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F 14.41a
Petty Theft With Prior Conviction–Prior Admitted:
Prejudicial Reference To Prior
(PC 666)
*Modify Title of CJ 14.41 as follows [deleted language is between << >>]:
PETTY THEFT <<WITH PRIOR CONVICTION — PRIOR ADMITTED>>
Points & Authorities
It is established that the defendant has the right to admit a prior conviction and thereby preclude the jury from learning about this fact during the trial of a petty theft charge. (See People v. Bouzas (91) 53 C3d 467, 480 [279 CR 847].) However, it would obviously defeat the purpose of such a stipulation and prejudice the defendant to inform the jury in the instructions that the defendant has admitted a prior conviction. However, this is exactly what CJ 14.41 does if it is submitted to the jury with the title left intact. The title provides as follows: “Petty Theft With Prior Conviction–Prior Admitted.”
Exposure of the jury to this title is in effect exposure to a fact not in evidence. “Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the 6th Amendment. [Citations.]” (Lawson v. Borg (9th Cir. 1995) 60 F3d 608, 612; see also, U.S. v. Vasquez (9th Cir. 1979) 597 F2d 192, 193-94 [inadvertent jury exposure to a file showing defendant had suffered prior conviction warranted reversal]; see also generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].) Moreover, jury exposure to other crimes evidence has a “substantial prejudicial effect” upon the jury. (People v. Ewoldt (94) 7 C4th 380, 404 [27 CR2d 646].) Moreover, although the prejudicial effect is heightened when the other crime is similar (People v. Johnson (91) 233 CA3d 425, 459 [284 CR 579]), 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].)
Accordingly, the title to CJ 14.41 should either be modified as set forth above or deleted entirely from the instructions given to the jury. (See PG V(D)(2); see Brief Bank # B-751 for additional briefing.)
NOTES
This instruction illustrates a problem which may result from leaving the titles on the written instructions submitted to the jury. (See FORECITE PG V(D)(2).)
F 14.41b
Petty Theft With Prior — Prior Admitted:
Intent To Deprive Of Main Or Major Value
*Modify CJ 14.41 as follows [added language is capitalized]:
Every person who steals, takes, carries, leads or drives away the personal property of another with the specific intent to [permanently deprive the owner of [his] [her] property] [DEPRIVE THE OWNER OF THE [MAIN] [MAJOR] VALUE OF [HIS] [HER] PROPERTY] is guilty of the crime of petty theft.
Points and Authorities
See FORECITE F 9.40p.
