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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose A. Bermudez ROLON, Defendant and Appellant.

Cr. 11575.

Decided: December 20, 1966

Erling J. Hovden, Public Defender of Los Angeles County; Charles A. Maple, Deputy Public Defender; Floyd W. Davis, Deputy Public Defender; James L. McCormick, Deputy Public Defender, for appellant. Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., for respondent.

Appellant was charged with burglary and grand theft committed on May 3, 1965 and with a prior conviction for burglary on October 16, 1964.

On July 21st, the cause was called for trial. Appellant admitted the 1964 conviction. The jury returned verdicts of guilty on both offenses.

The court sentenced appellant to state prison on the burglary conviction and entered judgment thereon. No judgment was rendered on the grand theft charge.

Appellant moved for a new trial and contended on said motion as he does here, that he was deprived of a fair trial because the prosecutor at the trial, over his emphatic objections, did allude to his prior conviction in the presence of the jury.

Penal Code, section 1025 provides that when a defendant pleads not guilty to the offense charged, but admits a prior, ‘* * * the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.’ Where a prior conviction is an element of the offense charged, it is an exception to the rule. (People v. Oppenheimer, 156 Cal. 733, 738–739, 106 P. 74). The admission of the prior is solely to assist the court in determining the punishment to be imposed in case of conviction. It is not to be used as evidence to determine guilt or innocence of the charged offense. (People v. Peete, 28 Cal.2d 306, 319–320, 169 P.2d 924; People v. Thomas, 110 Cal. 41, 43, 42 P. 456; See Penal Code, §§ 644, 666, 668.)

Section 1025 thus provides an opportunity to a defendant that by admission of a prior, he will not be prejudiced before a jury during the guilt phase of a trial of evidence of his past offenses. The section ‘* * * represents a fundamental declaration of public policy, and its provisions when relevant must be scrupulously observed by all prosecuting attorneys.’ (People v. Spencer, 60 Cal.2d 64, 82, 31 Cal.Rptr. 782, 793, 383 P.2d 134, 145.)

Section 2051 of the Code of Civil Procedure permits impeachment of a witness by showing his prior conviction of a felony. A defendant who takes the stand to testify in his own behalf thus waives the protections of section 1025; (People v. Raquel, 125 Cal.App.2d 384, 386, 270 P.2d 528; People v. Cordero, 92 Cal.App.2d 196, 200, 206 P.2d 665) and his credibility may be impeached on cross-examination as in the case of any other witness. (People v. Richardson, 74 Cal.App.2d 528, 538, 169 P.2d 44.) The section ‘* * * was not designed to exclude relevant evidence nor to prevent the impeachment of a witness by proof of conviction of a felony.’ (People v. Peete, supra, 28 Cal.2d at page 320, 169 P.2d at page 932; see also People v. Santa Maria, 207 Cal.App.2d 306, 314, 24 Cal.Rptr. 492.)

In the instant case, appellant did not take the stand. The mention of appellant's prior conviction occurred in an attempt to impeach one Fredericks who pleaded guilty to the same crimes charged against appellant. Fredericks was called as a witness by appellant. The thrust of Fredericks' testimony was that he committed the burglary with one Manuel whose physical description fits that of appellant, and that appellant was picked up by him fortuitously some 20 minutes after the crime was committed.

The record shows that shortly after 3:00 a. m. on May 3, 1965, the window of a typewriter store on Vermont Avenue near Hollywood Boulevard in Hollywood was smashed.

Several musicians at a recording session two stores up the street were having a coffee break at the time and rushed out to investigate the noise. They testified they saw two men in the process of removing typewriters from the store window and place them in a 1956 red and white Buick. One of the musicians noted the license number of the car, HYL 729, went back into the recording studio and called police. He also wrote down the license number and description of the car at that time, and produced the slip of paper in court.

The police arrived at the scene within five minutes of being called, and broadcast an alert for the Buick. At about 3:45 a. m., Officer Kawai and his partner saw the car and stopped it at Seventh and Union in Los Angeles. One William H. Fredericks was driving the car and appellant was his passenger. The officers found a sales tag later identified by the owner of the store as having been attached to one of the missing typewriters. A piece of broken glass was also found in the car. Both Fredericks and appellant were then arrested.

Fredericks, who prior to the instant trial had admitted his participation in the burglary, testified that he and a man he could identify only as ‘Manuel’, not appellant, had burglarized the typewriter store. After obtaining the typewriters, they drove to a building near Eighth and Vermont where he left Manuel and the typewriters. Fredericks then happened to see appellant whom he knew well, on the corner of Eighth and Alvarado, and picked him up intending to drive him to a hotel. Fredericks did not tell appellant about the burglary. A few minutes later, the car was stopped by police and the men were arrested.

Two witnesses testified on behalf of appellant that they had been with him at a party in the early hours of May 3rd and that appellant was present from about 7:30 the previous evening until at least 3:30 a. m. on the day in question.

Four musicians testified that they observed the men for about a minute or two as the burglary was being committed, and identified appellant as the man who was Fredericks' accomplice. There was considerable dispute as to what clothing the burglars were wearing and what clothing appellant had on at the time of arrest, but all of the musicians agreed that both Fredericks and his accomplice were about 30 years old, five feet 10 inches, 170 pounds, of Latin type, and had black, wavy hair. Fredericks' description of Manuel fit this categorization and, apparently, appellant does also.

The allegedly improper mention of appellant's admitted prior conviction occurred when the prosecutor attempted to impeach Fredericks by showing his prior conviction of a felony. It should be noted at the beginning that when appellant placed Fredericks on the witness stand appellant interrogated Fredericks about the burglary at bench, who admitted committing it. He denied appellant was with him. On cross-examination, the following colloquy occurred:

‘Q You were also convicted in Case 293207 of the charge of burglary, aren't you, [sic] sir?

‘A The number is not familiar to me.

‘Q Date of conviction, October 16th, 1964, Superior Court, County of Los Angeles?

‘* * *.

‘THE COURT: Wait a minute. There is an objection. We have no record. Did you finish your objection?

‘* * *.

‘MR. MAPLE: My whole statement was he has a right to ask the defendant if he has been convicted of a felony. If the answer is yes, what felony and when. But I think beyond that——

‘THE COURT: I think you are probably right. I will sustain the objection only because of the way it is framed. You can ask a direct question. * * *. If he answers yes I have been so convicted then when did it occur.

‘Q BY MR. CARLSON: In Case 293207, William Harry Fredericks and Jose Bermude Z Rolon——

‘MR. MAPLE: If your Honor pleases——

‘THE COURT: I will sustain the objection. Nobody knows these numbers. If you want to ask him if he has been convicted of a felony——

‘* * *.’

Counsel for appellant then moved for a mistrial because of the mention of appellant's name in conjunction with the witness' in the 1964 conviction.

Later on, the prosecution attempted to impeach Fredericks for his part in the instant burglary. Again, the question took the same form objected to above:

‘Q Sir, You have also been convicted or pled guilty * * *, in the case of William Harry Fredericks and Jose Bermude Z Rolon, 304837?’

Objection was made by defense counsel. The question was repeated twice in open court. Counsel for appellant thereupon renewed his motion for a mistrial, arguing that the form of the question prejudiced appellant. The court stated: ‘You may be right. You see the question has been asked and you have get your answer.’ The court further pointed out that ‘* * * when you start in to tie this fellow on the stand that admitted he is a felon, tie him into other matters, it is a most dangerous thing. * * * You may be jeopardizing the defendant's rights.’ No ruling was made on the motion for a mistrial, however.

The joining of the two names in connection with the 1964 conviction was improper and unnecessary. As the trial court pointed out, the proper method of impeachment is to ask directly whether the witness has been convicted of a prior felony, and if an affirmative response is received, it is permissible to ask the date and nature of the offense. (See People v. Chenault, 74 Cal.App.2d 487, 494, 169 P.2d 29.) Had Fredericks answered negatively, the prosecution could have produced a copy of the judgment of conviction pursuant to the provisions of section 2051. There was, therefore, no justification for the mention of appellant's name, even innocently, in order to ‘refresh’ Fredericks' memory.

The prosecution was entitled to attack the credibility and testimony of Fredericks that he committed the burglary in conjunction with a third party named Manuel, whose appearance was similar to that of Rolon, and that 20 minutes after the burglary Manuel had left for parts unknown and Rolon happened to be with Fredericks when they were both apprehended in Fredericks' automobile.

If Fredericks had testified he never met Rolon, it would have been admissible to show that both Fredericks and Rolon had been prosecuted and convicted for a joint burglary in 1964. Such evidence would be received, not to show appellant's propensity for crime or a pattern of criminal conduct, but as direct impeachment of Fredericks. The facts at bench almost approach the hypothetical situation. In the posture of the evidence before us, a joint collaboration between Fredericks and Rolon in the past could be evidence which directly relates to the credibility of Fredericks' testimony, although evidence of the past collaboration does not directly impeach Fredericks' testimony as would have been the case, had he denied all acquaintance with Rolon. Although the evidence of Rolon's prior was improperly elicited, it does have a direct bearing on the probity of Fredericks's testimony.

Appellant's defense was an alibi. It was testified to by two witnesses other than Fredericks. The testimony was not impeached and the jury was out for a day and a half. The situation at bench poses a real question as to the conflict between the avowed protection the state gives to a defendant by section 1025 of the Penal Code and the admission of improper evidence. We have read the entire record and are of the opinion that under all the circumstances of this case, there was no prejudicial error.

It has been consistently held that even though improper mention of a prior conviction be made, reversal should result only where the reference is prejudicial. (See People v. Stinson, 214 Cal.App.2d 476, 482, 29 Cal.Rptr. 695, and the many cases cited therein.)

Appellant's argument that the series of 49 questions by the prosecution, to which objection was made and sustained, so prejudiced the trial as to require reversal, is without merit. The questions were objected to as immaterial and the objections were sustained on this ground. The form and content of the questions themselves were not damaging; even had answers been given, no real prejudice would have been suffered. The mere asking of immaterial questions did not deprive appellant of a fair trial. The judgment is affirmed.

ROTH, Presiding Justice.

HERNDON and FLEMING, JJ., concur.