People v. Guillen, Cr. 23353

• Decision Date: 15 March 1974
• Docket Number: Cr. 23353
• Citation: 37 Cal.App.3d 976,113 Cal.Rptr. 43
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Louie GUILLEN, Jr., Defendant and Appellant.

Page 43

113 Cal.Rptr. 43

37 Cal.App.3d 976

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louie GUILLEN, Jr., Defendant and Appellant.

Cr. 23353.

Court of Appeal, Second District, Division 1, California.

March 15, 1974.

Rehearing Denied April 8, 1974.

Hearing Denied May 8, 1974.

David E. Kenner, Van Nuys, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

A jury found defendant guilty of arson (§ 447a, Pen.Code) and attempted arson (§ 451a, Pen.Code). He appeals from the judgment.

There is no challenge to the sufficiency of the evidence to support the judgment; appellant's prime contention is that he was deprived of a fair trial because of certain procedural matters. His first claim is a denial of due process which he asserts occurred when the trial judge read to the jury the allegation in the information of a prior felony conviction (§ 11530, Health & Saf.Code) the truth of which he had previously denied. He concedes that sections 969, 1025 and 1093, Penal Code, authorized this procedure and that California courts have yet to find them to be unconstitutional; however, he challenges the constitutionality of the Penal Code sections and urges us to depart from established case authority. Relying on two cases upholding the constitutionality of statutes permitting the practice of charging prior felony convictions with the offense being tried and the jury to be informed of the charge (People v. Cruz, 6 Cal.App.3d 384, 394, 85 Cal.Rptr. 918, cert. den., 400 U.S. 966, 91 S.Ct. 377, 27 L.Ed.2d 386 (1970) and People v. McDaniel, 157 Cal.App.2d 492, 501, 321 P.2d 497, appeal dismissed, 358 U.S. 282, 79 S.Ct. 323, 3 L.Ed.2d 299), we see no basis for the challenge.

Because at the outset the trial court read the allegation of the prior to the jury and the prosecutor briefly mentioned it in his opening statement, ¹ appellant also claims that the court erred in ordering a bifurcated trial in which evidence would be taken only on the main cause and the introduction of any evidence on the prior would be postponed until the return of the jury's verdict ² therein. He says this procedure was followed 'despite (his) vigorous objection.' The record fails to reflect any such 'vigorous objection'; what it does reflect is an equivocal statement by defendant, and that his counsel not only presented the stipulation permitting the bifurcation but readily joined therein.

At the commencement of the trial, counsel and the court discussed the stipulation, and originally it was presented to the court by the prosecutor because 'there is the potential danger of some prejudice to Mr. Guillen's case if the proof on the prior is put on prior to the determination.' After stating that it would not accept the stipulation unless defendant personally agreed thereto and explaining to him the benefits of a bifurcated trial, the court continued the matter to permit defense counsel to discuss it further with his client. Upon resumption of the proceedings defense counsel himself offered the stipulation because 'I feel that it is, not only in the interest of justice in this case, but is in fact in the interest of my client,' stating that he thoroughly explained the stipulation and the effect of a bifurcated trial to defendant but that defendant told him he felt he had already been prejudiced by the court having read the prior to the jury and nothing could cure it. However, when the court asked defendant if he had anything to say in this regard he replied only, 'Well, Judge, I don't really have anything to say. I felt that this Court has the obligation to protect my interests at all times in this procedure. And I have nothing further to say.' We cannot construe this equivocal statement as being any real objection much less the 'vigorous' one now claimed on appeal; it was an obvious effort on defendant's part to remain free of any personal commitment and a refusal to bind himself to any position, which conduct reflects his rather extensive experience in criminal court proceedings. Despite the lack of express consent, defense counsel nevertheless in the exercise of his best judgment accepted the stipulation stating, 'To that extent I have the power, legally and practically to accept this stipulation' even though he stated that defendant told him he disapproved of it and would not authorize him 'to enter into any stipulation that he doesn't agree with. His (defendant's) position is nothing should be stipulated, nothing should be agreed to.' Pursuant to the stipulation the court ordered a bifurcated trial and outlined the order of proof to be thereafter used, all in the stated interest of protecting defendant's rights.

We conclude that the stipulation was binding and the trial court properly made the order pursuant thereto. First, section 1025, Penal Code, provides that 'the question whether or not (defendant) has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, . . .' but nothing in this section requires that the two issues be tried at the same time or in the same trial, and nothing prohibits the court from ordering or requires that it give defendant '(a) separate, bifurcatedtrial on the issue of (his) prior convictions . . ..' (People v. Cruz, 6 Cal.App.3d 384, 394, 85 Cal.Rptr. 918, 924; People v. Hickok, 230 Cal.App.2d 57, 60, 40 Cal.Rptr. 687.) Thus it appears doubtful that not to have a bifurcated trial is a right, at least not a fundamental right requiring defendant's personal waiver. In making the order the trial court commented that it was not convinced defendant must personally consent to the procedure, and neither are we. If in fact defendant was dissatisfied with the stipulation he personally made no specific objection thereto though given the opportunity to do so in open court preferring to voice whatever disapproval he might have had only through his counsel, a practice, viewed in light of his present contention, that merits a suspicion of defendant's lack of good faith. Second, by the stipulation and subsequent order the main object of the prosecutor, defense counsel and the trial court was to benefit defendant by sparing him the necessity of defending against the prior during the guilt phase of the trial and eliminating any prejudice that might result therefrom. Having ordered the bifurcation the trial court thereafter allowed no evidence of the prior conviction or any mention thereof on the main trial. Third, recognizing the advantages of a bifurcated trial to his client, defense counsel, long experienced in criminal trials and in the exercise of his best judgment, readily stipulated to the procedure. It is well established that an attorney representing a criminal defendant has the power to control the court proceedings. (People v. Robles, 2 Cal.3d 205, 214, 85 Cal.Rptr. 166, 466 P.2d 710; People v. Floyd, 1 Cal.3d 694, 704, 83 Cal.Rptr. 608, 464 P.2d 64; People v. Hill, 67 Cal.2d 105, 114--115, 60 Cal.Rptr. 234, 429 P.2d 586.) Accepting the stipulation was clearly a knowledgeable choice of tactics on the part of defense counsel, and problems of strategy were his responsibility. (People v. Gardner, 71 Cal.2d 843, 851, 79 Cal.Rptr. 743, 457 P.2d 575; People v. Reeves, 64 Cal.2d 766, 774--775, 51 Cal.Rptr. 691, 415 P.2d 35.) He not only had the power to act as he did, but the 'implied authority to enter into stipulations affecting procedure in the trial, as distinguished from those which go to the cause of action itself (citations).' (People v. Wilson, 78 Cal.App.2d 108, 120, 177 P.2d 567, 573.) Fourth, the order bifurcating the trial is no more than one directing the order of proof which is largely within the discretion of the trial judge. (People v. Avery, 35 Cal.2d 487, 491--492, 218 P.2d 527; People v. Gray, 259 Cal.App.2d 846, 853, 66 Cal.Rptr. 654.)

We find neither an abuse of the trial court's discretion in ordering the bifurcation nor any prejudice resulting from the order. Appellant argues that the trial court having read the allegation to the jury and the prosecutor having mentioned the prior in his statement to the jury, he thereafter was deprived by the order of the opportunity to convince the jury that he had suffered no such prior conviction. Defense counsel's ready willingness to stipulate over and above what he claimed to have been his client's disapproval, and his statement to the court at that time suggests that he evaluated whatever evidence defendant had to rebut the proof of the prior and recognized that it was not sufficiently impressive to meet the evidence he anticipated the prosecutor would offer. Moreover, appellant does not contend that he had the kind of proof that could have successfully rebutted the proof of the People; thus had he been put on his defense on the issue of the prior during the guilt phase any unsubstantiated denial of such prior would have affected adversely his credibility with the jurors, particularly where mug shots, fingerprint evidence and part of the file in the previous case were bound to be offered by the People in support of the prior felony conviction.

Appellant also contends that once the jury was apprised of the prior the trial judge Sua sponte should have given a limiting instruction on the issue of the prior. The record shows, however, that defense counsel expressly stipulated that specifically no instruction be given by the court on the matter of the prior on the guilt phase; only brief mention of the allegation was made by the court to the jury when at the outset of the trial it read the information; no evidence was offered on the prior and no further mention thereof was made to the jury. The implication of counsel's stipulation is that...