People v. Haywood

• Decision Date: 09 June 1994
• Docket Number: No. E010654,E010654
• Parties: Previously published at 25 Cal.App.4th 1066, 30 Cal.App.4th 1087, 34 Cal.App.4th 1750, 39 Cal.App.4th 907 25 Cal.App.4th 1066, 30 Cal.App.4th 1087, 34 Cal.App.4th 1750, 39 Cal.App.4th 907 PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence HAYWOOD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 794

31 Cal.Rptr.2d 794

Previously published at 25 Cal.App.4th 1066, 30 Cal.App.4th 1087, 34 Cal.App.4th 1750, 39 Cal.App.4th 907

25 Cal.App.4th 1066, 30 Cal.App.4th 1087, 34 Cal.App.4th 1750,

39 Cal.App.4th 907

PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence HAYWOOD, Defendant and Appellant.

No. E010654.

Court of Appeal, Fourth District, Division 2, California.

June 9, 1994.

Review Granted Oct. 13, 1994.

Review Transferred to the Court of Appeal Jan. 18, 1996.

[25 Cal.App.4th 912] Marshall Miles and Clarence Haywood, in pro. per.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Janelle B. Davis and M. Howard Wayne, Supervising Deputy Attys. Gen., for plaintiff and respondent.

OPINION

DABNEY, Acting Presiding Justice.

Defendant Clarence Haywood appeals his conviction of Penal Code section 12021, subdivision (a), (possession of a firearm by a felon). ¹ The prior conviction which formed the basis for the charge against him was alleged to be his 1976 conviction in case No. CRN 4168, in the Superior Court of San Diego County, for a violation of former section 666, subdivision (3) (now section 666), namely, petty theft with a prior theft conviction involving a term of imprisonment in a penal institution. Defendant contends on appeal (1) that there was inadequate proof that the prior conviction was a felony, as opposed to a misdemeanor, and (2) that the trial court erred in instructing the jury that the prior conviction was a felony. He further contends that (3) even if his prior conviction was a felony, it could not be used because he admitted the previous "prior" (i.e., in the trial for petty theft "with a prior petty theft") without being properly advised of his constitutional rights, and (4) the prosecutor in this case was guilty of misconduct. We find all the contentions to be without merit, and we affirm.

FACTS

Defendant's wife told police she and defendant had had an argument, and that defendant had left with a shotgun. Police looked for defendant, and spotted him driving his Cadillac. The police initiated a stop. Defendant was taken from the Cadillac and patted down. Police found shotgun shells in defendant's pocket. They also found a pistol-grip shotgun in defendant's Cadillac.

By stipulation, the prosecution introduced several documents with respect to defendant's prior conviction. The documentary evidence included (in chronological order):

(1) An amended information against defendant in case No. CRN 4168, dated July 15, 1976, charged in Count One, that he had suffered two prior convictions of petty theft (in 1962 and 1966), and that on January 1, 1976, he stole the property of another "in violation of Penal Code section 666.3 [sic] and 488." (Emphasis added.) Three priors (a 1959 grand theft, a 1962 petty-theft-with-a-prior, and a 1968 1st degree burglary) were also alleged, presumably as enhancements.

(2) A minute order dated July 26, 1976, before Judge Buttermore of the San Diego Superior Court, in case No. CRN 4168 stated: "2:50 PM. Defendant, counsel and court confer in chambers, reported. The 3d Prior alleged is withdrawn; the defendant admits the 1st and 2nd Priors, and also the two Priors contained in Count I...." (Emphasis added.)

(3) A minute order dated July 29, 1976, before Judge Buttermore, in case No. CRN 4168, stated that the court and counsel considered in chambers which priors would be allowed for impeachment purposes. "9:50 AM.... Out of hearing of jurors, use of priors for impeachment purposes is discussed. Court rules priors of 1959 and 1962 not allowed, but prior of 1968 if available can be used."

(4) A minute order dated August 2, 1976, before Judge Buttermore of the San Diego (5) The verdict form dated August 2, 1976, in case No. CRN 4168 found defendant guilty of "the crime of Petty Theft, in violation of Penal Code section 488, as charged in Count One of the Information." (Emphasis added.)

Superior Court, in case No. CRN 4168 reported the jury's verdict, finding defendant "guilty of the crime of Petty Theft, in violation of Penal Code section 488, as charged in Count One of the Information." (Emphasis added.)

(6) A minute order for the pronouncement of judgment dated August 23, 1976, before Judge Buttermore in case No. CRN 4168, recited:

"Defendant [X] duly arraigned for judgment [ ] waives arraignment. [ ] not present

"Probation is [X] denied ...

"[X] Defendant committed to custody of sheriff for 120 days, credit 23 days ... [X] committed Dir. of Corrections. w/exec. suspended, and [probation is] [X] granted 3 years. (fine $500.--incl. PA to Prob at $25.--mo (30 days from release)...." (Emphasis added.)

(7) A probation order of the superior court, in case No. CRN 4168, signed by Judge Buttermore and also dated August 23, 1976, stated: "The above-named defendant having heretofore ... been convicted of the crime of Petit Theft (666.3 [sic] PC); Petty Theft (488 PC) as charged and set forth in a[n] (Information) entitled and numbered as above, .. and this being the time fixed for pronouncing judgment upon the defendant, .. and it being the judgment and sentence of this Court that the defendant be sentenced to State Prison for the term prescribed by law; [p] IT IS THEREFORE NOW ORDERED by the Court that the [execution] of sentence upon the defendant be ... suspended for the term of Three (3) years...." (Emphasis added.) The conditions of the suspended sentence were then set out, including 120 days in the county jail (with credit for 23 days served).

(8) A Department of Justice form entitled "Disposition of Arrest and Court Action," regarding file No. CRN 4168, recorded the charges against defendant as "PC666.3 [sic] /488; PC12021(a)", but recorded the "finding or verdict" as "PC488 misd. [x] fel.[ ]."

(9) An application, dated September 13, 1976, for a reasonable bond in case No. CRN 4168, included a declaration by defendant in propria persona, denominated a "DECLARATION UNDER PENALTY OF PERJURY." Defendant's declaration recited "That on August 2, 1976 I was convicted of Petty Theft with prior felony convictions and immediately remanded to custody. On August 23, 1976 I was sentenced to State Prison, the execution of the sentence was suspended and I was placed on probation on conditions, one of which was to serve 120 days in the County of San Diego jail with credit of 23 days for time served." (Emphasis added.)

(10) A minute order and pronouncement of judgment dated July 11, 1977, before Judge Overton, recited that in case No. CRN 4168, defendant's "Probation is [ ] denied [X] revoked ..." and defendant was "[X] committed Dir. of corrections." The court found defendant had served 92 days in custody.

(11) An abstract of judgment for case No. CRN 4168, also filed July 11, 1977, stated "[X] Probation having been heretofore granted and said probation having been revoked on this date application for probation is denied. The defendant is duly arraigned. Count No. One of the amended Information. Whereas the said defendant on his plea of Not guilty having been convicted by Jury of Petit Theft and Petty Theft after a previous petty Theft Conviction in violation of Penal Code Sections 666.3 [sic] and 488," the court found defendant was entitled to 92 days custody credit. (Emphasis added.)

(12) A Department of Justice "Disposition of Arrest and Court Action" form for file (13) A report, filed by the clerk of the San Diego Superior Court with the Judicial Council, stated that defendant in case No. CRN 4168 had been given an "[X] indeterminate sentence to state prison," listing defendant's crimes as "PC666.3 [sic] /488 Petit Theft with Prior" and reporting that defendant had been "sentenced to State Prison for the term prescribed by law on count[ ] 1." (Emphasis added.)

No. CRN 4168 recorded on July 11, 1977, a "subsequent prob action violated [ ] revoked [XX] sentence changed no [ ] yes [XX] PRISON ..."

(14) An unpublished Court of Appeal opinion in No. CRN 4168, dated July 19, 1977, (opn. by Staniforth, J., in 4 Crim. 8474) affirmed the judgment. The opinion recited that defendant "was convicted by jury of petty theft after a prior conviction of petty theft. (Pen.Code, § 488-666(3).)" (Emphasis added.) Defendant in that appeal litigated the precise question whether his conviction in case No. 4168 was a felony. The court there stated, "Haywood had been previously convicted of petty theft and had served time therefor. Haywood also ignores this stubborn law: The commission of a petty theft after a previous conviction of petty theft on which time has been served is a felony. (Pen.Code § 666(3).) The fact that this crime may also be punished by confinement in local custody up to one year does not detract from its felony status." Defendant also complained on appeal that it was not fair that some prior petty thieves would be subjected to felony status for a second offense (if they had received jail time on their prior), but prior petty thieves who did not get jail time would not. The court directly answered this question also: "The Legislature vests in the trial judge a wide discretion as to the punishment to be imposed within the statutory limits. That the judge in the earlier petty theft imposed jail time and not a fine or straight probation does not raise the spect[e]r of capricious, harsh or oppressive judicial action. Varying degrees of culpability for a first offense of petty theft require different sanctions. The Legislature has determined the repetition of petty theft after a previous petty theft which resulted in imposition of jail time authorizes the felony sanction. There is no denial of equal protection in such law. Every person in this class may face a felony charge upon a repetition of the petty theft." Remittitur on that opinion was issued September 19, 1977, making the decision final.

(15) A second appellate opinion in case No. CRN 4168, filed after defendant's probation was...