People v. Billon

California Court of Appeal Oct 16, 1968 No. Crim. 6894Published

Before: Salsman

AI Brief

AI-generated · verify before citing

Holding. The court reversed the defendant's conviction because the prosecution failed to present evidence that the defendant's prior felony conviction involved the use of a firearm, an essential element of the charged offense. The court further held that it would not take judicial notice of outside records to supply this missing evidence, as doing so would violate the defendant's right to a jury trial.

Issues

Is Penal Code section 12560 unconstitutional?
Did the prosecution fail to prove an essential element of the offense under Penal Code section 12560?
May an appellate court take judicial notice of records from a prior case to supply missing evidence of an essential element of a crime?

Disposition. reversed

Quotations verified verbatim against the opinion

“We reverse the judgment because there is no evidence to support an essential element of the offense charged.”

“We decline to take judicial notice of the record of another case to fill gaps in the trial evidence on the ground that to do so would deny the defendant his right to trial by jury.”

“We hold it to be a valid exercise of the police power of the state for the protection of the lives and property of the state’s citizens.”

SALSMAN, J.

In this odd case, we reverse the judgment because there is no evidence to support an essential element of the offense charged. We decline to take judicial notice of the record of another case to fill gaps in the trial evidence on the ground that to do so would deny the defendant his right to trial by jury. We reject, however, defendant’s contention that the statute which serves as the foundation for the charge against him is unconstitutional.

The defendant Edward Billon was charged with: (1) assault with a deadly weapon (Pen. Code, § 245)

; (2) burglary (§459) and (3) possession of a firearm by a person previously convicted of a felony while using a firearm (§ 12560)

. The defendant was also charged with a prior felony conviction, namely an assault with a deadly weapon (§245). Proof of his prior felony conviction was made by introducing a certified copy of the judgment of his conviction in 1963 on a charge of assault with a deadly weapon. Upon submission of the cause, the jury found defendant not guilty of the assault and burglary charges, but guilty of violation of section 12560, that is, possession of a firearm by one previously convicted of a felony involving the use of a firearm.

The essential facts are these: On July 1, 1967 the defendant met his girl friend at a bar. She was in the company of Eugene Forney. The defendant asked her to go home with him, but she refused. He left the bar and went to his father’s home, where he obtained a rifle. He loaded the weapon, went to his girl friend’s apartment and waited for her return. She

[539]

arrived about 3 a.m. Forney was with her. The defendant threatened to shoot Forney, but his girl friend persuaded him not to fire. Police arrived, arrested the defendant, and he was later charged with the various offenses previously noted.

At trial the prosecutor presented a certified copy of defendant's 1963 conviction of assault with a deadly weapon, but produced no evidence whatever to show that this offense involved the use of a firearm.

People v. Billon

AI Brief

SALSMAN, J.

More from California Court of Appeal

Related research

AI Brief