People v. Cheeks

Opinion

ELKINGTON, J.

Defendant James O. Cheeks was found guilty, upon a jury’s verdicts of assaults with a deadly weapon in violation of Penal Code section 245, subdivision (a) (counts II and III), and possession of a concealable firearm by one previously convicted of a felony in violation of Penal Code section 12021 (count IV). He appeals from the judgment which was entered on the verdicts.

The first of Cheeks’ appellate contentions is stated as: “Since appellant was inadequately voir dired when he admitted, out of the jury’s presence, that he had suffered two prior felony convictions, his conviction under Penal Code section 12021 must be reversed.” His reliance is upon the recent (1980) case of

People

v.

Hall

(1980) 28 Cal.3d 143 [167 Cal.Rptr. 844, 616 P.2d 826].

Out of the jury’s presence, Cheeks stipulated that he had previously been convicted of a felony within the meaning of Penal Code section 12021. The only issue thereafter given the jury as to count IV was whether he had in fact possessed a concealable firearm. In such a case,

People

v.

Hall

required trial courts thereafter “to asshre the record adequately reflects the fact that a defendant is advised of any constitution

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al rights waived when stipulating to the status of an ex-felon. He should be informed as to the nature and the consequences of the stipulation.” (28 Cal.3d p. 157, fn. 9, 4th par.) Cheeks’ trial followed the promulgation of

People

v.

Hall,

and the People here concede that the above-noted requirements were not met.

The issue before us, as we see it, is whether the judgment should be reversed in its entirety as to count IV, or the cause should be remanded to the trial court for further proceedings (before a jury if requested) on the issue of whether Cheeks had, in fact, previously been convicted of a felony within the meaning of Penal Code section 12021. We are of the opinion that the latter alternative should be followed for the following reasons.