People v. Perry

• Decision Date: 11 October 1974
• Docket Number: Cr. 6689
• Citation: 42 Cal.App.3d 451,116 Cal.Rptr. 853
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin PERRY, Defendant and Appellant.

Page 853

116 Cal.Rptr. 853

42 Cal.App.3d 451

The PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin PERRY, Defendant and Appellant.

Cr. 6689.

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

Oct. 11, 1974.

[42 Cal.App.3d 453] Appellate Defenders, Inc., by Paul Bell, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J.

Kremer, Asst. Atty. Gen., Harley D. Mayfield and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent

OPINION

WHELAN, Associate Justice.

Calvin Perry, defendant, has appealed from a judgment imposing concurrent sentences to prison after a jury had found him guilty of possessing a sawed-off rifle (Pen.Code § 12020) and of being in possession of a concealable firearm after he had previously been convicted of a felony (Pen.Code § 12021). The judgment also imposed a jail sentence, execution of which was suspended, for a violation of Penal Code section 417, brandishing a firearm in a rude, angry and threatening manner.

The same jury, by two separate verdicts, found to be true the allegations of the information that defendant had been convicted of robbery in 1967 and of a violation of Penal Code section 12021 in 1971.

Defendant has not argued the evidence was insufficient to support the verdicts as to the substantive crimes charged, and the record is abundantly sufficient in that regard.

It appears, however, that the evidence presented to prove the allegation of a conviction in 1971 of a violation of Penal Code section 12021 showed on its face defendant had received a jail sentence of 90 days for that violation.

That evidence was a certified copy of the minutes of the superior court of June 15, 1971. The same minutes show defendant on that date pleaded guilty to the crime of unlawful possession of a firearm capable of being concealed upon the person by one previously convicted of a felony.

It is argued that the document was inadmissible to prove defendant had suffered a felony conviction in 1971, since the document indicates he received only a misdemeanor sentence. From that it is argued trial counsel should have objected to its admission, that his failure to do so was evidence of such incompetence, that by reason of it defendant was deprived of his constitutional right to counsel.

It is argued that such incompetence of trial counsel and constitutional deprivation are further evidenced because the trial judge gave this instruction among others:

'The conviction of the crime of robbery and of ex-felon in possession of a concealed firearm, violations of Penal Code Sections 211 and 12021, respectively, in the State of California, are convictions of felonies.'

The certified copy of the minutes could also, defendant argues, have been considered as evidence of a prior conviction of a felony to support the charge in the case under trial of a violation of section 12021. Therefore, to allow it to be received in evidence without objection was to deprive defendant of an available defense to that charge, even though there was also in evidence the record of defendant's conviction of robbery in 1967.

We are of opinion, however, that the 1971 minutes were relevant. They do not prove a conviction of a felony in 1971, but they do prove that in 1971, in his plea of guilty to a violation of Penal Code section 12021, defendant did admit in a solemn manner that he had prior thereto been convicted of a felony. The evidence was cumulative of the other evidence as to the 1967 conviction, but was not Per se inadmissible. ¹

Under Evidence Code section 351, all relevant evidence is admissible except as otherwise provided by statute.

The matters at issue here were: (1) as to the substantive crime of possessing a concealable weapon, whether defendant had suffered any prior felony conviction; (2) specifically, whether in 1967 defendant had been convicted of the felony of robbery as alleged; (3) specifically, whether in 1971 he had been convicted of the felony of possessing a concealable firearm after a prior felony conviction.

Proof of the affirmative of any of those controverted issues inevitably would require introduction of evidence of defendant's criminal record, and, inevitably, could be said to be prejudicial to him.

Proof was lacking that the 1971 conviction stood as a felony, but the evidence received showed the misdemeanor sentence which might have been less prejudicial than had it shown a felony sentence. Since it was relevant to show, by defendant's 1971 plea of guilty to a section 12021 violation, that he had a felony conviction prior to that date, the possible prejudice may be weighed against the relevancy of the evidence for the purpose mentioned. We think the only prejudice was that re sulting from the jury's true finding as to the allegation of the 1971 conviction of a felony. We order that finding set aside, and hold there is no reasonable ground to believe the findings of guilt as to the substantive crimes and as to the truth of the allegation of the 1967 conviction, have been prejudicially affected thereby.

The unquestioned evidence of defendant's guilt as to the substantive crimes, given he had suffered a prior felony conviction, was uncontroverted by any evidence whatsoever, except the presumption of innocence. In addition, since the evidence of the 1967 conviction was not questioned in the trial, it is impossible to see that defendant was denied a fair trial as to those issues as the result of the introduction of the minutes of the 1971 conviction.

Since it was necessary to prove only one prior conviction, the error in finding there was a felony conviction in 1971 does not impair the validity of the verdict of guilty of the substantive charge. (People v. Grant, 203 Cal.App.2d 495, 497, 21 Cal.Rptr. 614.)

The trial court had the duty to inform the jury whether robbery is a felony and whether possession of a concealable weapon by an ex-felon is a felony. He did so in language that arguably suggests defendant had been convicted of such felonies, when that was an issue for the jury to determine. At the same time he instructed as to the requirement of proof beyond a reasonable doubt. The finding defendant had suffered a felony conviction in 1971 is to be set aside. However, as to the findings of guilt of the substantive crime charged and of the 1967 conviction, from an examination of the entire cause, including the evidence, it is our opinion the error complained of has not resulted in a miscarriage of justice. (People v. Watson, 46 Cal.2d 818, 837, 299 P.2d 243.)

Defendant attacks the validity of the sentences imposed from three different points.

1. He claims the trial judge erroneously had in mind, in imposing sentence, that defendant had two prior felony convictions instead of only one, and for that reason the judgment should be reversed and the cause remanded for resentencing.

2. He claims the concurrent sentences may not both stand because of the proscription of Penal Code section 654, since it was the single possession of a sawed-off rifle that was made punishable by two different penal statutes.

The latter claim is meritorious. The case of People v. Wasley, 245 Cal.App.2d 383, 53 Cal.Rptr. 877, does not support the People's position, since the defendant there had in his position two different weapons capable of concealment on the person, only one of which was a sawed-off shotgun. The ruling of the court in Wasley clearly was based upon the possession of two weapons of different types.

Similarly distinguishable in fact and principle is People v. Harrison, 1 Cal.App.3d 115, 122, 81 Cal.Rptr. 396, where the defendant was convicted of a violation of section 12021 and of the misdemeanor crime of carrying a loaded firearm in a car, and the court held section 654 inapplicable.

Likewise to be distinguished are People v. Warren, 16 Cal.2d 103, 104 P.2d 1024 and People v. Moore, 143 Cal.App.2d 333, 299 P.2d 691, where one of the crimes involved was based upon an act other than possession as such.

People v. Venegas, 10 Cal.App.3d 814, 89 Cal.Rptr. 103 held that a defendant convicted of assault with a deadly weapon with intent to commit murder, and a violation of section 12021 by possessing the firearm used in the assault, could be sentenced for only one of the convictions, following People v. Burnett, 251 Cal.App.2d 651, 59 Cal.Rptr. 652, and distinguishing People v. Hudgins, 252 Cal.App.2d 174, 60 Cal.Rptr. 176.

Here the single act made punishable by two different statutes was the illegal possession of a firearm capable of concealment upon the person. The firearm happened to be a sawed-off rifle, possession of which is penalized regardless of who may be the possessor. The possessor here happened to be one previously convicted of a felony, whose possession of a concealable firearm was punishable regardless of its being a sawed-off rifle.

His possession Qua possession of the single weapon regarded as a sawed-off rifle did not change its quality and character when the same weapon was considered simply as a firearm capable of concealment on the person, merely because the possessor was an ex-felon. Penal Code section 654 applies.

3. Defendant claims that not only should be reference to a felony conviction in 1971 be stricken from the abstract of judgment, because the conviction in 1971 was of a misdemeanor, but also the reference to the actual 1967 felony conviction should be stricken. Defendant argues that because the latter conviction became as element of the Penal Code section 12021 violation, the penalty for that violation should not be enhanced because of the prior felony, proof of which was essential to the 12021 conviction. The argument here is based upon the analogy to the use of Penal Code sections 12022 and 3024 for enhancement of punishment of certain crimes, proof of which necessarily calls for being armed with a...