People v. Spearman

Opinion

In an information accusing defendant of the violation of Penal Code section 667 (petty theft with prior), he was charged with having suffered six previous convictions of felonies for which he had served a period of imprisonment. (Hereafter, for brevity, we will refer simply to the charged “priors.”) Despite some confusing language on the part of counsel for the prosecution about the first prior being set up as part of the corpus of the crime and despite the preparation of the verdict forms (apparently by the district attorney), so as to have one for the crime (petty theft and first prior) and separate ones for the other priors, each prior seems to have been alleged and considered as an alternative to meet the second portion of Penal Code section 667. Ultimately it is only necessary that one prior be established to invoke the part of Penal Code section 667 which brings about felony punishment. The way the jury rendered its

Defendant argues a claimed analogy to Griffin v. California, 308 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ] (error to comment on defendant exercising his Fifth Amendment right of silence in court or in attempted pretrial interrogations). He explains no further. Perhaps his thought is that if a defendant at arraignment declines to respond to the query about priors, his silence is treated as a denial (Pen. Code, § 1025) which puts the prosecution to its proof and allows the bringing of the priors and their possible detrimental influence to the attention of the jurors in the same manner that erroneous prosecution comments on a defendant’s silence brings it and its implications to their attention. The analogy involves only one aspect of the scheme, and, here, as indicated, defendant did deny the priors. Furthermore, there is involved in Griffin a constitutionally impermissible inference from silence, while in the prior felony situation the deplored evil is a presumed inclination of jurors to punish a man because of past misdeeds even though there is doubt as to guilt of the current offense.

Defendant also argues a claimed analogy to United States v. Jackson, 390 U.S, 570 [ 20 L.Ed.2d 138 , 88 S.Ct. 1209 ], which held, in effect, that the pressure put on a defendant charged with kidnaping to give up his right to a jury trial by a federal law that allowed the death penalty to be imposed by jurors in a jury-tried case but did not allow it to be imposed by the court in a judge-alone-tried case made that part of the law unconstitutional. The reasoning is that the right to jury trial was emasculated by such a legislative provision. The analogy, says defendant in our case, is that the right to put the prosecution to its proof of priors before a jury is undermined by the state’s legal scheme which puts pressure on a petty-theft-with-felony defend

There are two other influencing points. The codefendant-confession situation calls more for the protective rule because it involves a violation of the right of cross-examination, an important factor in the constitutional concept of confrontation. In recidivist" procedures no such special right is involved. Reliance is placed solely on a general fairness approach. The suggested procedural remedy is more drastic in the proof-of-priors circumstance, and even if the desired remedy (two separate jury considerations) is provided there still remains (unless fundamental legislative .changes are put into effect) a danger of the deplored influences. The trial of a low-grade misdemeanor in the superior court would raise the eyebrows of a sophisticated juror and would lead him to suspect the true reason.. In the codefendant-confession situation, the necessity for separate trials can often be avoided by editing the confession or not using it, and if separate trials are granted, there is little chance of there evolving an indirect route (by juror surmise) to the restricted evidence. As is said in Spencer (at pp. 566-568 [17 L.Ed.2d at pp. 615-616]), “The common-law procedure for applying recidivist statutes, . . . which requires . . . proof of past convictions in the current trial, is . . . the simplest and best known procedure .... Two-part jury trials . . . have never been compelled .... as a matter of constitutional law. ...” The Supreme Court holds that to do so would encroach on the powers of the states to promulgate their own rules of evidence.

Considering the differences inherent in the two situations (chiefly, two separate defendants with legitimate evidence as .to one likely to improperly affect the guilt or innocence issue of the other on the one hand; and a single defendant with proof of priors having the chance of emasculating the burden-of-proof rule as to the actual crime charged, on the other hand), we do not feel that Bruton and Aranda point so strongly to the result for which defendant contends that this court should blaze the trail to it.

3. Defendant’s statement (testified to by Officer Walker): “I have been trying real hard to go straight, I just made a mistake last night,” made when the officer stated he was not going to question defendant (because he knew defendant wanted an attorney) and was about to return defendant to his jail cell was spontaneous and voluntary. It was not error to admit the statement. (Miranda v. Arizona, 384 U.S. 436 , 478 [ 16 L.Ed.2d 694 , 725, 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]; People v. Dorado, 62 Cal.2d 338 , 354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].) It is unnecessary to determine if the Miranda warning was complete, understood, and waived. However, it appears that it was.

4. It was proper for the prosecution to make a prima facie showing that defendant had suffered convictions and served time for them by documentary proof. Abstracts of the judgments, which show convictions, are official government records. Certified copies are admissible. (Pen. Code, § 969b; People v. Pitts, 196 Cal.App.2d 841 , 844 [ 16 Cal.Rptr. 879 ].) The documents in the instant case showed sentences to the state prison. The fact-finder had the right to infer from this that defendant did serve time in prison. Moreover, defendant only objected to the form of this proof. He made no contention that there was any constitutional infirmity in any one of the convictions nor that he had not, in fact, served time on any one of them, which might have led to the taking of further evidence and involved confrontation of witnesses, although not necessarily so.

5. Defendant attempts to liken defense counsel’s decision not to argue to the jury to the presentation of a no-merit brief on appeal. He cites Anders v. California, 386 U.S. 738 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ], and People v. Feggans, 67 Cal.2d 444 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ], for the proposition that appellate counsel must argue all debatable issues. These issues, of course, include those of fact and law; normally more of the latter. The analogy is hardly complete. Trial counsel, as is usually the case, throughout the proceeding put prosecution witnesses to the test by cross-examination, raised legal objections and invoked voir dire proceedings. Only fact matters, albeit in light of the law, are argued to the jury. It can be a matter of sound tactical trial decision on defense counsel’s part to let his testing of the accuracy and reliability of the witnesses, accomplished throughout the trial, speak for themselves, especially in a short case. Moreover, where the guilt evidence against a defendant is overwhelming (as in this case), trial counsel can legitimately conclude that defendant’s

The judgment is affirmed.

Kaus, P. J., and Stephens, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied January 14, 1970.