SERIES 1800 THEFT AND EXTORTION
F 1850 Petty Theft With Prior Conviction (PC 666)
TABLE OF CONTENTS
F 1850.1 Titles And Identification Of Parties
F 1850.1 Inst 1 Petty Theft With Prior Conviction—Title
F 1850.1 Inst 2 Identification Of Prosecution And Defendant
F 1850.1 Inst 3 Title: Deletion Of Prejudicial Reference To Prior Conviction
F 1850.2 Petty Theft With Prior Conviction—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1850.3 Petty Theft With Prior Conviction—Language That Is Argumentative, Confusing, Etc.
F 1850.3 Inst 1 Jurors Not Required To Decide
F 1850.4 Petty Theft With Prior Conviction—Burden Of Proof Issues
F 1850.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1850.5 Petty Theft With Prior Conviction—Elements And Definitions
F 1850.5 Inst 1 Incorporation Of Prior Into Enumerated Elements
F 1850.5 Inst 2 Petty Theft With Prior: Burglary Must Be Theft Related
F 1850.5 Inst 3 Prior Conviction And Incarceration Must Be Found By Jurors
F 1850.6 Petty Theft With Prior Conviction—Defense Theories [Reserved]
F 1850.7 Petty Theft With Prior Conviction—Preliminary Fact Issues [Reserved]
F 1850.8 Petty Theft With Prior Conviction—Unanimity/Duplicity/Multiplicity [Reserved]
F 1850.9 Petty Theft With Prior Conviction—Lesser Offense Issues [Reserved]
F 1850 Notes
F 1850 Note 1 Petty Theft With Prior Conviction—CALCRIM Cross-References And Research Notes
F 1850 Note 2 Petty Theft: Bifurcation Of Prior (PC 666)
F 1850 Note 3 Petty Theft With Prior: Whether Enhancement Must Be Pleaded In Charging Document
F 1850 Note 4 Petty Theft: Stipulation To Prior (PC 666)
Return to Series 1800 Table of Contents.
F 1850.1 Titles And Identification Of Parties
F 1850.1 Inst 1 Petty Theft With Prior Conviction—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1850.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
Title: Deletion Of Prejudicial Reference To Prior Conviction
*Modify CC 1850, Title, as follows [deleted language is stricken]:
Petty Theft With Prior Conviction
Points & Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Prejudicial Impact Of Prior Conviction—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 (1991) 53 C3d 467, 480.) 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 CALCRIM 1850 does if it is submitted to the jury with the title left intact. The title provides as follows: “Petty Theft With Prior Conviction.”
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 (1994) 7 C4th 380, 404.) Moreover, although the prejudicial effect is heightened when the other crime is similar (People v. Johnson (1891) 233 CA3d 425, 459), the presentation of an unspecified prior felony conviction to the jury invites prejudicial speculation. (See People v. Rollo (1977) 20 C3d 109, 115-20; 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 (1982) 33 C3d 115, 126-28; People v. Jimenez (9th Cir. 2000) 214 F3d 1095, 1099 [reference to prior as “felony involving firearm” was improper].)
Accordingly, the title to CALCRIM 1850 should either be modified as set forth above or deleted entirely from the instructions given to the jury. (See CALCRIM Motion Bank # CCM-003 and CCM-004.)
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).)
CALJIC NOTE: See FORECITE F 14.41a.
F 1850.2 Petty Theft With Prior Conviction—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1850.3 Petty Theft With Prior Conviction—Language That Is Argumentative, Confusing, Etc.
F 1850.3 Inst 1 Jurors Not Required To Decide
*Modify CC 1850, paragraph 1, sentence 1, as follows [added language is underlined]:
If you find the defendant guilty of petty theft, you must then decide, if you can, whether the People have proved the additional allegation that the defendant has been convicted of a theft offense before and served a term in a penal institution as a result of that conviction.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1850.4 Petty Theft With Prior Conviction—Burden Of Proof Issues
F 1850.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1850.5 Petty Theft With Prior Conviction—Elements And Definitions
F 1850.5 Inst 1 Incorporation Of Prior Into Enumerated Elements
*Modify CC 1850, Elements as follows [added language is underlined; deleted language is stricken]:
1. The defendant was previously convicted of a theft offense;:
[1.] A violation of _________ <insert code section violated>, on _________ <insert date of conviction>, in the _________ <insert name of court>, in Case Number _________ <insert docket or case number>(;/.)
[AND
<Repeat for each prior conviction alleged>.]
[ _________ <insert name of penal institution> is a penal institution.]
AND
2. The defendant served a term in a penal institution for that conviction.
The People allege that the defendant was previously convicted of:
[1.] A violation of _________ <insert code section violated>, on _________ <insert date of conviction>, in the _________ <insert name of court>, in Case Number _________ <insert docket or case number>(;/.)
[AND
<Repeat for each prior conviction alleged>.]
[ _________ <insert name of penal institution> is a penal institution.]
Points and Authorities
See FORECITE F 402.5 Inst 6.
F 1850.5 Inst 2 Petty Theft With Prior: Burglary Must Be Theft Related
*Add to CC 1850 when appropriate:
Burglary may not be used as the basis for convicting the defendant of petty theft with a prior unless the prosecution has proven beyond a reasonable doubt that the burglary was theft-related. In order to do so, the prosecution must prove that the defendant entered with the intent to commit the crime of __________ <insert intended crime, e.g. theft>. Theft requires proof of the following elements: <insert elements of intended crime>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Theft-Related Requirement—“The focus of [PC] 666 is on theft-related priors …. The apparent intent of the statute is to provide extra punishment for recidivist thieves, rather than ex-felons who commit petty theft.” (People v. Ancira (1985) 164 CA3d 378, 381; see also, People v. Bouzas (1991) 53 C3d 467, 478[“… under [PC] 666 the ‘element’ to be proved is a ‘prior theft-related conviction,’ not a ‘prior felony conviction.'”].) Hence, because an unspecified burglary is not necessarily theft-related (see People v. Maxey (1985) 172 CA3d 661, 668-69). the prosecution must be required to prove the theft-related element of the charge when the prior conviction is a burglary.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 14.40a.
F 1850.5 Inst 3 Prior Conviction And Incarceration Must Be Found By Jurors
*Modify CC 1850 as follows:
[Delete paragraph 3 re: penal institutions]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Given the Bench Notes’ recognition that the jury must determine whether the defendant has suffered a prior conviction and incarceration it would be constitutionally impermissible to instruct that a specific location is a penal institution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39].
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1850.6 Petty Theft With Prior Conviction—Defense Theories [Reserved]
F 1850.7 Petty Theft With Prior Conviction—Preliminary Fact Issues [Reserved]
F 1850.8 Petty Theft With Prior Conviction—Unanimity/Duplicity/Multiplicity [Reserved]
F 1850.9 Petty Theft With Prior Conviction—Lesser Offense Issues [Reserved]
F 1850 NOTES
F 1850 Note 1 Petty Theft With Prior Conviction—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1000 Notes
Research Notes:
See CLARAWEB Forum, Theft And Extortion—Series 1800.
F 1850 Note 2 Petty Theft: Bifurcation Of Prior (PC 666)
[See FORECITE EA II(B).]
CALJIC NOTE: See FORECITE F 14.40 n2.
F 1850 Note 3 Petty Theft With Prior: Whether Enhancement Must Be Pleaded In Charging Document
But see People v. Tardy (2003) 112 CA4th 783 [prosecution has to prove a PC 666 prior at the preliminary hearing to prosecute a PC 666].
CALJIC NOTE: See FORECITE F 14.40 n3.
F 1850 Note 4 Petty Theft:Stipulation To Prior (PC 666)
In People v. Bouzas (1991) 53 C3d 467, the court concluded that the prior conviction and incarceration requirement of PC 666 is an enhancement and not an “element” of the offense. Accordingly, the defendant has the right to stipulate to the prior conviction and incarceration and thereby preclude the jury from learning about the fact of his prior conviction. (Id. at 480; but see People v. Duarte DEPUBLISHED (1997) 56 CA4th 420 [before defendant may stipulate to fact of a prior, court must obtain Yurko waiver. (In re Yurko (1974) 10 C3d 857).)
See also FORECITE F 10.38 n1, FORECITE F 10.41 n5 and FORECITE F 12.65 n2.
(See FORECITE EA V(B)–EA V(D).)
CALJIC NOTE: See FORECITE F 14.40 n1.
