People v. Valentine

• Decision Date: 21 July 1986
• Docket Number: Cr. 24491
• Citation: 42 Cal.3d 170,720 P.2d 913,228 Cal.Rptr. 25
• Court: California Supreme Court
• Parties: , 720 P.2d 913 The PEOPLE, Plaintiff and Respondent, v. Gregory VALENTINE, Defendant and Appellant.

Page 25

228 Cal.Rptr. 25

42 Cal.3d 170, 720 P.2d 913

The PEOPLE, Plaintiff and Respondent, v. Gregory VALENTINE, Defendant and Appellant.

Cr. 24491.

Supreme Court of California In Bank.

July 21, 1986.

Rehearing Denied August 21, 1986.

Mark D. Greenberg, Berkeley, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Eugene W. Kaster, Ronald S. Smetana and Clifford K. Thompson, Jr., Deputy Attys. Gen., for plaintiff and respondent.

GRODIN, Justice.

Proposition 8, adopted by the voters in 1982, added article I, section 28 to the California Constitution. In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, we construed language in the first sentence of subdivision (f) of section 28 (hereafter section 28(f)) which declares that "[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment ... in any criminal proceeding." In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, we considered, in one context, that portion of the first sentence of section 28(f) which provides that such prior felony convictions shall be used "without limitation for purposes of ... enhancement of sentence" in a subsequent criminal case.

We granted hearing in this case to confront the second sentence of section 28(f): "When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court." Defendant and the People agree that this language is directed at People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826. Hall held that when a prior conviction is pertinent only to ex-felon status as an element of a currently charged offense, the jury may not learn either the fact or the nature of the prior conviction if defendant offers to stipulate he is an ex-felon.

We conclude that section 28(f) eliminates the per se rule of Hall. Under the new constitutional provision, the jury must be advised that defendant is an ex-felon where that is an element of a current charge. The People concede, on the other hand, and we agree, that where defendant will stipulate to ex-felon status, evidence of the nature of his prior convictions still may and should be withheld from the jury, since such evidence is irrelevant to the ex-felon issue.

Here, despite defendant's offer to concede his prior convictions, the trial court ruled incorrectly that section 28(f) required full disclosure of their nature in open court. The jury therefore learned that defendant, charged with robbery and possession of a concealable firearm by an ex-felon, had suffered convictions two years earlier for robbery and assault with a deadly weapon. The error was prejudicial, and the prejudice was not dispelled when the same priors were also used to impeach defendant's trial testimony. We must therefore reverse his current convictions.

FACTS

Defendant was tried for offenses arising from the 1983 armed robbery of a Vallejo gasoline station. Counts I and II of the information charged him with the robberies of Michelle and Stephanie Mooney. (Pen. Code, § 211.) ¹ Count III charged possession of a concealable firearm by an ex-felon ( § 12021) in that defendant had previously been convicted of robbery. The information further alleged that he had personally used a firearm in the current robberies ( § 12022.5) and, for purposes of sentence enhancement, that he had previously been convicted of a serious felony, robbery ( § 667, subd. (a)).

On August 14, 1983, about 10 p.m., assistant manager Michelle Mooney and her sister Stephanie were closing the Mobil station at 500 Tennessee Avenue in Vallejo. Stephanie had turned off the outside lights and was locking the pumps when a Black man wearing a nylon stocking over his face approached and stuck an automatic pistol in her back. He ordered her into the station office, where Michelle was doing bookwork. As Stephanie and the gunman entered, he demanded cash. He also ordered that the lights inside the office be turned off, but Michelle protested she did not know how.

The three walked to the cash register; the man did so in a crouching manner, keeping below the level of the counter. At his direction, the women emptied the contents of the register, $431.55, into a paper bag. The robber demanded that some Kool cigarettes also be thrown into the bag, and this was done. The robber then took the bag and left on foot.

Michelle called the police. When they arrived, Stephanie described the robber as wearing a hairnet, not a nylon; she noted that he had frizzy hair, a goatee, and bushy eyebrows, and was wearing blue jeans and bright white tennis shoes. Michelle mentioned the goatee and a beanie cap, but did not refer to the robber's hair as frizzy; she noted simply that it was short, greasy, and black.

On August 16, two days after the robbery, the two women were separately shown a photo lineup; neither could make an identification, but Michelle picked Victor Cook as resembling the robber. On August 17, both women picked Lenus Guthrie and defendant from a new group of photos.

On August 18, a man Michelle thought was the robber came into the station to buy snacks. The police were summoned, and they detained defendant three blocks from the station. Transported to the scene, Stephanie and Michelle identified defendant as their assailant.

Both sisters also positively identified defendant at trial. Michelle testified that the bright lights in the station's office gave her a good view of the robber's face, which was not substantially obscured by the stocking. She described the robber as a dark-complexioned Black male, about five feet five inches tall, with either curly or frizzy hair, heavy eyebrows, and a goatee. He had worn a blue nylon sweat jacket.

Michelle also stated that the robber had walked with a distinctive wobble or limp. The police report contained no such information, and Michelle acknowledged she might not have remembered the limp until the week before trial. However, Detective McGraw, who conducted the photo lineups, testified he placed defendant's picture in the August 17 group because defendant was similar in height to the described robber, and McGraw had been told defendant walked with a limp.

Officer Kincaid, who arrested defendant on the 18th, first stated that defendant's physical appearance on that date "could not have been more similar" to the description in the police report of August 14, including the goatee. However, he later acknowledged that defendant's hair was not frizzy on the 18th, as Michelle had stated, but in braids. Michelle said defendant's appearance on August 14 and 18 was identical, including his limp. Stephanie was unable to identify tennis shoes taken from defendant on the 18th as those the robber had worn on the 14th.

Questioned after his arrest, defendant first said he was with friends at the time of the robbery, but declined to say where or with whom. He then stated he was at the house of his brother, Tony James, but could not remember the address. Later, defendant declared that he, his stepbrother Joe Senago, and James had been in City Park, which is near the Mobil station.

Defendant called three witnesses who testified in substance that defendant was at Marguerite Robinson's house from 9 p.m. on the 14th to 3 a.m. on the 15th and discussed a car he intended to buy. All the defense witnesses stated that defendant's hair was in braids and that he was wearing black pants (called "Black Bens" by some witnesses). Two agreed that he was also wearing a dark leather jacket. The witnesses suggested that defendant smoked only Camel cigarettes and was smoking Camels that evening. Robinson noted that defendant did walk with a limp.

In his own behalf, defendant testified as follows: He was at Marguerite Robinson's, where Tony James was also living, from 9 p.m. to 3 a.m. on the night of August 14-15. He was wearing black pants, a black jacket, and his brother's old white tennis shoes; he never wore blue jeans. He walked with a limp after a hip replacement, and he was unable to crouch down. His hair was in braids on the 14th. He did go to the Mobil station on the 18th because a woman from whom he intended to purchase a car lived in the vicinity; he was waiting for her to return home and needed to buy cigarettes. He smoked only Camels, but had smoked Kools in past years. He was evasive when first questioned by the police because he was worried that Tony James was in trouble. He did not know James' address at the time.

Marvin Madsen testified in rebuttal for the prosecution. He stated that he was a canteen officer at the Solano County jail and that his records indicated defendant had purchased Kool cigarettes while in custody in August 1983.

DISCUSSION

At the outset of trial, the prosecutor moved to amend the information to include count III, possession of a concealable firearm by an ex-felon ( § 12021, supra). Despite defense counsel's objection that the jury might thus hear evidence of defendant's prior convictions, the court granted the motion.

Counsel then stated that defendant "would stipulate to the prior conviction[s] and request that the Court order that either the Court could generally explain to the jury what the charges are, or in some way sanitize this so that the jury is not informed that [defendant] had a prior conviction." The court denied the request, citing section 28(f)'s requirement of "[proof] in open court." Count III, which specified the prior as robbery, was read to the jury. An abstract of judgment was subsequently introduced in evidence, showing that defendant had suffered convictions in a 1981 trial for robbery and assault with a deadly weapon. The jury was subsequently instructed that it could consider the priors only for purposes of the ex-felon element of count III and for impeachment (see discussion,...