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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie BELL, Defendant and Appellant.

CR. 44451.

Decided: December 12, 1983

Andrew Edward Smyth, Los Angeles, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Edward T. Fogel, Jr. and Mark Alan Hart, Deputy Attys. Gen., for plaintiff and respondent.

Appellant was charged with assault by means of force likely to produce great bodily harm (Pen.Code, § 245(a)), with an additional allegation for use of a firearm (Pen.Code, § 12022.5).   It was further alleged that appellant had three prior felony convictions;  the information was later amended to allege five priors.   Appellant pleaded not guilty, denied the use allegation, and admitted the priors.   His first trial ended in a mistrial after the jury was unable to reach a verdict.

Before his second trial, the information was again amended to charge appellant with attempted murder (Pen.Code, §§ 664/187) with an additional allegation for use of a firearm (Pen.Code, § 12022.5).   The jury in appellant's second trial found him guilty on both counts, and also found the firearm allegations on both counts to be true.   Appellant was sentenced to the mid-term of seven years on count II (attempted murder), with an additional two years for the firearm use and one year each for four of the prior felony convictions, for a total sentence of thirteen years.   Sentence on count I was stayed.

The issue in this appeal is whether the trial court erred in admitting evidence of appellant's criminal background to show his motive for committing the crimes involved in this case.


Robert Schroeder and Hollis Page are two Long Beach police officers who work in their off-duty hours as security officers for the Jaygo Corporation, which owns a number of liquor stores and small markets in the Long Beach area.   On July 9, 1982, they were on duty at the Jack Rabbit Liquor Store when they saw appellant shoplift two cans of salmon and put them in his pants.   They confronted appellant outside the store, informed him they were security officers (since they were dressed in street clothes), and told him he was under arrest for shoplifting.   Appellant tried to flee and a struggle ensued.   During the struggle, appellant removed Schroeder's loaded revolver from its holster and attempted to pull the trigger.   The gun was pointed at Schroeder's abdomen, but Schroeder kept the gun from going off by placing his finger between the hammer and the firing pin.   His finger was lacerated as the hammer struck the firing pin (thus indicating that appellant had pulled the trigger).   Eventually, Page pointed his own weapon at appellant and threatened to shoot him if he did not let go of Schroeder's gun.   Appellant complied, and the officers handcuffed him, took him back into the store, and waited for police to arrive.

Although appellant did not testify, the defense called Doc Porter, a friend of appellant who, at the time of trial, was in prison in Arizona on a parole violation.   Porter testified that he had witnessed the incident between appellant and the two officers and he did not see any gun.   He said that the officers were beating up on appellant.   Appellant called for help and Porter tried to assist him, but the officers told him to get back or he would be arrested for interfering.


This case began as a simple shoplift.   It was the People's theory that appellant knew he faced a substantial state prison sentence (despite the minor nature of the crime) because of his criminal history.   During a hearing on a motion in limine, the People argued that they should be permitted to introduce evidence of appellant's criminal history in order to establish what they contended was his motive for reacting so violently when he was apprehended for shoplifting.   Defense counsel argued that this was merely an attempt to convict appellant based on his past, but the trial court disagreed:

“[A] jury sits there and they figure ․ why would anybody want to shoot somebody over a couple of cans of salmon?   That doesn't make sense ․   On the other hand, if, because of the defendant's background and record, this could trigger a number of years in the state prison, and that the policy of the [District Attorney's] office has been for some time with somebody with his background to ․ load up the charges on the basis that he is a bad citizen, I think it is a reasonable inference that he would be aware of that.”

The court said it would allow the evidence to come in if the People could produce expert testimony to establish that appellant's criminal history would have subjected him to a greater punishment than ordinarily would have been imposed for petty theft.   The People called Charles D. Sheldon, supervising Deputy District Attorney for the Long Beach Branch of the District Attorney's Office.   Out of the jury's presence, Sheldon testified that assuming the only charge involved here was petty theft, it would have been the policy of his office to file felony charges against appellant based upon his criminal history, despite the fact that petty theft is ordinarily a misdemeanor.   Thereafter, Sheldon testified before the jury that a petty theft, with appellant's criminal history, would have subjected him to a potential state prison sentence of six years.1  The court admonished the jury, prior to Sheldon's testimony, that the testimony was to be considered only on the issue of appellant's motive.2  Sheldon did not testify as to the specific nature of any of appellant's prior convictions, but referred only to his “criminal background.”

Appellant concedes that someone with a criminal background such as his, who is detained for a relatively minor offense, might have a greater than normal incentive to flee and may even try to kill his potential captor in an effort to do so.   He also concedes that evidence of that criminal background is admissible to show motive under Evidence Code section 1101 3 and relevant case law.  (People v. Durham, 70 Cal.2d 171, 74 Cal.Rptr. 262, 449 P.2d 198;  People v. Vidaurri, 103 Cal.App.3d 450, 163 Cal.Rptr. 57;  People v. Powell, 40 Cal.App.3d 107, 115 Cal.Rptr. 109.)   In Vidaurri, a case similar to this one, the defendant shoplifted two blouses from a Sears store and was confronted outside the store by two Sears security agents.   The defendant produced a knife, assaulted one of the officers who attempted to subdue him, then fled into the Sears parking lot.   During the ensuing chase, appellant attempted unsuccessfully to commandeer several automobiles, and assaulted several bystanders before he was finally subdued.

The trial court permitted the District Attorney to cross-examine the defendant about the fact that he had committed a burglary, pleaded guilty, and then failed to appear for sentencing.   The defendant admitted that at the time he committed the offense for which he was on trial, he believed that a bench warrant had probably been issued for his arrest and that he would probably go to state prison as a result of his failure to appear for sentencing.   In upholding the trial court's ruling, the Court of Appeal stated:

“That defendant was bent on escaping arrest, once he was suspected of shoplifting and confronted by the security officers, is scarcely open to question.   The evidence of defendant's failure to appear for sentencing on a prior burglary charge and defendant's belief that there was an outstanding warrant for his arrest because of the failure to appear was certainly relevant to establish his motive for committing assaults with deadly weapons to escape arrest.   A defendant's motive—a state-of-mind fact—is relevant to prove that he committed the offense charged, including having the requisite intent, on the circumstantial-evidence-reasoning process that a person normally acts in conformity with his state of mind.”  (People v. Vidaurri, supra, 103 Cal.App.3d at pp. 460–461, 163 Cal.Rptr. 57.)

Here, as appellant is quick to point out, there was no direct evidence (as in Vidaurri ) that he knew his criminal record could subject him to a stiff prison sentence despite the minor nature of the crime.   However, as the trial court properly concluded, such knowledge could reasonably be inferred from appellant's violent reaction to his apprehension for a minor crime.

Appellant's criminal background was relevant here because it was the only evidence by which the People could prove the crucial element of intent required for the charge of attempted murder.  “The admission of other crimes is always a sensitive subject.   Such unattractive history hardly enhances a defendant's position before the trier of fact.   However, where the evidence is material and relevant it is not automatically excluded․   Balancing values as to whether or not such evidence should be admitted is left to the discretion of the trial judge.   We cannot say that the trial judge did not strike this balance with great care comparing the probative value to the prejudicial effect.   In fact, it is apparent to us that such care was exercised and we will not overturn that determination.”  (People v. Powell, supra, 40 Cal.App.3d at p. 155, 115 Cal.Rptr. 109.)

The judgment of conviction is affirmed.


1.   Ordinarily, petty theft is punishable by a fine not exceeding $1,000, or by imprisonment in the county jail not exceeding six months, or both.  (Pen.Code, § 490.)

2.   The court also admonished the jury a second time when it gave CALJIC 2.50 to the effect that the jury could consider evidence of other crimes committed by the defendant only for the limited purpose of determining whether it demonstrated his motive for committing the crime charged and for no other purpose.

3.   Section 1101(b) provides:  “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”

HASTINGS, Associate Justice.

FEINERMAN, P.J., and STEPHENS, J., concur.

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