PEOPLE v. McGEE (1986)

OPINION

Following trial by jury, defendant Anthony DeWayne Cooper was convicted of robbery (Pen. Code, § 211, count I), petty theft with a prior felony conviction (Pen.Code, § 666, count II) and attempted robbery (Pen.Code, §§ 664, 211, count III).   Defendant Toledo George McGee was found not guilty of robbery as charged in count I, but was convicted of petty theft with a prior felony conviction (count II) and attempted robbery (count III).   In a bifurcated trial, the trial court found to be true allegations that both defendants had previously been convicted of a serious felony (Pen.Code, § 667) for which each served a separate prison term (Pen.Code, § 667.5, subd. (b)).

Defendant Cooper was sentenced to the upper term of five years for his robbery conviction, plus a consecutive eight-month term for his felony petty theft conviction.   The three-year upper term for defendant's attempted robbery conviction was imposed and ordered to run concurrently with the previous sentence.   A five-year enhancement was also imposed pursuant to Penal Code section 667.   The one-year enhancement pursuant to Penal Code section 667.5, subdivision (b), was stayed.   Defendant received a total term of ten years eight months.

Defendant McGee was sentenced to the upper term of three years for his felony petty theft conviction, and a three-year upper term for his attempted robbery conviction was imposed and ordered to run concurrently with the previous disposition.   A five-year enhancement was imposed pursuant to Penal Code section 667, and a one-year enhancement pursuant to Penal Code section 667.5, subdivision (b), was stayed.   Defendant McGee was ordered to serve a total term of eight years.

STATEMENT OF FACTS ***

DISCUSSION

I ***Did the trial court commit prejudicial Marsden error?IIDid the trial court erroneously refuse to allow defendants Cooper and McGee to stipulate to the prior felony convictions for purposes of the felony petty theft charge?

 The second count of the information charged defendants with violating Penal Code section 666.  Section 666 provides:

“Every person who, having been convicted of petit theft, grand theft, burglary, or robbery and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of petit theft, then the person convicted of such subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.”

The information alleged defendant Cooper had a prior conviction of robbery, and defendant McGee had a prior out-of-state conviction of aggravated robbery.   Defendants offered to stipulate to their prior convictions to avoid presentation of the convictions to the jury.   The trial court refused their offer, relying on Proposition 8.

The voters of the State of California passed Proposition 8 on June 8, 1982.   A portion of Proposition 8 added section 28, subdivision (f), to article I of the California Constitution.   That section provides in relevant part, “When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”   The prior felony conviction is required to be proven in open court only when it is an element of the felony offense for which the defendant is being tried.

The cases uniformly hold that the language in the above constitutional provision was designed to overrule People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826.  (People v. Ancira (1985) 164 Cal.App.3d 378, 381, 210 Cal.Rptr. 527;  People v. Patino (1984) 160 Cal.App.3d 986, 990–991, 206 Cal.Rptr. 762;  People v. Callegri (1984) 154 Cal.App.3d 856, 867, 202 Cal.Rptr. 109.)   The court in People v. Hall determined that when a defendant is charged with a violation of being an ex-felon in possession of a concealable weapon under Penal Code section 12021, the defendant may stipulate to his ex-felon status and preclude the prosecution from introducing evidence of his prior felony conviction to the jury to prove that element of the offense.  People v. Hall overruled a long line of cases holding that when a prior conviction is an element of an offense, the prosecution must prove the prior conviction in open court to the jury.  (People v. Morrison (1977) 67 Cal.App.3d 425, 427–428, 136 Cal.Rptr. 650;  People v. Faulkner (1972) 28 Cal.App.3d 384, 392–393, 104 Cal.Rptr. 625;  People v. Brashear (1969) 271 Cal.App.2d 306, 311, 76 Cal.Rptr. 485;  People v. Gallinger (1963) 212 Cal.App.2d 851, 855, 28 Cal.Rptr. 472.)   The policy underlying the rule allowing an accused to stipulate to his ex-felon status to prevent that element of Penal Code section 12021 from being given to the jury was to avoid any prejudice which might result from informing the jury the accused had been convicted of a felony.  (People v. Hall, supra, 28 Cal.3d at pp. 156–157, 167 Cal.Rptr. 844, 616 P.2d 826.)   Hence, under article I, section 28, subdivision (f) of the California Constitution, when a defendant is charged with being an ex-felon in possession of a concealable weapon pursuant to Penal Code section 12021, his ex-felon status as an element of the offense must be proven to the trier of fact.  (People v. Valentine (1986) 42 Cal.3d 170, 228 Cal.Rptr. 25, 720 P.2d 913.) ¹

The Courts of Appeal have reached conflicting conclusions on whether section 28, subdivision (f) of article I of the California Constitution precludes an accused from stipulating to his prior conviction when charged with violating Penal Code section 666.   The court in People v. Callegri held that a trial court properly denied a defendant's offer to stipulate to a prior conviction.   In Callegri, the defendant was charged with petty theft with a prior conviction of burglary pursuant to Penal Code section 666.   The trial court denied his motion to stipulate to the prior conviction.   The Callegri court held that article I, section 28, subdivision (f), bars such a stipulation.   It noted that the pertinent language in that section states that a prior felony conviction shall be proven to the trier of fact when the prior felony is an element of the offense.   It further held that the intent of the electorate in passing this provision obviously was to overrule the decision in People v. Hall.   The Callegri court concluded this language was clear and unambiguous, and the trial court did not err in refusing to allow the defendant to stipulate to his prior conviction in that case.  (People v. Callegri, supra, 154 Cal.App.3d at pp. 866–867, 202 Cal.Rptr. 109.)   Although there is no discussion in the opinion, the Callegri court impliedly holds that a prior felony conviction is an element of the offense set out in Penal Code section 666.

People v. Ancira presents the opposing argument.   In Ancira, the defendant was convicted of petty theft with a prior conviction pursuant to Penal Code section 666.   The defendant asked to stipulate to a prior petty theft conviction to satisfy the prior conviction requirement of Penal Code section 666.   However, the trial court ruled that the prosecutor would be allowed to prove a prior felony conviction for burglary.   The decision was based on article I, section 28, subdivision (f) of the California Constitution.   The Ancira court noted that the Supreme Court in People v. Hall fashioned the rule that an ex-felon charged with possession of a concealable firearm could stipulate to the existence of his prior felony conviction and preclude its presentation to the jury.   It further stated that article I, section 28, subdivision (f), obviously was intended to supersede this holding.   However, the Ancira court held that the provision clearly was not intended to overrule the case law holding that a defendant charged with violating Penal Code section 666 may stipulate to the existence of the prior conviction required for that section.

The Ancira court reasoned that the language of section 28, subdivision (f) of article I, by its own terms, was limited to a prior felony conviction and applies only when a prior felony conviction is a required element of the charged offense.   It further held that a prior felony conviction is not an element of Penal Code section 666.   That section requires a prior conviction for petty theft, grand theft, burglary or robbery.   The focus of the section is not on prior felony convictions, since petty theft is a misdemeanor, and grand theft and burglary can be either misdemeanors or felonies.   The court further stated that the intent of Penal Code section 666 is to provide extra punishment for recidivist thieves, rather than ex-felons who commit petty theft.   It concluded that Penal Code section 666 requires only a prior theft-related conviction and not necessarily a prior felony conviction and, therefore, article I, section 28, subdivision (f), was inapplicable.

We agree with the Ancira court that while a prior theft-related conviction is an element of the crime described in Penal Code section 666 (see also People v. Hall, supra, 28 Cal.3d at p. 156, fn. 8, 167 Cal.Rptr. 844, 616 P.2d 826, and People v. Shippey (1985) 168 Cal.App.3d 879, 890, 214 Cal.Rptr. 553), the felonious nature of the prior conviction is not an element of the crime.  (People v. Ancira, supra, 164 Cal.App.3d at p. 381, 210 Cal.Rptr. 527.)   Proof necessary to sustain a conviction under Penal Code section 666 includes proof that the defendant has a prior conviction for one of the enumerated theft-related offenses.   However, in order to secure a conviction, the People have no burden to show that the prior conviction was a felony and, indeed, such proof would be superfluous.

Subdivision (f) applies by its own terms only where “a prior felony conviction ” is an element of an offense.   We, like the court in Ancira, construe this to mean that the felonious nature of the prior conviction must be an element of the crime.

“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. ”   (People v. Ancira, supra, 164 Cal.App.3d at p. 381, 210 Cal.Rptr. 527.)

 Accordingly, we hold the trial court erred in refusing to accept the stipulations offered by the defendants in this case.   The question remains whether this error was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  (See People v. Ancira, supra, 164 Cal.App.3d at pp. 381–382, 210 Cal.Rptr. 527.)

 Under the facts of this case, there was no doubt that crimes were committed against Mrs. Rozar, Mrs. Farnsworth and Mrs. Hart.   The key issue in the trial and the main defense argued by both defense attorneys was the identity of the perpetrator or perpetrators.   However, the identity of defendants as the culprits is not open to serious doubt.

George Drulias saw a Black or Mexican male running from the direction of Mrs. Rozar's house immediately after he heard a scream.   The man got into a yellow Buick Riviera, which had been parked in the street with the engine running and the lights out.   The car took off and only turned on its lights when it had reached the end of the street.   After being informed Mrs. Rozar's purse had been taken, Drulias pursued the car.   He lost sight of it, but after only eight minutes spotted the car again.   Mr. Drulias's testimony was that the car was so similar to the other car he had seen at the Rozar residence, he was positive it was the getaway car.   Furthermore, Drulias identified defendant Cooper as the driver of the car.   The robber was described by Mrs. Rozar as wearing a long-sleeved shirt and wearing a close-fitting cap with a small visor.   She also testified that the man who robbed her was Black and had a small mustache.

Subsequently, on the same night, a man stole Mrs. Farnsworth's purse and attempted to take Mrs. Hart's purse.   Neither woman clearly saw the face of the robber, but Mrs. Farnsworth was able to testify that he was wearing a cap with a small visor, and she did see a flash of green, which she thought came from the visor of the cap.   She further testified the robber had a thick mustache.   Mrs. Farnsworth also saw the thief get into a car and drive off.   She positively identified defendant Cooper's car as the getaway car.   Finally, a few minutes after Mrs. Hart phoned the police, defendants were pulled over by several Kern County sheriff's officers.   Defendant Cooper was the passenger of the getaway car and was wearing a flat, close-fitting cap with a small visor.   Before he was arrested, he was seen placing the cap on the hood of the car.   Defendant Cooper was wearing a long-sleeved green shirt and did have a mustache.   A gold-toned pill box that had been in Mrs. Farnsworth's purse moments before was found on the front floorboard underneath the passenger's seat.   Later, defendant McGee admitted to the officers that he and Cooper had been together since 8 or 9 p.m. and had cruised around Bakersfield in defendant's car all evening.   He told the officers he had been driving most of the time.

Under this evidence, had the jury not been informed of the defendants' prior convictions, it is not reasonably probable the jury would have determined defendants were not the perpetrators of the crimes.   Also, the prior convictions were not presented to the jury in an inflammatory manner.   Both the trial court and the prosecutor told the jury to consider the prior convictions only after considering the elements of the petty theft.   The elements of petty theft in this case were overwhelmingly supported by the evidence.   Furthermore, the prosecutor stressed this order of consideration had to be followed due to fairness to the defendants.   The prosecutor also told the jury the priors had no relevance at all to the other two counts.   Under People v. Watson, the error that precluded the defendants from stipulating to their prior felony convictions was not prejudicial.

III ****

Did the trial court improperly sentence defendant Cooper to a consecutive term on his petty theft conviction?

IV ****Should defendant McGee's case be remanded for resentencing to allow the trial court to exercise its discretion to strike the Penal Code section 667 enhancement?

The judgments are affirmed.

I concur in parts I, III and IV of the majority opinion and concur in the result of part II and would affirm the conviction.   Further, I concur in the majority's conclusion, citing People v. Ancira (1985) 164 Cal.App.3d 378, 210 Cal.Rptr. 527, that in a section 666 prosecution, the alleged prior theft-related conviction is an element of Penal Code section 666.   However, I disagree with the majority conclusion adopting the Ancira reasoning that section 666 requires only a theft-related conviction, irrespective of whether such prior is a felony or misdemeanor, and, therefore, article I, section, 28, subdivision (f) of the California Constitution is inapplicable when the prior alleged is in fact a felony.  People v. Callegri (1984) 154 Cal.App.3d 856, 202 Cal.Rptr. 109, in an analogous situation, reached a contrary result, concluding the trial court did not err in refusing to allow the defendant to stipulate to his prior conviction in that case.  (Id. at pp. 866–867, 202 Cal.Rptr. 109.)   The court held article I, section 28, subdivision (f) bars such a stipulation.   In my view, the court in Callegri reached the correct result and the Ancira reasoning should be rejected.   Incidentally, People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553, also cited in the majority opinion, never reached this particular issue as a prior misdemeanor was there involved, not a felony.

The Ancira court and the majority focus on section 666 and conclude since the prior need only be a theft-related conviction, whether or not a felony or a misdemeanor, the felonious nature of the prior conviction is not an element of the crime.   In my view, and in the view of the court in Callegri, the language in section 28, subdivision (f) is clear and unambiguous:  “When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”  (Emphasis added.)  Penal Code section 666 is a felony.   The defendants here each had suffered a prior robbery conviction.   Robbery is a felony.   The respective prior robbery convictions were alleged in the section 666 charge against defendants and, thus, were an element of the crime.   It seems to me that it logically follows under the clear and unambiguous language of section 28, subdivision (f) that the prior robbery conviction of each defendant was properly proven to the trier of fact and the trial court did not err.   I would affirm the trial court's conclusion in this regard.

However, in view of our Supreme Court's recent decision in People v. Valentine (1986) 42 Cal.3d 170, 228 Cal.Rptr. 25, 720 P.2d 913, although Penal Code section 666 was not there addressed, a trial judge who elects to follow the Callegri rule should consider sanitizing the information as read to the jury and proof of the prior felony conviction to reflect only that it was a theft-related prior.   Such action cannot prejudice a defendant and could avoid possible problems that might arise in the future.

FOOTNOTES

FOOTNOTE.   See footnote * ante.

1.   The Valentine court determined when a defendant is charged with a violation of Penal Code section 12021, the defendant may stipulate to the fact of his having suffered a prior felony conviction.   Under article I, section 28, subdivision (f), however, the stipulation must be read to the jury in open court.   While this stipulation must be read to the jury, only the fact of defendant's ex-felon status will be revealed;  the nature of the prior felony may be withheld from the jury's consideration.   The Supreme Court specifically did not address the effect of section 28, subdivision (f), on cases tried under Penal Code section 666.

FOOTNOTE.   See footnote * ante.

BEST, Associate Justice.

PAULINE DAVIS HANSON, Acting P.J., concurs.