People v. Faught

• Decision Date: 22 October 1981
• Docket Number: Cr. N
• Citation: 177 Cal.Rptr. 637,124 Cal.App.3d 848
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. David H. FAUGHT, Defendant and Appellant. o. 5131.

Page 637

177 Cal.Rptr. 637

124 Cal.App.3d 848

The PEOPLE, Plaintiff and Appellant, v. David H. FAUGHT, Defendant and Appellant.

Cr. No. 5131.

Court of Appeal, Fifth District, California.

Oct. 22, 1981.

Hearing Denied Feb. 2, 1982.

[124 Cal.App.3d 851] Gayle Guynup, Santa Rosa, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Jane Kirkland Fischer, Deputy Attys. Gen., Sacramento, for plaintiff and appellant.

OPINION

ANDREEN, Associate Justice.

This is an appeal and cross-appeal following a conviction of a violation of Penal Code section 12021, ex-felon in possession of a concealable weapon.

In a criminal information filed March 24, 1980, defendant David H. Faught was charged with assault with intent to commit rape (Pen.Code, § 220); it was alleged that a .38 caliber revolver was used in the offense (Pen.Code, § 12022, subd. (b)). Count Two charged defendant as an ex-felon in possession of a firearm in violation of Penal Code section 12021. The information further alleged that defendant had previously been convicted of grand theft in violation of Penal Code section 487 and had served a prison term and was released from custody on March 19, 1978.

Defendant admitted the prior conviction. At the first trial on the charges, the jury found defendant not guilty of assault with intent to commit rape. The jury was unable to reach a verdict on the remaining charge, so a mistrial was declared as to count two, ex-felon in possession of a firearm.

Out of the presence of the jury, on the first day of the second trial, defendant offered to stipulate to the prior conviction on the condition it not be introduced as part of the People's case. The People opposed the stipulation and the trial court refused to compel the stipulation.

Following the district attorney's opening statement, the defendant moved for a mistrial which was denied. As a corrective measure defendant sought to introduce evidence of his prior acquittal, the request was denied.

Defendant was convicted and sentenced to state prison for the middle term of two years. The court declined to impose any enhancement for the prior conviction, holding that it could not be used to enhance since it was part of the substantive offense.

Defendant filed notice of this appeal; the People filed notice of a cross-appeal.

FACTS

On May 5, 1980, Caroline Barker was living with her son at 1609 Locke Road in Modesto. At approximately 10 p. m. that night Vincent Avana and his father Lee Avana and defendant David Faught arrived at her home. Lee Avana was drunk and Faught and Vincent Avana had been drinking. Caroline was not previously acquainted with Faught or Lee Avana.

Vincent Avana left to go to a nearby store. Faught and Lee Avana left the house with him but Faught returned shortly thereafter.

According to Caroline Barker, Faught made a pass at her and Caroline left her house to go to a neighbor's in an adjacent unit. At about 10:30 Betty McAtee and Mary Beaudoin heard a female yelling for help. McAtee opened the door eight to ten inches and saw a man outside with his arm extended. She did not see his hand and was unable to see any gun in his possession. The police were called. The women heard a noise, McAtee thought it was a rock hitting the door, Beaudoin thought it was a gun. McAtee was unable to make a positive identification of defendant as the person she had viewed.

Barker testified at trial that as she was on her neighbor's porch she turned around and saw Faught behind her, on the Barker porch. Faught told her to get back to her house. He approached her with a gun in his hand. He directed the neighbors to close the door and stated he would shoot if they opened it. He then fired once in the air.

Barker testified that Faught told her to call the neighbors and ask them not to call the police. He mentioned that if the police came she would be the first to go.

Barker testified when Vincent Avana returned he told Faught to give him the gun, and to calm down. Faught refused but went outside with Vincent. When the police arrived, Barker (due to defendant's threats) took her son and slipped out a back door and hid in some bushes in the vicinity of her apartment.

About 11 p. m. that night, another neighbor, Michael Perrine, who lived at 1531 Locke Road, saw defendant in Perrine's front yard ducking behind a hedge, peering over it at police officers down the street. Perrine went to get his father and when he returned, defendant was gone. At about 11:10 p. m., Modesto police officer Jim Sanders contacted Perrine and after Perrine pointed defendant out as the latter walked down Locke Road in front of 1527 Locke, Sanders arrested defendant. Defendant had no firearm on his person. Shortly after 11 p. m., Modesto police officer Curtis Tankersley found a .38 caliber handgun in the hedge area of 1601 Locke the weapon was not dusty or dirty and contained four live rounds and one empty cartridge. At trial, Caroline identified that gun as appearing to be the one defendant had in his hand that night.

DEFENSE

Faught testified that he had not possessed or used a gun on the night in question. Upon seeing the police vehicle he ran because he was trying to evade a misdemeanor warrant for disturbing the peace.

Vincent and Lee testified that they had not seen Faught with a gun that night.

Officer Lee Greutzmacher who interviewed Caroline on the night of the incident recalled several statements made by her which contradicted her trial testimony. Caroline had told Officer Greutzmacher that Faught had pointed a gun at her chest, that he had held both hands on the gun, that he had placed the gun in his waistband on other occasions, and that he had told her to return to the apartment or he would kill her. On cross-examination Caroline testified he had held the gun in one hand, no threat on her life was mentioned, she did not remember seeing a gun in the waistband, and she did not testify to defendant pointing the gun at her chest.

THE STIPULATION

Prior to trial, defendant offered a stipulation that he had been convicted of a felony, so as to preclude the People from introducing such evidence. The stipulation was framed as follows:

"We offer to stipulate to the prior conviction as alleged in the Information and request that the Information be modified when read to the jury to eliminate all reference to that prior conviction.

"And also, that the Prosecutor be ordered not to refer to it during argument. And that the verdict form be modified to delete any reference to the prior. And stipulate that upon a finding that the Defendant was in possession of a firearm that it would be a felony as charged in Section 12021. I make this motion on the strength of People versus Sherren in an attempt to avoid the prejudicial effect of the jury being informed that a previous conviction "

At the time of the defense request, People v. Sherren (1979) 89 Cal.App.3d 752, 152 Cal.Rptr. 828, was the sole direct authority in aid of defendant's position. Deeming contrary authority more persuasive, the trial court refused to require the People to accept the stipulation.

The jury was informed of the prior felony by stipulation, and by the court's mention of the fact three times at the opening of the trial. The court stated:

"At this time, ladies and gentlemen, I am going to read the Information which was filed in this matter. It is entitled, The People of the State of California against David Hollen Faught, Action No. 166407. Information for possession of a dangerous weapon by a felon, a violation of Section 12021, of the California Penal Code, a felony.

"David Hollen Faught is accused by the District Attorney for the said County of Stanislaus, State of California by this Information of the crime of violation of Section 12021, of the California Penal Code, a felony.

"As I said, possession of a dangerous weapon by a felon, committed as follows: The said David Hollen Faught on or about the fifth day of March, 1980, at and in said County of Stanislaus, State of California, and prior to the filing of this Information, did willfully, unlawfully and feloniously own and have in his possession and under his custody and control a certain firearm, to wit, a .38 caliber revolver, capable of being concealed upon the person and having a barrel less than 12 inches in length. The said David Hollen Faught having theretofore been duly and legally convicted of a felony, to wit, the crime of Grand Theft, on the 14th day of September, 1976, by and before the Superior Court of the State of California, and in and for the County of Stanislaus."

A jury instruction also alluded to the prior.

Two months after trial, the Supreme Court filed People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826, which held that in a prosecution for violating Penal Code section 12021, the element of a prior conviction of a felony may not be given to the jury if the accused stipulates to it, unless the state can demonstrate that application of the rule will impair the People's case or preclude the presentation of alternative theories of guilt. We must decide whether Hall should be applied retroactively, and if so, whether one of the exceptions applies to the instant case, and if not, whether the error was prejudicial.

In regard to the issue of retroactivity, the law is well summarized in People v. Cooper (1979) 94 Cal.App.3d 672, 156 Cal.Rptr. 646:

"Like the United States Supreme Court, California courts use the following criteria to determine whether a new rule of decisional law in criminal cases should be applied retroactively: (1) the purpose of the new rule, (2) the extent of the reliance by law enforcement authorities on the old rule, and (3) the effect on the administration of justice of retrospective application of the new rule. (People v. Gainer (1977) 19 Cal.3d...