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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alonzo Lonnie COLLINS, Defendant and Appellant.

Crim. 45088.

Decided: May 29, 1985

Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., Ernest Martinez, Deputy Atty. Gen., for plaintiff and respondent.

In a two-count information defendant Alonzo Collins was charged with violations of Penal Code sections 459 (burglary) and 496 (receiving stolen property).   It also was alleged that following a prior burglary conviction defendant had served a prison sentence within the meaning of the enhancement provision of Penal Code section 667.5(b).   A jury found him guilty of second degree burglary and acquitted him on the receiving stolen property count.   The enhancement allegation was tried at bench and found to be true.   Probation was denied and defendant was sentenced to the upper term of three years with the one year enhancement to run consecutively.   This appeal follows.   As modified, we affirm the judgment of conviction.

Viewing the evidence in the light most favorable to the prosecution, as we must (People v. Johnson (1980) 26 Cal.3d 557, 576–698, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649), the record discloses that at approximately 6:00 p.m. on April 2, 1983, Robert Hoeven returned to his parked Volkswagen truck and discovered that it had been burglarized.   Missing were the dashboard radio and cassette deck, Hoeven's blue nylon jacket, and a canvass bag containing two Nikon camera bodies, a wide-angle lens, a tripod, light filters, binoculars, and a small pair of needle nose pliers.

Meanwhile, a quarter block away from the crime scene, Robert Elkins and his cousin John Shepard saw defendant hitchiking and offered him a ride in the back of their pickup truck.   Defendant, wearing a blue nylon jacket, climbed in and positioned himself in the front of the open truck bed.

Shortly thereafter Deputy Sheriff Nadeau and his partner, while on routine patrol in the City of Carson, spotted the truck and noted that its registration tags had expired.   They stopped the vehicle and, as Deputy Nadeau approached the driver, defendant looked in the officer's direction and quickly tossed a paper bag approximately two feet away from where he was seated.   As it landed, Nadeau heard the sound of crashing metal and saw a car stereo slide out of the bag.   The deputy inquired as to why defendant would mistreat an expensive piece of equipment to which he replied, “What equipment?   It must belong to the guys in the cab.”   After both Elkins and Shepard denied owning the stereo, Nadeau returned to defendant and questioned him further.

When asked if the tripod lying beside him was his, defendant replied yes and stated he was a photography student but could not name the school he attended.   At this juncture the officer observed two box cutters, a pair of pliers, and gloves in defendant's rear pocket.   Defendant next told Nadeau to look in his backpack where he would find a variety of Canon camera equipment given to him by his father.   After searching the backpack and discovering only Nikon equipment, the deputy advised defendant of his constitutional rights and asked him how the cameras and other items had been acquired.   Defendant replied that he had purchased the equipment from an unidentified person for $20.   Deputy Nadeau then placed defendant under arrest for suspicion of burglary and transported him to the sheriff's station for booking.

The victim subsequently identified all of the property found with defendant as the items stolen from his truck.   The box cutters and gloves, however, did not belong to him.   The jacket had been altered by the removal of both a logo patch and a piece of lining bearing Hoeven's name.

Defendant's initial contention on appeal is that the evidence adduced at trial was insufficient to support a burglary conviction.   Specifically, he argues that the prosecution was bound by his extrajudicial statement that he purchased the stolen property from some unidentified source, and that in the absence of any evidence from which the jury could infer his presence at the scene of the crime he should have been acquitted.   We disagree.

 Although much of the prosecution's evidence was circumstantial, “[i]t is clear ․ that the lack of eyewitnesses and of direct evidence ․ do not by themselves render the finding of guilt invalid for lack of evidentiary support.   The People, of course, may rely on circumstantial evidence to connect the defendant with the commission of the crime charged and to establish beyond a reasonable doubt that he committed it.”  (People v. Reilly, supra, at p. 424, 90 Cal.Rptr. 417, 475 P.2d 649.)

 By the very nature of the crime, the proof necessary to establish burglary will most often rest on circumstantial evidence.  (In re D.M.G. (1981) 120 Cal.App.3d 218, 227, 174 Cal.Rptr. 557;  In re Charles G. (1979) 95 Cal.App.3d 62, 156 Cal.Rptr. 832.)   It is also well-settled that that recent possession of stolen property is so incriminating that only slight corroboration is needed to support a conviction.  (People v. Lawrence (1980) 111 Cal.App.3d 630, 638, 169 Cal.Rptr. 245;  People v. Stewart (1973) 34 Cal.App.3d 244, 251, 109 Cal.Rptr. 826.)

 Here, defendant, wearing the victim's own jacket, was found within blocks of the crime scene in possession of virtually all the property stolen from the truck.   His denial of ownership of the cassette player (after first attempting to disgorge the evidence) combined with his misidentification of the camera equipment and his inability to state where he was purportedly studying photography were corroborating factors from which the jury could infer defendant's involvement in the burglary.   Moreover, at the time he was apprehended defendant also possessed box cutters, equipped with a razor blade, which could have been used to quickly and easily disconnect the cassette unit from the truck's dashboard.

Under the circumstances, defendant's statement to the arresting officer that he had purchased the various items for $20 merely created a conflict in the evidence for the jury to weigh in determining his guilt or innocence.   Since defendant was found guilty, this court will not substitute its verdict for that of the jury.  (Cf. People v. Stewart, supra, at p. 251, 109 Cal.Rptr. 826.)   The evidence was more than sufficient to support the judgment.

At the conclusion of the People's case-in-chief, the trial court ruled that if defendant elected to testify he could be impeached with his prior felony convictions for robbery and burglary.   Defendant claims error alleging that he was, as a result of this ruling, prevented from testifying.  Article I, section 28(f) of the California Constitution (Proposition 8) provides:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Emphasis added.)

Defendant's brief on appeal, which was filed prior to the Supreme Court's decision in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, essentially argues that article 1, section 28(f) is unconstitutional.  Castro rejected that argument and held that, subject to the trial court's discretion, a defendant may be impeached with any prior conviction involving “moral turpitude,” or a “readiness to do evil,” even though the immoral trait is one other than dishonesty.

Inasmuch as robbery and burglary are both crimes which connote dishonesty, the issue of what constitutes “moral turpitude” need not concern us.

 The court in Castro, supra, in spite of the strong language of Proposition 8, did hold that a trial court still retained the power to exclude evidence of priors under the provisions of Evidence Code section 352.1  Since that statute deals with the power to exclude evidence, it seems clear to us that defendant has no standing to complain that a trial judge failed to exercise that discretion in his favor.   In short, the admission of evidence which is clearly admissible and relevant under case, statutory or constitutional law (a circumstance obviously required to exist before Evidence Code section 352 can come into play) can never be an abuse of discretion.

To hold otherwise, in the context of the use of prior convictions for impeachment, would be tantamount to resurrecting the line of cases epitomized by People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, which were repudiated by the adoption of Proposition 8.

In those cases that were tried after the adoption of Proposition 8, and which were not final prior to the ruling in Castro, supra, trial judges often, and quite understandably, felt that subdivision (f) meant exactly what it said.   In ruling that evidence of prior convictions were admissible in light of Proposition 8, some judges orally indicated from the bench that they felt they had no discretion in the matter.   Such was the case here.

The court, however, did not indicate in any way that the result would have been different had it been aware of its discretion.   The record in this case contains nothing to suggest any reason for excluding the use of the prior convictions.

 The fact that defendant allegedly was deterred from taking the stand because of the possible use of the prior convictions to impeach him is of no moment.   Every defendant in every criminal case must choose between remaining silent or testifying and submitting himself to cross-examination and impeachment by any proper means.   Under the clear language of subdivision (f) and the court's holding in Castro, all defendants who elect to testify must face the possibility of impeachment by disclosure of any prior conviction involving “a readiness to do evil.”

We know of no other situation in which a defendant may refuse to testify in his own defense and then contend that he was prevented from presenting his defense because of fear that he would be prejudiced by what might be asked of him on cross-examination.

Federal Rules of Evidence section 609(a) in dealing with the issue of the use of priors for impeachment is more restrictive that the California rule under Proposition 8.   The federal rule requires an affirmative finding by the trial court that the probative value of the prior conviction outweighs its prejudicial effect.

In Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, however, the high court held that a defendant who failed to testify could not obtain appellate review of the trial court's decision to permit the use of a prior conviction for impeachment.

“Because an accused's decision whether to testify ‘seldom turns on the resolution of one factor,’ [citation], a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify.   In support of his motion a defendant might make a commitment to testify if his motion is granted;  but such a commitment is virtually risk free because of the difficulty of enforcing it.   ¶  Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error.   [Citation.]  Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal;  the appellate court could not logically term ‘harmless' an error that presumptively kept the defendant from testifying.   Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole;  it will also tend to discourage making such motions solely to ‘plant’ reversible error in the event of conviction.”  (Id., 105 S.Ct. at pp. 463–464.)

Since the trial court's power in California in admitting prior convictions for impeachment purposes is not circumscribed in the manner which obtains under the federal rule, we conclude that it is only logical to require that a defendant who would seek appellate review of the issue in our state courts be required to testify.

We next consider defendant's contention, and the People's concession, that the trial court erred in enhancing his sentence pursuant to Penal Code section 667.5(b).

As part of the determinate sentencing law, Penal Code section 667.5 provides for the enhancement of sentences for prior felony convictions for which prison terms were served.   The length of the enhancement varies depending on the nature of the current crime and the nature of the prior crime or crimes (Pen.Code, § 667.5, subds. (a), (b).)   Since the crime with which defendant is currently charged is burglary and his prior convictions were for burglary and robbery, and since neither of those crimes are “violent felonies” enumerated in the statute (see Pen.Code, § 667.5, subd. (c)), any enhancement of his sentence on account of his prior convictions would be governed by subdivision (b) of section 667.5.   Subdivision (b) provides in pertinent part:  “[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  ․”  (Emphasis added.)

Subdivision (g) of section 667.5 reads:  “A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after escape from such incarceration.”  (Emphasis added.)

The California Supreme Court held in In re Kelly (1983) 33 Cal.3d 267, 188 Cal.Rptr. 447, 655 P.2d 1282, that a prior separate prison term under section 667.5(b) is “that time period defendant has spent actually incarcerated for his offense prior to release on parole.”  (Id. at p. 270, 188 Cal.Rptr. 447, 655 P.2d 1282;  see also People v. Espinoza (1979) 99 Cal.App.3d 59, 68–76, 159 Cal.Rptr. 894.)

 In the case at bench, defendant committed the crime involved here while serving a state prison sentence for burglary and robbery, and while on a pass from a state prison halfway house.   Since defendant had not yet been released on parole when the instant offense was committed, he had not completed a prior prison term within the meaning of section 667.5(g).   Defendant's sentence must therefore be modified by striking the one year enhancement imposed pursuant to section 667.5(b).

As modified, the judgment of conviction is affirmed.


1.   Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.

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