People v. Aulisi

Appellant was found guilty by a jury of first degree robbery and was found to be armed. Prior convictions charged were found to be true. Upon the court’s own motion the finding that appellant was personally armed was stricken. Probation was denied, the appellant was sentenced to state prison for the term prescribed by law.

Mrs. Frances Tetter, owner of a liquor store in Los Angeles, testified that at approximately 3 :15 in the afternoon of November 20, 1966, two men, whom she identified as appellant and a Mr. Hannah, entered her store at the same time, Hannah carrying a paper bag. Hannah told her he had something to exchange, opened the bag, took out a. gun and pointed it at her, telling her to put the money from the cash register into the bag. Appellant at this time was standing inside the store near the cigar ease. He said to Hannah, “put the gun away.” Hannah put the gun into his pocket. Mrs. Tetter placed $25 in the bag. Both men hurried out of the store.

Mrs. Tetter identified appellant in court as one of the men who held her up on November 20.

Hannah testified for the prosecution and identified appellant as his companion. He stated his reason for testifying against appellant (“. . . why should I take and do all the time for the two of usi”) He testified there was no promise of an early parole or leniency, and that he had never discussed the testimony he was giving in court with anyone, although he had a “conversation”—(“Just walking by a person and saying ‘Hi’ would be having a conversation with somebody”) with a police officer regarding the case the day before the trial.

Appellant testified he was not near the liquor store on November 20, 1966; did not have any involvement with Hannah on that date, and did not own a gun. Further, he did not know Mr. Hannah but saw him in a restaurant on Alvarado Street and gave him 50 cents on one occasion, and $1 on another, because Hannah was hungry. He said also that he had had a fight with Hannah over a woman.

Appellant admitted he was not working on November 20, 1966, but stated that prior to that date he had been employed as a machine operator.

After the jury was sworn, appellant having pleaded not guilty to the prior alleged in the information, the judge informed them that the information charged robbery committed with a deadly weapon, and also charged appellant with conviction under the Dyer Act, a felony. The jury was apprised at appellant’s request that the Dyer Act felony meant taking a stolen automobile across state lines.

Appellant contends the statement before the trial commenced, apprising the jury that he had been charged with a prior felony conviction and the evidence establishing it,

It is thoroughly settled, however, that a defendant’s credibility may be impeached by questioning him as to convictions for prior felonies. (Evid. Code, § 788 (former Code Civ. Proc., § 2051)); People v. Knighton, 250 Cal.App.2d 221 , 226-227 [ 58 Cal.Rptr. 700 ]; People v. Roberts, 213 Cal.App.2d 387 397 [ 28 Cal.Rptr. 839 ].)

Although the prejudicial effect of this type of evidence is recognized, it has been held that eliciting such impeaching testimony from the defendant is not violative of any federal or state Constitutional right. The justification is that evidence of a prior conviction is only one element which is to be considered by the jury in determining the credibility of a witness. (People v. Knighton, supra, at page 231.)

It is settled, too, that where a defendant denies conviction for prior offenses, that the jury may be informed of a defendant’s prior record by reading of the information containing allegations of defendant’s prior offenses. (People v. West, 253 Cal.App.2d 348 , 355 [ 61 Cal.Rptr. 216 ] ; People v. Cameron, 256 Cal.App.2d 135 , 138 [ 63 Cal.Rptr. 807 ] ; People v. Hoerler, 208 Cal.App.2d 402 , 408 [ 25 Cal.Rptr. 209 ].)

Reading the prior in the indictment is justified as being “within the statutory power of the states to promulgate their own rules of evidence. ...” (People v. West, supra, at p. 355.)

Penal Code, section 1025 provides that if a defendant answers that he has not suffered conviction of the prior offense charged against him, the question of whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty. If he pleads not guilty and answers that he has suffered such previous conviction, his answer is conclusive of the fact, in all subsequent proceedings, and the charge of the previous eon