PEOPLE v. VALENTINE

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

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

No. B119774.

Decided: December 29, 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.

We considered this appeal in an opinion filed March 25, 1999.   We concluded that appellant was entitled to a jury trial on the prior conviction allegations, and that denial of that right resulted in a miscarriage of justice requiring reversal.   We affirmed appellant's conviction in all other respects, and instructed the trial court on remand to impose the parole revocation fine and correct the judgment to reflect all fines imposed.

The People sought Supreme Court review on the standard of error to be applied when a defendant is denied the statutorily-based right to have a jury determine the truth of prior conviction allegations.   The Supreme Court granted the petition for review and transferred the cause to this court with directions to vacate our decision and reconsider the cause in light of People v. Kelii (1999) 21 Cal.4th 452, 87 Cal.Rptr.2d 674, 981 P.2d 518.   In the published portion of this opinion, we now conclude that denial of the statutory right to jury trial on prior convictions is subject to harmless error analysis, and that in this case, the error was in fact harmless.   In the unpublished portion of the opinion, we reject appellant's other claims of error, order the judgment modified to include a parole revocation fine, and order the abstract of judgment corrected 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 its amendment, effective January 1, 1998, 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.)

Amended section 1025 now 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) now 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.”

We find nothing ambiguous in the amended statute as to the right to jury trial on prior convictions.   The amendment to section 1025 only eliminated the right to jury trial on “the question of whether the defendant is the person who has suffered the prior conviction․”   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).)  As the Supreme Court explained in People v. Kelii, supra, 21 Cal.4th 452, 458, 87 Cal.Rptr.2d 674, 981 P.2d 518, the Legislature reduced, but did not entirely eliminate the jury's role in trying prior conviction allegations.   Appellant was entitled to a jury trial on all factual issues as to his prior convictions that remain after the amendment to section 1025.

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.

 Appellant's right to have a jury determine factual issues relating to the prior conviction allegations “does not flow from the jury trial provision of article I, section 16 of the California Constitution or the Sixth Amendment of the United States Constitution.   It is derived from statute.”  (People v. Vera (1997) 15 Cal.4th 269, 277, 62 Cal.Rptr.2d 754, 934 P.2d 1279;  People v. Wiley (1995) 9 Cal.4th 580, 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   Nevertheless, appellant argues that the error constituted a structural defect in the trial, requiring reversal without consideration of prejudice.

This same argument was made in People v. Marshall (1996) 13 Cal.4th 799, 851, 55 Cal.Rptr.2d 347, 919 P.2d 1280.   In that case, the defendant was entitled by statute to a jury finding on a multiple-murder special-circumstance allegation, but the trial court failed to permit the jury to make that finding.   The court concluded that the error did not constitute a structural defect in the trial:  “The error was not so pervasive as to affect the framework within which the trial proceeded.   Rather, it is susceptible to quantitative assessment because the record compels the conclusion the error had no effect on the outcome of the trial and was thus harmless beyond a reasonable doubt.  (People v. Johnson [1993] 6 Cal.4th [1] at p. 45 [23 Cal.Rptr.2d 593, 859 P.2d 673];  Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824 17 L.Ed.2d 705].)”  (Marshall, supra, 13 Cal.4th at pp. 851-852, 55 Cal.Rptr.2d 347, 919 P.2d 1280.)

 Applying that analysis to our case, we reach the same conclusion.   The error was not so pervasive as to affect the framework of the trial.   The jury determined all of the elements of the charged substantive offenses.   What the jury did not decide was the limited question of whether appellant suffered the prior convictions.   That question does not go to an element of the crimes charged, but only to the punishment to be imposed.   Appellant makes no claim, nor does the record suggest, that he was denied a fair trial on the allegations by the trial court, sitting as the trier of fact.   He was not deprived of due process of law.  (See People v. Vera, supra, 15 Cal.4th at pp. 280-281, 62 Cal.Rptr.2d 754, 934 P.2d 1279.)

 Turning to the “quantitative assessment” of the error (see People v. Marshall, supra, 13 Cal.4th at pp. 851-852, 55 Cal.Rptr.2d 347, 919 P.2d 1280), we conclude that it was harmless, whether it is tested under the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 [error is not reversible unless there is a reasonable probability that the defendant was prejudiced as a result of the error] see People v. Flood (1998) 18 Cal.4th 470, 483, fn. 10, 76 Cal.Rptr.2d 180, 957 P.2d 869);  or under the Chapman standard for federal constitutional error (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 [error requires reversal unless it is harmless beyond a reasonable doubt] see People v. Marshall, supra, 13 Cal.4th at pp. 851-852, 55 Cal.Rptr.2d 347, 919 P.2d 1280).

The prosecution submitted a certified priors package, which included copies of the commitment, a photograph, fingerprints, and a chronological history.  (CT 197) The commitment indicated that appellant had been convicted of assault with intent to commit rape (§ 220);  transportation/sale of a narcotic substance (Health & Saf.Code, § 11352);  and transportation/sale of cocaine (Health & Saf.Code, § 11352.)  (CT 202-205) This evidence strongly supported the determination that appellant suffered the prior convictions.   Appellant raised no procedural or substantive challenges to the information contained in the priors package, and presented no evidence during the brief court trial.   On this record, no reasonable jury could have made a different determination as to the truth of the prior conviction allegations from that made by the trial court.   The error had no effect on the outcome of the case, and hence was harmless beyond a reasonable doubt.

IV-V***

DISPOSITION

The judgment is modified to include a parole revocation fine and the abstract of judgment is ordered corrected to reflect all fines imposed.   In all other respects, the judgment is affirmed.

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.

EPSTEIN, Acting P.J.

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

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