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

The PEOPLE, Plaintiff and Respondent, v. Clarence HAYWOOD, Defendant and Appellant.

No. E010654.

Decided: June 17, 1996

Marshall Miles and Clarence Haywood, in pro. per., for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle B. Davis and M. Howard Wayne, Supervising Deputy Attorneys General, for Plaintiff and Respondent.


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 666.3 (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.

When we originally considered defendant's appeal, we found all the contentions to be without merit, and we affirmed the judgment.   The California Supreme Court granted review on October 13, 1994 (S041295).   On January 18, 1996, the Supreme Court transferred the matter once more to this court, with directions to vacate our former opinion and to reconsider the cause in light of People v. Kobrin (1995) 11 Cal.4th 416, 45 Cal.Rptr.2d 895, 903 P.2d 1027.   We again affirm.


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 and 488.”  (Italics 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. ․” (Italics 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.”  (Italics 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.”  (Italics 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)․”)  (Italics 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 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․”  (Italics 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 “PC666.3/488;  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.”  (Italics 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 and 488,” the court found defendant was entitled to 92 days custody credit.  (Italics 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 “PC666.3/488 Petit Theft with Prior ” and reporting that defendant had been “sentenced to State Prison for the term prescribed by law on count[ ] 1.” (Italics 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).)”  (Italics 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.


I. Alleged Misinstruction of the JuryA. 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.”  (Italics 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.”  (Italics 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. The Determination Whether a Predicate Crime is a Felony is Not an “Element” of Penal Code § 12021, subdivision (a)

Defendant urges that the court's instructions removed an “element” of the crime (ex-felon in possession of a firearm) from determination by the jury.   We disagree.

1. Kobrin

The California Supreme Court in People v. Kobrin, supra, 11 Cal.4th 416, 45 Cal.Rptr.2d 895, 903 P.2d 1027, faced the problem of two conflicting statements of principle:  Although it had long been held that “[t]he question of the materiality of evidence ․ is always one of law for the court, and not of fact for the jury,” (People v. Lem You (1893) 97 Cal. 224, 228, 32 P. 11), it was also true that “[s]ince early common law, materiality has been considered an ‘essential element’ of the crime of perjury.  [Citations.]”  (People v. Kobrin, supra, 11 Cal.4th 416, 419, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)   In People v. Lem You, supra, 97 Cal. 224, 32 P. 11, the court had explained that the question of materiality of evidence “usually arises in the ordinary trial of a cause, where one party offers evidence, and the other objects to it as immaterial;  and in that case it would be clear to every one that the question was for the court.”  (Id. at p. 228, 32 P. 11.)   The court went on to hold that “the question is exactly the same when, on a trial for perjury, the materiality of the alleged false testimony arises․  And on a trial for perjury, it is the duty of the court to instruct the jury as to what facts would show material testimony.  [Citations.]”  (Id. at pp. 228–229, 32 P. 11.)

The United States Supreme Court pointed out in U.S. v. Gaudin (1995) 515 U.S. 506 , 115 S.Ct. 2310, 132 L.Ed.2d 444 (Gaudin II ), however, that the question of materiality of evidence, for purposes of introducing evidence at trial, and the question of materiality of a (false) statement, for purposes of determining whether the declarant has committed the crime of perjury, are different inquiries.   Moreover, the issue of “materiality” “is one ‘commonly called a “mixed question of law and fact,” [which] has typically been resolved by juries.’  [Citations.]”  (Id. at pp. ––––, ––––, 115 S.Ct. at pp. 2311, 2314, 132 L.Ed.2d 444, at pp. 451, 456.)   Thus, because the crime of perjury is defined as “stat[ing] as true any material matter which [the declarant] knows to be false,” (§ 118), “materiality” of the false statement is an essential element of the crime.   The California Supreme Court then determined that, “[h]aving resolved this question of state law [i.e., whether ‘materiality’ of a statement is an element of the crime], we have only to invoke the syllogism formulated by the New Jersey Supreme Court and echoed by the United States Supreme Court in Gaudin II, supra:  ‘(a) the constitution requires that the jury decide each element of a crime beyond a reasonable doubt;  (b) materiality is an element of the crime of perjury;  therefore, (c) the constitution requires that the jury decide the element of materiality in perjury trials.’ ”  (People v. Kobrin, supra, 11 Cal.4th 416, 427, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)

 The “materiality” of a statement had “ ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.’  [Citations.]”  (United States v. Gaudin, supra, 515 U.S. 506, at ––––, 115 S.Ct. 2310, at p. 2313, 132 L.Ed.2d 444, at p. 449.)   The “materiality” of evidence for purposes of its admissibility at trial comes under the broad heading of relevance.   Evidence which is “material” “depends on the issues in the case;  evidence which does not relate to a matter in issue is immaterial.”  (1 Witkin, Cal. Evidence (3d ed.   1986) Circumstantial Evid., § 286, p. 255.   Italics original.)   It is a matter of debate whether a given false statement, in the judgment of the jury, might have influenced the governing body to which the statement was made.  (See § 123.)   That judgment is what, indeed, the perjury statute calls upon the jury to determine.   The court, on the other hand, rules on the preliminary matter whether proffered evidence is sufficiently closely related to the issues in the case so as to be admissible, or capable of even being presented to the jury.   As previously noted, these are different inquiries.

 The question whether a given conviction is or is not a felony, however, is always the same.   Further, unlike the question of “materiality” as it applies to a charge of perjury, it is a question of law, and a preliminary matter which must be determined by the court before a jury may hear of its existence.

2. Status of a Crime as a Felony is an Issue of Law for the Court

When a prior conviction is offered to prove an element of a present offense 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 conviction is not a felony, then it is irrelevant and should not be presented to the jury at all.   Under defendant's theory of “felony” status as an “element” of a crime, the issue of a crime's legal classification 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 crime was 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 crimes to the jury, which it ultimately determined to be misdemeanors, would inevitably have a prejudicial effect without any probative value, and would be grounds for an appeal.   We have no doubt that, had the court followed the course defendant now urges, defendant would certainly have appealed complaining of irrelevant, prejudicial matter placed before the jury.2

Defendant thus fundamentally misconceives the nature of the charge against him.   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 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.”  (Italics added.)

 “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—— classifying the offense as a felony——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.

 Fundamentally, 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, overruled on another point in People v. Colantuono (1994) 7 Cal.4th 206, 220, fn. 11, 26 Cal.Rptr.2d 908, 865 P.2d 704;  criticized on another point in People v. Riederer (1990) 217 Cal.App.3d 829, 266 Cal.Rptr. 355.)

Numerous other cases also establish that the question of the status of a particular crime as a felony or misdemeanor is a legal, not a factual question.  (See 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.Crim.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. Com. (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].)

Thus, to the extent defendant urges that the question whether his prior offense was a felony is an “element” of his offense, he is mistaken.   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 and properly determine the preliminary question of the felony status of the prior conviction itself.   It also properly instructed on the legal status of that conviction as a felony.   The instructions did not remove an “element” of the crime from decision by the jury, as the jury was called upon only to decide whether the felony conviction offered was in fact suffered by defendant.



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


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

2.   On appeal, defendant urges that the jury should have been instructed at trial as follows:  “(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.”   He did not request any such instructions below.   In addition, he was not entitled to such instructions because, as we demonstrate, the felony status of the prior conviction was a question of law for the court, not a factual issue for the jury.   Nothing in the statutory definition of crimes or enhancements based on predicate crimes indicates a legislative intent to “retry” the predicate crimes in the new proceeding.

FOOTNOTE.   See footnote *, ante.

McKINSTER, Acting Presiding Justice.

RICHLI and McDANIEL, JJ., concur.†

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