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Name: People v. Bedolla
Case #: H044681
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/22/2018

A violent felony allegation under Penal Code section 667, subdivision (c)(21) (a person other than an accomplice present during a burglary) does not apply to attempted first degree burglary. Bedolla and his accomplice knocked on and kicked the front door of a house, but did not enter the house. A jury convicted Bedolla of attempted first degree burglary and found true an allegation that someone other than an accomplice was present during the commission of the attempted burglary. (Pen. Code, § 667.5, subd. (c)(21).) On appeal, Bedolla argued the section 667, subdivision (c)(21) allegation must be stricken because it did not apply to an attempted burglary. Holding: Allegation stricken. Penal Code section 667, subdivision (a) authorizes a sentence enhancement where a prior felony conviction and a new felony are “violent felonies specified in subdivision (c).” Subdivision (c)(21) makes a first degree burglary a violent felony if another person, not an accomplice, is present. Under the plain meaning of the statute, another person must be present during the burglary’s “commission.” In addition, the statute does not refer to attempted burglary and, except as specified, section 667.5, subdivision (a) does not apply to attempts to commit violent felonies. Here, the evidence at trial supported only attempted first degree burglary because Bedolla did not gain entry into the house. Thus, the section 667, subdivision (c)(21) allegation was stricken.

A juvenile adjudication for carrying a loaded firearm in public (Pen. Code, § 25850, subd. (a)) is a crime of moral turpitude and is properly used for impeachment, subject to Evidence Code section 352. Bedolla testified at trial and was impeached with a juvenile adjudication for a “felony nontheft-related crime of moral turpitude.” The juvenile adjudication was for carrying a loaded firearm in public. (Pen. Code, § 25850, subd. (a).) On appeal, Bedolla argued the offense was not a crime of moral turpitude, and its admission violated his due process rights by permitting the jury to consider improper evidence. The Court of Appeal disagreed. Crimes involve moral turpitude when they reveal dishonesty or a general readiness to do evil. Although carrying a loaded firearm in public does not imply dishonesty, it does enable “violence to erupt, possibly without warning,” and thus suggests a “general readiness to do evil” or “moral laxity of some kind.” (People v. Aguilar (2016) 245 Cal.App.4th 1010, 1017.) The mere fact a weapon is loaded is hazardous to the public. Therefore, the conduct of carrying a loaded firearm in public demonstrates a ‘general readiness to do evil’ that satisfies the definition moral turpitude. The “determination that a prior criminal act is a crime of moral turpitude is tantamount to finding that it may be used for impeachment,” subject to the court’s discretion under section 352. Here, the court did not abuse its discretion in admitting the impeachment evidence, and even if error occurred, there was no prejudice. [Editor’s Note: Bedolla also challenged the jury instructions on voluntary intoxication, but the court found no reversible error.]

The full opinion is available on the court’s website here: