People v. McGee CA4/2 ( 2021 )

Filed 9/16/21 P. v. McGee CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073755
v. (Super.Ct.No. FVI19001362)
CHRISTOPHER McGEE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Susan Elizabeth Miller and Britton B. Lacy, Deputy Attorneys General, for
Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant and appellant Christopher McGee was convicted by a jury of residential
burglary (Pen. Code, § 459)1 and, in a bifurcated proceeding, the same jury found true a
special allegation that defendant also suffered a prior strike conviction (§§ 1170.12,
subd. (a), 667, subds. (b)-(i)). Defendant was sentenced to 12 years in state prison,
representing the upper term of six years for the violation of section 459, doubled as a
result of the true finding that he suffered a prior strike.
On appeal, defendant argues: (1) the trial court abused its discretion in admitting
surveillance video evidence without a proper foundation, and (2) the trial court erred in
denying his request to instruct the jury that it could not consider evidence from the trial of
his current offense when determining whether he suffered a prior strike conviction. We
find no abuse of discretion with respect to the trial court’s evidentiary rulings and no
instructional error. Further, even assuming error, we conclude defendant has not shown
prejudice warranting reversal.
II. FACTS AND PROCDURAL HISTORY
A. Facts and Charges
On April 29, 2019, M.U. returned home in the evening, discovered that the sliding
door to her living room had been unlocked, and further discovered items missing from
her home. One of the missing items was a video game console. M.U. reported the
1 Undesignated statutory references are to the Penal Code.
2
incident to law enforcement officers, who eventually traced the serial number from her
video game console to a pawn shop.
The pawn shop’s records indicated M.U.’s video game console had been brought
to the shop by defendant the same day M.U. discovered it was missing. The receipt for
the item listed defendant’s address and bore a signature that matched the signature
corresponding with defendant’s state identification card in the state database.
Additionally, the pawn shop manager had taken a photograph of defendant and a
photograph of defendant’s state identification card as part of the transaction involving the
video game console.
In a first amended information, defendant was charged with one count of first
degree burglary (§ 459, count 1) and one count of receiving stolen property (§ 496,
subd. (a), count 2). The information further alleged defendant had suffered a prior
conviction for robbery (§ 211) in 2008, qualifying as a prior serious felony under sections
1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).
B. Bifurcation of Trial on the Prior Strike Offense
Prior to trial, defendant moved to bifurcate his trial on the issue of whether he
suffered a prior conviction, and the trial court granted the motion. Following this ruling,
defendant also requested the trial court exclude any evidence of prior convictions for the
purpose of impeachment, should he choose to testify in his own defense during his trial
on the current offenses.
In the ensuing colloquy, the prosecutor confirmed that the only conviction the
People would use for impeachment would be the same conviction alleged in the
3
information in support of the strike allegation. Defendant conceded that the prior
conviction was generally admissible because it involved a crime of moral turpitude but
argued the conviction was “old” and should be excluded under Evidence Code section
352. Defendant further acknowledged that “if he were to know that he’s going to be
impeached with a 2008 conviction, he would be less inclined to testify” in his own
defense. The trial court ruled that the evidence of the prior conviction could not be used
in the People’s case-in-chief, but it could be presented to impeach defendant if he took
the stand to testify.
C. Relevant Evidence at Trial Related to Surveillance Videos
M.U. testified that, following the incident, she had contacted her neighbors to see
if any of them had surveillance video of the incident; a surveillance video was provided
to her by the neighbor living in the residence next to M.U.’s; she was familiar with that
neighbor’s residence; and she had reviewed that video prior to providing it to law
enforcement. The trial court allowed the video to be published to the jury over
defendant’s objection.
The surveillance video depicted an adult male who appeared to have long hair and
a short goatee, wearing a black hooded sweatshirt. One excerpt taken from the video
depicted the man walking across the front of the neighbor’s residence in the direction of
M.U.’s home, and a second excerpt taken from the video depicted the same man walking
back in the direction he originally came, while carrying bags and items. Following
publication, M.U. confirmed the video was a fair and accurate depiction of the
surveillance footage she reviewed prior to turning it over to law enforcement.
4
M.U. further testified that she received two additional surveillance videos from
other neighbors following a further inquiry. Each of those videos were time stamped and
depicted a man wearing a black sweatshirt, walking up to the front door of a residence,
and either knocking on the door or looking into a front window. In one of the videos, the
man appeared to quickly step behind a pillar at the sound of a vehicle passing on the
street. M.U. testified she was familiar with each of areas depicted in the videos,
describing one residence as being a half mile from her home and describing the second as
being in a nearby neighborhood, slightly less than two miles away from her home. The
trial court permitted both of these videos to be published to the jury over defendant’s
objections.
All of the videos were ultimately admitted into evidence.
D. Testimony of Defendant
Defendant elected to testify in his own defense against the advice of counsel.
Prior to defendant’s taking the stand, defense counsel specifically acknowledged that
defendant could be impeached with the record of his prior conviction alleged in the
information as the basis of his prior strike offense, but he stated: “I don’t think we’re
going to get into a situation where [defendant] denies that existence.” Defendant took the
stand and denied ever entering M.U.’s home on April 29, 2019. Upon being asked by his
own counsel, defendant admitted pleading no contest to a robbery in 2008.
On cross-examination, defendant further admitted that the 2008 charges involved
the use of a firearm. When asked how he came into possession of property belonging to
M.U., defendant stated: “I never received any property from nobody’s home.”
5
Defendant denied ever visiting the pawn shop where M.U.’s video game console was
discovered; had no explanation for how the pawn shop would have obtained a copy of his
state identification card; and claimed he did not provide his signature to the pawn shop.
E. Bifurcated Trial, Verdict, and Sentencing
The jury found defendant guilty on the residential burglary charge in count 1.
(§ 459.)2
Following this verdict, the matter proceeded to trial on the prior strike allegation,
with the People presenting: a copy of the felony complaint related to the prior
conviction, a fingerprint identification card, a booking photograph of defendant, the
written plea agreement related to the prior conviction, the minute order indicating
acceptance of defendant’s plea and sentence, the abstract of judgment related to the prior
conviction, and a record of defendant’s chronological movement history within the prison
system from 2008 through 2013. The People also called a deputy district attorney as a
witness to explain these documents. Defendant presented no additional evidence in his
defense.
2 During trial, the prosecution requested, and the trial court granted, a dismissal of
count 2. (§ 496, subd. (a).)
6
The trial court instructed the jury with CALCRIM No. 3101,3 but it declined
defendant’s request to give the optional bracketed portion of the instruction.4 The jury
found true the allegation that defendant had suffered a prior strike conviction as alleged.
The trial court sentenced defendant to 12 years in state prison, representing the
upper term of six years for the robbery, doubled to 12 years as a result of the true finding
on the strike allegation.
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting Video Surveillance
Evidence
On appeal, defendant argues the trial court erred in admitting the surveillance
videos into evidence because the videos lacked adequate foundation. We find no abuse
of discretion with respect to the trial court’s evidentiary rulings and no prejudice
warranting reversal.
3 CALCRIM 3101 states: “The People have alleged that the defendant was
previously convicted of another crime. It has already been determined that the defendant
is the person named in [the exhibits]. You must decide whether the evidence proves that
the defendant was convicted of the alleged crime. . . . You may not return a finding that
the alleged conviction has or has not been proved unless all 12 of you agree on that
finding.”
4The bracketed portion of CALCRIM 3101 states: “In deciding whether the
People have proved the allegation[s], consider only the evidence presented in this
proceeding. Do not consider your verdict or any evidence from the earlier part of the
trial.”
7
1. The Trial Court Did Not Abuse Its Discretion in Admitting the Surveillance
Videos
“The general principles guiding the admissibility of photographic evidence over an
objection that the evidence has not been properly authenticated were . . . addressed by our
Supreme Court in [People v. Goldsmith (2014) 59 Cal.4th 258]. ‘A photograph or video
recording is typically authenticated by showing it is a fair and accurate representation of
the scene depicted. [Citations.]’ [Citations.] This foundation may—but need not be—
supplied by the photographer or by a person who witnessed the event being recorded; in
addition, authentication ‘may be supplied by other witness testimony, circumstantial
evidence, content and location’ and ‘also may be established “by any other means
provided by law” [citation], including a statutory presumption.’ ” (In re K.B. (2015)
238 Cal.App.4th 989, 994-995, fn. omitted.)
As our Supreme Court has explained, “As with other writings, the proof that is
necessary to authenticate a photograph or video recording varies with the nature of the
evidence that the photograph or video recording is being offered to prove and with the
degree of possibility of error. [Citation.] The first step is to determine the purpose for
which the evidence is being offered. The purpose of the evidence will determine what
must be shown for authentication, which may vary from case to case. [Citation.] The
foundation requires that there be sufficient evidence for a trier of fact to find that the
writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.]
Essentially, what is necessary is a prima facie case. ‘As long as the evidence would
support a finding of authenticity, the writing is admissible. The fact conflicting
8
inferences can be drawn regarding authenticity goes to the document’s weight as
evidence, not its admissibility.’ ” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)
“We review the trial court’s determination that adequate foundation was laid for
abuse of discretion.” (People v. Peterson (2020) 10 Cal.5th 409, 447.) In the context of
a challenge based upon inadequate foundation, if substantial evidence supports each
foundational element, the decision to admit such evidence will be upheld. (Ibid.)
Here, the relevance of the videos was fairly limited. None of the videos depicted
the burglary or even the residence where the burglary occurred. Instead, they each
depicted a man—who presumably bore some similarity to defendant—in the general
neighborhood and on the same street where the burglary occurred at or around the time of
the burglary. As acknowledged by defendant on appeal, the relevance of these videos
was only to show defendant might have been physically at the scene or in the
neighborhood of M.U.’s home. Given this limited purpose, the proof necessary to
authenticate these videos was relatively low.
Since the evidence was being offered only to show the defendant may have been at
or near a specified location around the time of the incident, it was sufficient that a witness
with personal knowledge testify that the videos accurately depicted the locations they
purported to depict around the time of the burglary. M.U. provided such testimony in this
case. M.U. testified that she was personally familiar with the physical locations depicted
in each video, and that the videos accurately depicted those locations. She further
testified that she obtained one video within a day of the burglary and the other two videos
within a week of the burglary. M.U.’s testimony was sufficient to make a prima facie
9
showing that the videos depicted events in her neighborhood, and on her street, around
the time of the burglary.
Defendant argues that the foundation for the videos was inadequate because the
time stamps in the videos were incorrect, the videos may have been edited, and the
neighbors who provided the videos were not called as witnesses. These arguments are
misplaced, as they go to the weight of the evidence—not its admissibility. Defendant
was free to argue that the videos should be disregarded as unreliable for any of these
reasons. Likewise, defendant was free to argue that he was not the man depicted in the
videos. (See People v. Leon (2015) 61 Cal.4th 569, 601 [“[B]ecause the surveillance
video was played for the jury, jurors could make up their own minds about whether the
person shown was defendant.”].) However, if the jury chose to believe M.U.’s testimony,
the jury could reasonably conclude that the videos were authentic, which is all that is
required to supply foundation for the admissibility of the videos.
Because the video evidence in this case was offered for the purpose of establishing
defendant was at or near the physical location where the crime occurred; a witness
testified the videos had been obtained shortly after the crime occurred; and a witness with
personal knowledge of the physical locations depicted in the videos testified to the
accuracy of the videos in that regard, we find no error in the trial court’s decision to
admit the videos as evidence.
10
2. Even If the Trial Court Had Erred, Admission of the Video Evidence Was
Harmless
Additionally, even assuming defendant had shown the trial court erred in
admitting the surveillance videos at issue, defendant has not shown prejudice warranting
reversal.
Generally, claims regarding the erroneous admission of evidence are subject to the
standard of review for claims of state law error under People v. Watson (1956)
46 Cal.2d 818. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76.) “ ‘[T]he
Watson test for harmless error “focuses not on what a reasonable jury could do, but what
such a jury is likely to have done in the absence of the error under consideration. In
making that evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.” ’ ” (People v.
Winkler (2020) 56 Cal.App.5th 1102, 1164.)
Here, the evidence linking defendant to the burglary of M.U.’s home was so
relatively strong that we conclude there is no reasonable probability the jury would have
reached a different outcome even if the video surveillance evidence had been excluded.
The video game console taken from M.U.’s home was specifically traced to a pawn shop
using its serial number. The pawn shop’s records indicated the video game console had
been brought to the shop by defendant the very day it was taken from M.U.’s home.
Further, the pawn shop’s records related to the video game console included a photograph
11
of defendant, a photograph of his state identification card, and documents containing
defendant’s personal information and signature. Defendant’s possession of M.U.’s game
console on the very day it was taken from M.U.’s home is strong evidence of guilt. (See
People v. Anderson (1989) 210 Cal.App.3d 414, 426 [“possession of recently stolen
property is so incriminating that a jury is entitled to infer guilty knowledge and find guilt
if there is even slight corroborating evidence”]; see also People v. McFarland (1962)
58 Cal.2d 748, 754-755 [same].)
Defendant’s argument that his possession of stolen property was not enough to
support a finding of guilt in this case because the only corroborating evidence was the
video surveillance is unavailing. The video surveillance evidence was not the only
corroborating evidence before the jury. As numerous cases have recognized, the
defendant’s inability to explain how possession of stolen property may have been
honestly obtained can itself constitute corroborating evidence of guilt. (See People v.
Citrino (1956) 46 Cal.2d 284, 288-289 [Inconsistencies or doubts raised by the
defendant’s own testimony may constitute sufficient corroborating evidence to support a
robbery conviction.]; People v. Weems (1961) 197 Cal.App.2d 405, 409-410 [“While
possession of recently stolen property is not sufficient, standing alone, to connect a
defendant with a burglary, such possession is a circumstance tending to show guilt”; and
the defendant’s “[f]alse statements concerning material facts are sufficient to provide
necessary corroborating evidence.”]; People v. Clark (1968) 268 Cal.App.2d 293, 295-
296 [“Conflicting or evasive statements are sufficient corroboration, even though slight,
to sustain a conviction”; and such statements “tending to prove guilt provide[] valid
12
circumstantial proof of burglary.”]; People v. Anderson (2007) 152 Cal.App.4th 919, 948
[“[T]he lack of an explanation for possession is one type of corroborating evidence
sufficient to support a conviction.”].)
Here, defendant testified in his own defense, and he was unable to provide any
explanation as to how he came into the possession of M.U.’s property or how the pawn
shop where the property was discovered managed to obtain such detailed records
identifying defendant as the man who pawned the property. Thus, contrary to
defendant’s claim on appeal, the video surveillance evidence was not necessary to
support a conviction for robbery in this case.
The evidence before the jury suggesting defendant’s guilt was strong, even in the
absence of the video surveillance evidence defendant complains of on appeal. In fact,
defendant’s possession and pawning of the property taken from M.U.’s home on the very
day it was taken, and his inability to provide any honest explanation as to how he came
into the possession of the property is evidence of guilt far stronger than any inference
provided by the videos. Thus, we do not believe defendant has shown a reasonable
probability he would have obtained a more favorable outcome, even if the video evidence
had been excluded.
B. The Trial Court Did Not Err in Refusing Defendant’s Requested Instruction
Defendant also argues on appeal that the trial court erred in refusing to give the
bracketed portion of CALCRIM No. 3101 when instructing the jury during the bifurcated
trial on the truth of defendant’s prior strike conviction. The bracketed portion of
CALCRIM No. 3101 provides a limiting instruction to the jury to disregard evidence
13
presented during the trial on defendant’s current offense when determining the truth of a
prior conviction in a bifurcated proceeding. (CALCRIM No. 3101.) Notably, there is no
similar suggested limiting instruction when the truth of a prior conviction allegation is
tried together with the current offense. (CALCRIM No. 3100.) Because defendant was
no longer entitled to a bifurcated trial on the issue of his prior offense at the time that he
requested the trial court give the bracketed portion of CALCRIM 3101, we find no error
in the trial court’s refusal to give the bracketed portion of this instruction.
1. Suggested Limiting Instructions Are Not Required Where the Purpose for
Those Instructions Are Not Present in the Case
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court
reviews the wording of a jury instruction de novo and assesses whether the instruction
accurately states the law. [Citation.] In reviewing a claim of instructional error, the court
must consider whether there is a reasonable likelihood that the trial court’s instructions
caused the jury to misapply the law in violation of the Constitution. [Citations.] The
challenged instruction is viewed ‘in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the jury applied the
instruction in an impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561,
579.)
Here, there is no likelihood the trial court’s refusal to give the bracketed portion of
CALCRIM No. 3101 caused the jury to misapply the law. The trial court initially
granted defendant’s motion to bifurcate the trial on the truth of his prior conviction when
it was unclear whether defendant would choose to testify in his own defense. However,
14
during the trial of the current offense, defendant chose to testify against the advice of
counsel, and he further voluntarily admitted to suffering the very conviction alleged as
the basis of his prior strike offense, even before being cross-examined.
Once defendant chose to testify, he was no longer entitled to a bifurcated trial on
the issue of his prior conviction. As our Supreme Court has explained, the intent of a
bifurcated trial is to protect against the prejudice a defendant may experience by having
the jury hear “ ‘evidence that involves crimes other than those for which a defendant is
being tried.’ ” (People v. Calderon (1994) 9 Cal.4th 69, 75.) However, “when it is
clear . . . that the defendant will testify and be impeached with evidence of the prior
conviction [citation], denial of a request for a bifurcated trial generally would not expose
the jury to any additional prejudicial evidence concerning the defendant.” (Id. at p. 78;
see People v. Burch (2007) 148 Cal.App.4th 862, 867 [trial court within its discretion to
condition bifurcation on whether defendant chooses to testify].)
Because defendant ultimately chose to testify and disclose the fact of his prior
conviction to the jury, there is no possibility that the trial court’s refusal to give the
bracketed portion of CALCRIM No. 3101 caused the jury to misapply the law in this
case. The suggested instructions are intended to guide the jury in situations in which
bifurcation is necessitated to avoid potential prejudice posed by exposure to a specific
type of evidence. However, where the very purpose of the trial court’s initial bifurcation
order is obviated by defendant’s own decision to testify, defendant is no longer entitled to
a bifurcated trial, and any anticipated prejudice these instructions were intended to
address is no longer present. That the trial court proceeded to have the issue tried in a
15
bifurcated proceeding does not change the fact that the prejudice the bifurcation was
intended to address was no longer present. There is no error in failing to give an
instruction that “states a principle of law not applicable to the case” (People v. Elder
(2017) 11 Cal.App.5th 123, 135), and the trial court did not err in refusing to give an
inapplicable instruction in this instance.
2. Defendant’s Authorities Are Misplaced
On appeal, defendant claims the bracketed portion of CALCRIM No. 3101 is
mandated by “a long line of cases extending back nearly a century,” citing principally to
People v. Carrow (1929) 207 Cal. 366 (Carrow) as a “seminal case” on this issue.
However, a closer examination of defendant’s authorities does not support this
conclusion.
In Carrow, the Supreme Court stated: “[W]hile a defendant taking the witness-
stand may be asked if he has been convicted of a felony, that question goes only to his
credibility and this rule would exclude the testimony of defendant in this case so far as
16
the issue of prior conviction is concerned.” (Carrow, supra, 207 Cal. at p. 369.)5
However, the issue raised in Carrow was the sufficiency of the evidence to support a true
finding that defendant had suffered a prior conviction—not the admissibility of evidence
or a claim of instructional error.6 Given this context, it is not surprising that almost every
published decision relied upon by defendant involves a challenge to the sufficiency of the
evidence to support a true finding on prior conviction allegations. (See People v. Batwin
(1953) 120 Cal.App.2d 825, 828; People v. Hamm (1956) 145 Cal.App.2d 242, 244; and
People v. Coleman (1962) 209 Cal.App.2d 199, 200-201.) As summarized in People v.
Luckett (1969) 1 Cal.App.3d 248, these decisions stand for the proposition that the
5 The Supreme Court did not actually engage in any analysis in making this
statement but instead cited to People v. Johnson (1881) 57 Cal. 571. (Carrow, supra,
207 Cal. at p. 369.) In turn, People v. Johnson involved a defendant who admitted
allegations he had suffered a prior conviction at the time of his arraignment, elected to
testify in his own defense on the current charges, and was asked whether he suffered a
prior conviction in cross-examination. (Johnson, at p. 571.) On appeal, the defendant
argued the trial court erred in permitting the question because his prior admission
removed the issue of his prior conviction from the issues to be tried. The Supreme Court
found no error, reasoning that the defendant’s prior conviction was still relevant on the
issue of his credibility; and, it was in this context that the Supreme Court stated: “The
question as to previous conviction is only permitted to go to the credibility of the
witness.” (Id. at p. 574.)
6 We observe that on two occasions, defendant provides a partial quotation to
Carrow stating, “ ‘the jury should have been so instructed,’ ” to argue the opinion sets
forth a rule of evidence implicating jury instructions. However, the phrase appears as
follows: “[Defendant] contends upon appeal . . . that this latter question and answer
should have gone only to the credibility of the witness and that it was incompetent upon
any other issue and that the jury should have been so instructed.” (Carrow, supra,
207 Cal. at p. 368.) Thus, in context, the statement was made only to summarize the
argument of a party on appeal. It appears nowhere else in the opinion and is not part of
the Supreme Court’s reasoning leading to its disposition in the case.
17
prosecution must present evidence other than the defendant’s admission during cross-
examination in order to prove a prior conviction. (Id. at p. 252, fn. 2.)
The prosecution in this case did not rely solely on defendant’s admission to prove
the prior conviction allegations; and, on appeal, defendant has not challenged the
sufficiency of the evidence to support the jury’s true finding on this issue. Thus, Carrow
and its progeny have little, if any, application to this case. The fact that these cases
express the view that a defendant’s testimony on cross-examination is not sufficient on its
own to establish proof of a prior conviction does not translate into a rule that such
testimony constitutes inadmissible evidence.7
In contrast, more recent authorities have considered the precise question presented
by defendant in this appeal and have rejected the argument raised by defendant here. In
People v. Elmore (1990) 225 Cal.App.3d 953, the First District Court of Appeal held that
the trial court could properly consider a defendant’s testimony during the trial on his
current offense to determine the truth of enhancement allegations in a bifurcated
proceeding, concluding that there is “no authority to support [the] claim that evidence
from the trial on the underlying offense cannot be considered at the trial on the
subsequent enhancement allegations. To preclude the court from considering evidence
7 Our independent research has disclosed only one published decision citing to
Carrow, supra, 207 Cal. 366, when considering the admissibility of evidence and, even
then, it does so for the uncontroversial proposition that evidence of a prior conviction
may be admissible for impeachment purposes. (People v. Cruz (1978) 83 Cal.App.3d
308, 330.) We have not found any published decisions that have cited to Carrow in the
four decades since People v. Cruz.
18
properly before it during another part of the trial would be unnecessarily rigid and would
hamper rather than further the interests of justice.” (Id., at p. 957.)
Likewise, in People v. Harris (1992) 8 Cal.App.4th 104, the Fifth District Court of
Appeal explicitly held that a defendant’s guilt phase admission could properly be used to
prove the truth of a prior conviction in a bifurcated enhancement phase. (Id. at pp. 106-
109.) The Court of Appeal explained that: “Bifurcating the trial does not create two
separate actions. Rather, severable issues within one proceeding are determined
separately to avoid unnecessary prejudice to the defendant. [Citation.] Thus, the
defendant is not placed in a situation where his decision to testify in one proceeding has
an effect on a separate collateral proceeding. Rather, when he waives his privilege
against self-incrimination by testifying in the guilty phase of the trial, that privilege is
waived for the sentencing phase as well.” (Id. at p. 108.) The situation is “closely
analogous to the general evidentiary rule that a defendant’s testimony at a former trial is
admissible in evidence against him at a later trial. . . . [¶] . . . [O]nce [the] defendant
decided to testify and waive his privilege against self-incrimination, his testimony was
admissible against him to prove the prior conviction allegations.” (Id. at pp. 108-109.)
In perhaps a more extreme example, the Court of Appeal in People v. Reyes
(1962) 206 Cal.App.2d 337, concluded that a trial court’s error in prematurely dismissing
the jury prior to holding a bifurcated trial did not mandate reversal because the defendant,
“while under cross-examination as a witness on his own behalf, admitted that he
previously had been convicted and served a term in the state prison as alleged. . . . [H]is
testimony constituted an admission in court, under oath, of the truth of the allegations . . .
19
[and] any error resulting in the omission of a finding respecting the allegations in
question was not prejudicial and is not grounds for reversal of the judgment.” (Id. at
pp. 345-346.)
Given these authorities, we disagree with defendant’s characterization that Carrow
sets forth a longstanding rule that a jury is precluded from considering the testimony of
defendant in the trial of his current offense when determining the truth of prior conviction
allegations. When viewed in the context of that decision, Carrow discusses the
sufficiency of the evidence to support a factual finding. The decision does not otherwise
articulate an exclusionary rule of evidence or rule mandating the giving of a limiting
instruction. In light of the more recent authorities that have directly addressed the
admissibility of a defendant’s testimony in a bifurcated proceeding to determine the truth
of a prior conviction allegation, we find defendant’s attempt to extend the holding in
Carrow unpersuasive.
20
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.
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