People v. Nugent, Cr. 9075

• Decision Date: 08 July 1971
• Docket Number: Cr. 9075
• Citation: 18 Cal.App.3d 911,96 Cal.Rptr. 209
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Benson Brand NUGENT, etc., Defendant and Appellant.

Page 209

96 Cal.Rptr. 209

18 Cal.App.3d 911

PEOPLE of the State of California, Plaintiff and Respondent, v. Benson Brand NUGENT, etc., Defendant and Appellant.

Cr. 9075.

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

July 8, 1971.

Hearing Denied Sept. 2, 1971.

Martin F. Majestic, San Francisco, Court-appointed for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Robert R. Granucci, Ira J. Ross, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

THE COURT:

Benson Brand Nugent appeals from a judgment entered after a jury found him guilty of seven counts of violations of Penal Code section 288 (lewd and lascivious conduct with a child); appellant was declared an habitual criminal under the provisions of Penal Code section 644, based on three prior felony convictions.

During July and August, 1969 appellant was employed as a construction worker at a residence in Pacifica, California. The residence had previously been gutted by fire and was in the process of being restored. Following the fire children in the neighborhood regularly played in the premises. The testimony covering the seven counts of violation of Penal Code section 288 is fairly summarized by saying that appellant admits that he played with the children and, in the process, appellant admits that he hugged them and had contact with their legs, arms and skin, but denies ever having fondled or molested any of the girls. The alleged victims testified that appellant on different occasions had done such things as rubbing their hips, putting his arm around them in such a way as to squeeze their breasts, taking down their outer pants or putting his hands inside their panties. The alleged incidents came to the attention of the police through the complaint of one of the alleged victims' mothers.

Before trial, the judge held a hearing at which he determined that the three alleged prior convictions were constitutionally valid. Appellant contends and respondent concedes that a prior conviction may not constitutionally be used in later proceedings if there was a denial of effective counsel. The issue in the instant case thus does not center on the constitutional issues but rather on the evidentiary burdens involved at the trial court's hearing concerning the prior convictions. The procedure for determining the constitutional validity of the prior convictions is set forth in People v. Coffey (1967) 67 Cal.2d 204, 217, 60 Cal.Rptr. 457, 430 P.2d 15. In the instant case the trial court, specifically followed the Coffey procedure. The prosecutor produced records that made a prima facie showing; appellant thus had the burden of producing evidence that his constitutional right to counsel had been infringed in the prior proceedings. Appellant contends that, because his testimony as to ineffective representation was not contradicted, a finding in his favor was compelled. The defense rested its proof solely upon appellant's testimony that in all three prior proceedings he had received only perfunctory representation. The prosecution chose not to present any further evidence. At that time the trial judge found that there was no constitutional impairment with regard to the alleged three prior convictions.

Evidence Code section 550, concerning the burden of producing evidence, and the accompanying comment by the Law Revision Commission, referring to 9 Wigmore (3d ed. 1940) Evidence, § 2487, p. 282, supports the trial court's ruling. Concerning the burden of production, Wigmore states: 'The opposing party, however, Is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict if he fails to do so. (Citation.) The case is carried to the (trier of fact) on a 'prima facie' showing, and it is for them to say whether or not the crucial and necessary facts have been established.' Thus, contrary to appellant's contention, respondent is not Required to present any additional proof. If respondent decides, as respondent did in the instant case, not to present further proof respondent risks an adverse decision should the trial judge give credence to the evidence presented by appellant. However, if the judge disbelieved appellant's testimony, respondent's prima facie showing was sufficient to sustain the finding that the priors were constitutionally valid. Resolution of conflicting evidence is a factual issue to be resolved by the trial court in a hearing to determine the constitutional validity of prior convictions. (People v. Espinoza (1966) 241 Cal.App.2d 718, 720, 50 Cal.Rptr. 879.) The record below is sufficient to support the trial court's finding that there was no constitutional impairment with regard to the alleged three prior convictions.

Since the determination that there was no constitutional impairment to the three prior convictions was proper, the only issue remaining concerning the denial of due process is appellant's contention that the jury instruction given in the instant case was insufficient to protect appellant from prejudice, due to the introduction of evidence of his prior convictions. Where prior convictions have withstood a constitutional challenge there is no federal constitutional error in their introduction at trial. (Spencer v. Texas (1966) 385 U.S. 554, 564, 87 S.Ct. 648, 17 L.Ed.2d 606.) In Spencer v. Texas the court allowed the introduction of prior convictions to show habitual criminality, relying heavily on the limiting instruction that directed the jury not to use the prior convictions in determining defendant's guilt. Appellant contends that the instruction in the instant case, that prior convictions 'may be considered by you only for the purpose of determining the credibility of that witness,' is inadequate. This overlooks another instruction that was given, concerning use of the prior convictions to determine whether appellant was an habitual criminal. In that instruction the court said: 'You must first decide the question of whether defendant is guilty of any or all of the offenses charged and your consideration of that question must not be influenced by the allegation of the alleged prior convictions.' That instruction is identical, for all practical purposes, with the one given in Spencer v. Texas, Supra.

It was not error, either, that appellant's prior convictions were introduced prior to appellant's taking the stand to testify. Introduction of such prior convictions was a necessary part of respondent's case in proving that appellant was an habitual criminal within the provisions of Penal Code section 644. The fact that appellant later took the stand and consequently respondent requested an instruction that the priors might be used by the jury to impeach appellant's testimony is not error, and the instruction given concerning impeachment adequately advised the jury that they could use the prior convictions only for the purpose of determining the credibility of the witness. The instructions given adequately...