People v. Bracamonte

• Citation: 119 Cal.App.3d 644,174 Cal.Rptr. 191
• Decision Date: 28 May 1981
• Docket Number: Cr. N
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio Gilbert BRACAMONTE, Defendant and Appellant. o. 38214.

Page 191

174 Cal.Rptr. 191

119 Cal.App.3d 644

The PEOPLE, Plaintiff and Respondent, v. Antonio Gilbert BRACAMONTE, Defendant and Appellant.

Cr. No. 38214.

Court of Appeal, Second District, Division 3, California.

May 28, 1981.

Hearing Denied August 13, 1981.

Norman W. DeCarteret, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr. and Donald E. deNicola, Deputy Attys. Gen., for plaintiff and respondent.

Quin Denvir, State Public Defender, Therene Powell, Deputy State Public Defender, as amicus curiae.

POTTER, Acting Presiding Justice.

Defendant Antonio Bracamonte appeals from the judgment of conviction of burglary (Pen.Code, § 459). The main issue on appeal is whether defendant was entitled to a bifurcated trial on the issue of (1) his guilt and (2) the validity of alleged prior convictions.

On March 27, 1979, at around 11 a. m., Keith Woodward saw the profile of a man 20 to 30 feet away, walking away from his neighbors' apartment, carrying a large, apparently heavy, covered object. He entered the apartment and noticed that the neighbors' portable TV set was missing. He then walked out to the sidewalk where he saw a red compact car stop at the curb and a male passenger step out. Woodward recognized him as the man he had seen leaving the apartment house area. After their eyes met, the passenger got back into the car. Woodward gave the police the license number of the car and described the suspect as a man in his thirties, from 5'10 to 6' tall, stocky with dark hair streaked with gray. A license check showed that the car was registered to defendant. Woodward selected defendant's photograph from a six-man black and white photographic display and identified the single photograph of defendant's car, depicting the license number.

Defendant's pretrial motion to suppress Woodward's in-court identification, as the product of an unfair photographic display, was denied.

In addition to the charge of the March 27, 1979 burglary, the information alleged that defendant had suffered five prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b). The alleged priors were: possession of a controlled substance (former Health & Saf.Code, § 11500) in 1955; burglary (Pen.Code, § 459; two counts) in 1960; attempted robbery (Pen.Code, §§ 6 64/211) in 1966; escape without force (Pen.Code, § 4530(b) in 1968; and second degree burglary (Pen.Code, § 459) in 1976.

Defendant, who pled not guilty and denied the allegations of the prior convictions, moved to bifurcate the trial on the issues of guilt and the validity of the prior convictions on the ground that it would be "highly prejudicial to let the same jury determine the truthfulness of the priors ... at the same trial." (Italics added.) The court denied the motion for a separate trial on the priors.

Pursuant to this ruling, the entire information, including the allegations of the five prior convictions, was read to the jury at the commencement of the trial. The prosecutor then proceeded to present all the evidence relating both to defendant's guilt and to the priors before any verdicts were taken. Testimony and documentary evidence detailed the nature of each of the five alleged prior convictions and the amount of time defendant spent in custody as well as the interval between his release and the next offense.

Defendant admitted the car was his but testified that he was at home until about 3 p. m. and had lent the car to a man who somewhat resembled him. His wife corroborated his alibi testimony.

Defendant made a Beagle ¹ motion to exclude the use of the prior convictions for impeachment and asked that the jury be instructed that they could not be considered as reflections on his credibility. The trial court, however, refused to so instruct the jury. The court did inform the jury orally that the documentary evidence regarding the alleged prior felony convictions had been placed in a sealed envelope which was to be opened only after arrival at a guilty verdict because the court did not want the jury "to be prejudiced or influenced by anything other than the facts (it had) in regard to the burglary." But the jury was specifically instructed, in CALJIC No. 17.18, that defendant's alleged prior convictions of "possession of a controlled substance, burglary (two counts), attempted robbery, escape without force, and burglary (second degree)" were relevant for evaluating defendant's credibility. The instruction stated in part:

"You shall not consider such charges or evidence offered thereon in your determination of defendant's guilt of the crime for which he is now on trial.

"However, the fact that such defendant has been convicted of a felony, if such be a fact, may be considered for the purpose of determining the defendant's credibility as a witness concerning the crime charged."

In argument to the jury, the prosecutor referred to defendant as "a professional crook." The court denied the defense motion for a mistrial but agreed to admonish the jury to strike that part of the argument.

The jury found defendant guilty of second degree burglary and of having suffered four of the five alleged prior felony convictions. ² This appeal followed.

Contentions

Defendant contends that the court erroneously denied his motion (1) to bifurcate the proceedings, and (2) to suppress Woodward's in-court identification. ³

Discussion

Summary

The judgment must be reversed. Under the circumstances of this case defendant was entitled to a bifurcation of the trial which would have prevented the jury being advised of the alleged prior convictions unless it first found defendant guilty of the charged offense. The unitary procedure, though heretofore accepted in this state, needlessly exposed defendant to serious potential prejudice by revealing his prior criminality without advancing any legitimate state interest. Denial of the bifurcation motion herein also prejudiced defendant by permitting impeachment of his credibility by evidence that he allegedly suffered five previous felony convictions, which evidence was, for the most part, inadmissible under Beagle standards, and gave the prosecutor the opportunity to brand defendant "a professional crook."

The court, however, properly denied the motion to suppress Woodward's in-court identification because the photographic procedure was fair.

Defendant Was Entitled to a Bifurcated Trial on the Issue of Guilt and the Validity of the Prior Convictions

The court should have granted defendant's motion to bifurcate the proceedings. "The admission of any evidence that involves crimes other than those for which a defendant is being tried has a 'highly inflammatory and prejudicial effect' on the trier of fact. (Fn. omitted.)" (People v. Thompson (1980) 27 Cal.3d 303, 314, 165 Cal.Rptr. 289, 611 P.2d 883.) The issue of guilt "and the proof of prior convictions are clearly severable." (People v. Morton (1953) 41 Cal.2d 536, 543, 261 P.2d 523.) The latter is unrelated to the substantive issue of guilt and affects only the penalty imposed. (Ibid.) Yet, prior to reaching a verdict on the burglary, the jury was permitted to hear detailed evidence of defendant having allegedly suffered five previous convictions, two of them for the identical offense of burglary. This unitary procedure was unnecessarily prejudicial and, under the circumstances of this case, deprived defendant of his due process rights to a fair trial secured by the California Constitution (art. I, § 15).

Limiting instructions, such as were given here, do not eliminate the risk of prejudice. "The naive assumption that prejudicial effects can be overcome by instructions to the jury, (citation) all practicing lawyers know to be unmitigated fiction." (Krulewitch v. United States (1949) 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790. ⁴ As the Supreme Court of Washington pointed out: " 'It seems too plain for argument that to place before a jury the charge in an indictment, and to offer evidence on trial as a part of the state's case that the defendant has previously been convicted of one or more offenses is to run a great risk of creating a prejudice in the minds of the jury that no instruction of the court can wholly erase, and, while appellate courts will presume that the jury has followed the instructions of the court, yet we cannot blind our eyes to the active danger ever lurking in such action.' " (State v. Kirkpatrick (1935) 181 Wash. 313, 43 P.2d 44, 45.) Furthermore, empirical data supports the conclusion that a jury is likely to be influenced by a defendant's past record. (See Kalven & Zeisel, The American Jury (1966) pp. 127-130, 177-180.)

The Standards for Criminal Justice of the American Bar Association recommend that when, as here, "the defendant's prior convictions are admissible solely for the purpose of determining the sentence to be imposed, the jury should not be informed of them, either through allegations in the charge or by the introduction of evidence, until it has found the defendant guilty." (ABA Project on Minimum Standards for Criminal Justice, Stds. Relating to Trial by Jury (Approved Draft 1968) (hereinafter ABA Stds.) Std. 4.4, p. 102.) Moreover, the majority of states have adopted procedures requiring such a separation between the issues of guilt and of prior convictions. (See Spencer v. Texas (1967) 385 U.S. 554, 586, 87 S.Ct. 648, 665, and cases and statutes cited in fn. 11, 17 L.Ed.2d 606 (dis. opn. of Warren, C. J.); State v. Olivera (1976) 57 Hawaii 339, 555 P.2d 1199, 1203; Lawrence v. State (1972) 259 Ind. 306, 286 N.E.2d 830, 834; ABA Stds., supra, at p. 104.)

"The weight of modern authority calls for a mandatory two-stage trial for the trial of the collateral issue of enhanced punishment to avoid prejudice to the defendant in the initial...