appear at a Pretrial Hearing and, Premised Upon That Failure, to Have Given a “Flight” Instruction, CALJIC No. 2.52?
The information in this case was filed in June 1975. Appellant failed to appear at a pretrial hearing on August 8, 1975. The hearing was continued one week and again he failed to appear. A bench warrant was issued for his arrest.
In his closing argument, the prosecutor advised the jury that it could infer from appellant’s failure to appear that thе reason therefor was that appellant knew he was guilty and wanted to evade trial. The court gave CALJIC No. 2.52
Appellant complains that (1) the evidence was irrelevant because it occurred so long after the commission of the offense and the presentation of a formal accusation, and was susceptible to many other interpretations; (2) whatever probative value the evidence had, it was outweighed by its prejudicial effect; (3) no flight instruction should have been given, but thе one approved by People v. Hill (1967)
(1) Appellant’s assertion as to the relevancy of the failure to appear, coming as it did some length of time after the filing of the information, goes to a question of the weight of the evidеnce, not its admissibility. Whether appellant’s absence showed a consciousness of guilt and the weight to be accorded such evidence are matters reserved for the jury. (People v. Olea (1971)
(2) We cannot say that the trial court should have exercised its discretion under section 352 of the Evidence Code to exclude the evidence on the ground that the prejudicial effect of the judicially noticed absence outweighed its probative value. If the jury drew the inference from appellant’s failure to appear that appellant had a consciousness of guilt, then, obviously, the probative value was substantial. On the other hand, if the juiy did not draw such an inference, the prejudicial effect of the jury knowing that appellant had missed a court appearance, would be minimal.
One matter remains to be noted. Appellant was charged under section 12021. In addition, he was charged with a prior conviction under section 969, which fact he admitted. The abstract of judgment recites the conviction under section 12021 and the prior conviction under section 969. But the prior conviction under section 969 is the same prior cоnviction that was an element of the section 12021 prosecution. This dual use of the one prior conviction is improper (People v. Edwards (1976)
The judgment is modified by striking the finding that appellant suffered a prior felony conviction within the meaning of section 969, and as so modified, the judgment is affirmed.
White, P. J., concurred.
Notes
A11 section references are to the Penal Code unless otherwise noted.
WhiIe section 666 has undergone a number of changes over the past 100 years, so far as the issue involved here is concerned, it has remained substantially the same.
In People v. Rist (1976)
As to the form of verdict that might be employed, consideration could be given to using special verdicts, sections 1150, 1152-1155, or the verdict could allege defendant was a member of a class that could not lawfully possess a concealable firearm. We are confident in the ability of trial judges to work out an elegant circumlocution and artful solutions to the problem.
Morrison has been criticized as follows:
“Morrison, however, was clearly decided incorrectly. Its holding is plainly untenable and indefensible. The Morrison court simply ignored Evid C § 210, which defines ‘relevant evidence’ as evidence that has a ‘tendency in reason to prove or disprove any disputed fact’ in an action. If a fact is not disputed, evidence offered to prove the fact is irrelevant. And Evid C § 350 provides that ‘[n]o evidence is admissible except relevant evidence.’
“Evidence Code § 210 makes no exception for criminal actions. Its plain language makes evidence offered on an undisputed issue in any action—civil or criminal—irrele*761 vant and hence inadmissible by the express provisions of Evid C § 350. The Morrison court should have held that Evid C §§ 210 and 350 constituted a bar to the prosecution’s introduction of evidence of D’s commission of the forgery once D conceded the existence of that element of the offense charged against him.” (Jeffersоn, Cal. Evidence Benchbook (1978 Supp.) § 20.2, pp. 170-171.)
In the Spencer case at issue were Texas recidivist (habitual criminal) statutes. Spencer was indicted for murder with malice. It was also alleged that he had previously been convicted of murder with malice. Under Texas law, if the prior conviction were proved, the punishment for the charged murder was death or life imprisonment, whereas, if the prior conviction were not proved, then the punishment was death or imprisonment for not less than two'years. In Texas, the jury fixed thе punishment.
Spencer offered to admit his prior conviction, and over his objections but in accordance with Texas law, the portion of the indictment alleging the prior conviction was read to the jury and thereafter evidence introduced to prove that prior conviction.
The majority held that the Texas procedure did not deny the defendant procedural due process of law.
Chief Justice Warren dissenting and joined by three other justices held that defendant was denied due process.
The Chief Justice’s reasoning in this penalty-enhancing-prior-conviction context would seem to apply with equal cogency to the case at bench even though, in the instant case, the prior conviction is an element of the offense. (Dis. opn. of Warren, C. J.)
CALJIC No. 2.52 provides: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstаnce is entitled is a matter for the jury to determine.”
Concurrence Opinion
I concur in the result, but disagree with the majority’s holding that the prosecution must accept a defendant’s proffered stipulation that he is a felon when charged with a violation of Penal Code section 12021 (felon in possession of a firearm). In so holding the majority is departing from nearly 50 years of settled law. (See People v. Forrester (1931)
A petition for a rehearing was denied March 28, 1979. Scott, I, was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied April 19, 1979. Clark, J., and Richardson, J., were of the opinion that the petition should.be granted.