Opinion
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts IIB, IIC, and IID.
Previously published at 227 Cal.App.3d 1331
Review Granted and Transferred
to Court of Appeal
May 21, 1991.
Defendant was convicted in the Superior Court, Solano County, No. C26934, Michael L. McInnis, J., of felony of petty theft with prior, and defendant appealed. The Court of Appeal, Anderson, P.J., held that: (1) prior conviction constituted element of prosecution for petty theft with prior and had to be proven in open court before jury even though defendant stipulated to prior, and (2) trial court properly allowed proof of two prior felony convictions in order to prove petty theft with prior.
Affirmed in part and modified in part.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty.
Jim Fahey, Dixon, for defendant and appellant.
Gen., David Lew, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
ANDERSON, Presiding Justice.
Defendant Adam James Molina (appellant) appeals from a judgment of conviction entered after the jury found him guilty of a felony, to wit: petty theft with a prior in violation of PENAL CODE SECTION 666 . He was sentenced to a total term of four years in state prison.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I. FACTUAL BACKGROUND
Gary Williams was employed as a store detective for the Safeway store in Vallejo at approximately 6:15 p.m. on June 24, 1989, when he observed appellant enter the store and walk over to the cigarette rack. Watching from a distance of approximately 10 feet, he saw appellant take a pack of Newport cigarettes from the rack and conceal it in his pocket. Williams followed appellant over to the liquor aisle and witnessed appellant grabbing a bottle of peppermint schnapps from the display and placing it in the back of his pants, beneath his leather jacket. Appellant then walked past the checkout stands and left the store without paying for the merchandise.
Williams followed appellant outside and identified himself as the store security guard. Appellant responded, "Hey, man. I am on parole. I don't want to go back." Unmoved, Williams and other security guards escorted appellant back into the store's security office. Williams asked appellant to return the merchandise. Appellant complied by stating, "I was wrong and I just didn't have any money."
The police were called on the telephone, and Vallejo Police Officer Benningson was directed to the scene. After having been informed by the security officer and after observing a bottle of peppermint schnapps and a pack of cigarettes on the floor of the office, Benningson took appellant into custody and advised him of his Miranda rights. Appellant admitted that he had taken the merchandise without paying for it because he had no money with him. Benningson searched appellant and found neither money nor identification on his person.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
By the time of trial, appellant had changed his story. He testified that on the date in question, he went to the store in the company of Frances Gonzales, his girlfriend, and James, a friend who gave them a ride to Vallejo. While Frances stayed outside to telephone, he and James went inside the store to buy something to drink. Appellant picked up a pack of Camel cigarettes and a bottle of Bacardi liquor. Since James had only $3 and was not around, appellant went to Frances who was standing in the express checkout lane and asked her for money. When Frances refused appellant put the items down on an adjacent cash register and proceeded to leave the store accompanied by James. As appellant was about to exit Williams walked up, tapped him on the shoulder and directed him to step outside. Appellant cooperated and then another security officer told him to return to the store.
The officers took appellant upstairs to the security room, searched him and found nothing. When Williams asked for the liquor bottle and the cigarettes, appellant pointed to the register where he had left the items. Williams called someone on the telephone. Some 15 minutes later Williams left the room, and shortly thereafter he returned with a pack of Newport cigarettes and a bottle of peppermint schnapps. The items were not the ones appellant had earlier selected.
Corroborating evidence was furnished by Frances, appellant's girlfriend. Frances testified that while standing in the checkout stand, appellant appeared and asked her to purchase a pack of cigarettes and a bottle of liquor for him. When she refused because she did not have enough money, appellant placed the items behind the cash register on the next aisle. Following the purchase, Frances left the store and looked for appellant. After awhile she returned to the store and saw appellant walking up II. DISCUSSION
A. Appellant's Prior Felony Convictions Were Properly Admitted in Evidence
In the original information appellant was accused of petty theft with a May 14, 1987, felony prior conviction under section 666. By way of enhancement the information alleged that appellant had suffered another felony prior conviction for petty theft with a prior (also under § 666) on March 30, 1988. At the beginning of trial the information was amended to add a second felony prior as an element of the charged offense (the March 30, 1988, felony conviction for petty theft with a prior). Appellant was found guilty by jury of petty theft with the March 30, 1988, felony prior and the enhancement was also found to be true. Appellant contends that since he was willing to stipulate to the prior felony convictions, the trial court committed prejudicial error in allowing the prosecution to introduce his prior felony theft convictions in evidence. (People v. Ancira (1985) 164 Cal.App.3d 378, 210 Cal.Rptr. 527.) In the alternative, he argues that the prosecution should not have been allowed to introduce proof of more than one such prior conviction. (People v. Patino (1984) 160 Cal.App.3d 986, 206 Cal.Rptr. 762.) We disagree with appellant on both contentions.
(1) Admission of Theft-Related Prior Felony Conviction
Prior to the adoption of Proposition 8, a defendant accused of petty theft with a prior under section 666 could prevent the jury from learning of his prior conviction by stipulating to it outside the presence of the jury. (People v. Gallinger (1963) 212 Cal.App.2d 851, 28 Cal.Rptr. 472.) The rationale for permitting the stipulation rested on the theory that the prior conviction constituted an enhancement rather than an element of the crime. As an element of the offense, the prior had to be proved to the jury, but as an enhancement, proof of the prior was prohibited by both statutory and case law. (§ 1025; People v. Gallinger, supra, 212 Cal.App.2d at pp. 855-856, 28 Cal.Rptr. 472.)
Section 666 provides as follows: "Every person who, having been convicted of petit theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petit theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison."
In People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826 our Supreme Court modified the Gallinger rationale. It held that in a prosecution under section 12021 (possession of a firearm by an ex-felon) the underlying felony (akin to the prior theft felony under § 666) constituted an element of the crime (but even so the defendant was allowed to stipulate to the prior in order to avoid prejudice): "A valid distinction cannot be drawn between the felony petty theft situation and the present case. In each instance, the prior is an essential component of the felony." (Id. at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826.)
The question of the admissibility of the prior, however, was reopened by adoption of Proposition 8 (incorporated in Cal. Const., art. I, § 28.). Article I, section 28, subdivision (f) of the California Constitution provides that "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. 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.)
Enactment of this provision abrogated the rule of People v. Hall, supra, 28 Cal.3d While Valentine settled the question of admissibility of the felony prior conviction in section 12021 cases, it left open the issue of admissibility of theft-related priors in prosecutions under section 666. As our Supreme Court recognized in Valentine, the Courts of Appeal are divided on the issue. Appellant relies on that line of cases commencing with Ancira, which holds that even after Proposition 8 a prior felony conviction under section 666 may be the subject of a stipulation which precludes its admission before the jury; that court reasoned that the existence of a prior felony conviction is not an element of the offense of felony petty theft inasmuch as a theft-related misdemeanor conviction may also support a section 666 charge. (People v. Ancira, supra, 164 Cal.App.3d at pp. 380-381, 210 Cal.Rptr. 527 [one of three prior felony burglaries]; People v. McGee (1986) 186 Cal.App.3d 191, 230 Cal.Rptr. 478.) Other better reasoned opinions, however, conclude that a theft-related felony prior conviction under section 666 is an essential element of the charged felony and, as a consequence, the defendant may not avoid the mandate of California Constitution, article I, section 28, subdivision (f), by stipulating to such prior. (People v. Callegri (1984) 154 Cal.App.3d 856, 867, 202 Cal.Rptr. 109 [felony burglary prior]; People v. Bennett, supra, 188 Cal.App.3d at pp. 913-915, 233 Cal.Rptr. 729 [felony grand theft prior].) We find the latter cited cases more persuasive.
"Here we do not confront the effect of Proposition 8 on cases tried under section 666." (People v. Valentine, supra, 42 Cal.3d at p. 181, fn. 6, 228 Cal.Rptr. 25, 720 P.2d 913.) We respectfully urge the Supreme Court to confront this troublesome issue now.
We note that while McGee is cited in People v. Bennett (1987) 188 Cal.App.3d 911, 915, 233 Cal.Rptr. 729, it has been "omitted" from volume 186 "on direction of Supreme Court by order dated January 16, 1987," the day after Bennett was filed.
Our analysis begins and ends with article I, section 28, subdivision (f) of the California Constitution, which mandates that a prior felony conviction be proven in open court whenever it is an element of the current felony charge. Our Supreme Court has twice concluded that the prior conviction is an element of the offense both in prosecutions for petty theft with a prior (§ 666) and for possession of a concealable firearm by an ex-felon (§ 12021). (People v. Hall, supra, 28 Cal.3d at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826; People v. Valentine, supra, 42 Cal.3d at pp. 181-182, fn. 6, 228 Cal.Rptr. 25, 720 P.2d 913.) While Hall was overruled by Proposition 8 and Valentine on other grounds (id. at p. 181, 228 Cal.Rptr. 25, 720 P.2d 913), its holding that the prior felony is an element of the offense under both sections 666 and 12021 survives. (People v. Johnson (1988) 199 Cal.App.3d 868, 872-873, 245 Cal.Rptr. 242.)
In addition, the Callegri- Bennett line of cases is more in harmony with Proposition 8 which clearly intended to prevent defendants from using stipulations to foreclose the introduction of prior felony convictions at jury trials. "The intent of the People in enacting that portion of subsection (f) of section 28 is crystal clear--to override the holding of Hall and mandate that a prior felony be made known to the trier of fact when such priors are an element of the offense." (People v. Callegri, supra, 154 Cal.App.3d at p. 867, 202 Cal.Rptr. 109.)
Legal policy reasons underlying the constitutional enactment also militate against Finally, we agree with Justice Arabian that Ancira was decided upon "circular reasoning" (People v. Bennett, supra, 188 Cal.App.3d at p. 915, 233 Cal.Rptr. 729), which we likewise choose not to follow. The Ancira court held the refusal to allow the defendant to stipulate to a prior petty theft instead of one of three burglary priors (to avoid its admission before the jury) was error, but harmless, in a section 666 prosecution. Ancira held section 28, subdivision (f), inapplicable since "only a prior theft-related conviction, and not necessarily a prior felony conviction, is a component of a section 666 violation." (People v. Ancira, supra, 164 Cal.App.3d at p. 381, 210 Cal.Rptr. 527.) The notion that the Ancira prior felonies were not "required elements" found its support in Gallinger (a pre-Prop. 8 case), which itself had determined that a prior conviction is not an element of the crime of felony theft under section 666 (People v. Gallinger, supra, 212 Cal.App.2d at p. 855, 28 Cal.Rptr. 472); it is therefore subject to the stipulation rule, "well-established since the 19th century." ( Ancira, supra, 164 Cal.App.3d at p. 380, 210 Cal.Rptr. 527.) However, Gallinger was explicitly disapproved by Hall (People v. Hall, supra, 28 Cal.3d at p. 156, fn. 8, 167 Cal.Rptr. 844, 616 P.2d 826) which concluded that in a prosecution for felony petty theft with a prior conviction (§ 666) "the prior is an essential component of the felony." ( Id. at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826.) Pursuant to the explicit mandate of article I, section 28, subdivision (f), a felony conviction which is an element of the current charge must be submitted to the trier of fact and be proven in open court. It follows that Ancira, which allows the defendant to stipulate to his theft-related prior even though it be a felony, patently conflicts with Proposition 8 and, thus, deserves no deference.
(2) Admission of More Than One Prior Felony Conviction
Appellant next poses the alternative contention that the trial court prejudicially abused its discretion in admitting two prior felony convictions in order to prove the current charge. (People v. Patino, supra, 160 Cal.App.3d at pp. 993-994, 206 Cal.Rptr. 762.) He argues that admission of more than one prior felony was "senseless 'overkill' " and curiously, that the court "clearly erred in permitting the prosecutor to present evidence of appellant's 1987 conviction," the prior felony which the jury found not true. His argument rests on Patino which held it error (albeit harmless in that case) for the trial court to admit evidence "of defendant's multiple prior felony convictions." Appellant further complained at trial and again on appeal that the introduction of the March 30, 1988, felony petty theft conviction with a prior constituted cumulative evidence and amounted to "overkill," especially in view of the fact that he was also charged with the May 14, 1987, petty theft with a prior. We reject appellant's contentions for several reasons.
First, we harbor some hesitancy in applying principles established for section 12021 prosecutions to section 666 cases in light of our Supreme Court's reluctance to do so. (See People v. Valentine, supra, 42 Cal.3d Second, we find the Patino analysis on this point unpersuasive and decline to follow it. Patino cites four reasons for finding error in admitting multiple prior convictions to prove the element of prior felony conviction: (1) Proposition 8 does not specifically authorize unlimited use of prior convictions to prove an element of an offense; (2) the People failed to show its framers intended the unlimited use of prior convictions; (3) since "proof of a single prior felony is adequate," additional priors would be irrelevant; and (4) even if relevant their admission would be contrary to Evidence Code section 352 as their relevance is outweighed by a substantial danger of undue prejudice. (People v. Patino, supra, 160 Cal.App.3d at pp. 993-994, 206 Cal.Rptr. 762.)
None of these reasons supports the Patino conclusion. What the framers failed to specifically authorize is not, ipso facto, unauthorized.
California tenaciously clings to the doctrine of separation of powers: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Cal. Const., art. III, § 3.) The power to charge crimes has traditionally rested with the executive branch in the person of the public prosecutor; with that power the judiciary may not tamper. In upholding the prosecution's right to charge two prior felony convictions of indecent exposure to prove the prior conviction element of felony indecent exposure and in rejecting the defendant's claim that another uncharged prior misdemeanor would have been "adequate," at least one other Court of Appeal finds support in that very Proposition which the Patino court found lacking: "We find that where the charged prior conviction is a felony, it is irrelevant that the defendant also has a prior misdemeanor conviction that also would serve to fulfill the felony-triggering aspect of the current offense. Accordingly, we hold if, as here, the prosecution charges the prior felony conviction, then article I, section 28, subdivision (f), should be applicable when the charged prior felony is an element of the current felony offense." (People v. Hucks, supra, 217 Cal.App.3d at p. 269, 266 Cal.Rptr. 169.) This conclusion was further buttressed by the Hucks court's implied reference to the doctrine of separation of powers: "To conclude otherwise would be to invade 'what is clearly the province historically of the public prosecutor' in deciding what charges to file. [Citation.]" (Ibid.) That is, of course, precisely what Ancira sanctioned.
Furthermore, the fallacy of the appellate court's hindsight in determining what is and is not relevant (i.e., "adequate") is no better demonstrated than by the facts of the case herein: the prosecutor charged two felonies, but the jury found only one to be true. Had the court forbidden the prosecutor to prove both, it would have exercised executive power which the Constitution forbids. Such restriction might well have allowed the appellant to escape felony conviction altogether. This vividly demonstrates that Patino's claim that the additional prior conviction is cumulative and/or irrelevant is simply wrong.
Appellant's contention that further error was committed because due to inadvertence the jury learned also of his 1984 prior conviction, must be summarily rejected for the plain reason that in view of the record the error was harmless beyond any doubt.
See footnote *, ante.
III. CONCLUSION
The trial court is directed to modify the judgment so as to award an additional 34 days' presentence conduct credit to appellant. In all other respects the judgment is affirmed.
PERLEY and REARDON, JJ., concur.