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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Robert TINDALL, Defendant and Appellant.

No. B114899.

Decided: May 18, 1999

Barry J. Post, San Pedro, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz and Mitchell Keiter, Deputy Attorneys General, for Plaintiff and Respondent.

In People v. Valladoli, the jury convicted the defendant of a drug charge.   Before the jury was dismissed, the People moved to amend the information to add a variety of enhancements, none of which involved “strikes.”   The trial court granted leave to amend, and the same jury found the enhancements to be true.   We affirmed, and so did our Supreme Court.   (People v. Valladoli (1996) 13 Cal.4th 590, 54 Cal.Rptr.2d 695, 918 P.2d 999 (Valladoli ).)   However, the Supreme Court was careful to limit its decision to the facts before it, i.e., a post-verdict amendment made prior to the discharge of the original jury.1

The other shoe has now dropped.   We have before us a case where appellant Robert Tindall was convicted of possession of a small amount of rock cocaine.   He waived jury on the two enhancements alleged, which involved two prior California felony drug cases.   The court hearing on the enhancements was put over until the time of sentencing.   On that date, the probation report revealed something the prosecution failed to find.   It turned out that in addition to the two California drug felonies, appellant had a dazzling array of approximately thirteen Missouri felony and misdemeanor convictions, headed by second-degree murder.   More important to this appeal, he also had three federal bank robbery convictions (which occurred in California) and was still on federal parole at the time of the current offense.

The prosecution's motion to amend the information to add the three bank robberies as “strikes” was granted.   Appellant was allowed to withdraw his jury waiver, and a jury ultimately found the priors to be proved.   The net result is that on this typical “one-rock toss” case, the 49-year-old appellant has gone from a maximum 4-year sentence (of which he would serve two) to at least 25 years (of which he will serve a minimum of 20).   In other words, a tenfold increase in punishment.

In the published portion of this opinion-which, given the Supreme Court's interest in this issue, will likely have a brief shelf-life-we hold that under the facts of this case and the principles set forth in Valladoli and People v. Saunders (1993) 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093, the amendment after the jury was dismissed was permissible and the trial court did not abuse its discretion in allowing it.   Our decision is based on the uncontroverted finding that there was no bad faith by the prosecution, and that (except for the length of the sentence) appellant has provided no argument showing the late amendment resulted in any cognizable prejudice at either pretrial proceedings, trial, or the subsequent jury trial on the priors.

In the unpublished part of this opinion, we reject appellant's 11 other issues, some of which were quite close.


Robert Tindall appeals from the judgment entered upon his conviction by jury of possession of rock cocaine (Health & Saf.Code, § 11350, subd. (a)), with findings that he had suffered three prior convictions within the meaning of the Three Strikes law (Pen.Code, §§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)).   He was sentenced to prison for 25 years to life.

Appellant contends (1) that the trial court erred in permitting the prosecutor to amend the information after the jury was discharged to allege the three prior “strike” convictions;  (2) that the trial court erred in refusing to substitute private counsel;  (3) that the trial court erred in refusing to dismiss the Three Strikes prior conviction allegations because his speedy trial rights were violated as to those allegations;  (4) that the evidence was insufficient to support the verdict of guilt;  (5) that the trial court erred in instructing the jury in accordance with CALJIC No. 2.06;  (6) that the prosecutor committed misconduct;  (7) that the trial court erred in refusing to advise the second jury about the nature of the underlying conviction;  (8) that the trial court misadvised the jury that his prior convictions resulted from a federal trial;  (9) that the trial court erred in permitting the testimony of a federal court clerk;  (10) that the trial court erred in denying his motion to strike prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, (11) that the trial court erred in denying his motion regarding multiple convictions arising from a single case;  and (12) that the sentencing court erroneously considered a prior conviction which was neither pled nor proved.


Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that on the afternoon of June 18, 1996, a deputy sheriff driving with his partner in a marked patrol car observed appellant walking down the driveway of a Los Angeles residence toward the street.   When appellant looked at the deputies, his eyes became wide and his expression became “over-alert.”   Appellant turned around, walked back up the driveway, and dropped a plastic baggie containing a paper bindle onto the driveway.   The deputies detained appellant and retrieved the baggie, which contained four rocks and another small piece which appeared to be cocaine.

The contents of the baggie were subsequently determined to consist of .69 grams of a substance containing cocaine base.  In the opinion of the deputies, who was trained and experienced in the buying and selling of rock cocaine, the amount appellant possessed was a usable quantity.

In the defense, a woman who had known appellant for four or five years testified that she was at the residence where the deputies detained appellant and she did not see appellant holding a plastic baggie or dropping any drugs when the police pulled up.   In rebuttal, one of the deputies testified that he did not see this woman at the residence when appellant was arrested.   Moreover, the same woman told a public defender's investigator that she had seen the deputies pick up a plastic baggie of cocaine from the ground at the time appellant was detained.


The information charged appellant with possession of rock cocaine and alleged two prior felonies within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c) and Penal Code sections 667.5, subdivision (b) and 1203, subdivision (e)(4).   On December 18, 1996, after the jury returned its verdict of guilt, appellant waived jury trial on the prior conviction allegations.   The matter was continued to January 16, 1997, for preparation of a probation report and for the trial on the priors and sentencing.   On that date, the prosecutor moved to amend the information to allege three prior federal bank robbery convictions within the meaning of the Three Strikes law and Penal Code section 667.5, subdivision (b).  The motion was granted, without prejudice to appellant to renew his opposition, and appellant was granted a continuance.   Appellant invoked his right to jury trial on the “strike” allegations.

Further argument on the motion to amend the information was held on March 24, 1997.   On that date, the trial court reiterated its ruling granting the motion to amend and trial on the Three Strikes allegations 2 commenced before a different jury.   The jury was unable to reach a verdict and a mistrial was declared.

On June 2, 1997, a second trial on the prior conviction allegations was conducted before a different jury.   Appellant's motion to dismiss the proceedings on the ground of violation of his speedy trial rights was denied.   The jury found true the alleged prior convictions of bank robbery.


I. The trial court properly ruled that the prosecution could amend the information to allege prior conviction allegations after the discharge of the jury.

As stated, on December 18, 1996, the jury returned its verdict of guilt on the charged offense.   The matter was continued to January 16, 1997, for preparation of a probation report and for the trial on the two prior conviction allegations then alleged and for sentencing.   On January 16, the prosecutor indicated that she had learned for the first time, from the probation report, that appellant had sustained three federal convictions for bank robbery in 1984.   Over defense objection, the trial court granted the prosecutor's motion to amend the information to allege these prior convictions within the meaning of the Three Strikes law and Penal Code section 667.5, subdivision (b), without prejudice to appellant to renew his objection, and the court granted appellant a continuance.   The renewed objection was overruled.

Appellant contends that the ruling permitting the amendment was erroneous.   He argues that the amendment was improper after the jury was discharged because the amendment violated his right against double jeopardy.   He claims that a substantial right, his protection by the double jeopardy clause, was prejudiced by the amendment within the meaning of Penal Code section 1009.   He further claims that under Valladoli, Penal Code section 969a permits amendment of the information only until the jury has been discharged.   In essence, he asks for a “bright-line” rule.

 Although we agree that appellant's argument has an initial attraction, we disagree with his conclusion.   Instead, we believe a late amendment should be guided by the abuse of discretion standard as expressed in Valladoli.   Therefore in order to reverse, the trial court's decision would have to “exceed the bounds of reason” and “amount to a miscarriage of justice.”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58;  Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.)   Unfortunately for appellant, facts showing such an abuse simply are not present in this case.

 Appellant's right to be free of double jeopardy was not infringed by the amendment, and he was not denied a substantial right in this regard under Penal Code section 1009.3  Neither the federal nor state protection against double jeopardy applies to proceedings on prior convictions such as those alleged here (Monge v. California (1998) 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615) and “ ‘[t]he evils against which the double jeopardy clause is directed were absent in the present situation.’ ”  (Valladoli, supra, 13 Cal.4th at p. 609, 54 Cal.Rptr.2d 695, 918 P.2d 999.) 4

 While Valladoli did not reach the issue of whether a post-discharge amendment is permissible, we conclude that it is.   Penal Code section 969a provides, “Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary.   Defendant shall promptly be rearraigned on such information or indictment as amended and be required to plead thereto.”   Nothing in the plain language of the statute indicates that an amendment may be made only up to the time the jury is discharged.

In discussing the legislative history of Penal Code section 969a, the Supreme Court in Valladoli quoted the report of the Commission for the Reform of Criminal Procedure, which had recommended the addition of Penal Code section 969a, in part as follows:  “ ‘If the discovery [of prior felonies not known at the time of the filing of the information] is made before sentence, the pending indictment or information shall be amended upon order of the court and the case proceed as if such prior convictions had been charged in the original ․ information․  [¶] The justice of this provision seems to require no argument.   If a defendant has in fact been convicted of one or more previous felonies he ought not escape the consequences thereof simply because he has succeeded in concealing them.’ ”  (Valladoli, supra, 13 Cal.4th at p. 603, 54 Cal.Rptr.2d 695, 918 P.2d 999, original italics.)

We deem it significant that the report of the commission recommending the enactment of this statute used the language “before sentence,” rather than “before discharge of the jury.”   The statute as enacted in 1927 permitted amendment “[w]henever after sentence, and before the sentence has expired, it shall be discovered that the ․ information on which defendant was convicted did not charge all felonies of which defendant had theretofore been convicted․”  (Italics added.)   When the statute was amended in 1931 to substantially the present language, it omitted the language permitting amendment after sentencing but did not limit amendment to the period before discharge of the jury.   This comports with the policy behind the statute, that a defendant should face the consequences of his prior conduct, even if his prior convictions are not discovered in time for inclusion in the information on which he is tried.

 Although Penal Code section 1025, at the time of appellant's trial, provided that prior conviction allegations were to be tried by the jury which tried the issue of the substantive crimes, there are situations where this cannot or does not occur.   It is clear that the right to jury trial on prior conviction allegations is merely a creature of statute, and not a constitutional right.  (People v. Vera (1997) 15 Cal.4th 269, 277, 62 Cal.Rptr.2d 754, 934 P.2d 1279.)   We observe that recent Supreme Court pronouncements and statutory amendments signal the reduced importance of Penal Code section 1025's preference for trial by the same jury.   In People v. Wiley (1995) 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541, the Supreme Court held that, for purposes of Penal Code section 667, subdivision (a), the question of whether prior convictions were brought and tried separately is a legal issue for the court, not the jury.5  Effective January 1, 1998, Penal Code section 1025 was amended to provide that in a trial on prior conviction allegations, the issue of whether the defendant is the person who was convicted of the prior felony is for the court rather than for the jury.   Thus, the jury has a decreasingly important role in trying a defendant on prior conviction allegations.   We believe that the policies underlying the permissive amendment of the information to allege additional prior convictions outweigh any statutory preference for trial by the same jury.

 We conclude that a post-discharge amendment may be proper.   In Valladoli, the court enumerated five non-comprehensive factors which should guide the trial court's exercise of discretion in ruling on a motion to amend the information under Penal Code section 969a:  “(i) the reason for the late amendment, (ii) whether the defendant is surprised by the belated attempt to amend, (iii) whether the prosecution's initial failure to allege the prior convictions affected the defendant's decisions during plea bargaining, if any, (iv) whether other prior felony convictions had been charged originally, and (v) whether the jury has already been discharged (see § 1025).”  (Valladoli, supra, 13 Cal.4th at pp. 607-608, 54 Cal.Rptr.2d 695, 918 P.2d 999, fn. omitted.)   To that list, we would respectfully add two others:  Whether the tardy amendment impacted prejudicially on either jury selection or trial tactics.   We now examine each factor separately.

a. The reason for the late amendment

 The CII “rap sheet” obtained by the People did not disclose the Missouri convictions or the federal bank robberies.6  The record does not disclose how the probation department was able to discover in three weeks what the prosecution could not in six months.7  However, the trial court found that the failure to allege the priors at an earlier time was simply a good-faith error.   In view of the fact that thousands of criminal prosecutions take place annually in California, and this is evidently the first reported case involving such a situation, it is difficult to quarrel with the trial court's findings.   Appellant does not make such a challenge on appeal, as his counsel admitted at oral argument that he did not know of any other instances-local or statewide-where the issue had arisen.   We conclude that the trial court correctly found that the prosecutor did not act in bad faith.

b. Whether appellant was surprised by the amendment

There is nothing in the record to show that appellant is mentally challenged.   Indeed, the trial court commented on his continued polite and appropriate behavior throughout all proceedings.   We therefore assume appellant was aware of his past criminal history, and was further aware that because of prosecutorial inadvertence, he hadn't been found out.   It is likely, though, that he was surprised by the lateness of the amendment.   In our view, surprise is not enough to warrant reversal.   The surprise must be coupled with prejudice.   As we will discuss in our analysis of other factors, there was none that would justify reversal.

c. The impact on plea bargaining

Appellant does not contend, nor does the record show, that there was any attempt to plea bargain this case at any time prior to the amendment of the information.

d. Whether any other felony enhancements had been charged

 It seems to us that this factor would relate to surprise, discussed above.   As mentioned, two “non-strike” California felony convictions had been charged, so appellant was aware that his background had been checked, though incompletely.

e. Whether the jury had been discharged

The jury was discharged.   However, as we conclude in other parts of this opinion, that fact should not result in an automatic reversal without a showing of prejudice.

Appellant claims that he was denied the right to have the same jury determine the truth of the priors as heard the underlying offense.   As discussed infra, under Saunders and Valladoli that right is not absolute where there was good cause to empanel a different jury.

f. Jury selection

 Under Code of Civil Procedure section 231, a defendant facing life imprisonment is entitled to 20 peremptory jury challenges instead of the normal 10.   In the present case, appellant was afforded only 10.   He used but four (the People used none), so he cannot point to any prejudice from not being allowed the greater amount.  (People v. Johnson (1992) 3 Cal.4th 1183, 1210-1211, 14 Cal.Rptr.2d 702, 842 P.2d 1.)

Appellant argues that had this been initially tried as a “three-strikes” case, the jury venire would have been larger, likely resulting in a “draw” of jurors different from those who were empaneled.   Secondarily, he asserts that in facing life imprisonment, defense counsel might have selected a different type of juror.   We reject both contentions as speculative.

g. Trial tactics

It is possible that a defendant's trial strategy might be altered when facing a “third strike” as opposed to a low-grade felony.   In particular, we can envision that a defendant may not choose to testify in a low-grade felony case, but might do so when facing life in prison as a result of the same crime.   Here, appellant did not testify, likely because the trial court ruled that he could be impeached with the most current of the California drug cases.   Appellant makes no claim that he would have testified had he known he was in a “three strikes” situation.

This opinion should not be construed as an indication that we are condoning sloppy pretrial prosecutorial investigation.   Should this case be a harbinger of continued failure to timely allege prior offenses, courts might well conclude that there is an ulterior motive by the prosecution that would warrant denying amendment at the trial court level or reversal on appeal.

Further, this case is being decided on its own particular facts.   Situations may arise where a late filing resulted in a miscarriage of justice.   Here, a weighing of all the pertinent considerations shows that the only factor which should have given the trial court pause was that the jury had already been discharged.   As we have stated, good cause existed for the late amendment, and appellant can point to no cognizable prejudice whereby we could reasonably conclude that the trial court's decision amounted to an abuse of discretion.



The judgment is affirmed.



1.   In Valladoli, the defendant was charged with three counts of various drug charges and ten enhancements.   The magistrate ultimately dismissed count 3, and someone (presumably the magistrate) crossed out not only the allegations of count 3, but all 10 enhancements as well.   As a result, the information that was filed contained the first two counts, but none of the enhancements.   No one noticed the omission until after verdict.   The discovery was made prior to the discharge of the original jury.   The court granted the amendment, and the original jury found certain of the enhancements to be true.

2.   The Penal Code section 667.5, subdivision (b) allegations were dismissed at this time.

3.   In pertinent part, Penal Code section 1009 states, “The defendant shall be required to plead to such amendment or amended pleading forthwith, or at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.”

4.   People v. Saunders, supra, 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093 involved a situation where the prior offenses were bifurcated from the underlying offenses.   The defendant was found guilty of burglary.   Defense counsel previously informally advised the trial court that the defendant would waive jury on the priors.   At the time of verdict, substitute defense counsel stood in for trial counsel.   After the verdict was received, the jury was discharged with no mention or resolution of the priors.   The next day, proceedings took place on the priors.   The defense trial counsel was present, and jury was waived.   The court found the priors true.   Defense counsel then learned that the jury was discharged prior to the jury waiver.   She moved to withdraw the jury waiver, and the motion was granted.   The court impaneled a new jury which likewise found the priors to be true.In a 5-2 decision, the Supreme Court held that:  1) The failure of defense counsel to object to the discharge of the jury was a waiver of the right to have the same jury hear the priors;  and 2) assuming (but not deciding) that double jeopardy principles apply to priors, such principles were not violated.   The reason given was that in a bifurcated proceeding, the defendant was not at risk as to the priors during trial of the underlying offenses.

5.   The issue of whether the trial court or the jury is to decide whether a defendant's prior felony conviction constitutes a “serious felony” is currently pending before the Supreme Court in People v. Kelii (1998) 63 Cal.App.4th 854, 73 Cal.Rptr.2d 917, review granted July 29, 1998 (S070960) and in People v. Kidd (1998) 63 Cal.App.4th 604, 74 Cal.Rptr.2d 97, review granted August 19, 1998 (S071352).

6.   Nothing in the record shows, nor do the People contend, that the failure to discover the prior convictions was through the fault of appellant, such as by way of the use of an alias or false identification.

7.   The deputy district attorney at the hearing was not trial counsel.   In defense of the lateness of discovery, he said, “Due to the limitations on the resources of the District Attorney's Office, we frequently do not have access to out-of-state records.   Those things only appear in a probation report.”

FOOTNOTE.   See footnote *, ante.


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