Return to CALJIC Part 9-12 – Contents
F 12.44 n1 Ex-Felon In Possession Of Firearm: Duty to Define “Right To Control” (PC 12021 & PC 12021.1).
See FORECITE F 1.24 n5.
F 12.44 n2 Prior Misdemeanant In Possession Of Firearm: Stipulation To Misdemeanant Status.
People v. Wade (96) 48 CA4th 460 [55 CR2d 855] interpreted People v. Bouzas (91) 53 C3d 467 [279 CR 847] to preclude stipulation to a prior felony per PC 12021(a) and a prior misdemeanor per PC 12021(c). However, the rationale of Wade in this regard is somewhat suspect. It relied on the following passage from Bouzas: “For example, allowing a defendant who has been charged under PC 12021 (ex-felon in possession of a concealable firearm) to admit his ex-felon status and thereby keep that information from the jury would undoubtedly impair the prosecution’s ability to secure a conviction. [Citation.]… ‘[A]sk[ing] “a jury to find someone guilty of possession of a handgun is considerably different [from] asking [it] to find a felon guilty of possession of a handgun.’” [Citation.]” (Bouzas, 53 C3d at 479.) While this may be a correct statement of reality, it implicates the defendant’s constitutional rights to trial by jury and due process (Cal. Const. Article 1, Section 15 and 16 and U.S. Const. 6th and 14th Amendments) and to a fair and reliable jury determination of all elements of the offense, by allowing the jury to rely on the defendant’s status as an ex-felon to determine the possession element of the charge. In other words, if the defendant does stipulate to the ex-felon status, the only element remaining to be proven is whether or not the defendant possessed the weapon. This is an issue which should be resolved entirely upon the facts relating to the possession. By allowing the jury to bootstrap the status of the defendant into a circumstance relating to proof of the possession element, this rule unconstitutionally allows the defendant to be convicted upon irrelevant and prejudicial evidence. (See McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380-82 [admission of emotionally-charged character evidence which was irrelevant to any issues in the trial was a due process violation].)
If evidence of other offenses is merely cumulative with respect to other evidence used to prove the same issue, it should be excluded. (People v. Thompson (80) 27 C3d 303, 318 [165 CR 289]; People v. Pitts (90) 223 CA3d 606, 850-51 [273 CR 757].) That is so by definition when an issue is conceded. Similarly, evidence of prior uncharged offenses should only be permitted for the jury’s consideration when it actually bears upon a disputed, material issue in the case. (People v. Thompson, supra, 27 C3d at 315 [ultimate fact to be proved “must be ‘actually in dispute’”]; see also People v. Schader (69) 71 C2d 761, 775-76 [80 CR 1].) A conceded issue is not disputed. And in the required weighing of probative value against prejudicial effect (People v. Kelley (67) 66 C2d 232, 239 [57 CR 363]), the prejudicial effect of a prior felony conviction is high, while the probative value when an issue is conceded is minuscule.
Admission of a fact on cross-examination takes an issue out of a case and renders further evidence irrelevant. (People v. Reyes (76) 62 CA3d 53, 64 [132 CR 848].) Admission by express concession is no different.
(See FORECITE EA V(B) – EA V(D).)
F 12.44 n3 Refusal Of Stipulation To Ex-Felon/Misdemeanant Status As Due Process Violation.
[See also FORECITE F 12.44a and F 12.44 n2.]
F 12.44 n4 Ex-Felon With Firearm: Due Process Requires Sua Sponte Instruction Regarding Stipulation Of Underlying Felony (PC 12021 & PC 12021.1).
The due process clause of the federal constitution (5th and 14th Amendments) prohibits a conviction from being based on “evidence which is utterly irrelevant or unduly prejudicial.” (People v. Valentine (86) 42 C3d 170, 180 [228 CR 25]; Bruton v. US (68) 391 US 123, 131, fn 6 [20 LEd2d 476; 88 SCt 1620].) Accordingly, notwithstanding the fact that CJ 12.44 is a limiting instruction which should be requested (see Valentine, 482 C3d at 182 fn 7), due process requires that the instruction be given sua sponte. (But see People v. Griggs (2003) 110 CA4th 1137, 1143 [trial court did not err in failing to give a limiting instruction, sua sponte, with respect to the stipulation to appellant’s prior felony conviction].) [See Brief Bank # B-711 for additional briefing on this issue.]
F 12.44a
Ex-Felon In Possession Of Firearm:
No Speculation About Nature Of Prior Felony Where Stipulated
(PC 12021 & PC 12021.1)
*To be inserted after 3rd ¶ of CJ 12.44 (1990 Rev):
You must not consider the previous felony conviction for any purpose other than establishment of the previous felony conviction element of the charge. Neither the fact that the defendant has been previously convicted nor the nature of the prior conviction has any bearing on defendant’s credibility or guilt on any charge. You must not speculate on the nature of the prior conviction.
Points and Authorities
In People v. Hall (80) 28 C3d 143, 151-58 [167 CR 844], the court held that when a prior conviction is only relevant to establish the defendant’s ex-felon status, the defendant may stipulate to this element of the offense and thus preclude the jury from learning about his prior conviction.
In People v. Valentine (86) 42 C3d 170, 173 [228 CR 25], the court concluded that Proposition 8 eliminated the Hall rule. Under the new constitutional provision, the jury is allowed to learn the fact that the defendant is an ex-felon, but the nature of his prior conviction may be withheld from the jury by stipulation. (See also People v. Sapp (2003) 31 C4th 240, 262 [under Valentine “the trial court only [has] two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.”].)
The presentation of an unspecified prior felony conviction to the jury invites prejudicial speculation. (See People v. Rollo (77) 20 C3d 109, 115-20 [141 CR 177]; see also People v. Stewart (2004) 33 C4th 425, 479 [not unreasonable for counsel to opt for specification of several specific priors in lieu of having unspecified prior]; People v. Barrick (82) 33 C3d 115, 126-28 [187 CR 716]; People v. Jimenez (9th Cir. 2000) 214 F3d 1095, 1099 [reference to prior as “felony involving firearm” was improper].) But, the prejudicial impact of the unspecified felony can be diminished if the jury is told in clear terms not to utilize the prior conviction for any purpose other than establishment of the status element of the offense. (Valentine 42 C3d at 182, fn 7.)
Thus, the limiting instruction proposed above “should” be given upon the defendant’s request. (Valentine 42 C3d at 182, fn 7; EC 355.)
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]