Can a defendant argue that prior criminal activity was inadmissible as aggravating evidence for possession of a concealed weapon?

California, United States of America


The following excerpt is from People v. Smithey, 20 Cal.4th 936, 86 Cal.Rptr.2d 243, 978 P.2d 1171 (Cal. 1999):

Defendant contends, as he did at trial, that this testimony of prior criminal activity was inadmissible as aggravating evidence because his mere possession of a concealed weapon did not involve "the use or attempted use of force or violence or ... the express or implied threat to use force or violence." ( 190.3.) We have found an implied threat of violence, however, when the evidence permits an inference that the defendant possessed a dangerous weapon with the purpose of using it to avoid apprehension and successfully escape the scene of a crime; the circumstance that the defendant chose not to act upon his plan could not negate the implied threat to use the weapon against anyone who might interfere. (People v. Clair, supra, 2 Cal.4th at pp. 676-677, 7 Cal.Rptr.2d 564, 828 P.2d 705.) Similarly, in the present case, the jury could infer an implied threat of violence from defendant's failure to remove his hand from [20 Cal.4th 993] the loaded weapon kept hidden in his jacket while he was attempting to avoid arrest. (Cf. People v. Jackson, supra, 13 Cal.4th 1164, 1235-1236, 56 Cal.Rptr.2d 49, 920 P.2d 1254 ["[A] defendant who arms himself after having escaped from custody can be presumed to be in possession of a gun to assist his continued flight rather than for legitimate self-defense or some other lawful purpose."].) Defendant was free to present any additional evidence regarding the incident that would have suggested he possessed the handgun for a lawful purpose. (Id. at p. 1236, 56 Cal.Rptr.2d 49, 920 P.2d 1254.) The trial court properly admitted the evidence concerning the circumstances of defendant's 1968 arrest.

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