Opinion
Review Granted Aug. 16, 1990.
Previously published at 220 Cal.App.3d 1108
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Martin S. Kaye, Supv. Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Robert T. Calhoun, Jr., Executive Director, Louisa Havstad, Staff Atty., First Dist. Appellate Project, San Francisco, for defendant and appellant.
NEWSOM, Associate Justice.
A jury found Alan Haysbert guilty of theft with a prior theft conviction (Pen.Code, § 666) and found true the allegation that Haysbert previously had suffered a conviction of petty theft with a prior theft conviction (Pen.Code, §§ 484, 666). Haysbert appeals from the judgment entered upon the jury's verdict. In relevant part the factual background may be summarized as follows. A security guard employed by Thrifty Drug Store watched as Haysbert pocketed a number of items from the store's shelves while placing other items in a shopping cart. The security guard saw Haysbert pay for the items in the cart but not for those in his pockets. She stopped Haysbert and took him up to a store office. On the way, Haysbert took something from a pocket and put it into the bag. Store employees searched Haysbert, removing all items from the bag and from his person. A check of the various items against the store receipt revealed that Haysbert had not paid for a bottle of vitamin oil, a tube of polysporin, two bottles of Desenex, dental picks and hair nets. The police were called and Haysbert was placed under arrest.
"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." (Pen. Code, § 666.)
In support of the charge of theft with a prior theft conviction, the information filed against Haysbert alleged that he had suffered several prior misdemeanor convictions and one prior felony conviction. The prosecution moved to amend the information to strike the allegation of prior misdemeanor convictions so that the only remaining prior conviction would be the prior felony conviction, a robbery. The defense opposed the motion, arguing that striking the prior misdemeanor convictions would deny Haysbert the right to stipulate to the prior offense and keep the fact of that offense from the jury. When the court granted the prosecution's motion to amend, Haysbert argued that the court should permit him to stipulate to the prior felony conviction. The court instead permitted the prosecution to prove the conviction, and the question before us is whether there was error.
Article I, section 28, subdivision (f) of the California Constitution provides that "any prior felony conviction of any person in any criminal proceeding ... shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceedings. 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 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 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. Brashiar (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. There, 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 The courts declined, however, to apply Penal Code section 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, 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 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 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."
Our consideration of the record before us leads to the conclusion that Watson error occurred here. The judgment of conviction is accordingly reversed.
RACANELLI, P.J., concurs.
STEIN, Associate Justice, dissenting.
I respectfully dissent:
There is a split in authority on the question of whether a defendant charged with a violation of Penal Code section 666 may stipulate to the prior theft conviction inherent in that charge. My colleagues agree with the line of cases holding that because Penal Code section 666 is violated when the prior conviction is a misdemeanor, the fact that the prior conviction was a felony is not an element of the offense; the element at issue is simply the fact of a prior conviction of a theft-related offense. They conclude that article I, section 28, subdivision (f), making admissible prior felony convictions which are elements of the current offense, does not apply. (See, e.g., People v. Ancira (1985) 164 Cal.App.3d 378, 381, 210 Cal.Rptr. 527.) I find the opinion People v. Bennett (1987) 188 Cal.App.3d 911, 233 Cal.Rptr. 729 the more persuasive:
"We adopt instead the reasoning of People v. Callegri, [1984] 154 Cal.App.3d 856 [202 Cal.Rptr. 109], in which the Court of Appeal held that a defendant may not avoid the mandate of section 28, subdivision (f), by stipulating to his theft-related prior felony conviction.... Hall [People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826] and Valentine [People v. Valentine (1986) 42 Cal.3d 170, 228 Cal.Rptr. 25, 720 P.2d 913] require that result. In those cases our Supreme Court noted that, in the felony petty theft situation, 'the prior is an essential component of the felony.' (People v. Hall, supra, 28 Cal.3d at p. 156 [167 Cal.Rptr. 844, 616 P.2d 826] italics added [by Bennett court]; see People v. Valentine, supra, 42 Cal.3d at p. 181, fn. 6 [228 Cal.Rptr. 25, 720 P.2d 913].) That being so, when that prior is itself a felony, it clearly comes within the requirement of section 28, subdivision (f), that 'it shall be proven to the trier of fact in open court.' " (People v. Bennett, supra, 188 Cal.App.3d at p. 915, 233 Cal.Rptr. 729.)
It is within the discretion of the prosecutor to determine what charges to bring and how to draft the accusatory pleading. (People v. Adams (1974) 43 Cal.App.3d 697, 708, 117 Cal.Rptr. 905.) It necessarily follows that the decision to strike allegations from an information is also a matter of the prosecution's discretion, subject to the court's power to protect a defendant who would suffer prejudice if the thrust of the prosecution's case is substantially changed by striking the allegations. (Leo v. Superior Court (1986) 179 Cal.App.3d 274, 284, 225 Cal.Rptr. 15.) There is no meaningful difference between exercising the power to limit the charges in the drafting stages of the accusatory pleading or, later, by moving to strike. The prosecution is, of course, limited to proving only such prior convictions as have been alleged. By striking allegations, the prosecution runs the risk of having nothing to fall back on should proof of the remaining allegations fail, but the choice of whether to take that risk rests with the prosecution. Article I, section 28, subdivision (f) 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 five specific offenses: petit theft, grand theft, auto theft, burglary, or robbery. Of these five offenses, one is a misdemeanor (petit theft); three may be either misdemeanors or felonies (auto theft, burglary and grand theft); and the remaining offense is a felony (robbery). If the People choose to rely only on a prior felony conviction, it then becomes an essential element of the crime and article I, section 28, subdivision (f) makes it admissible.