PEOPLE v. DORSEY

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Sammy Theo DORSEY, Defendant and Appellant.

Cr. F002117.

Decided: November 14, 1985

David K. Kuwahara, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Eddie T. Keller and Janice Rogers Brown, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Defendant was charged by information with two counts of burglary (Pen.Code, § 459).1  A prior conviction was also alleged.

Prior to trial, defendant moved unsuccessfully for the appointment of an expert polygraph examiner pursuant to Evidence Code section 730.

On the date originally set for jury trial, January 24, 1983, defendant sought to prevent the use of his three prior convictions for purposes of impeachment;  his motion was denied.   After a one-week continuance, the matter again came on for jury trial, at which time, defendant renewed his motion to exclude his prior convictions for purposes of impeachment;  once more, his motion was denied.

The court granted defendant's motion to bifurcate trial of the guilt phase from that of the prior conviction allegation.   Following jury trial, defendant was convicted on both counts.   At the start of the enhancement phase, defendant waived his right to a jury trial “if we can get it done today.”   The following day, the trial court found the prior conviction allegation to be true.

The court sentenced defendant to eight years imprisonment:  three years for count one, two years for count two to run concurrently with count one, and five years as an enhancement for a prior serious felony conviction to run consecutively to count one.

THE FACTS

On October 30, 1982, the Smith and Schneider families lived on Sycamore Street in Modesto, California.   The Smiths left their house at 607 Sycamore between 10 and 11 a.m. that day.   The Schneiders left their house at 719 Sycamore at approximately 2:30 p.m.

When the Smiths returned home between 3 and 4 p.m., they found defendant inside their house.   A back door to the house had been forced open.   Mr. Smith announced that he was going to make a telephone call, whereupon defendant said, “I don't want any part of this,” and quickly left the house.

However, before defendant was able to leave, Mrs. Smith grabbed hold of him, catching his sweater.   After losing her grip, she again grabbed him, this time outside of the house.   In the effort to hold onto him, she ripped his sweater.   She ultimately let go of him and Mr. Smith chased him on foot.

Shortly thereafter the police reached the scene.   As Patrolman Elizondo arrived, a neighbor pointed out defendant who was still running.   Officer Elizondo followed defendant into a house at 905 1/212 Sycamore where defendant, breathing heavily, was found on a bedroom floor.   Two rifles and a shotgun wrapped in a tablecloth were found lying on the floor approximately three feet from defendant.

In the meantime, the Schneiders returned home at about 4 p.m.   Mr. Schneider found the windows to the upstairs rooms open.   The laundry room door had been kicked open and the door molding was lying on the kitchen floor.   Outside, he discovered his rifle case, chain saw and Skilsaw near a fence which ran along his house;  three of his firearms, a 30.06 Husqvarna, a .30 Marlin, and a shotgun, were missing, as well as a tablecloth, which was used as a drop cloth.

That same day, one neighbor saw defendant walk up the Schneiders' driveway and go through the gate.   Another neighbor, Darlene Peterson, also saw a man fitting defendant's general description walk down the driveway and into the Schneiders' back yard.   About an hour later, Ms. Peterson saw the same man running down the street while being chased by another man, who quit the chase in front of her house.   Still a third neighbor saw a man the same size as defendant carrying a bundle one foot in diameter and three to three and one-half feet in length, wrapped in a white cloth.   The man was walking across the Schneiders' lawn.

Mr. Schneider later identified the weapons seized from 905 1/212 Sycamore, as well as the tablecloth, as his.

During a postarrest search of defendant, police seized an envelope from one of defendant's pockets which had written on it, “30.06, scope 30.10 lever” and “22.20, Savage, over under.”

I.2

PRETRIAL MOTION FOR APPOINTMENT OF EXPERT POLYGRAPH EXAMINER.

II.ADMISSIBILITY OF PRIOR FELONY CONVICTION FOR IMPEACHMENT.

 Defendant contends the trial court erroneously denied his motions to suppress the use of his prior felony convictions for impeachment purposes.   Defendant's felony priors included a 1968 California conviction for battery against a police officer (§ 2 43/24243242), a 1975 New Mexico second degree murder conviction, and a 1980 attempted burglary conviction.   The record does not reflect whether the 1980 attempted burglary conviction arose out of California.   The trial court denied defendant's motions, concluding under Proposition 8 (Cal. Const., art. I, § 28, subd. (f), added by initiative measure eff. June 1982) that priors were admissible for impeachment regardless of the nature of the felony.   The prosecutor subsequently stated for the record that he did not intend to use the 1968 battery conviction to impeach.

Defendant limits the issue on appeal to the admissibility of the 1975 New Mexico second degree murder conviction.

The Supreme Court in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 addressed the effect of Proposition 8 on the use of felony priors for impeachment.   Justice Kaus wrote for a plurality:

“[A]lways subject to the trial court's discretion under [Evidence Code] section 352—subdivision (f) [of Prop. 8] authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.   On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.”  (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

Thus, a two-part test for admissibility of a prior felony conviction emerged, namely:

(1) Did the felony conviction necessarily involve moral turpitude or a “readiness to do evil”?  (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111)

(2) Would the probative value of the prior outweigh its prejudicial effect?   (People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468.

The Castro court ruled that:  (1) the prior in that case, heroin possession, did not necessarily involve moral turpitude;  and (2) the trial court erred in concluding it lacked discretion to exclude the prior.   The court found those errors were not prejudicial based on the following factors:  the strength of the prosecution's case, the jury's knowledge of defendant's criminal past gained from the testimony of defense witnesses, and the fact the defendant testified.

In the present case the trial court did not determine whether the second degree murder conviction necessarily involved moral turpitude .  However, defendant concedes that his second degree murder conviction would involve an element of a “readiness to do evil.”   Nevertheless, he argues the trial court did not exercise its discretion under Evidence Code section 352 and thus erred under Castro.   The defendant herein did not testify in his own behalf, unlike the defendant in Castro.   What impact, then, does that factor have on adjudging the prejudice to defendant?

Citing People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, and People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, defendant contends that his conviction must be overturned because, absent his testimony, there is no way to adjudge the prejudice defendant may have suffered.   In Rist, the defendant, who had been charged with a first degree robbery, moved to exclude the use of evidence of a recent robbery conviction for purposes of impeachment.   His motion denied, the defendant chose not to testify.   The Supreme Court held the admission of the prior robbery conviction constituted an abuse of discretion where two other, but dissimilar, priors were available.   Additionally, the court discussed the effect of the defendant's election not to testify despite substantial evidence of his guilt:

“[W]e cannot presume to know what defendant's testimony might have been had he testified, as might well have happened had the court excluded his conviction for robbery.   It is thus not possible for us to determine on the record before us the degree of prejudice suffered by defendant because of the court's error in failing to grant his motion․”  (Rist, supra, 16 Cal.3d at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833, fn. omitted.)

In reversing a possession of heroin-for-sale conviction, the Supreme Court in Spearman likewise refused to speculate about the effect the defendant's testimony would have had on a jury.

The People urge that Rist and its progeny are a part of the “rigid rules” which Castro found the electorate rejected by voting in favor of Proposition 8.   Therefore, the People conclude, the Rist rule of reversal no longer binds this court.   On the subject of “rigid rules,” Justice Kaus wrote:

“The intention of the drafters of the initiative was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the [People v.] Antick [ (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43] line of decisions.   Our conclusion is based on the historical context of subdivisions (d) and (f) of section 28.   The dissatisfaction of the proponents with the appellate courts was expressed in the literature that supported the initiative.”  (People v. Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)

Rigid, black-letter rules of exclusion applied by the trial court were rejected, not appellate rules of reversal.   Accordingly, with respect to the issue of reversal, Rist is still informative.

The question then arises:  Does the Rist line of cases create a rule of per se reversal?   The Supreme Court has yet to find harmless error where the trial court commits Beagle 3 error and defendant does not testify.   However, it has not gone so far as to announce that under such circumstances, per se reversal is required.   Instead, in each instance the court balanced the evidence against the fact that it was not possible to know what defendant's testimony would have been.

In Rist the court balanced the evidence, which it characterized as substantial, against the fact that there was no way to know what defendant's testimony would have been had he testified.   The court concluded “on the record before us” it was not possible to determine the degree of prejudice suffered.  (Rist, supra, 16 Cal.3d at p. 233, 127 Cal.Rptr. 457, 545 P.2d 833.)

In People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, the court having found error in the admission of the prior went on to say:

“[T]his court has no clue as to what appellant's testimony would have been had he testified.   Absent any basis for concluding that such testimony would not have affected the result, ‘the court is of the opinion “that it is reasonably probable that a result more favorable to [appellant] would have been reached in the absence of this error.” ’  (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].)”  (Fries, supra, at pp. 233–234, 155 Cal.Rptr. 194, 594 P.2d 19.)

In Spearman the court's language once again suggested that reversal was not required per se:

“After consideration of the evidence and the state of the record in this case, it cannot be concluded the error was harmless.

“At the outset, it is recognized the evidence presented at trial appeared, on paper, to have made out a strong, albeit circumstantial case against appellant.   However, that evidence was not, even on a cold transcript, irrebutable.

“More significantly, because of the trial court's erroneous ruling, appellant did not testify and thus was prevented from presenting any defense to the charges.  (See also People v. Fries, supra, 24 Cal.3d at pp. 228–229 [155 Cal.Rptr. 194, 594 P.2d 19].)   Unquestionably, appellant might have presented exculpatory testimony.”  (Spearman, supra, 25 Cal.3d at p. 118, 157 Cal.Rptr. 883, 599 P.2d 74.)

Most recently, in People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, the court considered the evidence before determining whether the Beagle error required reversal:

“The evidence supporting the conviction was largely circumstantial.   Defendant was found asleep in a recently stolen automobile.   The record reveals that following the ruling on the Beagle motion, the attorney for the defendant advised him not to testify.   This court has no way of knowing what defendant's testimony would have been, thus, we have no basis for concluding that such testimony would not have affected the result.”  (Id., at p. 130, 187 Cal.Rptr. 716, 654 P.2d 1243.)

Each of the aforementioned decisions presented a fact pattern in which not only was it impossible to know what the defendant's testimony would have been, it was also reasonable to conclude that defendant's testimony could have affected the result.   In Rist, the prosecution's case relied exclusively upon the testimony of one woman who identified defendant as the robber.   In Fries, the case against defendant was based upon circumstantial evidence, there being no eyewitnesses to the robbery.   In Spearman, defendant was charged with possession of heroin for sale after heroin was found in the bumper of a car defendant was driving.   Last, in Barrick, defendant was found asleep in a recently stolen car and charged with auto theft.   Admittedly, these cases presented “close calls” for the trier of fact.

There are appellate decisions in which Beagle error has been found harmless, although defendant did not testify:

(1) Defendant suggested in his brief what his testimony would have been.   However, there was “overwhelming evidence of guilt” which his testimony would not diminish.  (People v. Williamson (1977) 71 Cal.App.3d 206, 213, 139 Cal.Rptr. 222.)

(2) The record did not indicate that an adverse ruling on a Beagle and Rist motion had adversely affected defendant's decision to testify.   (People v. Burdine (1979) 99 Cal.App.3d 442, 450, 160 Cal.Rptr. 375.)

(3) Defendant's testimony would be contrary to that of a defense witness regarding an element of the crime.   Yet there remained ample evidence of that element produced at trial.  (People v. Jardine (1981) 116 Cal.App.3d 907, 923, 172 Cal.Rptr. 408.)

(4) The defendant was identified by his victim, incriminating evidence was found in defendant's possession, and defendant confessed.  (People v. Logan (1982) 131 Cal.App.3d 575, 578, 182 Cal.Rptr. 543.)

(5) Other defense witnesses supplied defendant with an alibi which his testimony would necessarily either confirm or contradict, in which case he would necessarily impeach his own witnesses.  (People v. Fisher (1984) 153 Cal.App.3d 826, 833, 200 Cal.Rptr. 683.)

As to the burglary of the Smith house, there is overwhelming evidence of defendant's guilt:  defendant's presence in the house, the back “barn door” forced open, and defendant's statement, “I don't want any part of this,” when Mr. Smith told him he was going to make a telephone call, presumably to the police.   Moreover, Mr. Smith's testimony gives us a “clue” as to what defendant would have said on the witness stand.   According to the witness, when he found defendant in the house, defendant said he was just looking around because he saw a “for sale” sign in the back yard;  a sign was laying on a dryer near the back porch.   Applying the standard of People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243, to these facts, it is not reasonably probable that a result more favorable to defendant would have been reached as to the Smith burglary in the absence of the trial court's failure to exercise its discretion.

As to the burglary of the Schneider house, had he testified, defendant would have faced equally difficult problems.   The stolen guns were located a few feet from where defendant was found.   His friend, Farmer, who rented the cottage at 905 1/212 Sycamore, testified he and defendant were elsewhere until 4 p.m.   If defendant testified so as to implicate his friend, undoubtedly Farmer would have returned to the stand to defend himself and possibly inculpate defendant as a partner or sole participant in the Schneider burglary.   Notably, only one person was seen about the Schneider property.   Witnesses did describe the person seen as resembling defendant.   There was no evidence Farmer had the same general appearance as defendant.

We therefore find the “no speculation” rule of the Rist line of cases does not apply to these facts.   Defendant's “innocent” explanation of his presence at the Smith house, if disbelieved, surely made equally unbelievable any explanation he might have offered concerning the Schneider burglary and the stolen goods found next to him when he was apprehended.   This is not a case of a second burglary connected to the first only by time and location.   Under the Watson standard the error was harmless.

III.4

CALJIC NO. 2.15.

IV.4CALJIC NO. 4.71.V.4RIGHT TO JURY TRIAL ON THE TRUTH OF THE PRIOR FELONY CONVICTION ALLEGATIONVI.NEW MEXICO SECOND DEGREE MURDER CONVICTION—A SERIOUS FELONY?

 In order to determine whether defendant's New Mexico second degree murder conviction constitutes a serious felony under section 1192.7, subdivision (c), for the purposes of section 667 enhancement, we begin with the notion that a section 667 enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all the elements of any serious felony listed in section 1192.7, subdivision (c).   The prosecution may not go behind the record of the foreign conviction to determine the seriousness of the offense.  (People v. Jackson (1985) 37 Cal.3d 826, 834, 210 Cal.Rptr. 623, 694 P.2d 736, applying analysis from People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, to § 667 enhancements.) 5

Citing this court to People v. Hickey (1980) 109 Cal.App.3d 426, 167 Cal.Rptr. 256, defendant argues that the relevant New Mexico statute defining second degree murder is the one in operation on the day of the present offenses, October 30, 1982, rather than the one in operation at the time of the commission of the prior offense, July 31, 1973.

Defendant overstates Hickey.   In Hickey, this court determined the date of the commission of the present offense to be the “germane” date, based on the present tense language of section 667.5.   However, the applicable foreign criminal statute which was being compared remained the same between the date of the prior conviction and the present offense.   Therefore, in comparing elements of the foreign and California crimes, as required by section 667, the Hickey court did not have to determine the effect of a post-offense change in the foreign statute.

We should note further that in focusing on the date of the commission of the current offense, Hickey misstated a longstanding rule pertaining to habitual criminal determinations.  (Id., at p. 441, 167 Cal.Rptr. 256.)   Under the habitual criminal law of indeterminate sentencing, “the California definition of the crime as it read when the prior conviction was suffered is applied in determining whether the out-of-state conviction was of a felony enumerated in P.C. 644.  (In re Harincar (1946) 29 Cal.2d 403, 407, 176 P.2d 58 [other citations omitted].”  (2 Witkin, Cal.Crimes, § 1009.)

 However, the habitual criminal law rule is inapplicable to a section 667 determination.   As we will explain, in a section 667 determination a court must first identify, as in the habitual criminal law approach, the necessarily adjudicated elements of the prior crime.   To do so, a court applies the criminal law in effect when the defendant committed that crime.   Then the court must find a comparable serious felony among the crimes currently “listed” in subdivision (c) of section 1192.7.  (§ 667, subd. (d).)  The focus is on the elements of the respective crimes, not their popular names.

 By mandating this comparison, the law assures that courts impose appropriate penal terms according to current legislative concepts of adequate punishment for the offender and the current offense.   This is consistent with the building block approach of the determinate sentencing law.   A sentencing court relies on specific factors and applies those factors to the offender and the current offense in structuring a penal term.   The enhancement is not further punishment for the prior crime.   Instead, it is a constitutionally proper component used by a court in constructing a total penal term for the current crime in view of the offender's criminal background.   In this respect the emphasis is on the offender, not his previous offense.   A similar approach was approved in a series of indeterminate sentencing law cases ending with In re Rodriguez (1975) 14 Cal.3d 639, 654, 122 Cal.Rptr. 552, 537 P.2d 384.  (See also People v. Jackson, supra, 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736.)

 In the case at hand, defendant was not tried and convicted of second degree murder based upon the New Mexico law in effect in 1982.   Obviously, he was subject to the law in effect at the time of the crime.   In In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381, Chief Justice Traynor explained, with respect to the habitual criminal law then in effect, “[T]he least adjudicated elements of the prior conviction remain the same ․ Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser or different offense.”  (Id., at pp. 392–393, 66 Cal.Rptr. 733, 438 P.2d 381.)

The operative word is “adjudicated.”   Here, the adjudicated elements were the elements of the New Mexico murder statutes in effect in 1973, not those in effect in 1982.   Therefore, for this purpose the trial court must look to the law in effect at the time of the prior offense.

 Do the elements of New Mexico's second degree murder statute in effect at the time of defendant's prior offense include all the elements of any serious felony now listed in section 1192.7, subdivision (c)? 6  The New Mexico statutes which then defined second degree murder, and the present California Penal Code sections 187, 188, and 189, are identical.   Defendant disputes whether “a wicked and malignant heart” as used in the New Mexico definition of implied malice equates with “an abandoned and malignant heart.”  (§ 188.)   This argument is without merit.   A common definition of “abandoned” is “shamefully wicked;  immoral.”  (Webster's New World Dictionary (2d college ed. 1982) p. 2, emphasis added.)  “Wicked,” in turn, is defined as “morally bad or wrong;  acting or done with evil intent;  depraved;  iniquitous.”  (Id., at p. 1624)  These are differences without distinction.

Therefore, defendant's second degree murder conviction constitutes a serious felony within the meaning of sections 667 and 1192.7, subdivision (c).

VII.7

DOUBLE BASE TERM LIMITATION OF SECTION 1170.1, SUBDIVISION (g)

VIII.7ABSENCE OF PAROLE—A CONDITION OF SECTION 667?IX.7PROSECUTION'S MOTION TO AMEND INFORMATION.

The judgment is affirmed.

FOOTNOTES

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

2.   See footnote *, ante.

3.   People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.

4.   See footnote * ante.

5.   Penal Code section 667 provides in pertinent part:“(a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.“․“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7․”Penal Code section 1192.7, subdivision (c):“(c) As used in this section ‘serious felony’ means any of the following:“(1) Murder or voluntary manslaughter;  (2) mayhem;  (3) rape;  (4) sodomy by force, violence, duress, menace, or threat of great bodily harm;  (5) oral copulation by force, violence, duress, menace, or threat of great bodily harm;  (6) lewd acts on a child under the age of 14 years;  (7) any felony punishable by death or imprisonment in the state prison for life;  (8) any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm;  (9) attempted murder;  (10) assault with intent to commit rape or robbery;  (11) assault with a deadly weapon or instrument on a peace officer;  (12) assault by a life prisoner on a noninmate;  (13) assault with a deadly weapon by an inmate;  (14) arson;  (15) exploding a destructive device or any explosive with intent to injure;  (16) exploding a destructive device or any explosive causing great bodily injury;  (17) exploding a destructive device or any explosive with intent to murder;  (18) burglary of a residence;  (19) robbery;  (20) kidnapping;  (21) taking of a hostage by an inmate of a state prison;  (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;  (23) any felony in which the defendant personally used a dangerous or deadly weapon;  (24) selling, furnishing, administering or providing heroin, cocaine or phencyclidine (PCP) to a minor;  (25) any attempt to commit a crime listed in this subdivision other than an assault.”

6.   New Mexico Statutes Annotated, section 30–2–1:“Murder is the unlawful killing of one human being by another with malice aforethought, either express or implied, by any of the means with which death may be caused.“A. Murder in the first degree consists of all murder perpetrated:“(1) by any kind of willful, deliberate and premeditated killing;“(2) by means of poison, lying in wait or torture;“(3) in the commission of or attempt to commit any felony;“(4) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life;  or“(5) from a deliberate and premeditated design unlawfully and maliciously to effect the death of any human being.“Whoever commits murder in the first degree is guilty of a capital felony.“B. Murder in the second degree consists of all other murder.“Whoever commits murder in the second degree is guilty of a second degree felony.”New Mexico Statutes Annotated, section 30–2–2:“A. Malice is express malice, when there is the deliberate intention, unlawfully to take away the life of a fellow creature and which is manifested by external circumstances capable of proof.“B. Malice shall be implied when no considerable provocation appears, or when all circumstances of the killing show a wicked and malignant heart.”

7.   See footnote * ante.

WOOLPERT, Acting Presiding Justice.

HAMLIN and FITCH,*** JJ., concur.

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