PEOPLE v. VALENTINE

Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Darien Andre VALENTINE, Defendant and Appellant.

No. B119774.

Decided: March 25, 1999

David McNeil Morse, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Acting Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General and Deborah J. Chuang, Deputy Attorney General, for Plaintiff and Respondent.

Darien Andre Valentine appeals from his conviction for lewd act upon a child and forcible lewd acts upon a child, in violation of Penal Code 1 section 288, subdivisions (a) and (b)(1).   He claims the admission of evidence of an uncharged rape violated his constitutional right to due process and was an abuse of discretion, and that he was denied his right to a jury trial on the prior conviction allegations.   He also challenges the reasonable doubt instruction.   Respondent raises issues regarding the imposition of fines.   In the published portion of the opinion, we conclude that appellant was entitled to a jury trial on the prior conviction allegations, and reverse the true findings on those allegations.   In the unpublished portion of the opinion, we affirm appellant's conviction in all other respects, but instruct the court on remand to impose the parole revocation fine and correct the judgment to reflect all fines imposed.

FACTUAL AND PROCEDURAL SUMMARY **

DISCUSSION

I-II ***

III

Appellant claims the true findings on the prior conviction allegations must be reversed because he was denied his right to a jury trial on the allegations.   This claim requires consideration of section 1025, as amended effective January 1, 1998.   Prior to the amendment, section 1025 provided that, when a defendant denies having suffered a prior conviction, “his answer must be entered in the minutes of the court, and the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose, or by the court if a jury is waived.”  (Emphasis added.)

The amended section provides, in subdivision (b):  “Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.”

Subdivision (c) provides:  “Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.”

 Appellant claims that under subdivision (b), he was entitled to a jury trial on all elements of his prior conviction except for the determination that he was the person who suffered the prior conviction.   We agree.

We find nothing ambiguous in the amended statute as to the right to jury trial on prior convictions.   Under the amendment to section 1025, a defendant continues to have the right to have the jury try “the question of whether or not the defendant has suffered the prior conviction․”  (Subd. (b).)  The only issue excepted from this right is “the question of whether the defendant is the person who has suffered the prior conviction․”  Subdivision (c) expressly makes that a court question, not a jury question.

Both parties direct us to the analysis of SB 1146 by the Assembly Committee on Public Safety.   The analysis directly addresses the question before us:

“Since This Bill States that the Judge Determines Who Suffered the Prior Conviction, What Is the Jury's Role Concerning that Conviction?   When the prosecutor alleges in a criminal complaint or information that the defendant suffered a particular prior conviction, there are several potential issues (although it is rare for a defendant to raise more than one or two of them):

“Was someone convicted?   What was the offense?   What is the date of the conviction?   In what court was the person convicted?   Is the defendant the person who suffered the prior conviction?   In some cases, there are additional questions, such as was the defendant sentenced to prison based on that conviction?   How long has the defendant been out of custody since he or she suffered the prior conviction?

“Under current law, the jury determines all of these questions unless the defendant admits the prior conviction or waives jury trial on that conviction and allows a judge to determine these issues.

“According to this bill, the judge determines whether the defendant was the person who suffered the prior conviction, but the jury must resolve the other questions concerning the prior conviction.  (The jury does not determine, however, if the prior conviction is constitutional.   That is solely a legal question for the judge, under both current law and this bill.)

“How practical is this distinction, which allows the judge to determine the identity of the person who suffered the conviction but nothing else?   While attorneys disagree on this issue, it appears that the identity of the person suffering the prior conviction is the most common issue (and often the only issue) in a jury trial on a prior conviction.   Therefore, there is reason to believe that this bill will significantly reduce the number of such jury trials.

“Moreover, the judge, who is much more familiar with court documents than jurors are, is better qualified to determine whether the defendant is the person who suffered the prior conviction.   Nor would this pose a constitutional problem.   Federal law, and other state laws, already allow a judge to determine whether the defendant suffered a prior conviction.   Court [s] have rejected constitutional challenges to these laws.

“This bill initially allowed the judge to determine all issues concerning the prior conviction.   However, the bill was amended in the Senate Public Safety Committee to restrict the issue before the judge.”  (Assem.  Com. on Public Safety, Analysis of Sen. Bill No. 1146 (1997-1998 Reg. Sess.) p. 2;  emphasis added.)

It is clear from this analysis that the Legislature intended precisely what it said in the amendment to section 1025:  the question of whether the defendant is the person who suffered the prior conviction is to be decided by the court, and all other issues of fact as to the prior conviction are to be decided by the jury.   Appellant was entitled to a jury trial on all issues as to his prior convictions other than the issue of identity.

 Unfortunately, the trial court took the position that the amendment to section 1025 completely eliminated appellant's right to have the jury decide whether he had suffered the prior convictions.   This was error.   Denial of the right to a jury trial results in a miscarriage of justice, requiring reversal.  (People v. Ernst (1994) 8 Cal.4th 441, 449, 34 Cal.Rptr.2d 238, 881 P.2d 298;  People v. Cahill (1993) 5 Cal.4th 478, 493, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)   The true findings on the prior conviction allegations must be reversed, and the cause remanded for further proceedings consistent with the mandates of section 1025.

IV-V †

DISPOSITION

The judgment is affirmed on counts one, two, and three, and reversed as to the true findings on the prior convictions.   The cause is remanded for further proceedings in accordance with the views expressed in this opinion.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

EPSTEIN, Acting P.J.

HASTINGS, J., CURRY, J., concur.