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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Odie Willard COFFEY, Defendant and Appellant.

Cr. 2614.

Decided: December 21, 1966

Wiener & Weiss, and Robert A. Chrisman, Covina, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard C. Cooper, Deputy Atty. Gen., for plaintiff and respondent.


In an eight-count information defendant was charged with four offenses of assault with intent to murder each of four policemen named Thompson, Wilcox, Norenberg and Martin; with four offenses of assault with a deadly weapon upon each of the same policemen; with being armed at the time of the commission of said offenses with a pistol capable of being concealed upon the person, without having a license or permit to carry such a firearm; and with the conviction of a prior offense in Oklahoma for which he served a term of imprisonment. He pled not guilty and not guilty by reason of insanity to the offenses charged; stood mute on the charge of being armed with a pistol, by virtue of which the People stipulated he denied that charge; and denied the prior conviction.

Prior to trial defendant moved to strike the allegations respecting the prior conviction. By stipulation this motion was placed off calendar, reserving to defendant the right to renew it prior to trial. On the morning of trial defendant again moved the court to strike the allegations respecting the alleged prior conviction. The motion was made in chambers outside the presence of the reporter; the grounds therefor do not appear in the minutes; but, on appeal, counsel for defendant in his brief states the ‘motion was based upon the holding in Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799]’, indicating defendant was not represented by counsel and had not waived his right thereto at the time the prior conviction was obtained, and this statement is not contraverted. In open court the trial judge advised the clerk ‘the defendant has moved to strike a felony conviction alleged as a prior in the information, and the Court has denied that motion without a hearing on the grounds that under the California law no such motion should be entertained by the trial court as it is here raised.’ Thereupon the case proceeded to trial.

Before reading the information to the jury the court inquired whether defendant wished to admit the prior that he previously had denied. His counsel indicated a willingness to admit such, reserving the right to pursue whatever remedy was available on the motion theretofore made. In response the court stated: ‘The record will so indicate that you are now admitting the prior, but that it is not a waiver of any rights that you have on motions heretofore made in denying this or otherwise attack the validity of this prior.’

At the trial defendant testified, relating his version of the incidents forming the basis of the charges against him, and upon cross-examination was interrogated, over objection, concerning his prior conviction. In making the objection, counsel for defendant stated: ‘* * * I would like to rephrase the objection we originally made on this particular matter for the purposes of the record that we might refer to.’; to which the court replied: ‘All right, sir. Would you like to incorporate by reference?’; in response to which counsel stated: ‘Yes, I will incorporate by reference in regard to the objection’; and the court replied: ‘ Certainly. I will overrule the objection * * *.’

The defendant was found guilty of the offenses of assault with intent to commit murder involving officers Norenberg and Martin and of the offenses of assault with a deadly weapon upon a police officer involving Officers Thompson, Wilcox, Norenberg and Martin; was found not guilty of the offenses of assault with intent to commit murder involving Thompson and Wilcox; was found to have been armed with a pistol capable of being concealed, without a permit, at the time of the commission of these offenses; and, on his plea of not guilty by reason of insanity, was found by the court, a trial by jury being waived, to have been sane at the time of the commission of these offenses.

Defendant moved for a new trial. However, the record is incomplete in that it does not show the grounds for his motion. Nevertheless, at the time to which the hearing upon this motion had been continued and for pronouncement of judgment, the following occurred:

‘MR. COLLINS (Attorney for defendant): * * * The Court is familiar with the situation here. I believe the People have a motion which will issue to Part Four, Title Two, Chapter——

‘MR. ENRIGHT (Deputy District Attorney): Yes, your Honor, People wish at this time to strike the allegations of the Deadly Weapons Section, where there was a separate finding on the 12022.

‘THE COURT: The motion has been read, and let it be stricken from the record, and the judgment entered, then.

‘MR. COLLINS: Waive any further time, your Honor, and request sentence at this time.

‘THE COURT: Do I understand you wish to abandon your Motion for New Trial?

‘MR. COLLINS: Yes, your Honor.’

The minutes of the court recorded the foregoing in the following language:

‘Motion by the People to strike the deadly weapon section. Motion granted. The Information was amended by striking ‘deadly weapon’ and inserting the words ‘dangerous weapon’. The motion for a new trial is withdrawn.'

In the copy of the information appearing in the Clerk's Transcript on appeal, each of the counts charging defendant with assault upon a police officer accuses him of: ‘Violation of Section 245(b) of the Penal Code of the State of California (Assault Peace Officer with a (dangerous weapon [not initialed]))’, and then alleges that he assaulted a designated person ‘with a deadly weapon, to wit: a pistol.’

The record on appeal does not show whether defendant was arraigned preliminary to pronouncement of judgment. At any rate, following abandonment by defendant of his motion for a new trial, judgment was pronounced in the following manner:

‘THE COURT: On Count 5 of the Information, as to which defendant has been adjudged Guilty by the verdict of the jury, I sentence the defendant to the State Penitentiary for the term prescribed by law.’

‘The Court suspends the imposition of sentence on all other counts as to which the defendant has been convicted.’

At this juncture no reference was made to the fact defendant had admitted the prior conviction or the jury had found that at the time of commission of the subject offenses he was armed with a pistol capable of being concealed upon the person. The judgment was entered in the minutes of the court in the following language:

‘No legal cause appearing why judgment should not now be pronounced, it is the judgment of the Court that the defendant be sentenced to the State Prison for the term prescribed by law on Count 5. The imposition of sentence is suspended on Counts 3, 4, 6, 7 and 8.’

Whether the judgment refers to the original information or the information as amended does not appear. The ambiguity and uncertainty in the record respecting the matter is reflected in a subsequent ‘AMENDED ABSTRACT OF JUDGMENT’, apparently issued in compliance with the requirements of Penal Code § 1213, which certified a judgment of conviction of defendant had been entered as follows:

‘In Case No. C-15000 Count No. V he was convicted by Jury on his plea of Not Guilty imposition of sentence suspended as to Counts III, IV, VI, VII and VIII of the crime of a Felony to wit: Assault upon a Police Officer with a Dangerous Weapon, a lesser and included offense contained in Sec. 245b of the Penal Code of the State of California with prior convictions charged and proved or admitted as follows: (Setting forth the data respecting the prior Oklahoma conviction.) Defendant was charged and was found to have been armed with a dangerous weapon at the time of commission of the offense, or a concealed dangerous weapon at the time of his arrest within the meaning of Penal Code Sections 969c and 3024.

‘* * *

‘IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the said defendant be punished by imprisonment in the State Prison of the State of California for the term provided by law. * * *’

Defendant appeals and contends the judgment should be reversed because:

1. It was error to include therein a reference to the charge and finding that he was armed with a weapon at the time of his arrest within the meaning of Penal Code §§ 969c and 3024;

2. His motion to strike the allegations of a prior conviction should have been heard and determined;

3. The court erred in overruling his objection to interrogation respecting his prior conviction; and

4. The verdicts are not supported by the evidence.

The contention that the judgment contains a reference to the charge and finding that defendant was in possession of a weapon at the time of his arrest, in reality, is directed to the contents of the abtract of judgment. The judgment pronounced by the court as recorded in the transcript of the proceedings as the time of pronouncement, as well as in the minutes, makes no reference to the charge or finding that defendant was armed with a weapon at any time. The minutes and the record of the oral proceedings before the court are a masterpiece of ambiguity and uncertainty with respect to the final disposition of the issue raised by the charge in the original information that at the time of the commission of the offenses in question the defendant was armed with a pistol capable of being concealed upon the person, without having a license or permit to carry such a firearm. This state of the record compels a reversal in order that the action of the court with respect to the issue created by the concealed weapon allegation may be accurately, definitively and correctly recorded in the minutes.

The court erred in refusing to hear the motion to strike the allegations respecting the prior conviction. Purportedly this motion was premised upon the contention that in the proceeding resulting in this conviction defendant was denied the right to counsel. The court declined to hear this motion upon the ground ‘under the California law no such motion should be entertained.’ The attorney general asserts defendant should have denied the allegations of the prior conviction; required the prosecution to prove them; and, in the course of the trial of the issues thus raised, urged the alleged invalidity of his conviction upon constitutional grounds. This assertion disregards the fact defendant withdrew his prior denial of these allegations and entered an admission thereof upon the representation by the court that in doing so he did not waive any right to attack the validity of the prior conviction. We conclude that an attack upon the validity of a prior conviction charged in an information may be asserted by motion to strike the allegations respecting such. The trial court, preliminarily and independently, should determine the validity of a prior conviction to which an objection has been made upon constitutional grounds before the jury is advised of its existence. This conclusion is predicated upon the rationale of the rule applied in similar situations. Before admitting a confession the trial court preliminarily must determine it has not been obtained in violation of the defendant's constitutional rights as expressed in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. (People v. Green, 63 Cal.2d 561, 565, 47 Cal.Rptr. 477, 407 P.2d 653; People v. Schader, 62 Cal.2d 716, 727–728, 44 Cal.Rptr. 193, 401 P.2d 665; People v. McGee, 238 Cal.App.2d 203, 206, 47 Cal.Rptr. 640.) It has been indicated this determination should be made out of the presence of the jury. (People v. Stafford, 240 A.C.A. 437, 438, 49 Cal.Rptr. 598.) Likewise, before permitting a jury to hear a confession a trial court must determine, preliminarily and independently, that it was given voluntarily. (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; People v. Gonzales, 24 Cal.2d 870, 876, 151 P.2d 251.) Although it has not been decided that testimony upon which the court makes such a determination should be presented outside the presence of the jury, it has been indicated this would be the better practice. (People v. Oats, 239 Cal.App.2d 261, 266, 48 Cal.Rptr. 579.) The admissibility of evidence allegedly obtained in violation of the constitutional guarantee against unlawful search and seizure is determined by the court outside the presence of the jury. (People v. Gorg, 45 Cal.2d 776, 780, 291 P.2d 469.) Penal Code § 1025 provides:

‘* * * In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.’

This code section establishes a policy foreclosing disclosure of the fact of a previous conviction when no issue respecting such is subject to jury determination. In the event the court should determine a previous conviction was invalid because the product of a denial of constitutional rights, no issue respecting such remains for determination by the jury. For this reason, until the court has made a determination that a previous conviction is valid any proceeding involving such determination should be conducted outside the presence of the jury.

The attorney general also contends a conviction obtained in violation of the rule announced in Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, is not invalid for the purpose of fixing the penalty for an offense by a person previously convicted, or for the purpose of impeaching a defendant-witness by showing he previously had been convicted of a felony. The rule in Gideon has been applied in California in determining the validity of a prior conviction used to establish habitual criminality (In re Woods, 64 A.C. 1, 48 Cal.Rptr. 689, 409 P.2d 913; In re Tucker, 64 A.C. 13, 48 Cal.Rptr. 697, 409 P.2d 921); and for the purpose of elevating an offense from misdemeanor to felony status. (In re Luce, 64 A.C. 9, 48 Cal.Rptr. 694, 409 P.2d 918.) For the purpose at hand the factual difference between the aforesaid situations and that in the instant case is of no legal consequence; and the rule applied in the former applies to the latter. Nor is there any reason for concluding the validity of a prior conviction may not be attacked because of constitutional defects to prevent its use to impeach a defendant-witness. If, under circumstances such as in this case, the trial court should determine a previous conviction is invalid, the cross-examination of defendant concerning such would constitute an inquiry whether he previously had been convicted invalidly of a felony. Such an inquiry is not within the letter or spirit of the impeachment provisions of the code. (Code Civ.Proc. § 2051; cf. People v. Mackey, 58 Cal.App. 123, 128–131, 208 P. 135.)

The manner in which defendant's objection to the impeachment question was overruled by the trial court indicates it was not disposed to consider the contention, previously urged in the motion to strike, that the prior conviction was invalid. For this reason, we are not called upon to determine the proper method by which an objection to this type of inquiry premised upon such a contention may be presented. If the court had entertained the motion to strike and determined the issue of invalidity, the propriety of the objection to the impeachment question would have been determined.

The attorney general contends that even though the court erred in admitting the testimony respecting the prior conviction, the error in doing so was not prejudicial because the evidence of guilt was overwhelming. A review of the record, including the evidence, does not support this conclusion. The charges against defendant arose out of an incident occurring on the evening of October 31, 1964 when officers Norenberg and Martin attempted to interrogate defendant, at the latter's home, about a misdemeanor vehicle code violation. Officer Norenberg was killed in an airplane accident shortly thereafter. Officer Martin and the defendant testified to their respective versions of the events incident to this attempted interrogation. The two versions differed materially respecting the conduct of the officers at the time in question. If the jury had accepted defendant's testimony it could have concluded the officers were guilty of serious police-state misconduct; defendant's action was justified; and no assault upon them occurred. The alleged assaults upon Officers Thompson and Wilcox occurred following a call for assistance by Norenberg and Martin as a result of which 24 policemen surrounded defendant's house; he was ordered to surrender, apparently upon the theory there was probable cause to believe he had committed a felony; upon leaving his home through the rear door, Thompson and Wilcox shouted at him to drop his guns, whereupon he turned, fired and re-entered the house; and in a short time, with the aid of tear gas, he was taken into custody. Absent the error in question, it is probable a different result would have been reached by the jury at least with respect to the charges involving Norenberg and Martin.

Defendant's contention the evidence is insufficient to support the verdicts is not well taken. In considering this contention it must be assumed the jury rejected defendant's testimony and accepted that of the officers. (People v. Roberts, 213 Cal.App.2d 387, 391–392.) The latter testimony supports the conclusion that even though defendant was not required to submit to interrogation by Norenberg and Martin, and their threat to go into his house and take him out by force was unlawful, their misconduct did not justify the degree of resistance resorted to by him in arming himself and firing his guns in their presence. (People v. Burton, 162 Cal.App.2d 790, 791, 328 P.2d 492; People v. Fisher, 86 Cal.App.2d 24, 34, 194 P.2d 116; People v. Giacobbi, 83 Cal.App. 12, 14–15, 256 P. 299.) Furthermore, this testimony also supports the conclusion Norenberg and Martin, instead of interrogating the defendant, intended to arrest him; that he knew or should have known he was being arrested; and, under these circumstances, should have refrained from using any weapon to resist such arrest even though it was unlawful. (Pen.Code § 834; In re Bacon, 240 A.C.A. 34, 52, 49 Cal.Rptr. 322.)

The latter conclusion also applies to the incident involving the alleged assaults upon Thompson and Wilcox.

The judgment is reversed with instructions to the trial court to hear and determine defendant's motion to strike the prior conviction allegations; in the event the court determines the prior conviction was valid, it shall proceed in accordance with the law and the facts in the premises as though the verdicts of the jury were then rendered, in the course of which it shall reconsider the stipulation of the parties entered into at the time judgment previously was pronounced; and in the event the prior conviction is determined to be invalid, the court shall proceed with a new trial of the case.

The petition for rehearing is denied.

COUGHLIN, Justice.

BROWN, P. J., and WHELAN, J., concur.