People v. Sherren

• Decision Date: 26 February 1979
• Docket Number: Cr. 17820
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory SHERREN, Defendant and Appellant.

Page 828

152 Cal.Rptr. 828

89 Cal.App.3d 752

PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory SHERREN, Defendant and Appellant.

Cr. 17820.

Court of Appeal, First District, Division 3, California.

Feb. 26, 1979.

Rehearing Denied March 28, 1979.

Hearing Denied April 19, 1979.

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Harriet Wiss Hirsch, Tanya Neiman, Deputy State Public Defenders, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Laurence M. May, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

FEINBERG, Associate Justice.

Appellant was convicted of a violation of Penal Code section 12021 (felon in possession of a firearm). ¹ He was sentenced to state prison. Thereafter, this appeal followed presenting several issues.

A. May the Prosecution be Required to Accept Defendant's Stipulation That he Had Been Convicted of a Felony and the Fact of That Conviction be Kept From the Jury When the Prior Felony Conviction is an Element of the Crime Charged?

Appellant was charged with a violation of section 12021. An element of that offense is that appellant had been convicted of a felony. At the outset of the trial, appellant offered to admit the prior felony conviction. He moved the court that the portion of the information charging the prior conviction not be read to the jury and that the jury not be informed in any manner, including therein the form of the verdict of the prior conviction. Appellant further offered to waive any irregularity, as a consequence, in the form of the verdict. Appellant's motion was denied.

The information as read to the jury advised the jury that appellant was being charged with being a felon in possession of a gun. At trial, in open court, it was stipulated that appellant had been convicted of a felony. In its argument to the jury, the prosecution briefly adverted to the conviction.

Generally, "(a) prosecutor is not required to stipulate to the existence of any elements of the crime he is attempting to prove where the stipulation will impair the effectiveness of the prosecutor's case and foreclose his options to obtain a conviction under differing theories" (People v. Robles (1970) 2 Cal.3d 205, 213, 85 Cal.Rptr. 166, 171, 466 P.2d 710, 715) for "there is a strong policy against depriving the state's case of its persuasiveness and forcefulness by forcing the prosecutor to accept stipulations that soften the impact of the evidence in its entirety" (People v. McClellan (1969) 71 Cal.2d 793, 802, 80 Cal.Rptr. 31, 37, 457 P.2d 871, 877). However, where the defendant offers to stipulate to an element of the case against him and proof of that element would involve highly prejudicial evidence, it has been held that the prosecution is required to accept the stipulation. Thus, for example, in a heroin case where an element of the offense is that the defendant knows that the substance allegedly possessed or sold is the proscribed narcotic, if the defendant offers to stipulate that he knows what heroin is, the prosecution may not seek to prove that knowledge by evidence that the defendant had been convicted of possession or sale of heroin on some other occasion but must accept the stipulation, unless that conviction is relevant and probative to some other disputed issue in the case. (People v. Gonzales (1968) 262 Cal.App.2d 286, 290, 68 Cal.Rptr. 578; People v. Gregg (1968) 266 Cal.App.2d 389, 71 Cal.Rptr. 920; People v. Perez (1974) 42 Cal.App.3d 760, 766, 117 Cal.Rptr. 195, see also People v. Guzman (1975) 47 Cal.App.3d 380, 389-390, 121 Cal.Rptr. 69.) Typically, however, the jury is advised of the stipulation.

Another line of cases relevant to the issue here has developed involving section 666 (petit theft with a prior). In People v. Carlton (1881) 57 Cal. 559, appellant was charged with petty larceny with a prior, a violation of section 666. ² Appellant admitted the prior at arraignment. Appellant was convicted. It appears that the determination of the fact of the prior conviction was not submitted to the jury and, of course, not passed upon by the jury. Interestingly enough, it was the appellant who argued that the question should have been submitted to the jury and that it was error not to do so. The court rejected the argument. It pointed out that under section 1158 (then, as now) if the fact of a previous conviction is alleged, the jury must find whether or not the previous conviction was suffered Unless the defendant admitted the allegation. Further, the court noted that section 1093 provided (as it does now) that when a prior conviction is alleged and admitted, the clerk, in reading the charge to the jury, shall not read the allegation of the prior conviction to the jury. Thus, the court concluded, since the appellant had admitted the prior conviction, there was no need for the jury to pass upon the question or be made aware of the prior conviction. (Accord People v. Meyer (1887) 73 Cal. 548, 15 P. 95.) We move forward now some 76 years to People v. Gallinger (1963) 212 Cal.App.2d 851, 28 Cal.Rptr. 472.

In Gallinger, defendant was charged with a petty theft with a prior (§ 666). At the onset of the trial, Gallinger, outside the presence of the jury, admitted the prior conviction. While no evidence of the prior was adduced, the trial court instructed the jury that the charge was petty theft with a prior and that the defendant had admitted the prior.

Upon appeal from his conviction, Gallinger argued that since he had admitted the prior, the jury should not have been apprised of the prior. The court agreed. However, its Ratio decidendi went beyond the Carlton decision, Supra. The Gallinger court took the view that if the prior conviction was an element of the crime charged then the prosecution would be entitled to prove that fact and the jury to determine it, nor could the defendant avoid it by admitting the fact of the prior conviction for "In such cases (Penal Code) sections 1025 and 1093 can have no application, since whenever the fact of a felony conviction is an element of the offense the defendant could never be convicted without evidence before the trier of fact that the conviction had been suffered. (People v. Gallinger, supra, 212 Cal.App.2d at p. 855, 28 Cal.Rptr. 472 at p. 474.) However, if the prior conviction is not an element of the crime charged but represents only an enhanced punishment, then sections 1025 and 1093 do apply. (See also People v. Oppenheimer (1909) 156 Cal. 733, 738, 106 P. 74.) The court pointed out that there were several conflicting views as to the proper procedure in a prosecution under section 666 and held that such a case should be tried "As if the former misdemeanor conviction is not an element of the crime of felony. " (Emphasis added.) (212 Cal.App.2d at p. 856, 28 Cal.Rptr. at p. 475.)

Another line of cases developed under section 4500 and its predecessor, section 246 (assault by a life prisoner), wherein it was held that even though defendant had admitted he was a life-termer at arraignment, the prosecution was still required to prove, at trial, that the defendant was a life-termer. Thus, sections 1093 and 1025 do not apply. (People v. Oppenheimer, supra, 156 Cal. at p. 739, 106 P. 74, People v. Robles, supra, 2 Cal.3d at p. 213, 85 Cal.Rptr. 146, 466 P.2d 710.)

Finally, a series of cases have arisen that have squarely held that in a prosecution under section 12021, the fact of the prior felony conviction, even though admitted by defendant, may not be withheld from the jury. The seminal case in this sequence appears to be People v. Forrester (1931) 116 Cal.App. 240, 2 P.2d 558. In Forrester, the defendant was charged with being a felon in possession of a concealable firearm in violation of the precursor statute to section 12021. Defendant pleaded not guilty but admitted the prior felony conviction. At trial, after the jury was sworn, the information was read to the jury, including therein over defendant's objection, the allegation that defendant had been convicted of a felony. At trial, the prosecution was allowed to prove, again over defendant's objection, the fact of the conviction. Defendant was found guilty.

In affirming the judgment, the court held that section 1025 did not apply where the prior conviction is "a substantive part of the offense" for to hold otherwise "it would be impossible ever to convict the defendant on this charge." (Id., at p. 242, 2 P.2d at p. 559.) Further, despite the admission of the prior conviction, by pleading not guilty, defendant had put in issue the prior conviction and, hence, the prosecution was required to prove it before the jury.

Finally, the court said, if a further ground for reconciling the gun control statute and section 1025 was necessary, since the gun control statute was much later in time of enactment to section 1025, it "is of necessity, Pro tanto, a repeal of said section 1025." (Id., at p. 242, 2 P.2d at p. 559.)

Forrester cited no authority for its holding; rather, its pronouncement seems to be in the nature of an Ipse dixit.

No purpose would be served in detailing the cases that followed. ³ The most recent reported case in this sequence that we have found is People v. Morrison (1977) 67 Cal.App.3d 425, 136 Cal.Rptr. 650. The court there held that where the prior conviction is an element of the offense charged, the prosecutor cannot be precluded from proving the fact of the prior conviction before the jury by defendant's offer to stipulate to the fact. Quoting from People v. Robles, supra, 2 Cal.3d 205, 213, 85 Cal.Rptr. 166, 466 P.2d 710, the Morrison court said " '(a) prosecutor is not required to stipulate to the existence of any elements of the crime he is attempting to prove Where the stipulation will impair the...