PEOPLE v. WILLIAMS (1989)

James Charles Williams, Jr., (hereafter appellant) appeals from a conviction of petty theft with a prior conviction of theft (Pen.Code, § 666), with two enhancements for prior prison convictions (Pen.Code, § 667.5).

Appellant was accused of stealing specialty T-shirts from a convenience mart in El Sobrante, California.   The prosecuting witness was the assistant manager of the mart, Todd Fuller, who testified that, while he was preparing to hang up some advertising signs at about 6:55 p.m. on December 15, 1986, he saw an overheated green car, with its radiator steaming, drive up to the mart and park.   Appellant was driving and an older man, later identified as Stewart, was on the passenger side.   Both men left the car.   As Stewart walked toward the store, appellant approached Fuller and asked if he had water for his radiator.   Fuller pointed to an island with gasoline pumps outside the mart.   Appellant then entered the mart without attending to the radiator.

“About half a minute” later, Fuller saw Stewart leave the mart conspicuously carrying about 25 specialty T-shirts, still hanging on hangers, some with a 49'er logo and others with a motorcyclist motif.   Knowing that the mart takes the hangers off upon sale, he demanded the T-shirts.   After some discussion, Stewart complied and ran toward the car.

Fuller carried the T-shirts back into the store and immediately dialed 911 to report a theft.   As he took the T-shirts back to a storage room, he noticed that there were four or five hangers on the T-shirt rack with no T-shirts on them.   This was unusual because the store customarily puts hangers underneath the counter after a sale.   The rack had been full when he checked it less than an hour earlier and there had been no sales of T-shirts since that time.

When Fuller returned to the cash register, appellant accosted him and asked “what the older gentleman did” and “if he knew the older gentleman.”   Fuller recalled that appellant's “stomach seemed to have gotten bigger” and his jacket was zipped up.   He testified that he thought appellant had the missing T-shirts under his jacket but did not ask him for fear of an altercation.

Appellant walked at a brisk pace to the green car without putting water in the radiator.   Seeing the car leave the parking lot very rapidly with its wheels screeching, Fuller ran to his own car and gave pursuit.   The car first stopped at a Payless Drug Store.   Both men got out and rummaged through a duffle bag.   The older man entered the store but soon returned.   The men then drove to a Union 76 station.   Both men again got out and Stewart displayed T-shirts to a man in a van as if he were trying to sell them.   Returning to the car, the men drove to a liquor store.   Fuller pulled up to a Chevron station across the street and again called the police to report a theft while he watched the two men.   A second time, he observed them apparently trying to sell the T-shirts.

The El Cerrito police arrived in about a minute.   After asking him some questions, they took Fuller to a nearby location where appellant and Stewart had already been detained by other officers.   A sheriff's deputy, Frank Battles, who also arrived at the scene, testified that Fuller told him that the men had stolen T-shirts from his store.   Battles ordered the men out of the car and allowed Fuller to place them under citizen's arrest.   He then searched the car and found four specialty T-shirts in the back seat.

When Fuller was asked to identify the T-shirts, he felt the label on the collar by searching for the small holes left by price tags attached to the label.   It was too dark to see the holes but he discerned small bumps where “a little bit of the material sticks out” and informed the police that he could identify two of the T-shirts as being from his store.   At trial, he adhered to this identification.

Raising an important and unresolved question, appellant contends that the trial court committed reversible error by informing the jury of a previous felony conviction for a theft offense.   Before trial, appellant had stipulated to the fact of having been convicted of the offense;  and citing People v. Bennett (1987) 188 Cal.App.3d 911, 233 Cal.Rptr. 729, the trial court had told counsel that the jury would be informed of the fact of the prior theft conviction but had appeared to say that it would not be identified as being a felony conviction:  “[T]he Jury will be limited to know that as an element of the offense charged in Count 2, the defendant has been convicted of a prior theft which is stipulated to be a felony theft but the Jury will not know that.”

At the beginning of trial, however, the clerk read the full indictment including the charge of the previous felony conviction:  “The District Attorney of the County of Contra Costa hereby further accuses James Charles Williams, Defendant, of the crime of felony, to wit, violation of California Penal Code Section 484–666, petty theft with prior conviction of theft, committed as follows, to wit:  [¶]  On or about December 15, 1986 at El Sobrante in Contra Costa County, the Defendant James Charles Williams who was convicted of felony theft did feloniously steal․”  (Emphasis added.)   At the close of testimony, the court told the jury that he would read them a stipulation of the parties:  “It was stipulated with respect to an element of the offense in Count 2 of the Information, that previously, the Defendant had been convicted of a theft related charge.   That offense being a felony.   That is a fact that is now before you to be regarded by you solely for the purpose of it being an element in Count 2 which is petty theft with a prior and not for any other purpose․”

 By allowing the clerk to read the allegation of a prior conviction in the indictment and instructing the jury of appellant's stipulation to prior felony conviction for a theft offense, the trial court relied on a controversial interpretation of Proposition 8, which departed from a well established line of authority.   The issue concerns a policy deeply rooted in the law of this state.  Penal Code sections 1025 and 1093, both enacted in the 1873–74 Legislature, provide that if a defendant admits to a prior criminal offense charged in an indictment, the conviction must not be mentioned at trial.  (1873–74 ch. 614 § 50, pp. 439–440, and § 63 p. 444.)   In pertinent part, section 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.”  Section 1093, subdivision (a), reads:  “If the accusatory pleading be for a felony, the clerk shall read it ․ and in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction․”

Under these statutes, it has long been the law in California that, when a defendant stipulates to a prior theft conviction in a charge of petty theft with a prior theft conviction, the prior conviction may not be mentioned at any time during trial.  (People v. Carlton (1881) 57 Cal. 559;  People v. Meyer (1887) 73 Cal. 548, 15 P. 95;  People v. Hobbs (1940) 37 Cal.App.2d 8, 98 P.2d 775;  People v. Cooks (1965) 235 Cal.App.2d 6, 11–12, 44 Cal.Rptr. 819;  People v. Fairchild (1967) 254 Cal.App.2d 831, 838, 62 Cal.Rptr. 535, cert. den. in (1968) 391 U.S. 955, 88 S.Ct. 1861, 20 L.Ed.2d 870;  People v. Prince (1968) 268 Cal.App.2d 398, 413–414, 74 Cal.Rptr. 197;  People v. Brashier (1969) 271 Cal.App.2d 298, 311, 76 Cal.Rptr. 581;  cf. People v. Pierson (1969) 273 Cal.App.2d 130, 132, 77 Cal.Rptr. 888;  People v. Pimental (1970) 6 Cal.App.3d 729, 735, 86 Cal.Rptr. 169.)   The most frequently cited decision is People v. Gallinger (1963) 212 Cal.App.2d 851, 28 Cal.Rptr. 472, overruled on other grounds in People v. Hall (1980) 28 Cal.3d 143, 156, 167 Cal.Rptr. 844, 616 P.2d 826.   As in the present case, the trial judge instructed the jury that the defendant had admitted the prior theft conviction alleged in the indictment.   The court held that the instruction was prejudicial error:  “In view of the decisions we have mentioned, such prosecutions [for violation of Penal Code section 666] should be conducted as if the former misdemeanor conviction is not an element of the crime of felony.   Under this theory, if the defendant has admitted the former conviction, the jury will not be informed of that fact and will determine only whether he committed the second misdemeanor.”  (Id. at pp. 856–857, 28 Cal.Rptr. 472.)

The courts declined, however, to apply Penal Code sections 1025 and 1093 to prosecutions for being a felon in possession of a concealable firearm under Penal Code section 12021.   As first articulated in People v. Forrester (1931) 116 Cal.App. 240, 2 P.2d 558, the rationale has been that in these cases the prior conviction is an element of the offense and therefore should be admitted into evidence because it would otherwise “be impossible ever to convict the defendant” of the charge.  (Id. at p. 242, 2 P.2d 558.)   On the same theory, the statutes have been held inapplicable to charges of assault by a life prisoner in violation of Penal Code section 4500.  (People v. Robles (1970) 2 Cal.3d 205, 213, 85 Cal.Rptr. 166, 466 P.2d 710.)

The rationale of the Forrester decision came under attack in People v. Sherren (1979) 89 Cal.App.3d 752, 152 Cal.Rptr. 828.   Finding “no legal distinction between the line of cases involving section 666 and section 12021,” the court held that the rule applying to prosecutions under section 666 should also apply to prosecutions under section 12021.   (Id. at p. 758, 152 Cal.Rptr. 828.)   In People v. Hall, supra, 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826 the Supreme Court approved the Sherren decision:  “This court has no choice but to hold that in a prosecution for violating section 12021 the element of a prior conviction of a felony may not be given to a jury if the accused stipulates to it.”  (Id. at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826.)

Two years later, Proposition 8 amended article I of the California Constitution to add section 28, subdivision (f).   The relevant portion of the amendment provides:  “When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”   In People v. Valentine (1986) 42 Cal.3d 170, 228 Cal.Rptr. 25, 720 P.2d 913 the Supreme Court considered the impact of this provision on prosecutions under Penal Code section 12021.   Recognizing the plain intent of section 28, subdivision (f), to abrogate the decision of People v. Hall, supra, 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826, the court returned to the earlier rule requiring that the jury be informed of the fact of the prior felony conviction.   It expressly reserved, however, the question that is now before us in this appeal—the effect of section 28, subdivision (f) on prosecutions under Penal Code section 666.   In a footnote, the court stated, “[h]ere we do not confront the effect of Proposition 8 on cases tried under section 666.  (Compare, e.g., People v. Ancira (1985) 164 Cal.App.3d 378, 381 [210 Cal.Rptr. 527], with People v. Callegri (1984) 154 Cal.App.3d 856, 866–867 [202 Cal.Rptr. 109.]”  (People v. Valentine, supra, 42 Cal.3d at p. 181, fn. 6, 228 Cal.Rptr. 25, 720 P.2d 913.)

Of the two decisions cited in the Supreme Court's footnote, People v. Ancira (1985) 164 Cal.App.3d 378, 210 Cal.Rptr. 527 held that the disputed section of Proposition 8 is not applicable to prosecution under Penal Code section 666 and adhered to the traditional role;  People v. Callegri (1984) 154 Cal.App.3d 856, 202 Cal.Rptr. 109, however, held that the amendment now requires the jury to be informed of the fact of a stipulated prior conviction in a section 666 charge.   More recently, People v. Bennett, supra, 188 Cal.App.3d 911, 233 Cal.Rptr. 729, cited by the trial judge in the present case, elected to follow the Callegri decisions.

In considering whether section 28, subdivision (f), applies to a prosecution under Penal Code section 666, we confront a peculiar difficulty.   The constitutional amendment applies “[w]hen a prior felony conviction is an element of any felony offense.”   The offense defined in Penal Code section 666 refers to prior convictions of four specific offenses:  “petit theft, grand theft, burglary, or robbery․”  Of these four offenses, one is a misdemeanor (petit theft);  two may be either misdemeanors or felonies (burglary and grand theft);  and the remaining offense is a felony (robbery).

Section 666 is directed, however, not at repeat offenders generally but at repeat theft offenders.   The evident purpose of the section is to define petit theft as a felony where the offender has been earlier convicted of a theft offense.   It is irrelevant whether or not the offender has been convicted of a felony, just as it is irrelevant whether the prior theft offense is a felony or misdemeanor.   Though the requirement of a prior conviction is defined in terms of a series of specific offenses, it essentially states a requirement of a prior conviction of a theft-related offense.

If an element of section 666 is a prior conviction of a theft offense, it was gratuitous and irrelevant for the court to announce that appellant had suffered a prior conviction for a felony.   By identifying the conviction as a felony, the court went beyond describing a stipulation to an element in the offense.   Nothing in section 28, subdivision (f), compelled this instruction;  we think it would be absurd to suppose that the provision requires a prior theft conviction to be described as a felony when it is irrelevant to the offense whether the conviction is for a felony or a misdemeanor.   But it would also be erroneous to announce, as the trial judge here initially proposed to do, that the defendant was previously convicted of a theft offense, without specifying whether it is a felony or misdemeanor.   Section 28, subdivision (f), directs that the jury be informed of felony offenses;  it cannot be construed as requiring that the jury be informed of a prior offense that is not described as a felony.

We find the argument of People v. Ancira, supra, 164 Cal.App.3d 378, 381, 210 Cal.Rptr. 527, to be persuasive:  “The disputed portion of subdivision (f) is by its own terms limited to a prior felony conviction.   It thus applies only where a prior felony conviction is a required element of the charged offense.  Penal Code section 666 does not require a prior felony conviction.   Rather, it requires a prior conviction for ‘petty theft, grand theft, burglary, or robbery․’  The focus of section 666 is on theft-related priors;  it is irrelevant whether the priors are felonies or misdemeanors.   The apparent intent of the statute is to provide extra punishment for recidivist thieves, rather than ex-felons who commit petty theft.   Thus, only a prior theft-related conviction, and not necessarily a prior felony conviction, is a component of a section 666 violation.   Section 28, subdivision (f), is inapplicable.   Had the drafters of Proposition 8 intended otherwise, they would have crafted the disputed provision differently (e.g., ‘When a prior conviction is an element ․’), as they were surely aware of the well-established rule for section 666 priors when they acted to supersede the holding in Hall.”  (Fn. deleted.)

We observe that section 28, subdivision (f), refrained from abolishing generally the well established rules precluding mention of a stipulated conviction alleged in a criminal charge.   In cases not covered by the conditional amendment, Penal Code sections 1025 and 1093 continue to prohibit any mention of a stipulated prior conviction when the accusatory pleadings are read to the jury or later at trial.   As our high court has said, section 1025 continues to be “a fundamental declaration of public policy, and its provisions when relevant must be scrupulously observed by all prosecuting attorneys.”  (People v. Spencer (1963) 60 Cal.2d 64, 82, 31 Cal.Rptr. 782, 383 P.2d 134;  People v. Rolon (1967) 66 Cal.2d 690, 693, 58 Cal.Rptr. 596, 427 P.2d 196.)

Proposition 8 was not directed against this deeply-rooted policy but rather had a more specific focus:  repeal of the Hall decision relating to prosecutions under Penal Code section 12021.   The early decisions, which insisted on a distinction between prosecutions under Penal Code section 666 and section 12021 reflected a valid insight.   A charge of being in possession of a concealable firearm makes no sense unless the jury is informed that the defendant is a felon;  knowing from common experience that possession of such a weapon by a citizen is not a crime, the jury would surely hesitate to convict unless it had necessary additional information.   In contrast, a charge of petty theft is quite intelligible whether or not the jury is told that the defendant has been convicted of a prior theft.   The prosecution is not unfairly handicapped by having the fact of the prior conviction kept from the jury.

If the jury is told of the prior conviction in a prosecution under Penal Code section 666, it will have the practical effect of nullifying much of the presumption of innocence.   The jury knows that thievery may be a lifetime practice.   The inference that a convicted thief is likely to be guilty of a second charge is in fact a highly plausible one.   Our society has long resisted this plausible inference because of the high value placed on the presumption of innocence.   The passage of section 28, subdivision (f), does not mark a retreat from this commitment to the presumption of innocence;  it was motivated rather by the peculiar problems of prosecutions under Penal Code section 12021.   The amendment should not be interpreted as mandating a wholesale abandonment of the policy, long incorporated in Penal Code sections 1025 and 1093, of keeping a stipulated prior conviction from the jury's consideration.

 It is a very close question whether this error was prejudicial.¹  Under the familiar standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”   The cross-examination of the store manager, Fuller, revealed inconsistencies in his identification of the T-shirts that gave defendants some possibility to argue that appellant was the victim of misplaced suspicions.   But the circumstantial evidence was very strong.   After his companion, Stewart, was caught in the act of stealing T-shirts, appellant was seen standing with a bulge in his jacket.   He displayed apparent consciousness of guilt by denying that he knew his companion and by driving off rapidly without filling the over-heated radiator or the car.   Immediately afterwards, his companion was seen hawking T-shirts to third parties.   The store manager testified that four T-shirts were missing from the store after appellant left and identified two of the four T-shirts found in the car as having been taken from the store.   Under these circumstances, we conclude that, even in the absence of the error, the conviction would not have been in doubt and the error was thus harmless.

The judgment is affirmed.

I concur in the result only.

FOOTNOTES

1.   Since People v. Hall, supra, 28 Cal.3d 143, 157–158, 167 Cal.Rptr. 844, 616 P.2d 826, applied a harmless error analysis to prosecutions under Penal Code section 12021, it should also apply to prosecutions under Penal Code section 666.  (See People v. Ancira, supra, 164 Cal.App.3d 378, 382, fn. 3, 210 Cal.Rptr. 527.)

NEWSOM, Acting Presiding Justice.

HOLMDAHL, J., concurs.