P. v. Smith
Filed 8/9/12 P. v. Smith CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KEENAN KEITH SMITH,
Defendant and Appellant.
B233420
(Los Angeles
County
Super. Ct.
No. BA371222)
APPEAL from a judgment of the Superior Court of
County, Anne H. Egerton, Judge. Affirmed.
Siri Shetty, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey and Louis W. Karlin, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Keenan Keith Smith guilty of counts
1 and 2, attempted murder and of count 3, being a felon in
to stipulate he had a prior conviction.
The stipulation, however, was not read to the jury until
case-in-chief. Defendant now contends
that his motion to dismiss, made
under Penal Code section 1118.1,
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should have been granted as to count 3, because there was insufficient evidence
to support that count at the time the People rested. We disagree and affirm the judgment.
I. Factual background.
In September 2009, Barrington Edison
Armstrong was engaged to Dolores Albarenga, who had three adult children,
including Emanuel Guzman and Crystal Smith.
Smith was married to defendant.
On September 30, Armstrong grabbed Smith to prevent her from hitting her
mother, Albarenga. The next day,
Armstrong was sitting in his truck with Guzman.
Armstrong got out to talk to a friend, and a black car sped up, almost
hitting Armstrong. Defendant got out of
the black car, and he and Armstrong had a heated argument. Defendant pulled out a gun and put in
Armstrong’s face. Armstrong slapped the
gun, and it fell to the ground.
Defendant picked it up and fired at Armstrong, who ran. Armstrong was not hurt, but his truck was hit
and a bullet grazed Guzman. A few days
later, on October 9, defendant shot at Armstrong, who again escaped
II. Procedural background.
On August 13, 2010, a jury found defendant
guilty of count 1, attempted murder (§§ 187, subd. (a), 664); count 2, willful,
deliberate and premeditated attempted murder; and count 3, possession of a
firearm by a person with a prior conviction (former § 12021, subd.
(a)(1)). As to counts 1 and 2, the jury
found true gun-use allegations under sections 12022.5, subdivision (a) and
12022.53, subdivision (c).
On May 23, 2011, the trial court sentenced defendant,
on count 2, to 14 years to life (seven years doubled under the Three Strikes
law based on a prior conviction found true after a court trial) plus 20 years
under section 12022.53, subdivision (c), plus 5 years under section 667,
subdivision (a)(1).
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III. The record does not support defendant’s contention that there
was insufficient evidence to support count 3.
Because the parties’ stipulation that defendant had a
prior felony conviction was introduced after the People’s case-in-chief,
defendant now contends that his section 1118.1 motion should have been granted
on the ground there was insufficient evidence he was a felon who possessed a
firearm (count 3). We disagree.
A.
Additional facts.
During the prosecution’s case-in-chief on August 11,
2010, the court asked defense counsel whether defendant, “[o]n count 3, is he
going to stipulate to the prior felony or are the People going to prove the
nature of it . . . I just need to know
which jury instruction I’m pulling up.
One of them says he’s stipulated that he has a felony, the other one is
he does not and the People prove it.”
The trial court explained to defense counsel that even though trial on
the priors had been bifurcated, the parties still needed to reach an
understanding regarding the felon in possession of a firearm count. Defense counsel agreed to give an answer that
afternoon.
Later, after the People’s last witness testified, the
trial court had an off-the-record discussion with counsel. When asked if the People rested, the
prosecutor answered, “Yes.
the stipulation we discussed.”
(Italics added.) The court
clarified, “The stipulation we just talked about.” The jury was excused for the day, and defense
counsel moved “pursuant to [section] 1118.1, to dismiss the case due to insufficiency
of the evidence. I submit.”
The trial court denied the motion, and then said: “What we talked about off the record here at
sidebar was, I am embarrassed to say, I couldn’t remember whether, when we used
2511, we actually presented, during the People’s case[-]in[-]chief, the
stipulation to the jury of the prior felony conviction without, obviously,
specifying its nature, or whether we simply instructed them that counsel had
stipulated to that. So we decided to let
it ride for the moment and if one of us figures out that we actually need to
present a stipulation to them, we’ll do it tomorrow, even though everybody has
rested.” Defense counsel did not object
or otherwise say anything about the stipulation not having yet been introduced.
The trial court and counsel then had an extended
discussion about other matters. During
that conversation, defense counsel argued that the stipulation did not need to
specify the prior conviction. The court
disagreed and said that the felony defendant was stipulating to had to be
identified for the record.
The next day, the trial court instructed the
jury. Before reading the instruction on
what is a stipulation, the court said:
“This wasn’t actually said during the trial. This instruction says, during the trial you
were told the People and the defense had agreed or stipulated to certain
facts. As I said, there is going to be a
stipulation for count 3, and when I read you the instruction on count 3, I will
tell you about that.” After instructing
the jury on the elements of unlawful possession of a firearm, the court
said: “The defendant and the People have
stipulated or agreed that the defendant was previously convicted of a
felony. This stipulation means that you
must accept this fact as proved. Do not
consider this fact for any other purpose.
Do not speculate about or discuss the nature of the conviction.”
After counsel made their
expressed a concern that the stipulation needed to be “on the record.” The trial court agreed that they needed to
specify which prior conviction was the subject of the stipulation. When defense counsel disagreed that such specification
was necessary, the court said it would then allow the prosecutor to reopen his
case. The court told the parties it
needed to modify some other instructions, but thereafter “we need to take care
of the stipulation.” Defense counsel
replied, “That’s fine, Your Honor.”
The jury began to deliberate, and the trial court and parties
returned to the stipulation issue, with the court expressing regret it hadn’t
“taken the stip” at the beginning.
Defense counsel continued to argue it was unnecessary to specify which
of defendant’s three prior convictions was the subject of the stipulation, but
ultimately specified it was his conviction of Health and Safety Code section
11350. The court then said, “[S]o the
stipulation would be in case [No.] BA327672, Mr. Smith was convicted on
November 5th, 2007 of a violation of Health and Safety Code section 11350, and
that’s for purposes of count 3 only, not for any prison priors.” The prosecutor and defense counsel agreed
that was the stipulation.
B.
his conviction of count 3.
Defendant does not dispute he stipulated he had a
prior conviction for the purposes of count 3.
He instead argues that because the stipulation was not read to the jury
until after the People rested, his
section 1118.1 motion, made at the close of the People’s case-in-chief, should
have been granted as to count 3 on the ground there was insufficient evidence
to support it. The People respond that
defendant is judicially estopped
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from arguing that there was insufficient evidence to support count 3. We need not decide whether estoppel applies,
because there is a much simpler ground for rejecting defendant’s
contention: the record does not support
it.
At the time of the underlying offenses, section 12021,
subdivision (a)(1) provided: “Any person
who has been convicted of a felony . . . and who . . . has in his or her
possession or under his or her custody or control any firearm is guilty of a
felony.” A defendant may stipulate to
his or her felon status, thereby rendering irrelevant evidence of the nature of
the prior conviction. (
170, 173; People v. Stewart (2004) 33
Cal.4th 425, 478.) A stipulation
relieves the prosecution of the burden of proving the defendant’s prior
conviction beyond a reasonable doubt. (
766, 774.) Indeed, as a result of such a
stipulation, the prosecutor may not produce other evidence of the nature of
defendant’s prior felony conviction, thereby protecting defendant from undue
prejudice that might arise from such evidence.
(People v. Griggs (2003) 110
Cal.App.4th 1137, 1141.)
The record here shows that defendant
agreed, before the People rested, to
stipulate he had a prior conviction, for the purposes of count 3. Then, when the People finished its
case-in-chief, the prosecutor specifically said he was resting “subject to”
“the stipulation we discussed.” The
stipulation was thereafter read to the jury as a part of the instructions. By resting “subject to” the stipulation, the
prosecutor reserved his right to introduce evidence defendant had a prior
conviction. That evidence was thereafter
introduced via the stipulation.
Defense counsel did not object to
the prosecutor resting subject to the stipulation. In fact, at no time before or after the
People rested did defense counsel
state she was not entering into the stipulation or otherwise object to it. The only “objection” or concern defense
counsel ever expressed regarding the stipulation was whether it was necessary
to specify which of defendant’s prior convictions was the subject of the
stipulation. Had defense counsel
specifically raised the stipulation when she made the section 1118.1 motion or
when the trial court threatened to allow the prosecutor to reopen the case to
prove all elements of count 3, it is clear the prosecutor would have been
allowed to present that evidence.
We therefore conclude that the
record does not support the contention there was insufficient evidence of count
3.
DISPOSITION
The
judgment is affirmed.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
further undesignated statutory references are to the Penal Code.
the facts underlying the crime are not relevant to the issue on appeal, we
state them in brief.
