People v. Cooks

• Decision Date: 09 June 1965
• Docket Number: Cr. 10260
• Citation: 235 Cal.App.2d 6,44 Cal.Rptr. 819
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lionel Paul COOKS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 819

44 Cal.Rptr. 819

235 Cal.App.2d 6

The PEOPLE, Plaintiff and Respondent, v. Lionel Paul COOKS, Defendant and Appellant.

Cr. 10260.

District Court of Appeal, Second District, Division 4, California.

June 9, 1965.

Joseph R. Grillo, Los Angeles, and Donald R. Jacobs, South Gate, under appointment by District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert P. Samoian, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was charged with petit theft, a felony under Penal Code section 666, ¹ he having served a term of imprisonment for a prior conviction for petit theft. Defendant waived a jury trial. The court found him guilty as charged and sentenced him to state prison. His appeal is from the judgment.

The manager of a market testified that he observed defendant enter the premises, remove a bottle of Scotch whiskey from the shelf, place it under his shirt and walk out. The manager followed the defendant outside and recovered the merchandise. Defendant, testifying on his own behalf, admitted that he recalled going to the market on the day of the offense and recalled the bottle of Scotch being taken from him outside the market, but he didn't remember taking the Scotch because he was drunk.

The prior conviction was proved by placing in evidence a certified copy of a judgment and records of the sheriff showing that the defendant had been imprisoned in the county jail under the judgment. Identity of the defendant in that case was confirmed by a stipulation that the fingerprints were those of the present defendant.

The judgment must be reversed under the rules laid down by the Supreme Court in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 298 P.2d 361, and People v. Stewart, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97. The record shows that after defendant was arrested he made a full confession to a police officer, which confession was received in evidence at the trial. The officer did not say exactly when or where the confession was made, but his testimony includes the following: 'I asked the defendant what he had done at the market on Friday afternoon, which was the 31st; * * *.' The witness was not the arresting officer. He identified himself as a member of the detective division, 'one of the investigating officers' on the case. The testimony of the arresting officer was that at the scene of the arrest at the market he smelled the odor of alcohol about the defendant, but that in his opinion the defendant was then sober; but thirty-five or forty minutes later, at the station, the defendant appeared to be intoxicated. During the booking process defendant fell down.

The inference seems inescapable that, at sometime after the day of the arrest, while sometime after the day of the arrest, while defendant was in custody, a detective undertook a process of interrogation which lent itself to eliciting incriminating statements. No other purpose for this particular conversation is suggested by the record. It does not appear that the defendant had been advised of his rights or had waived such rights at that time. Regardless of the other evidence in the case, reversal is automatic under the controlling authorities.

Since the case must go back for retrial, an important procedural matter requires discussion.

The record shows that the information includes the allegation 'That before the commission of the offense hereinbefore set forth in this information, said defendant, LIONEL PAUL COOKS was in the Superior Court, State of California, County of Los Angeles convicted of the crime of Petty Theft and the judgment of said court against said defendant in said connection was on or about the 8th day of February, 1961, pronounced and rendered and said defendant served a term of imprisonment therefor in County Jail.' When defendant was arraigned, he pleaded 'Not Guilty.' It does not appear that he was asked whether he had suffered the prior conviction. At the conclusion of the trial, both sides having rested, the court said, 'I am satisfied the defendant is guilty of what he is charged with. The Court so finds.' No other statement of the court's finding appears in the reporter's transcript. The only finding recorded in the minutes for that day is: 'Defendant is found 'Guilty' as charged. * * *' The judgment contains the following recital: 'Whereas the said defendant having been duly found guilty in this court of the crime of PETTY THEFT WITH A PRIOR CONVICTION OF PETTY THEFT (Sec. 666 PC), a felony, as charged in the information. * * *'

The questions raised are whether Penal Code section 1158 ² requires a separate finding as to the prior conviction in a prosecution under Penal Code section 666, and, if so, whether the absence of any separate finding would compel a reversal of the judgment. Before attempting to answer the first question, it is helpful to examine the history of the pertinent code sections.

Penal Code section 666 was a part of the original Penal Code enacted in 1872. It was then, and still is, a part of title 16 of part 1, headed 'General Provisions,' and dealing with the subject of punishment. Definitions of crimes were and are found in titles 3 through 15 of part 1. In the 1872 code, sections 666 and 667 were the general sections providing for increased punishment for offenders who had suffered prior convictions. The opening sentence of the original section 666 read as follows:

'Every person who, having been convicted of any offense punishable by imprisonment in the State Prison, commits any crime after such conviction is punishable therefor, as follows: * * *.'

In 1903 the introductory clause was amended to read:

'Every person who, having been convicted of petit larceny, or of any offense punishable by imprisonment in the state prison * * *.'

In 1909 this language was again amended to read:

'Every person who, having been convicted of petit larceny and having served a term therefor in any penal institution * * *.'

The Code Amendments of 1873-74 added section 1025, which then read:

'When a defendant, who is charged in the indictment with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer shall be entered by the Clerk in the minutes of the Court, and shall, unless withdrawn by consent of the Court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. If he answer that he has not, his answer shall be entered by the Clerk in the minutes of the Court, and the question whether or not he had suffered such previous conviction shall be tried by the jury which tries the issue upon the plea of 'not guilty,' or in case of a plea of 'guilty,' by a jury impaneled for that purpose. The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction. In case the defendant pleads 'not guilty,' and answers that he has suffered the previous conviction, the charge of the previous conviction shall not be read to the jury, nor alluded to on the trial.'

This section was repealed in 1880, but reenacted in 1905. The present section 1025 differs only slightly from the original language.

The 1872 code (like the present one) set forth in section 1093 the order of proceedings at trial. By the amendments of 1873-74 the following language was added to section 1093: 'and in cases where the indictment charges a previous conviction and the defendant has confessed the same, the Clerk in reading such indictment shall omit therefrom all that relates to such previous conviction.' The present code contains similar language, though it now refers to 'the accusatory pleading' rather than 'the indictment.'

The 1872 code also contained a section 1158, which then read:

'Whenever the fact of a previous conviction is charged in an indictment, the jury, if they find a verdict of guilty, must also find whether or not the defendant had suffered such previous conviction.'

That section has since been expanded by a succession of amendments. The form of the verdict on the charge of prior conviction was first specified in the amendment of 1880. In 1951 the section was amended to its present form, which contains this language: 'The verdict or finding upon the charge of previous conviction may be: 'We (or I) find the charge of previous conviction true' or '* * * not true,' * * *.'

From an examination of these code sections it appears that the Legislature has, since the 1873-74 amendments, required certain procedural steps to be followed when a prosecutor seeks to impose the heavier punishment prescribed in section 666: (1) when a defendant pleads, he must be asked specifically whether he has suffered the alleged prior conviction (§ 1025); (2) if he admits the prior, neither the allegation nor the confession of the prior shall be disclosed to the jury (§ 1093); (3) if the defendant places the prior in issue by denying it, the jury (or the court, since 1951) must make a finding on the alleged prior conviction, which 'may be' in the language set forth in the statute (§ 1158).

During the course of the years the Legislature has added to the Penal Code a number of other provisions for the heavier punishment of persons who commit crimes after having suffered previous convictions. Commencing in 1927 the indeterminate sentence statute, section 1168, was amended to specify minimum terms of imprisonment for persons with prior convictions. Such limitations were subsequently placed in section 3024. In 1923 section 644 was enacted to provide longer terms of imprisonment for habitual criminals. As new statutes have been enacted to provide for various kinds of multiple offenders, section 666 has been amended so as to limit it only to those who have suffered a prior conviction of...