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Name: People v. Burch
Case #: D049604
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/20/2007

The trial court did not err when it denied appellant’s request to bifurcate his trial on prior prison convictions. Following appellant’s trial for possession of methamphetamine and possession of fictitious bills, he appealed, contending that the trial court abused its discretion when it denied his request to bifurcate the trial on his prior conviction, charged pursuant to Penal Code section 667.5, subdivision (b). The appellate court found no abuse of discretion. The trial court ordered a conditional bifurcation, but informed appellant that if he testified, he would be impeached by the prior convictions. When it became clear that appellant would testify and be impeached with the prior conviction, the denial of bifurcation did not expose the jury to any unduly prejudicial evidence. Appellant’s prior prison packet was admitted to prove he had been in custody, but he was only questioned on whether he recognized the photo attached to the packet and on what date he was discharged from prison. The packets were redacted so that prejudicial portions would not be admitted. Once appellant’s priors were used for impeachment, the damage was already done. Even if the denial of the bifurcation request was error, it was harmless because no prejudice can be shown. The jury was properly instructed on the limited purpose for which the evidence was offered. Failure to instruct the jury with CALJIC 2.02 instead of CALJIC 2.01 on circumstantial evidence was harmless error. Appellant also contended that his conviction for possession of fictitious bills had to be reversed because the trial court erred in instructing the jury on circumstantial evidence with CALJIC No. 2.01 instead of CALJIC 2.02. Appellant admitted the possession of the bills, and the only undecided issue was whether he had the specific intent to defraud. Therefore, CALJIC 2.02 should have been given sua sponte because that instruction explains to the jury how to evaluate circumstantial evidence of specific intent. The appellate court agreed that 2.02 should have been given. However, the only difference between the two instructions is that 2.02 focuses the jury’s attention on the sufficiency of circumstantial evidence to prove a mental state, while 2.01 covers all circumstantial evidence. There was no reasonable probability that the jury would have misapplied the rules stated in CALJIC 2.01 to the determination of whether appellant had the specific intent to support the forgery charge. Any error was harmless. There was no Blakely error where the court imposed the upper term because of appellant’s prior convictions. Appellant also contended that the imposition of the upper term violated his federal constitutional rights pursuant to Blakely v. Washington because he was entitled to have the aggravating factors found by a jury. The appellate court rejected the argument, concluding that the use of prior convictions as factors for a sentencing departure from the midterm is constitutionally permissible.