PEOPLE v. HAYWOOD

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

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

No. E010654.

Decided: June 09, 1994

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

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 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.)

(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.)

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

(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.)

(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 revoked and he was sentenced to state prison, was filed on April 20, 1978 (opn. by the Court, 4 Crim. 8713).   Defendant complained on his second appeal that section 666 was unconstitutional, “creat[ing] an arbitrary sub-class of criminals for whom a conviction of petit theft may be declared a felony.”   The court held that allowing harsher (felony) penalties for certain recidivist petty thieves was not an equal protection violation.   “The statute told a reasonable class of minor league thieves they would graduate to the big leagues if they did not mend their ways.”  (Opinion By the Court, filed Apr. 20, 1978 in 4 Crim. 8713).   Remittitur was issued June 21, 1978, also making that opinion final.

(16) Defendant's Department of Corrections “Cumulative Case Summary Chronological History” was offered into evidence below.   Although the document contains entries indicating when defendant was received into various state correctional institutions, it does not appear to refer to the case numbers to which such entries may be related.

Defendant testified in his own behalf on defense.   The tenor of his testimony was that his conviction in case No. CRN 4168 was for petty theft as a misdemeanor.   He claimed he could only have been convicted as a misdemeanant because the San Diego court had disallowed the use of a 1962 prior petty theft against him (in fact, a prior petty-theft-with-a-prior, as defendant admitted);  thus, defendant reasoned, he could not have been convicted in case No. CRN 4168 of “petty theft with a prior petty theft.”   Defendant further disagreed with nearly all the court documents dealing with case No. CRN 4168, contending they were mistaken in one way or another.

Defendant denied he had been sentenced to state prison;  he testified he was merely placed on probation for three years and ordered to serve 120 days in the county jail.   Defendant agreed he had admitted a 1968 prior in case No. CRN 4168, but testified he had done so only “for impeachment purposes,” claiming he had “admitted to the prior in chambers so if I decided to testify, the priors [i.e., the 1968 prior] couldn't be used against me.”   He claimed the probation order of August 23, 1976, showing that state prison sentence had been imposed and suspended, was in error.   Defendant admitted his conviction of petty theft with a prior had been affirmed on appeal, but claimed the appellate court was in error in describing his offense as petty theft with a prior.   Defendant claimed the abstract of judgment showing he had been committed to state prison in case No. CRN 4168 on July 11, 1977, was also a clerk's mistake.   He claimed that he was sent to prison in August of 1977 on a violation of parole on his 1968 conviction (which he claimed was for receiving stolen property, rather than first degree burglary), not as imposition of the suspended sentence in case No. CRN 4168.   Defendant claimed even his own declaration in support of his application for bond (dated Sept. 13, 1976 in case No. CRN 4168) was mistaken;  he claimed the date of the petty-theft-with-a-prior conviction described was a mistake, because he had been convicted of petty theft with a prior in 1962, not in 1976.

Defendant's trial attorney in case No. CRN 4168 testified in rebuttal that defendant had been charged with one or more prior convictions to elevate the 1976 petty theft to a felony.   The practice in 1976 was that, if a defendant admitted a prior (for petty theft “with a prior”) in chambers, the element of the prior petty theft would be kept from the jury, which would try only the new petty theft.   Admitting the prior had nothing to do with impeachment.

The jury found defendant guilty as charged of being a felon in possession of a firearm.   Defendant was placed on probation and he now appeals.

DISCUSSION

I. Alleged Misinstruction of the Jury

 A. Instructions Given.   The court instructed the jury on the offense of possession of a firearm by a felon, in accordance with CALJIC No. 12.43:  “Every person who has been convicted of a felony and who owns or has in his possession or under his custody or control any firearm, is guilty of violation of Section 12021(a) of the Penal Code, a crime.  [¶] The conviction of the crime of Petty Theft with a Prior in San Diego Superior Ct. case # CRN 4168 is the conviction of a felony.

“In order to prove such crime, each of the following elements must be proved:  [¶] 1. A person previously has been convicted of a felony, to wit:  in San Diego County Superior Court case # CRN 4168 [¶] 2. Such person [owned] [had in his possession] [or] [under his custody or control] [a firearm], and [¶] 3. Such person had knowledge of the presence of said firearm․”

Defendant contends the instructions were erroneous because they removed determination of an essential element of the offense from the jury's consideration.   Defendant points to the portion of the instruction directing the jury that “the conviction of the crime of Petty Theft with a Prior in San Diego Superior Ct. case # CRN 4168 is the conviction of a felony.”  (Emphasis added.)   Defendant argues that the part of the instruction defining defendant's former conviction as a felony effectively directed a verdict on one of the elements of the offense;  i.e., whether he was “A person [who] previously has been convicted of a felony.”  (Emphasis added.)

Defendant contended below, as he does on appeal, that the conviction in case No. CRN 4168 was a misdemeanor, not a felony.   This was, indeed, the primary disputed issue at trial.   Nonetheless, his contention is without merit.

 B. Whether an Offense is a Felony or a Misdemeanor Is a Question of Law for the Court, Not a Question of Fact for the Jury.   The question whether an offense is a felony or a misdemeanor is a question of law to be decided by the court, not an issue of fact for the jury to resolve.  (People v. Burres (1980) 101 Cal.App.3d 341, 161 Cal.Rptr. 593, criticized on another point in People v. Riederer (1990) 217 Cal.App.3d 829, 266 Cal.Rptr. 355.)2

 When the jury is called upon to decide, as an “element” of an offense or enhancement, whether “A person previously has been convicted of a felony,” it does not “try” the question whether the prior offense was a felony.   Rather, the issue of fact for the jury to decide is whether the defendant is the person who suffered the felony conviction.   As the Court of Appeal noted in another context (punishment enhancements for prior prison terms—i.e., served for prior felony convictions) in People v. Trujillo (1984) 154 Cal.App.3d 1077, at page 1091, 202 Cal.Rptr. 832, “It is doubtful that a true factual question appropriate for a jury's resolution has ever arisen with respect to a charged prior term of imprisonment.   An accused either is the person who was so imprisoned or he is not.   Not only will he and his counsel entertain no doubt on this score, fingerprints, photographs and official documents resolve any rational dispute on the point beyond cavil.   Any debate concerning the constitutionality of the underlying convictions or the nature of the offenses involved therein, present legal, not factual, issues as to which a jury's opinion will be quite irrelevant in any event.”  (Emphasis added.)

 C. Interpretation of Statutes, Case Law and Documents Are Questions of Law for the Court, Not Issues of Fact for the Jury.   When a prior conviction is offered to prove an element of a present offense, as in section 12021, subdivision (a) (or to prove a punishment enhancement to a present offense), the question whether the prior conviction is a felony is necessarily a preliminary one:  if the proffered prior conviction is not a felony (i.e., if it is a misdemeanor), then it is irrelevant and should not be presented to the jury at all.3

“Preliminary questions of fact, the constitutionality and construction of statutes, questions falling properly within the province of judicial notice, disputed facts on motion, interpretation of the pleadings, and the subject matter of the charge, are for the court․”  (75A Am.Jur.2d, Trial, § 717, p. 344.)   In the court below, the record of defendant's prior conviction—making him a felon—was a matter “properly within the province of judicial notice.”   The legal question of his felony status also involved the “construction of statutes” and cases defining a felony, as well as the “interpretation of the pleadings” and documents in case No. CRN 4168.   These were all matters to be determined by the court.

The court below misleadingly and erroneously allowed evidence on the preliminary legal question of the felony status of defendant's prior crime to be presented before the jury.   The court did, however, ultimately make the legal determination, as stated in the instructions given, that the crime in case No. CRN 4168 was a felony.   The proper legal analysis of the relevant statutory and case law, and the documents in case No. CRN 4168, demonstrates that the court correctly determined that the offense was indeed a felony.

 1. Legal Analysis of Section 17, Subdivision (b).   The Legislature has defined a felony as “a crime which is punishable with death or by imprisonment in the state prison.”  (§ 17, subd. (a).)

Defendant's prior crime—petty theft with a prior (former § 666, subd. (3))—was a “wobbler;” it was punishable with either imprisonment in the county jail for up to one year (i.e., a misdemeanor) or imprisonment in the state prison (a felony).   Section 17, subdivision (b) provides for the classification of such offenses as follows:  “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under [certain] circumstances․”

Each of the statutorily provided circumstances is analyzed below.   An offense is defined by the statute to be a misdemeanor only under the following circumstances:

“(1) After a judgment imposing a punishment other than imprisonment in the state prison.”  (§ 17, subd. (b)(1).)   Defendant argued below that the judgment in case No. CRN 4168 “impos[ed] a punishment other than imprisonment in the state prison” because he had been granted probation and “sentenced” only to 120 days in the county jail.   To the contrary, the record shows that defendant was committed to the Department of Corrections of the state prison, but that execution of his state prison sentence was suspended while probation was granted.   The 120–day “sentence” to the county jail was not the “sentence;” it was a condition of probation.

 Where an offense is alternatively a felony or a misdemeanor, depending on the sentence, and the court suspends the pronouncement of judgment or imposition of sentence and grants probation, the offense is regarded as a felony for all purposes until judgment or sentence, and if no judgment is pronounced, it remains a felony.   Spending part of a probation period in a county jail is but a condition of probation and is not a “sentence” within the meaning of section 17.  (People v. Esparza (1967) 253 Cal.App.2d 362, 61 Cal.Rptr. 167.)   In addition, the abstract of judgment in case No. CRN 4168 shows that defendant's probation ultimately was revoked and he was sentenced to state prison.   The judgment thus imposed punishment of imprisonment in the state prison, not a punishment “other than” imprisonment in the state prison.   Section 17, subdivision (b)(1) does not apply.

“(2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.”  (§ 17, subd. (b)(2).)   This criterion for finding the conviction to be a misdemeanor is inapplicable;  defendant was not committed to the Youth Authority, nor did the court designate the offense as a misdemeanor.

“(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”  (§ 17, subd. (b)(3).)   Although defendant argued below that his offense was a misdemeanor based on this provision, he was mistaken.   The court did not grant him probation “without imposition of sentence.”   The court imposed a commitment to state prison, but suspended execution only of that sentence.   Ultimately, the court actually imposed, and defendant served, a state prison term for the offense in case No. CRN 4168.

Moreover, section 17, subdivision (b)(3), requires that the court must also declare the offense to be a misdemeanor.   It never did so, and defendant never contended otherwise.

“(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his [or her] arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.”  (§ 17, subd. (b)(4).)   This provision is inapplicable.   Case No. CRN 4168 was never filed in a court having jurisdiction over misdemeanor offenses.   It was filed as a felony and tried as a felony.   No misdemeanor sentence was ever imposed.  (Cf. People v. Collins (1925) 195 Cal. 325, 233 P. 97 [in cases where either felony or misdemeanor punishment may be imposed, the charge may be prosecuted as a felony;  i.e., by trial in the superior court];  People v. Bozigian (1969) 270 Cal.App.2d 373, 75 Cal.Rptr. 876 [unless and until a misdemeanor sentence is imposed, the conviction for an offense alternatively punishable as a misdemeanor or a felony, remains a felony for all purposes].)

“(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”  (§ 17, subd. (b)(5).)   The magistrate here did not determine that the offense in case No. CRN 4168 was a misdemeanor.   Again, the case was filed as a felony, tried as a felony and sentenced as a felony.   It was a felony.   There is no basis whatever under the statute (§ 17, subd. (b)) to classify the conviction in case No. CRN 4168 as a misdemeanor.

2. Legal Analysis of Record and Pleadings in Case No. CRN 4168.   The documents submitted in order to prove the prior conviction involved matters properly within the trial court's judicial notice, and involved the interpretation and legal effect of the pleadings and documents presented.   Once again, these were matters for the court to determine, and did not present questions of fact for the jury.

 a. Was Defendant Convicted Merely of Petty Theft?   In order to determine the legal issue whether the prior conviction was for a felony or for a misdemeanor, the court must preliminarily determine of what crime the record shows the defendant to be convicted.   It is unclear whether defendant on appeal continues to claim he was convicted merely of petty theft (§ 488), a misdemeanor, in case No. CRN 4168, or whether his conviction, although concededly of petty theft with a prior (former § 666, subd. (3)), was made a misdemeanor on account of the sentence he claims he received.

Defendant testified below that he was convicted only of petty theft (§ 488).   Defendant relied on the record in case No. CRN 4168, pointing to the verdict form (and to a related minute order reciting the substance of the jury's verdict) which recited that the jury had convicted defendant of petty theft in violation of section 488.   Defendant misrepresented the record below, however, by pointing only to isolated pieces of it.

Defendant was charged on the record with “petty theft with a prior,” and two “priors” were alleged as elements of the offense.   Defendant, also on the record in case No. CRN 4168, admitted the two priors alleged as elements of the offense.   As a result of this judicial admission—done precisely for the tactical purpose of preventing the jury from hearing or knowing about the priors—the only element that remained to be tried to the jury in the prior case was the “petty theft” element.   The transcript of the hearing at which defendant admitted the priors—also a matter of record in case No. 4168—made clear it was (1) an admission of the elements of the offense, and (2) for the purpose of removing any mention of that element in front of the jury:

“THE COURT:  Okay.  [¶] With respect to count one, it's alleged on April 20th of 1962 and December 20th of 1966 Clarence Haywood was convicted of petty theft, and received a term thereof in a penal institution․  [¶] Pardon me.   Is there a problem?

“MR. FOLEY [Defense Counsel]:  Yes, your Honor.   The information, will you read that carefully?   Because this is what the court is going to read to the jury, isn't it?   This is what I'm arguing.

“THE COURT:  I'm not reading it to the jury now.

“MR. FOLEY:  I know.

“․

“MR. CARLETON [The Prosecutor]:  ․ It was my understanding it was the purpose of this in chambers discussion was to have an admission.

“THE COURT:  So the next question is, Mr. Haywood, do you admit that on or about April 20th of 1962 and December 20th of 1966 you were convicted of petty theft?

“MR. HAYWOOD:  Yes, your Honor.

“․

“THE COURT:  All right.  [¶] Now that enables us to go ahead and present the case to the jury without any reference to those two prior convictions.”   (Emphasis added.)

Defendant expressly waived his right to a jury trial “only on the priors ․ not on the issue of the petty theft.”   Defendant's lawyer placed on the record that he had fully advised defendant that he could deny the priors, but that the priors would then be read to the jury, that the prosecution would place before the jury the records of his prior convictions, and that the jury would consider them.  “Whereas if he admits them in here, the jury will not know about any of the prior convictions unless he takes the stand to testify, at which time he may be impeached by one or more prior felony convictions.”  (Emphasis added.)

This was the common practice at that time.  “[A] petty theft may be charged as a felony if a defendant has been previously convicted of one of several enumerated crimes.   If the defendant admits the prior conviction, the jury does not learn that it is part of the present petty theft charge.  (See People v. Gallinger (1963) 212 Cal.App.2d 851 [28 Cal.Rptr. 472].)”   (People v. Hall (1980) 28 Cal.3d 143, 155–156, 167 Cal.Rptr. 844, 616 P.2d 826, emphasis added.)

Naturally, defendant would never have admitted the priors if the jury were to be informed of them in any event, in the reading of the information and on the verdict forms.   Defendant improperly ignored the effect of his judicial admission of the priors—his claim that he was convicted merely of “petty theft” based on the verdict alone was flatly disingenuous, and the court correctly determined defendant was convicted of petty theft with a prior in case No. CRN 4168.4

b. Defendant Was Convicted of Felony Petty Theft With a Prior.   The record clearly shows that defendant was convicted of petty theft with a prior, not merely of petty theft.

i. Defendant's Requested Instructions.   On appeal, defendant urges that the jury should have been instructed at trial as follows: 5  “(1) Conviction of Petty Theft with a prior is a misdemeanor or a felony depending upon the judgment imposed;  [¶] (2) If you find the defendant was sentenced to State prison with sentence suspended during the term of probation, his offense was a felony;  it [sic ] you find that the defendant was sentenced to County jail or if he was granted probation with sentence suspended, his offense was a misdemeanor;

“․

“(4) If you cannot determine, beyond a reasonable doubt, whether the crime for which defendant was convicted was a misdemeanor or a felony, you must find that it was a misdemeanor.”

Defendant was not entitled to any such instructions because the record unequivocally demonstrates that he was sentenced to state prison.   The prior offense was a felony as a question of law and as a matter of law.

ii. Defendant Received a Felony State Prison Sentence Under the Indeterminate Sentencing Law.   The last bolt in defendant's quiver that he must have been convicted of a misdemeanor rather than a felony is that the court did not follow proper procedures in sentencing him to state prison, if he had indeed been sentenced to state prison in case No. CRN 4168.   Defendant urges that the court was required, when it granted him probation, to hear evidence in aggravation and mitigation, and to make factual findings to justify imposition of an upper or lower state prison term if probation were later revoked (Cal.Rules of Court, rule 433(b), rule 433(c)(1)).   Defendant contends that the court's failure to do so, coupled with the fact that he was paroled after only ten months, indicates that the state prison “sentence” was in error, and that the court intended to sentence only for a misdemeanor.

The contention is utterly without merit.   Defendant's state prison sentence was imposed, and execution suspended and probation granted, in August 1976.   Defendant was sentenced under the indeterminate sentencing law;  the determinate sentencing law was not effective until nearly a year later.   There was no rule 433 and no “upper” or “lower” state prison term for the court to consider at the time of defendant's probation in August 1976.   Defendant received a felony state prison sentence in case No. CRN 4168.

II. Sufficiency of Proof That Case No. CRN 4168 Was a Felony

Defendant contends there was inadequate proof of one of the elements of the offense;  to wit, that he had been convicted of a felony.   Not only was the proof sufficient, defendant's conviction—of petty theft with a prior—was a felony as a question of law and as a matter of law.

The record of defendant's conviction is entirely consistent that he was convicted of a felony.   The court properly so determined.   The jury found defendant was the person who had suffered the proffered felony conviction.   The jury also found defendant had possessed the firearm with knowledge thereof.   Regardless of defendant's mistaken belief he had not been convicted of a felony in case No. CRN 4168 (he has admittedly been convicted of other felonies in the past), his “mistake” is no defense.  (See People v. Snyder (1982) 32 Cal.3d 590, 592, 186 Cal.Rptr. 485, 652 P.2d 42.)   Defendant's conviction under section 12021, subdivision (a), was supported by more-than-substantial evidence.

III. Yurko Error

 Defendant next claims that, even if he was convicted of a felony in case No. CRN 4168, it could not be used against him because, when he in that case admitted the “priors” establishing the petty theft “with a prior,” he was not fully advised of all his constitutional rights.   Although defendant was expressly admonished of his right to jury trial and his right to confront and cross-examine witnesses, the court did not advise him that he would, by admitting the priors, give up his right against self-incrimination as to those priors.   Therefore, in reliance upon In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, defendant asserts his admission of the priors in that case was invalid.   Defendant also claims his counsel below was incompetent for failing to raise this issue sooner.

Defendant conveniently ignores People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315.   There, the court pointed out at page 1177 “that the standard for determining the validity of a guilty plea [in a prior case] ‘was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ”   Thus, “․ Yurko error involving Boykin/Tahl[Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709];  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449] admonitions should be reviewed under the test [that] a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.  [Citations.]”  (Id., at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

Under the totality of the circumstances here, defendant voluntarily and intelligently decided to admit the prior convictions in his previous trial for “petty theft with a prior.”   He was successfully able to keep from the jury the knowledge of his past criminal activities.   Counsel and the court expressly advised him of the consequences on the record.   The admission was valid;  it provided no basis for a new trial in the instant case predicated on alleged Yurko error.   The claim of incompetency of counsel therefore also falls.

IV. Prosecutorial Misconduct

 Defendant complains that the prosecutor committed prejudicial misconduct in closing argument in the discussion of reasonable doubt.   The prosecutor invited the jurors to look at the reasonable doubt instruction during deliberations and stated, “But he [defense counsel] doesn't tell you at what point [‘]beyond a reasonable doubt[’] is․  We aren't supposed [sic] to try to give you a percent.   And those of you who have served on civil cases, 51 percent, beyond a preponderance of the evidence, more evidence for an item than against.  [¶] As counsel indicated, beyond a reasonable doubt doesn't mean beyond any possible doubt.   It means beyond a reasonable doubt.   It's somewhere between beyond 51 percent and 100 percent.”  (Emphasis added.)

Defendant failed to object to this argument.   He cannot show that whatever misconduct might have accrued as a result of the argument could not have been cured by a timely admonition.   Moreover, the tenor of the prosecutor's remarks was that “beyond a reasonable doubt” did not mean merely a preponderance of the evidence (slightly more evidence for than against), and did not mean the prosecution must prove its case absolutely beyond any doubt (100 percent).   Both aspects are true statements of the law.   The prosecutor specifically disclaimed suggesting any “percentage” of proof.   The jury was otherwise properly instructed on reasonable doubt.   Defendant has not demonstrated misconduct, has failed to preserve the issue by timely objection, and has failed to demonstrate any prejudice arising from the alleged misconduct.

V. Reasonable Doubt re CALJIC No. 2.90 6

DISPOSITION

Defendant's contentions are meritless.   The judgment is affirmed.

I respectfully dissent.

I

INTRODUCTION

In my opinion, this case presented contested factual questions for resolution by the jury as the trier of fact:  was defendant convicted in San Diego Superior Court Case No. CRN 4168 (CRN 4168) of a petty theft (Pen.Code, § 488)1 , which by law would have been a misdemeanor, or was he convicted of a petty theft with a prior (§ 666, subd. (3)) and sentenced to state prison, which by law would have been a felony?

At the outset I state my agreement with the majority that whether a conviction is a misdemeanor or felony is a matter of law for the court to decide.   But in this case, the primary disputed issue was not the legal issue of:  whether defendant's prior conviction was a felony or misdemeanor (maj. opn., at p. 800), but were the factual issues of:  of what offense defendant was convicted in CRN 4168, i.e., petty theft or petty theft with a prior and, if the latter, what was the sentencing disposition? (hereafter factual issues).

By instructing the jury, as a matter of law, that “The conviction of the crime of petty theft with a prior in San Diego County Superior Court case number CRN–4168 is the conviction of a felony,” the trial court improperly removed an element of the charged offense from the jury's consideration, thus essentially directing a verdict for the People as to one element of a violation of section 12021, subdivision (a), namely, defendant's status as a felon.2

Jury instructions which relieve the People of their duty of proving every element of a charged offense violate a defendant's due process right (Carella v. California (1989) 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218, 221), and require reversal unless the error was harmless beyond a reasonable doubt.  (People v. Reyes Martinez (1993) 14 Cal.App.4th 1412, 1418–1419, 18 Cal.Rptr.2d 300.)   For the reasons noted below, it cannot be said that the error here was harmless beyond a reasonable doubt, and therefore I would reverse defendant's conviction.

II

DISCUSSIONA. The Instruction in Question Removed an Element of the Charged Offense from the Jury's Consideration, and Essentially Constituted a “Directed Verdict” for the People as to a Necessary Element of a Violation of Section 12021, Subdivision (a), Namely, Defendant's Status as a Felon

Section 12021, subdivision (a) is violated when (1) a felon (2) knowingly (3) has possession of a firearm.   Thus, a defendant's status as a felon at the time of commission of the charged offense is clearly an element of this offense.  (People v. Valentine (1986) 42 Cal.3d 170, 181, 228 Cal.Rptr. 25, 720 P.2d 913.)

When the trial court here instructed the jury that:  “The conviction of the crime of petty theft with a prior in San Diego County Superior Court case number CRN 4168 is the conviction of a felony,” (emphasis added), and further instructed the jury that one of the three elements of the charged offense which had to be proved is:  “A person was previously convicted of a felony, to wit, San Diego County Superior Court case number CRN 4168,” it thereby “directly foreclosed independent jury consideration of whether” the evidence established beyond a reasonable doubt that defendant was a felon, i.e., that he had suffered a prior felony conviction.  (Carella v. California, supra, 491 U.S. 263, 266, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218, 222.)   If the jury found that defendant was the person convicted in CRN 4168 (a fact not contested by defendant), then, according to this instruction, it was required to find that defendant had been convicted of a felony, not a misdemeanor.   In other words, the instruction in effect operated as a mandatory presumption that the offense of which defendant had been convicted in case number CRN 4168 was a felony.

It is the People's burden to prove beyond a reasonable doubt every element of the charged offense.  (Carella v. California, supra, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218, 221.)   Jury instructions which relieve the People of this burden violate a defendant's due process rights.  (Ibid.)  Such instructions not only subvert the presumption of innocence accorded to the accused, but also invade the fact-finding task assigned solely to the jury in a criminal case.  (Ibid.)  Even when the evidence is overwhelmingly against the defendant on an element, or seems to establish the element “as a matter of law,” it is improper to give an instruction to the jury which takes the element from the jury and decides it adversely to the accused.  (People v. Figueroa (1986) 41 Cal.3d 714, 733, 224 Cal.Rptr. 719, 715 P.2d 680.)

As mentioned earlier, I do not disagree with the majority's position that whether a crime of which one is convicted is a felony or a misdemeanor is a question of law to be decided by the trial court.   And, of course, the trial court may properly instruct the jury on the law.   Thus, the trial court here could have instructed the jury that (1) a conviction of petty theft with a prior which is punished with a state prison sentence, even if initially execution of the sentence was “suspended” and defendant was given probation, is the conviction of a felony, (2) a conviction of petty theft with a prior which is punished with a county jail sentence is the conviction of a misdemeanor, and (3) a conviction of petty theft is a misdemeanor.  (See, e.g., People v. Perry (1974) 42 Cal.App.3d 451, 454, 116 Cal.Rptr. 853, superseded by statute on another ground as stated in People v. Levell (1988) 201 Cal.App.3d 749, 247 Cal.Rptr. 489.)

However, the factual issues here for the jury's determination, namely, the particular offense of which defendant was convicted and the sentence actually imposed on defendant, could not be determined as a matter of law because they were dependent on facts disputed by defendant, who contended that he had been convicted of petty theft, not petty theft with a prior, and that he had not been sentenced to state prison as a result of his conviction.3  Therefore, I disagree with the majority's conclusion that here the only factual issue to be decided by the trier of fact was whether defendant was the person who was convicted of a felony.

The majority contends:  “When the jury is called upon to decide, as an ‘element’ of an offense or enhancement, whether ‘A person previously has been convicted of a felony,’ it does not ‘try’ the question whether the prior offense was a felony.   Rather, the issue of fact for the jury to decide is whether the defendant is the person who suffered the felony conviction.”  (Maj. opn., at p. 800, original emphasis.)   This general proposition would be correct in cases in which the defendant disputes that he or she is the same person whose name appears in the prior case as the person so convicted.   Here, however, defendant did not contend that he was not the same person convicted in CRN 4168.   Instead, he disputed the correctness of the records which showed he had been convicted of petty theft with a prior and sentenced to state prison, i.e., he disputed the factual issues of the actual crime of which he was convicted and the actual sentence imposed for such conviction.

When the actual crime of which a defendant was convicted and the actual sentence imposed for such conviction are disputed issues, the analytic process by the trier of fact, here the jury, involves two or three factual determinations:  The trier of fact decides of what offense was a person previously convicted.   If that offense is a wobbler (i.e., punishable in the discretion of the court by imprisonment in state prison or by fine or imprisonment in the county jail (§ 17, subd. (b))), the trier of fact determines what was the sentencing disposition.   The trier of fact also decides whether defendant was the person convicted of that offense and so sentenced.   After the jury resolves these factual questions, the type of offense of which defendant is convicted, felony or misdemeanor, falls in place as a matter of law pursuant to an appropriate instruction by the court.

Additionally, although I concur with the majority's discussion of the general propositions (1) that the determination of whether the offense of which a person is convicted is a misdemeanor or felony is solely a matter of law, and (2) the interpretation of statutes and case law are for the court (not the trier of fact), I do disagree with that portion of its discussion focusing on the “interpretation” of documentary exhibits admitted into evidence being solely for the court and not the trier of fact.   Here there was no question of “interpretation” of any exhibits relating to the factual issue.   The exhibits “say what they say.”   There were, of course, conflicts between the factual recitations in the documents and between certain documentary recitations and defendant's testimony.   It was the jury's role to resolve those conflicts.   Once those questions were decided, the determination regarding the type of crime of which defendant was convicted, i.e., a felony or misdemeanor, was then a matter of law pursuant to the court's instruction.

I also take issue with the majority's position that the question whether the offense of which a defendant was previously convicted is a felony or misdemeanor is a preliminary matter to be decided by the court before trial of the factual issue.   The “matter of law” decision is the final step after the jury has decided the factual predicates necessary for resolution of the legal question.   In this case, the jury's decision as to the factual issues concerning the actual crime of which defendant was convicted and the actual sentence imposed were preliminary to the legal conclusion concerning the type of offense, felony or misdemeanor.

Additionally, the majority improperly assumes that the trial court took judicial notice of the various documents from CRN 4168 which it states were “submitted” in order to prove that the alleged prior conviction was a petty theft with a prior and that the sentencing thereon made it a felony.

However, these documents were not “submitted” to the trial court for the purpose of taking judicial notice of them, nor was the trial court asked to take judicial notice of them.   Instead, these documents and their contents were admitted into evidence, and the discrepancies in their contents and between them and defendant's testimony were argued to the jury in closing argument by both the People and defendant.

I can only assume the majority is characterizing these documents as having been the proper subject of judicial notice because judicial notice results in facts being established as true, without the necessity of admitting evidence to prove such facts (1 Witkin, Cal. Evidence (3d ed. 1986) § 80, pp. 74–75;  Communist Party v. Peek (1942) 20 Cal.2d 536, 546–547, 127 P.2d 889), and because the majority's analysis requires that the trial court have been allowed to assume, via judicial notice, the truth of those documents which indicated that defendant's prior conviction was a felony conviction.4

That, however, is not what happened here;  the trial court and the parties all assumed that there was a factual question for the jury to determine.5  Unfortunately, however, that factual question was not resolved by the jury because the jury was improperly instructed by the court that defendant's conviction in CRN 4168 (the fact of which conviction he did not contest) was the conviction of a petty theft with a prior and was a felony conviction.

In reality, it appears that the majority is using this “judicial notice” analysis as a vehicle to launch a broadside against defendant's testimony and certain exhibits upon which he relies.   It enables the majority to weigh the evidence against him on this contested factual issue.  (See maj. opn., at pp. 802–803.)   This is not the function of the reviewing court.   Regardless of how aggravating or unbelievable defendant's defense may be to us, we must still follow the rule of appellate review that no matter how overwhelming is the People's evidence and no matter how weak is the defendant's evidence, the defendant has the constitutional right to have the jury consider all the evidence, resolve any conflicts in it, weigh it and then decide whether the evidence proves, beyond a reasonable doubt, each and every element of the charged offense.6

Moreover, the majority is wrong when it states that the trial court correctly determined “defendant was convicted of petty theft with a prior in case No. CRN 4168” and impliedly was correct in so instructing the jury.  (Maj. opn., at pp. 803–804.)   To repeat, this factual issue was not for court determination;  it was for the jury, and the court's instruction was tantamount to a directed verdict on the first element of the charged offense.   Our criminal justice system does not provide for “directed verdicts” in favor of the People against a defendant after the defendant has presented his or her evidence.   The burden of proof as to each element of the offense remains on the People throughout the trial.   The defendant is not required to produce evidence but, if he or she does so, such evidence may raise controverted factual issues as to the elements the People have the burden of proving.   Here, defendant's testimony and certain exhibits did raise a factual issue as to the first element of the charged offense.

As stated in People v. Figueroa, supra, 41 Cal.3d at page 733, 224 Cal.Rptr. 719, 715 P.2d 680:  “In many criminal cases, the prosecution's evidence will establish an element of the charged offense ‘as a matter of law.’   Similarly, in many instances, the accused will not seriously dispute a particular element of the offense.  (Cf. People v. Garcia, 36 Cal.3d 539 at pp. 554, 556, 205 Cal.Rptr. 265, 684 P.2d 826.)   However, neither of these sometime realities of trial practice justifies the giving of an instruction which takes an element from the jury and decides it adversely to the accused.   Such an instruction confuses the roles of judge and jury.”   Here, the prosecution's evidence, as discussed above, did not establish the first element of the charged offense as a matter of law and defendant seriously disputed this particular element of the offense.   Consequently, the court's instruction to the jury was clearly a direction to the jury to find against the defendant on the first element of the charged offense.

For the above-noted reasons, I would hold that it was error for the trial court to take this factual issue from the jury by instructing the jury in a manner which effectively directed it to find adversely to defendant on a necessary element of the charged offense.   The next question is whether that error was harmless.

B. The Instructional Error Cannot Be Said to Be Harmless Beyond a Reasonable Doubt, and Therefore the Judgment Must Be Reversed

“An instructional error involving the mandatory presumption of an element of a crime requires reversal unless we are able to declare the error was harmless beyond a reasonable doubt.  [Citations.]”  (People v. Reyes Martinez, supra, 14 Cal.App.4th 1412, 1418–1419, 18 Cal.Rptr.2d 300.)

The error here cannot be said to be harmless beyond a reasonable doubt.   The erroneous instruction directly affected the only element of the charged offense which was truly at issue, that being whether defendant was a felon at the time he possessed a firearm.  (People v. Reyes Martinez, supra, 14 Cal.App.4th 1412, 1419, 18 Cal.Rptr.2d 300.)   This issue was not conceded by the defense but was the only contested factual issue.  (Ibid.;  Carella v. California, supra, 491 U.S. 263, 270, 109 S.Ct. 2419, 2423, 105 L.Ed.2d 218, 225 (conc. opn. of Scalia, J., joined by Brennan, J., Marshall, J. and Blackmun, J.).) 7

Moreover, the record does not show that the jury necessarily found any other facts which were functionally equivalent to finding the element required to be presumed, i.e., that defendant's prior conviction was a felony conviction.   (People v. Reyes Martinez, supra, 14 Cal.App.4th at p. 1419, 18 Cal.Rptr.2d 300;  Carella v. California, supra, 491 U.S. 263, 271, 109 S.Ct. 2419, 2423, 105 L.Ed.2d 218, 225–226 (conc. opn. of Scalia, J., joined by Brennan, J., Marshall, J. and Blackmun, J.):  “When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed.   The error is harmless because it is ‘beyond a reasonable doubt,’ [citation] that the jury found the facts necessary to support the conviction.”)

As discussed earlier, defendant did introduce evidence to establish that he had not been convicted of the felony of petty theft with a prior.   He so testified, and some of the documentary evidence introduced by the People arguably supported defendant's defense that the conviction in CRN 4168 was a misdemeanor conviction.   Exhibit 4, the August 2, 1976 minute order, reported the jury's verdict as “guilty of the crime of petty theft, in violation of section 488, as charged in count 1 of the information.”   Exhibit 5, the verdict form in CRN 4168, stated that defendant was found guilty of “the crime of petty theft, in violation of section 488, as charged in count 1 of the information.”   The Department of Justice form entitled “Disposition of Arrest and Court Action,” recited that defendant had been convicted of a misdemeanor, i.e., petty theft in violation of section 488, and it indicated that no sentence was imposed on defendant but that instead the proceedings were suspended and he was placed on formal probation for three years, one condition of which was that he serve 120 days custody in county jail.8

It is obvious from the other documentary evidence that there was conflicting evidence on the factual issues.   These issues should have been given to the jury for determination, even if the People's evidence was overwhelming against defendant, because these issues were directly related to an element of the charged offense which the People were required to prove.   As the trial court stated in its opening comments to the venire panel:  “It will be up to the jury to make an intelligent decision about what those [court] records will tell us.”

Instead, the jury was instructed, as a matter of law, that the conviction in CRN 4168 was a felony conviction;  defendant did not contend he was not the person who was convicted in that case, and therefore the jury was essentially instructed that defendant was a felon at the time he allegedly possessed a firearm, which was one of the elements of the charged offense which the People were required to prove.   This was error, and one which cannot be said to be harmless beyond a reasonable doubt, because the record does not show that the jury necessarily found other facts which were functionally equivalent to finding the element which the instruction required them to presume to exist.

For the foregoing reasons, I would reverse the judgment.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise stated.

2.   (See also Shockley v. State (1984) 282 Ark. 281, 668 S.W.2d 22, 23 [trial court properly instructed jury on the number of prior felony convictions;  it is a matter of law, not a question of fact];  People v. Cunitz (1977) 45 Ill.App.3d 165, 4 Ill.Dec. 118, 122, 359 N.E.2d 1070, 1074 [nature of offense for which defendant was incarcerated at time of escape, whether felony or misdemeanor, is a question of law, not of fact];  Seward v. State (Ind.1983) 453 N.E.2d 256, 257 [question whether an offense is a felony is a question of law for the court, not an issue for the jury];  Cain v. State (Ind.App.1992) 594 N.E.2d 835, 842–843 [same;  court also determines whether convictions from other states are felonies];  Johnson v. State (Ind.App.1991) 575 N.E.2d 282, 283 [same;  state not required to present evidence to jury that the conviction was a felony];  McKee v. State (Okla.App.1978) 576 P.2d 302, 307 [whether a prior conviction is a felony or a misdemeanor is an issue of law for the court];  Jones v. Commonwealth (1946) 184 Va. 679, 36 S.E.2d 571, 572 [whether the prior offense was a felony is a question of law to be resolved by the court, not the jury];  Commonwealth v. Beavers (1928) 150 Va. 33, 142 S.E. 402, 404 [same];  Hunter v. Commonwealth (1993) 15 Va.App. 717, 427 S.E.2d 197, 208 (conc. and dis. opn. of Barrow, J.) [same is true, even if the defendant disputes that the conviction was a felony];  State v. Lei (1961) 59 Wash.2d 1, 365 P.2d 609 [status of prior conviction as a felony is a question of law for the court, not a question of fact for the jury];  State v. Thornton (1979) 24 Wash.App. 881, 604 P.2d 1004, 1008 [same].)

3.   Under defendant's theory, the issue of the felony status of any crime would be tried to the jury.   The prosecutor would be able to present evidence of numerous prior crimes, and then leave it to the jury (1) to sort out whether any particular one is a felony, and (2) to ignore any the jury finds not to be a felony.   This cannot be the law.   Not only is the felony status of a conviction an issue of law for the court, the presentation of irrelevant (misdemeanor) crimes to the jury would inevitably have a prejudicial effect without any probative value, and would be grounds for an appeal.   If the court had instructed, as the dissent suggests, that (1) petty theft with a prior followed by a state prison sentence is a felony, (2) petty theft with a prior followed by a jail sentence is a misdemeanor, and (3) petty theft is a misdemeanor (at p. 807), we have no doubt that defendant would have appealed complaining of irrelevant, prejudicial matter placed before the jury.

4.   A Department of Justice form, entitled “Disposition of Arrest and Court Action” recorded the charges against defendant as “PC666.3 [sic] / 488;  PC12021(a),” but recorded the “finding or verdict” as “PC488 misd.[x] fel.[ ].”  The Department of Justice form is not a court record or a judicial determination.   Moreover, so far as it goes, the Department of Justice form accurately records that the jury verdict dealt only with Penal Code section 488 in isolation.   In isolation, Penal Code section 488 (petty theft) is a misdemeanor.

5.   Defendant never offered these proposed instructions below.

6.   This court deems appellant to have contended that appellant's conviction and special or sentence enhancement allegations found to be true should be reversed because the definition of reasonable doubt in CALJIC No. 2.90, (5th ed. 1988), is unconstitutional under Cage v. Louisiana (1990) 498 U.S. 39, 40–41, 111 S.Ct. 328, 329–330, [112 L.Ed.2d 339, 342], and was used by the trier of fact in determining appellant's guilt and finding true any special allegation or sentence enhancement allegation.   This court also deems respondent to have opposed this argument on the ground that this court is bound by the principle of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), to follow California Supreme Court precedent upholding the constitutionality of that definition (e.g., People v. Noguera (1992) 4 Cal.4th 599, 633–634, 15 Cal.Rptr.2d 400, 842 P.2d 1160).   We agree with respondent's argument and hold that the definition of reasonable doubt as stated in CALJIC No. 2.90 is constitutional.   We also note in support of that holding that the United States Supreme Court recently upheld the constitutionality of that definition of reasonable doubt.  (Victor v. Nebraska (1994) 511 U.S. 1, –––– – ––––, 114 S.Ct. 1239, 1243–1249, 127 L.Ed.2d 583.) [94 Daily Journal 3687, 3690–3693].)

1.   All further statutory references will be to the Penal Code, unless otherwise noted.

2.   As the majority acknowledges, defendant's status as a felon was the only issue in dispute between the People and defendant.

3.   The cases cited by the majority for the general proposition that whether an offense is a felony or a misdemeanor is a question of law for the court are therefore distinguishable;  in none of those cases did the defendants contend, as does defendant here, that the factual circumstances surrounding the prior conviction and sentencing, based on arguable discrepancies in official public and court records and his trial testimony regarding the prior conviction and sentence, were such as to create a factual dispute and that such factual dispute was directly related to whether the offense of which he was convicted could be categorized as a matter of law as a felony or as a misdemeanor.People v. Burres (1980) 101 Cal.App.3d 341, 161 Cal.Rptr. 593 is further distinguishable because it did not involve the determination of the felony or misdemeanor status of a prior conviction.   In People v. Burres, the defendant was charged with two assaults in violation of Penal Code section 245, subdivision (b), which is a so-called “wobbler,” i.e., an offense which may be sentenced as either a felony or a misdemeanor.   Defendant contended on appeal that the jury should have been allowed to determine whether he was guilty of a misdemeanor or a felony assault at the same time that it was determining his guilt or innocence as to the assaults.   The appellate court held that it was the trial court's duty, not the jury's prerogative, to determine whether defendant was guilty of misdemeanor or felony assault, citing Penal Code section 17, subdivision (b), which section refers to crimes which are punishable, in the court's discretion, by imprisonment in state prison or county jail.   (101 Cal.App.3d at p. 356, 161 Cal.Rptr. 593.)In other words, the trial court determines the nature of a defendant's crime by choosing a punishment which makes the crime a misdemeanor or a felony.   Thus, neither People v. Burres nor Penal Code section 17 stand for the proposition that whether a prior conviction was a misdemeanor or a felony, when a defendant raises a factual issue as to what sentence was actually imposed for the prior conviction, is a matter of law to be determined by the trial court.

4.   Even if the trial court had taken judicial notice of all the documents in question, it would have had to assume the truth of all the documents, including those which indicated that defendant's prior conviction was a misdemeanor.   Consequently, even if judicial notice had been taken, the result would still have been that there was a factual dispute as to the correctness of some of the documents, and that factual dispute would have to have been submitted to the jury.

5.   In fact, the trial court, in its initial comments during voir dire, told the jury that “The heart of the case, of the dispute” was “whether [defendant] was at a prior time convicted of a felony [in San Diego County],” and that “So, we're going to be looking at some documents, I would imagine, from that county.   The court record will eventually be in evidence, I would imagine.   It will be up to the jury to make an intelligent decision about what those records tell us in this case.”

6.   On several occasions the majority asserts that defendant was unable to show the records were in error in any way, or that defendant produced no evidence to support his claims that the court records were wrong.  (See maj. opn. at p. 804).   However, an error in court records “may be shown by any competent evidence, ․” (In re Roberts (1962) 200 Cal.App.2d 95, 97, 19 Cal.Rptr. 147.)   Defendant's testimony, although unbelievable and nonpersuasive to the majority, is competent evidence of what occurred in CRN 4168, and of what sentence he received in that case.

7.   Notably, defendant's brief closing argument to the jury was directed solely to the evidence showing defendant was convicted only of a petty theft in CRN 4168.

8.   If the Disposition of Arrest and Court Action form was correct, defendant's prior conviction was a misdemeanor, not a felony.  (See § 17, subd. (a).)

DABNEY, Acting Presiding Justice.

McKINSTER, J., concurs.