Opinion
H025177.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE MURDOCK HAMEL, Defendant and Appellant.
Clarence Hamel appeals from a judgment of conviction of petty theft with a prior (Pen. Code, § 666) and forgery (§ 470, subd. (a)). The convictions stemmed from an unauthorized cash withdrawal made by defendant using a female acquaintances ATM card and his unauthorized use of one of her checks to make a purchase. The court sentenced defendant to a total prison term of four years.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the trial court abused its discretion by refusing his request to bifurcate the trial of an alleged prior conviction within the meaning of section 667, subdivisions (b) through (i), and section 1170.12 and, consequently, this court should reverse and remand for trial on the prior conviction allegation.
We reverse and order a limited remand.
A. Procedural Background
Defendant was originally charged by information with four counts: petty theft with a prior (§ 666) (count 1); check forgery (§ 470, subd. (a)) (count 2), making a criminal threat (§ 422) (count 3), and dissuading or attempting to dissuade a witness (§ 136.1, subd. (c)(1)) (count 4). The information also alleged two prior convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12 and two prior convictions within the meaning of section 667, subdivision (a). Both sets of prior convictions allegations referred to a battery with serious bodily injury (§§ 242, 243, subd. (d)) and a robbery (§ 211).
In motions in limine, defendant asked the court to exclude all references to his prior convictions and his prior conduct involving moral turpitude and to bifurcate the trial of the prior conviction allegations and order them to be tried after trial of the charged offenses. At the hearing on the motions, the prosecution indicated that it would be offering evidence of certain prior convictions for impeachment, namely the aforementioned prior robbery conviction (§ 211), a prior forgery conviction, a prior conviction of petty theft with a prior (§ 666), and a prior conviction of possession of stolen property (§ 496). The court ruled that the prosecution would be permitted to present evidence of those convictions if defendant elected to testify.
As to the request for bifurcation, the court granted it "without prejudice to the prosecution" but stated: "In the event the defendant elects to testify and is impeached with priors and the jury is already made aware of them, then at that point the whole point and purpose of bifurcation is moot, and at that point in time then they would be tried by the jury . . . ." Defense counsel complained that the courts ruling did not take into consideration that the prior conviction of battery with serious bodily injury was not usable for impeachment. The defense position was that the prior battery was a serious and violent offense and defendant would be prejudiced if the jury learned of the offense. The court concluded: "My intention would be to permit it, take it under submission. And if it comes to fruition, then we can revisit it."
At trial, defense counsel informed the court that defendant wished to testify and again contended the jury should not hear evidence of the prior conviction of battery with serious bodily injury because it was not a crime of moral turpitude. The court inquired, "[I]f hes being impeached on the 211, the 470, the 666, and 496, why are we hiding or keeping away from the jury the issue of the 242.3." Defense counsel argued that evidence of battery was inadmissible because it was not a crime of moral turpitude. The court indicated that it would be inefficient and uneconomical to have the jury return for a trial on a single prior conviction allegation where the jury would be considering evidence of the other prior convictions. After a short exchange, defense counsel told the court that defendant would be prepared to admit the priors. A discussion was held off the record.
Back on the record, defendant admitted the two prior convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12 and the two prior convictions within the meaning of section 667, subdivision (a). Following defendants admissions, the court then stated: "At this point in time the indicated ruling is that the prosecution will not be permitted to dwell [sic] into the 242.3 conviction; however you may impeach on the 211, 470, 666 and 496 as previously discussed. . . . [¶] In the event that the prosecution feels that given the state of the evidence the prior conviction . . . becomes relevant, then Id request that we have a sidebar so that we can discuss it and make a determination."
Defendant testified on his own behalf. He admitted that he had a 1984 felony conviction for robbery, 1984 felony conviction for receipt of stolen property, a 1988 felony conviction for petty theft with a prior conviction for theft, and a 1993 forgery conviction. Defendant also admitted that in 1993 he hit the mother of his children.
The jury found defendant guilty of counts one and two. However, the jury deadlocked on counts three and four and the court declared a mistrial on those counts.
At the sentencing hearing, the trial court considered the defense request that the prior conviction allegations under three strikes law be stricken (§ 1385; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497). The court granted the request as to the prior robbery conviction allegation but denied the request as to the allegation of a prior conviction of battery with serious bodily injury. The court also struck the prior conviction allegations under section 667, subdivision (a), because they were no longer applicable. The prosecution indicated that it would not seek retrial of counts three and four and successfully moved for those counts to be dismissed pursuant to section 1385.
B. Abuse of Discretion
"[The California Supreme Court has] recognized that if the jury is permitted to learn of a defendants prior conviction, it may be disposed to lean toward a determination of guilt in the current proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 75 [36 Cal.Rptr.2d 333, 885 P.2d 83].) Accordingly, the trial of an allegation concerning a defendants prior conviction generally is bifurcated from that of other current charges. (Id. at pp. 75-76.)" (People v. Cunningham (2001) 25 Cal.4th 926, 983.) In 1994, however, the California Supreme Court held that a trial court was not required to bifurcate "if the defendant will not be unduly prejudiced by having the truth of the alleged prior conviction determined in a unitary trial" and disapproved People v. Bracamonte (1981) 119 Cal.App.3d 644, which had recognized a judicial rule requiring bifurcated trial of all prior conviction allegations. (People v. Calderon , supra, 9 Cal.4th at pp. 73, 80.)
Section 1025, subdivision (b), now generally provides that "the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived." "At the time section 1025 was enacted, a defendant who was alleged to have suffered a prior conviction had two choices: admit the alleged prior conviction, or have the truth of the allegation determined concurrently—during the trial of the current charges—by the jury entrusted with deciding the defendants guilt or innocence of those charges. On numerous occasions, this procedure was upheld against challenges by defendants. [Citations.] [¶] The foregoing procedure reflected the state of the law until 1981, when the Court of Appeal in People v. Bracamonte, supra, 119 Cal.App.3d 644, held that a defendant who denies an alleged prior conviction is entitled to a bifurcated proceeding wherein the jury is not informed of his prior convictions, either through allegations in the charge or by the introduction of evidence, until it has found the defendant guilty. (Id . at p. 654.)" (People v. Saunders (1993) 5 Cal.4th 580, 588, fn. omitted.)
The court determined that "bifurcation is not required in every instance." (People v. Calderon, supra, 9 Cal.4th at p. 78.) "In some cases, a trial court properly may determine, prior to trial, that a unitary trial of the defendants guilt or innocence of the charged offense and of the truth of a prior conviction allegation will not unduly prejudice the defendant. Perhaps the most common situation in which bifurcation of the determination of the truth of a prior conviction allegation is not required arises when, even if bifurcation were ordered, the jury still would learn of the existence of the prior conviction before returning a verdict of guilty. For example, when the existence of the defendants prior offense otherwise is admissible to prove the defendant committed the charged offense—because the earlier violation is an element of the current offense [citations] or is relevant to prove matters such as the defendants identity, intent, or plan [citations]—admission of the prior conviction to prove, as well, the sentence enhancement allegation would not unduly prejudice the defendant. Similarly, when it is clear prior to trial that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant. Under such circumstances, a trial court would not abuse its discretion in denying a defendants motion for bifurcation." (Ibid., fns. omitted.)
"In ruling upon a defendants timely request for bifurcation, the trial court first should consider the potential prejudicial effect of admission of evidence that the defendant has suffered the alleged prior conviction. . . . The potential for prejudice will vary, however, depending upon the circumstances of each case. Factors that affect the potential for prejudice include, but are not limited to, the degree to which the prior offense is similar to the charged offense [citations], how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior conviction as compared with the charged offense [citations]." (People v. Calderon, supra, 9 Cal.4th at p. 79.)
"If it appears likely that admission of evidence of the prior conviction would unduly prejudice the defendant, the court should consider whether this potential for prejudice will be lessened for some reason, such as because evidence that the defendant has committed one or more uncharged criminal offenses will be admitted for purposes other than sentence enhancement. The determination whether the risk of undue prejudice to the defendant requires that the trial be bifurcated rests within the sound discretion of the trial court, and that determination will be reversed on appeal only if the trial court abuses its discretion." (Ibid.)
"[T]he risk of undue prejudice posed by the admission of evidence of a prior conviction, considered against the minimal inconvenience generally caused by bifurcating the trial, frequently will militate in favor of granting a defendants timely request for bifurcation." (Ibid.) "[I]n appropriate cases, the court may wish to grant conditionally a defendants motion for bifurcation, and reconsider that ruling at the close of the prosecutions case-in-chief, and again at the close of the defense case, in light of subsequent developments in the proceedings." (Ibid.) "[T]he denial of a defendants timely request to bifurcate the determination of the truth of a prior conviction allegation from the determination of the defendants guilt is an abuse of discretion where admitting, for purposes of sentence enhancement, evidence of an alleged prior conviction during the trial of the currently charged offense would pose a substantial risk of undue prejudice to the defendant." (Id. at pp. 77-78.)
In regard to the consideration of judicial economy, the court stated in Calderon, supra, 9 Cal.4th 69, 77: "The states interest in judicial economy is the sole justification advanced by the People for conducting a unitary trial in cases where evidence of the defendants prior conviction is admissible solely for the purpose of sentence enhancement. Although the state has a legitimate interest in conserving limited judicial resources, it would appear that conducting a unitary trial rather than a bifurcated one under the above described circumstances would save little, if any, time. . . . In the vast majority of cases, priors are either admitted (requiring no proof) or are proved in uncontested hearings by certified copies of court and prison records. Even when testimony is presented, the process is generally completed quickly. Furthermore, although some time would be spent in the second phase of a bifurcated proceeding introducing evidence to prove a prior conviction allegation, in argument by counsel, and in instructions to the jury, a nearly equivalent amount of time would be saved during the preceding guilt phase of the trial. And if the defendant was not convicted, the necessity of proving the prior conviction allegation would be obviated entirely. [Citation.] Accordingly, the states legitimate interest in conserving judicial resources is insufficient to justify denying a defendants request to bifurcate the trial when having the jury determine the truth of a prior conviction allegation concurrently with the defendants guilt of the currently charged offense would pose a substantial risk of undue prejudice to the defendant."
The People argue that the trial court did not abuse its discretion by denying a bifurcated trial on the alleged prior conviction of battery with serious injury since defendant indicated he was testifying and the jury was going to learn of defendants extensive criminal history, including the prior conviction of robbery, which is a violent crime (see § 667.5, subd. (c)(9)). On appeal, the defendant asserts that "[t]he inflammatory nature of [the battery] prior presented the substantial likelihood of prejudice to appellant had it been tried to the jury" because it was a crime of violence. He contends that evidence of that prior conviction "would have been particularly prejudicial in the context of [the criminal threat] charge." He argues that the courts only stated reason for preferring a unitary trial was judicial economy.
Although it is a close question, we conclude that the trial court abused its discretion by denying defendants motion to bifurcate. First, there is no suggestion that evidence of the prior battery conviction was admissible to show moral turpitude or otherwise. Second, the felony battery conviction was relatively recent and a jury might improperly believe its commission indicated the defendants propensity or willingness to use or threaten force. Two of the charges, criminal threat (§ 422) (count 3), and dissuading or attempting to dissuade a witness or victim (§ 136.1, subd. (c)(1)), involved an issue of force or threat of force or violence. (See § 422 ["[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person . . ."]; see 136.1, subd. (c)(1) ["act is accompanied by force or by an express or implied threat of force or violence"].) Although the potential for undue prejudice was lessened because evidence of four other prior felony convictions were admissible at trial for impeachment purposes, three of the convictions did not involve any aspect of force or violence and the robbery conviction occurred much earlier. Third, as Calderon makes clear, the states interest in judicial economy is not a valid reason for refusing to bifurcate trial.
Battery with serious injury is a "simple battery which results in serious bodily injury" and requires only general criminal intent to commit the touching. (People v. Mansfield (1988) 200 Cal.App.3d 82, 88.) Consequently, "a battery resulting in serious bodily injury in violation of section 243, subdivision (d) is not a crime necessarily involving moral turpitude." (Id . at p. 89; see People v. Castro (1985) 38 Cal.3d 301.)
The probation report filed September 6, 2002 shows defendant was convicted of the battery in 1991.
C. Prejudice
Defendant asserts that the proper remedy for the trial courts abuse of discretion is an order from this court vacating the sentence and directing the trial court, upon remand, to permit him to withdraw his admission and have a limited trial on the prior conviction allegation. The People agree this remedy is appropriate if we conclude the trial court abused its discretion. Both parties rely upon the disposition in Calderon.
The court in Calderon stated as to prejudice: "With respect to defendants conviction of the currently charged offense (burglary), it is clear that the error was not prejudicial. As noted, after the trial court denied defendants motion to bifurcate the trial, defendant admitted the prior conviction allegation outside the presence of the jury, and no evidence relating to the prior conviction or the resulting prison term was admitted for the purpose of sentence enhancement. Thus, the jurys guilty verdict on the burglary charge was not affected by the courts error in ruling upon the bifurcation motion without considering the circumstances of the particular case. [¶] The trial courts error may have been prejudicial, however, with regard to the determination of the sentence enhancement, because it appears that the courts denial of the bifurcation motion caused defendant to forego his right to have a jury determine whether he had suffered the alleged prior conviction and served the resulting prison term. [Citations.]" (People v. Calderon , supra, 9 Cal.4th at p. 80.)
The Supreme Court remanded the matter to the trial court to reconsider the motion for bifurcation in light of the newly articulated principles. (People v. Calderon, supra, 9 Cal.4th at p. 81.) The Supreme Court directed: "In the event the trial court determines on remand that the motion for bifurcation properly was denied, it should reinstate the sentence enhancement. If the trial court determines the motion for bifurcation should have been granted, defendant may elect to withdraw his admission of the alleged prior conviction and the resulting prison term and have a limited new trial on the issue whether he suffered the alleged prior conviction for attempted robbery (§§ 664/211) and served a prior prison term for that offense within the meaning of section 667.5, subdivision (b)." (People v. Calderon, supra, 9 Cal.4th at p. 81.)
We are, of course, bound by Calderon. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, defendant must be given the opportunity to withdraw his admission of the prior felony battery conviction.
We note that it would be possible for the Supreme Court to adopt a rule requiring a defendant to proceed with a unitary trial of the charged offenses and a prior conviction allegation to preserve for appellate review the claim that a trial court erroneously denied a motion to bifurcate the trial of that allegation. (Cf. People v. Collins (1986) 42 Cal.3d 378, 383-388 [holding that " to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify " (id. at p. 384)].)
The judgment is reversed and the matter remanded for the limited purpose of allowing the defendant to withdraw his admission of the prior battery conviction if he so chooses. If defendant elects to withdraw his admission, a limited new trial shall be conducted on the issue whether defendant suffered the prior battery conviction within the meaning of sections 667, subdivisions (b) to (i), and 1170.12 as alleged.
WE CONCUR: RUSHING, P. J., PREMO, J.