PEOPLE v. DENMON (1991)

OPINION

Defendant appeals from the judgment entered upon his conviction by jury of one count of robbery (Pen.Code, § 211), attended by a true finding (by the jury) that defendant had personally used a firearm in committing the robbery within the meaning of Penal Code section 12022.5 and by another true finding (by the trial court, and based on an admission) that defendant had been convicted of a prior serious felony within the meaning of Penal Code section 667, subdivision (a) (prior conviction).¹

On appeal, defendant has raised three basic contentions:  (1) that the trial court, when taking defendant's waiver of the (previously stipulated to) bifurcated trial and his subsequent admission on the matter of his alleged prior conviction, failed to adequately advise defendant of his right to remain silent during such a trial (In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, hereinafter Yurko ) and also failed to adequately advise defendant of the penal consequences of admitting the prior conviction;  (2) that defendant's sentence, when viewed in comparison to that received by his codefendant, constituted “cruel or unusual punishment” as that concept is developed in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697;  and (3) that the trial court committed three distinct sentencing errors:  (a) that the imposition of the section 12022.5 sentence enhancement was, under the particular facts of this case, improper;  (b) that the same facts were improperly used to both enhance defendant's sentence and to impose the upper term thereon;  and (c) that the court failed to consider certain facts and/or considered erroneous “facts” in sentencing defendant.   We shall conclude that defendant's contention concerning the trial court's failure to give a full and complete Yurko advisement (in failing to advise defendant of his privilege against self-incrimination (privilege) and to obtain a knowing, intelligent and willing waiver of that privilege) is valid, but that all of defendant's other contentions on appeal lack merit.   Consequently, we shall reverse the judgment entered below insofar as the imposition of the section 667, subdivision (a) sentence enhancement is concerned and shall affirm that judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Given the nature of the contentions raised on appeal by defendant, there is no need for a lengthy and seamless rendition of the facts underlying defendant's arrest for robbery.   It suffices to state that defendant was arrested for having entered a retail variety store shortly before it opened to the public and, with handgun in hand, coercing the assistant manager of the store (who was, at that time, inside the store with other employees preparing the store for opening) into giving up the money in the store's safe and one cash register drawer.

By information, the People charged defendant with one count of robbery (§ 211).   The robbery count was attended by three special/sentence enhancement allegations:  First, that the crime was a serious felony within the meaning of section 1192.7, subdivision (c)(19);  second, that a principal in the commission of the robbery had been armed with a firearm within the meaning of section 12022, subdivision (a);  and, third, that defendant had personally used a firearm in committing the robbery, within the meaning of sections 1203.06, subdivision (a)(1)(ii) and 12022.5 and causing the robbery to be a serious felony within the meaning of section 1192.7, subdivision (c)(8).   The information also contained the sentence enhancement allegation that defendant had previously suffered a prior conviction.   The trial of this latter sentence enhancement allegation was bifurcated by stipulation for a separate trial by jury.

The jury found defendant guilty on the robbery count and found the section 12022.5 “personal use” sentence enhancement allegation to be true.   Based on defendant's admission to the same, and after defendant “waived” a trial thereon, the trial court (impliedly) found defendant to have suffered the prior conviction.   Thereafter, the trial court sentenced defendant to a term of five years in state prison on the robbery count, enhanced by a five-year term on the section 12022.5 true finding and further enhanced by a five-year term on the section 667, subdivision (a) true finding—resulting in a total sentence of fifteen years in state prison.²

Additional facts will be referred to, as needed, with respect to each of the contentions raised on appeal by defendant.

DISCUSSION

I.YURKO ERROR

Following the jury's return with its verdict on the robbery count, but before the jury was excused, defendant indicated to the trial court that he wished to admit the truth of the sentence enhancement allegation that he had previously suffered a prior conviction.   The trial court conducted an inquiry into, and an advisement as to, the constitutional rights defendant would waive by making such an admission.   Thereafter, the trial court accepted defendant's admission on the section 667, subdivision (a) sentence enhancement.   On appeal, defendant contends that his admission was invalid because prior to accepting defendant's admission (a) the trial court failed to give defendant an adequate “Yurko advisement” regarding defendant's privilege;  (b) the trial court failed to obtain a knowing, intelligent and voluntary waiver of that privilege by defendant;  and (c) the trial court failed to adequately advise defendant of the penal consequences of his admission.   We conclude that defendant is correct as to the (in)adequacy of the trial court's “Yurko advisement” and the trial court's failure to obtain a valid waiver of the privilege by defendant.

Immediately after the jury returned with its guilty verdict on the robbery count and its true finding on the section 12022.5 “personal use” allegation against defendant, the following exchange took place:

“THE COURT:  Before the jury is excused, do you wish to put a stipulation on the record?

“[DEFENSE COUNSEL]:  Yes, your Honor.   With the consent of the accused and if it's agreeable with you, Mr. Denmon, you do have a right to have these twelve people decide if, in fact, you have served a prior prison term in state prison, and were convicted of a felony as a result and that that prison term was the result of a prior serious felony.  [¶] You have the right to have this jury dismissed [sic] whether that, in fact, was a prior serious felony that resulted in a state prison term.   You know what happened, you have told this jury that you did go to prison for a serious felony prior occasion, you have the right to have these 12 people dismissed [sic] whether that's true or not.  [¶] Do you wish to waive and give up the right to have a hearing on that issue?

“THE DEFENDANT:  No.

“THE COURT:  All right.   So that that issue then will be submitted to the same jury.

“[DEFENSE COUNSEL]:  Is that what you want, Mr. Denmon?  [¶] May I have one moment, your Honor?

“THE COURT:  All right.

(Attorney/client conference held.)

“[DEFENSE COUNSEL]:  I think he understands now, Judge.  [¶] Mr. Denmon, what we're proposing, a stipulation is, we're going to stipulate or admit it's true to the Court and the jury that, in fact, some years ago, you were convicted of a serious felony as defined in California Penal Code.  [¶] Do you wish to stipulate and admit that that is, in fact, true?

“THE DEFENDANT:  Yes.

“THE COURT:  All right.   And do you understand and did you explain the consequences of that admission?

“[DEFENSE COUNSEL]:  We've had pre-trial discussions in this case and that means that the enhancement that the state legislature has dictated for this case can be imposed by you, on you by Judge Ziebarth.  [¶] That means that your sentencing, whatever, you receive from Judge Ziebarth for the crime of robbery, that the jury has found you guilty, the judge can add an additional five years on to your sentence because on a prior occasion some years ago, you committed a prior serious felony;  do you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  And you understand the consequences, sir?

“THE DEFENDANT:  Yes.

“THE COURT:  You understand you do have a right to a trial in that issue to have either the jury make that determination or this court sitting without a jury?

“THE DEFENDANT:  Yes.

“THE COURT:  You also have a right to confront any witnesses that would be testifying against you in that issue?

“THE DEFENDANT:  Yes.

“THE COURT:  And you would continue to have the benefit of Counsel assisting you in that issue;  you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  All right.   And understanding all of those rights that you're giving up, is it still your desire to admit the truth of that special allegation?

“THE DEFENDANT:  Yes.

“THE COURT:  Very well.   All right, both Counsel stipulate that the jury may now be excused?

“[PROSECUTOR]:  So stipulated.

“[DEFENSE COUNSEL]:  Yes, your Honor.”

In Yurko, our Supreme Court held:  “We conclude Boykin and Tahl require, before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission.   The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea.” ³  (10 Cal.3d, at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)   A perusal of the courtroom exchange set forth above makes it clear that, while the trial court advised defendant of his right to a jury trial and to his right to “confront his accusers” immediately before accepting defendant's waiver/admission concerning the prior conviction, the trial court omitted to advise defendant at that time of defendant's third “Boykin–Tahl right”—the right to remain silent (that is, the privilege against compulsory self-incrimination).

In its initial respondent's brief, the People conceded the trial court's advisement error as to the privilege and acknowledged the consequent need to reverse defendant's section 667, subdivision (a) sentence enhancement.   After the briefing of the instant appeal was completed, we requested and obtained supplemental letter briefing on an additional, related issue which was addressed in a recently published opinion issued by our sister court of the Fourth Appellate District's Division One.⁴  In their supplemental letter brief, the People have withdrawn their concession and now contend that the entirety of the record in this case demonstrates that, before defendant admitted the alleged prior conviction, he was aware of his privilege and knew that an admission of the alleged prior conviction constituted a waiver of that privilege.   Consequently, the People argue, such awareness and knowledge rendered harmless any technical error committed by the trial court in failing to specifically advise defendant of his privilege immediately before his admission.

 The People contend that the three “Boykin–Tahl advisements” required (under Yurko ) to be given a defendant prior to the defendant's admitting to having suffered prior convictions need not be given all at one time immediately prior to the defendant's admission if the entire record of the criminal proceedings show that, before the admission, defendant was aware of the right to remain silent and knew that his admission waived the right.   The People further contend that we must review the entire record to determine whether defendant has received adequate Yurko advisements, and that it is inappropriate to limit review to the dialogue between court and defendant which takes place just prior to his admission.

Applying this “review of the entire record” standard, the People now argue that the record as a whole in this case discloses that defendant did know of, and did knowingly waive, his privilege before admitting his prior conviction, and that, consequently, there was no Yurko error committed in this case.   In particular, the People have noted the exchange which took place between the trial court and defendant immediately prior to defendant's testifying on his own behalf in the trial-in-chief:

“THE COURT:  All right, let the record reflect the jurors are all present, the Defendant is present, both Counsel are present.  [¶] You understand, Mr. Denmon, that this is a criminal proceeding and you have a constitutional right not to take the stand and no one, including the Court or your own Counsel, can require you to take the stand.  [¶] Do you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  But you can waive that right, and if you do, then you can be cross-examined concerning any of your testimony by the prosecutor.  [¶] You understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  And understanding the Court's admonition, is it your desire to take the stand and testify[?]

“THE DEFENDANT:  Yes.”

The People urge that the above exchange, which took place three days before defendant admitted his prior conviction, establishes on the record that as to the issue of the prior conviction defendant was advised and made aware of his privilege, was made aware that his admission of the same would constitute a waiver of that privilege and that, consequently, defendant knowingly waived that privilege when he admitted his prior conviction in the face of the trial court's advisement (just prior to his admission) that he had a right to a “trial” on the issue of the prior conviction.

We conclude that the People's argument lacks merit for two reasons:  (1) We are not persuaded that the “review of the entire record” approach to analyzing issues of Yurko error comports with the requirements of Boykin–Tahl–Yurko;  and (2) even if that approach to examining issues of Yurko error is correct as a matter of law, we do not find that the record in this case will support the conclusion that, as to the alleged prior conviction, defendant knowingly waived his privilege before admitting the prior conviction.

There are two fundamental flaws in the “review of the entire record” analytical approach to reviewing Yurko error:  (1) Contrary to the dictates of Tahl and Yurko, it requires an inference from the record of the proceedings below that defendant, at the time he admitted his prior conviction, knew of his privilege and knew that his admission would waive that privilege;  and (2) it simply contradicts the direct mandate of Yurko.   We discuss each of these flaws below.

(1) Our Supreme Court expressly stated in Tahl that “mere inference is no longer sufficient [to establish a defendant's knowledge of a constitutional right being waived by a plea].”  (In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)   A conclusion that the colloquy between the court and defendant immediately before he testified in his case-in-chief constituted the required advisement as to the alleged prior conviction, however, would be a conclusion based on nothing but inference.   Such a conclusion would constitute an implicit finding that the above colloquy between the trial court and defendant was attended by some sort of “osmosis effect,” which effect served to “inform” defendant of not only his privilege against self-incrimination during the trial-in-chief but also (three days later) of the fact that an admission of a prior conviction would result in a waiver of that privilege with respect to a separate trial on his prior conviction.

Under Boykin–Tahl–Yurko, a criminal defendant's knowledge or awareness of (a) the constitutional rights to which he or she is entitled in a trial as to the truth of a prior conviction and (b) the fact that admitting such prior conviction effectively waives those constitutional rights cannot be assumed, supposed, implied, inferred or otherwise “divined” from the procedural circumstances preceding and surrounding that defendant's admission/waiver—he or she must be directly informed of those constitutional rights.

As stated in Tahl's footnote 6:  “Thus were the court to ask counsel whether he had advised the defendant of his right of confrontation and ask the defendant whether he waived that right, receiving an affirmative reply to both inquiries, this would satisfy the requirement of an express on-the-record waiver of that right.  [Citation.]  What is required is evidence that the particular right was known to and waived by the defendant.   The explanation need not necessarily be by the court, although the waiver must be by the defendant.”   What is made clear by this portion of Tahl's footnote 6 is that the Supreme Court in that case was mandating that a direct explanation (“advisement”) of the constitutional rights being waived by a defendant by entering a guilty plea be given directly to a defendant by someone—the Supreme Court was not suggesting that surrounding circumstances could obviate the need for someone, whether the trial court or counsel, to give such a direct explanation.   This understanding of Tahl is reinforced by reference to the main body of that opinion, wherein the Supreme Court stated (at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449):  “․ the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.   Each must be enumerated and responses elicited from the person of the defendant.”  (Second emphasis added.)  Yurko is entirely consistent with Tahl in this regard.   As noted previously in this opinion, Yurko held that:  “The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea.”  (Yurko, supra, 10 Cal.3d at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)

(2) The second (and most fundamental) flaw in the “review of the entire record” analytical approach to reviewing issues of Yurko error lies in the fact that it utterly fails to comport with the express directives of Yurko itself.

If nothing else, Yurko stands for the proposition that a criminal defendant must be told of, and must expressly waive, the three “Boykin–Tahl rights” with respect to the admission of a prior conviction.   There is nothing in Yurko which suggests that a criminal defendant's understanding and waiver of constitutional rights in the criminal trial-in-chief can be applied by inference and implication to a later and separate trial on a prior conviction ⁵ —indeed, the conceptual underpinning of Yurko is an appreciation for the fact that a criminal defendant might well not understand that his or her constitutional “trial rights” would also apply to a separate “trial” on prior convictions.⁶  A “review of the entire record” approach to examining issues of Yurko error, an approach which looks to a criminal defendant's understanding and waiver of constitutional rights during the trial-in-chief as evidence of that defendant's understanding and waiver of those rights concerning a later and separate trial on a prior conviction, is irreconcilable with Yurko.

We decline to accept the People's “analysis by implication and inference” as an analytical model for addressing issues of Yurko error.   (See this court's opinion in People v. Johnson (1989) 212 Cal.App.3d 1179, 261 Cal.Rptr. 159.)

 Moreover, we cannot conclude on the basis of the facts in this case that, with respect to defendant's admission of a prior conviction, that he (leaving aside whether he had been adequately advised under Yurko ) had freely waived his privilege in a knowing, willing, intelligent and voluntary manner.   Consequently, even under a “review of the entire record” analysis, we conclude that Yurko error was committed in this case when the trial court failed to obtain an express, informed waiver from defendant of his privilege with respect to the alleged prior conviction.

In this case, defense counsel's explanation to defendant of what was being waived by an admission to a prior conviction was, at best, garbled, confused and incomplete.  (Indeed, defendant initially indicated, to what was undoubtedly defense counsel's surprised consternation, that he did not want to admit to a prior conviction.)   Of particular concern to us is the fact that defense counsel, in explaining the nature of a “section 667, subdivision (a) admission” to defendant, stated:  “You have the right to have this jury dismissed [sic] whether that, in fact, was a prior serious felony that resulted in a state prison term.   You know what happened, you have told this jury that you did go to prison for a serious felony prior occasion, you have the right to have these 12 people dismissed [sic] whether that's true or not.”  (Emphasis added.)   A review of the record, however, reveals that defendant did not admit during the trial-in-chief to having suffered a prior conviction of a serious felony.⁷  Thus, it is entirely possible that defendant, at the time he admitted to having suffered a section 667, subdivision (a) conviction, mistakenly thought that he had already waived his privilege with respect to that conviction.   Under these facts, we cannot say that defendant's waiver of his privilege with respect to the alleged prior conviction (again, assuming that such a waiver could be inferred from defendant's conduct in the trial-in-chief) was freely given in a knowing, willing, intelligent and voluntary manner.

The trial court committed Yurko error in this case by failing:  (1) To adequately advise defendant (or, alternatively, to assure itself that defendant had been adequately advised) of his privilege with respect to a determination of the truth vel non of the alleged prior conviction;  and (2) to obtain a knowing, willing, intelligent and voluntary waiver of that privilege by defendant prior to accepting defendant's admission of the truth of that allegation.

 Defendant also contends that the trial court committed Yurko error by failing to adequately advise him of the penal consequences attending an admission of the charged prior conviction.   In particular, defendant assigns error to the fact that he was advised by his own counsel that “the judge can add an additional five years on to your sentence” (emphasis added), while a correct advisement would have informed him that five years would be added to his sentence.   Although we agree that defense counsel's advisement was literally inaccurate and that the trial court failed to correct the inaccuracy, such error is not reversible per se.

A failure to advise of the penal consequences attending an admission of a prior conviction does constitute Yurko error, but such an error is a violation of a judicially created rule of criminal procedure and is not (unlike “Boykin–Tahl ” errors) of constitutional dimension.  (Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)   Such error calls for redress on our part only if it appears to have been prejudicial to the criminal defendant:  “The failure to so advise an accused in the enumerated instances will constitute error which, if prejudice appears, will require the setting aside of a finding of the truth of an allegation of prior convictions.”  (Ibid., emphasis added, fn. omitted;  see In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684.)   The record before us in this case reveals no real probability that any such prejudice occurred.   Defendant, with full knowledge that his admission could add five years to his sentence (and without any suggestion that his admission would not add five years to his sentence), was willing to admit to his prior conviction.   There is no reasonable probability that he would not have admitted to his prior conviction had he been told that his admission would extend his sentence by five years and, consequently, any shortcoming in the advisement of penal consequences attending the admission of the prior conviction was harmless.

II.

REVERSIBILITY OF SENTENCE ENHANCEMENT BECAUSE OF YURKO ERROR

 Having concluded that the trial court committed Yurko error of a constitutional dimension in this case, we must determine whether that error calls for a reversal of the true finding that defendant suffered a prior conviction.   We conclude that it does.

Whether Yurko errors of a constitutional dimension (“Boykin–Tahl–Yurko error”) call for a harmless error analysis or for reversal per se is an issue which has received increasing attention from the intermediate appellate courts of this state.   On the one hand, there appear to be at least two District Court of Appeal opinions which have applied a harmless error analysis to Yurko errors of constitutional dimension:  People v. Prado (1982) 130 Cal.App.3d 669, 182 Cal.Rptr. 129;  and People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553.   On the other hand, by far the greater weight of authority permits of no inquiry into prejudice if constitutional Yurko error is found, holding that reversal per se is called for in such instances.  (See:  In re Ronald E., supra, 19 Cal.3d at p. 321, 137 Cal.Rptr. 781, 562 P.2d 684, In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980, People v. Wright (1987) 43 Cal.3d 487, 495, 233 Cal.Rptr. 69, 729 P.2d 260;  see also, e.g:  People v. Ray (1990) 220 Cal.App.3d 943, 269 Cal.Rptr. 682;  People v. Balderrama (1990) 221 Cal.App.3d 282, 270 Cal.Rptr. 432;  and People v. Nelson (1991) 234 Cal.App.3d 1055, 285 Cal.Rptr. 850, and cases cited therein.)

We adhere to the position that constitutional Yurko error calls for reversal per se.   To the extent that the opinions in People v. Prado, supra, and People v. Shippey, supra, are to the contrary, we disagree with them.   Further, we agree with the opinions in People v. Ray, supra, and People v. Nelson, supra, to the effect that the opinions of the Supreme Court in People v. Guzman (1988) 45 Cal.3d 915, 248 Cal.Rptr. 467, 755 P.2d 917 and People v. Karis (1988) 46 Cal.3d 612, 250 Cal.Rptr. 659, 758 P.2d 1189) cannot be “construed” to establish a rule of harmless error analysis for issues of constitutional Yurko error:  If the Supreme Court had meant in either Guzman or Karis to overrule the long-standing principle that constitutional Yurko error calls for reversal per se, it would have done so directly and explicitly and not by implication.

The true finding entered below as to defendant's having suffered the alleged prior conviction must be reversed.

III.–IV.***

DISPOSITION

The five-year section 667, subdivision (a) sentence enhancement found true and imposed against defendant is reversed.   In all other respects, the judgment entered below is affirmed in full.   This matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

FOOTNOTES

1.   Unless otherwise indicated, all statutory citations refer to the Penal Code as it was worded in 1990.

2.   The “armed with a firearm” allegation (§ 12022, subd. (a)) was dismissed.

3.   The references to Boykin and Tahl are references to Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.“The same constitutional rights waived as to a finding of guilt in case of a guilty plea” referenced by Yurko are “the privilege against compulsory self-incrimination ․ the right to trial by jury ․ [and] the right to confront one's accusers․”  (Boykin v. Alabama, supra, 395 U.S. 238, 243–244, 89 S.Ct. 1709, 1712.)

4.   People v. Manzano (1991) 233 Cal.App.3d 746, 284 Cal.Rptr. 812, review granted, 1 Cal.Rptr.2d 543, 819 P.2d 1.   Inasmuch as our Supreme Court granted review in the Manzano case subsequent to our request for supplemental letter briefing respecting the opinion in that case, we need not concern ourselves with addressing specific portions of that opinion.   However, to the extent that the position taken by the People in this case on issues of Yurko error reflects the legal reasoning and analysis of the previously published Manzano opinion, we are obliged to concern ourselves, indirectly, with that opinion.

5.   Our opinion in People v. Forrest (1990) 221 Cal.App.3d 675, 270 Cal.Rptr. 573 does not take a contradictory position on this issue.   In Forrest, we simply held that the giving of a single set of “Boykin–Tahl” advisements (and the taking of a single set of “Boykin–Tahl” waivers) was adequate with respect both to a criminal defendant's constitutional trial-in-chief rights and to that defendant's constitutional trial-of-priors rights where there was but a single, consolidated proceeding in which the criminal defendant both pled guilty to the substantive charge and admitted the prior convictions.

6.   Any reliance on In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473 as authority for a “review of the entire record” approach to analyzing Yurko error is misplaced.   In Mosley, our Supreme Court was dealing with a “slow plea” situation—a situation in which the concessions made by a criminal defendant in submitting on a preliminary hearing transcript relate directly to the underlying criminal charges brought in the case-in-chief.   As recognized by Yurko, the concessions made by a criminal defendant in admitting a prior conviction do not directly relate to the underlying criminal charges brought in the case-in-chief, but, rather, to issues and allegations which are distinctly apart from those of the case-in-chief.

7.   The only thing of this nature admitted by defendant during the trial-in-chief was having served a term of some period in state prison:“Q [Defense Counsel] Now, there's been testimony elicited by myself that you were in state prison sometime ago.   How long ago was that?“A [Defendant] About two and a half years.”

FOOTNOTE.   See footnote *, ante.

TIMLIN, Associate Justice.

HOLLENHORST, Acting P.J., and McDANIEL, J.*, concur.