People v. Bouzas

• Decision Date: 18 April 1991
• Docket Number: No. S017682,S017682
• Court: California Supreme Court
• Parties: , 807 P.2d 1076 The PEOPLE, Plaintiff and Respondent, v. Robert BOUZAS, Defendant and Appellant.

Page 847

279 Cal.Rptr. 847

53 Cal.3d 467, 807 P.2d 1076

The PEOPLE, Plaintiff and Respondent, v. Robert BOUZAS, Defendant and Appellant.

No. S017682.

Supreme Court of California,

In Bank.

April 18, 1991.

Cliff Gardner, Fiedler, Gardner & Derham, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Jane N. Kirkland, Shirley A. Nelson and W. Scott Thorpe, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

LUCAS, Chief Justice

We granted review to resolve a split of authority in the Courts of Appeal concerning whether a defendant charged under Penal Code section 666 (petty theft with a prior theft-related conviction) ¹ may stipulate to a prior felony conviction allegation and thus preclude the jury from learning of that conviction. We conclude a defendant may so stipulate.

I. Facts and Procedure

Lee, a pharmacist at a Thrifty Drug Store, and Romero, a clerk in the pharmacy department, noticed defendant standing near the store's pharmacy area for an unusual amount of time. Finally, they saw defendant enter an area of the pharmacy not open to the public and pick up a pack of 10 syringes. When told to stop, defendant replied he would pay for the syringes at the cash registers located at the front of the store, and proceeded in that direction. Romero told defendant he could not do so and that syringes must be purchased at the pharmacy, and proper documentation filled out. Defendant nevertheless walked toward the front of the store. Lee followed, but lost sight of defendant in the crowded store. Eventually he saw defendant climb over a chain barrier and walk out of the store without waiting in line at the checkout stand.

Velasquez, the store manager, having been alerted by Lee, followed defendant outside and asked him to stop. Defendant did so and denied taking any merchandise. He emptied the pockets of his shorts and pulled up his "tank top" shirt, exposing a carton of cigarettes that did not come from the drug store. Defendant pulled out the waistband of his shorts so Velasquez could check for store merchandise, but the manager found no such item on defendant. Velasquez returned to the store and defendant went across the street to the local fairgrounds. Shortly thereafter he was arrested by the police (apparently for petty theft, § 484), who responded to a call from Romero. The store employees searched the route taken by defendant as he left the store, but never found the package of syringes.

Defendant was charged with, inter alia, petty theft with a prior theft-related conviction (§ 666), namely, robbery. Rejecting defendant's request that the court accept his stipulation to the prior felony conviction and thus preclude the jury from learning about it, the court permitted the prosecution to prove the conviction. The court "assumed" that result was compelled by the California Constitution, article I, section 28, subdivision (f), the second sentence of which provides, "When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court."

Defendant did not testify. Through his attorney defendant claimed he brought the syringes to the front of the store intending to pay for them, but rather than waiting in the cashier line, he put the package down and walked out of the store.

The jury found defendant guilty of "petty theft with a prior conviction of theft, to wit, robbery." The court sentenced defendant to a two-year prison term.

The Court of Appeal affirmed, finding the trial court properly declined to allow defendant to stipulate to the prior felony conviction allegation under section 666. We granted review to resolve a split of authority on this issue in the Courts of Appeal. We reverse.

II. Analysis

Section 666, enacted in 1872 as part of the original Penal Code, in its present form states: "Every person who, having been convicted of petit theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, robbery or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petit theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison."

Until 1976, section 666 addressed only misdemeanor theft-related prior convictions resulting in incarceration. It made a current conviction for "any crime" punishable as either a misdemeanor or a felony, if the defendant had been earlier convicted of and served time for petty larceny or petty theft. In that year, however, the Legislature rewrote section 666 and merged it with former section 667. Former section 667 was also originally enacted in 1872, and before its merger with section 666 made a current conviction for "petty theft" punishable as either a misdemeanor or a felony, if the defendant had been earlier convicted and served time for "any felony." As noted above, present section 666 combines the two former sections and provides that a defendant who has been convicted of and imprisoned for enumerated theft-related crimes (certain misdemeanors and felonies) and who is subsequently convicted of petty theft "is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." In other words, the court is given discretion to treat the offense as either a misdemeanor or a felony.

The cases construing the "prior theft conviction" provision of former section 666 disclose that the prior conviction requirement was for almost 100 years treated by the courts as a "sentencing factor" (as opposed to an "element" of an "offense") to which a defendant was entitled to stipulate and thereby keep from the jury. For example, in People v. Gallinger (1963) 212 Cal.App.2d 851, 28 Cal.Rptr. 472, disapproved on other grounds in People v. Hall (1980) 28 Cal.3d 143, 156, footnote 7, 167 Cal.Rptr. 844, 616 P.2d 826 (see post, fn. 4), the court stated, "it has been held, in effect, in prosecutions for petty theft with a prior conviction of petty theft, that the fact of the former conviction is not an element of the crime." (212 Cal.App.2d at p. 855, 28 Cal.Rptr. 472, italics added.) Accordingly, the Gallinger court observed, under sections 1025 and 1093, if a defendant admits such a prior conviction resulting in incarceration, the fact of the prior conviction and incarceration must not be disclosed to the jury:

"[S]ection 1025 of the Penal Code provides in material part that if a prior conviction is alleged, the defendant must be asked whether he admits or denies it, and if he admits it, the matter may not be alluded to in the trial. ² If he denies it, the court or the jury must find whether the allegation is true or false. (Pen.Code, § 1158.)

"Section 1093 requires that the clerk read the information, but if a prior conviction is alleged [and admitted] he must omit reading that allegation.... ³

"In many cases, ... prior convictions are alleged which are wholly unrelated to the crime for which the defendant is on trial, such as burglary with a prior conviction of burglary. In such cases it is invariably held that if the defendant is questioned pursuant to section 1025 with respect to the prior felony conviction and admits it, the jury must not be permitted to learn of it [except through impeachment if the defendant testifies] [citations]; and even then the jury must be told to consider the matter of the former felony conviction only as it may affect the credibility of the defendant.

"Upon the other hand, if the former conviction is an element of the offense for which the defendant is being tried, as in a prosecution under section 12021 of the Penal Code, which makes it a felony for an exconvict to be in possession of a firearm, the prior conviction, as well as the possession of the firearm, must be proved and determined by the court or jury. The defendant cannot, by admitting the felony conviction out of the presence of the jury, avoid proof of the fact as evidence for consideration of the jury. [Citation.] In such cases sections 1025 and 1093 can have no application, since whenever the fact of a felony conviction is an element of the offense the defendant could never be convicted without evidence before the trier of fact that the conviction had been suffered." (212 Cal.App.2d at pp. 854-855, 28 Cal.Rptr. 472, italics added.) ⁴

The Gallinger court determined the trial court erred by instructing the jury, despite the defendant's stipulation, that defendant had been previously convicted of petty theft: "When the information alleges prior convictions unrelated to the crime for which the defendant is on trial, proof of the former convictions is irrelevant to the question of guilt of the latter offense ... [and regardless whether the prior conviction is admitted, or denied but found true,] the fact goes only to the matter of punishment that may be imposed." (212 Cal.App.2d at p. 855, 28 Cal.Rptr. 472, italics added.) As noted above, Gallinger concluded, "the fact of the former conviction is not an element of the crime." (Ibid., italics added.)

Numerous other cases, beginning with our own in 1881, have long held the same, and have treated the prior conviction under former section 666 as a sentencing factor for the court, and not as an "element" of an offense to be determined by a jury. (See People v. Carlton (1881) 57 Cal. 559, 560 [court erred under § 1093 by allowing jury to hear evidence of prior conviction after defendant admitted the charge]; People v. Meyer (1887) 73 Cal. 548, 549, 15 P. 95 ["When the previous conviction is confessed, the jury has nothing to do with it."]; People v. Oppenheimer (1909) 156 Cal. 733, 738, 106 P. 74 [described below]; People...