PEOPLE v. ALLEN

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. James Richard ALLEN, Defendant and Appellant.

No. D032857.

Decided: October 21, 1999

Patrick J. Hennessey, Jr., San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

This case requires us to address the question of whether violation of a defendant's statutory right to a jury trial on the truth of a prior conviction is subject to the harmless error rule.   In the published portion of the opinion, we conclude the harmless error rule is applicable to such violations.

James Richard Allen was convicted by a jury of robbery (Pen.Code, § 211 2 ), petty theft after a prior (§§ 484/666484666 3 ), and resisting an officer (§ 148, subd. (a)(1)).

In a bifurcated proceeding, the court found true three serious felony prior convictions within the meaning of section 667, subdivision (a)(1), and two serious/violent felony prior convictions within the meaning of section 667, subdivisions (b) through (i).

Allen was sentenced to an indeterminate term of 35 years to life, consisting of 25 years to life for robbery pursuant to section 667, subdivision (e)(2), plus 10 years for the serious felony prior convictions.

Allen appeals, challenging only his sentence.   He argues the trial court erred in denying his request for a jury trial on the truth of his prior felony convictions and the sentence imposed is cruel and unusual.   We will find the trial court erred in denying Allen the right to a jury trial on the prior convictions, but find that error harmless and reject the remaining contention.

DISCUSSION 4

I

Jury Trial on Prior Convictions

At the beginning of the trial proceedings the trial court ruled Allen was entitled to a jury trial on the truth of the allegation under section 666, but not as to the remaining allegations under sections 667, subdivision (a)(1) and 667, subdivisions (b) through (i).   Allen waived jury on the former but refused to waive his right to jury trial on the latter.   Allen contends the court erred in its ruling.   The Attorney General correctly concedes that Allen was entitled to a jury trial on at least one aspect of the truth of such allegations.

 The right to jury trial on the truth of alleged prior felony convictions is a creature of statute.   A defendant does not have either a state or federal constitutional right to a jury trial on the truth of such allegations.  (People v. Wiley (1995) 9 Cal.4th 580, 589, 38 Cal.Rptr.2d 347, 889 P.2d 541;  People v. Vera (1997) 15 Cal.4th 269, 62 Cal.Rptr.2d 754, 934 P.2d 1279.)

The statutory authority for jury trials on prior convictions is found in sections 1025 and 1158.5  Section 1025 was amended in 1997 to further modify the nature of a defendant's statutory right to a jury trial.

 In People v. Kelii (1999) 21 Cal.4th 452, 87 Cal.Rptr.2d 674, 981 P.2d 518, the Supreme Court recently considered the respective roles of the court and the jury in light of the amendment to section 1025.   In Kelii, the court explained that under the statute the trial court is responsible to determine whether the defendant is the person who suffered the conviction.   The trial court is also responsible to determine whether the prior conviction qualifies as a serious felony and, where appropriate, whether multiple prior convictions were separately brought and tried.  (See also People v. Wiley, supra, 9 Cal.4th at pp. 583, 592, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   The jury, on the other hand, is responsible only for the determination of whether the alleged convictions were suffered, a more narrow role for the jury than existed under the previous version of section 1025.  (People v. Kelii, supra, at p. 458, 87 Cal.Rptr.2d 674, 981 P.2d 518.)

In short, the statute has left very little for a jury to do in the context of an alleged prior felony conviction.   The court said:  “This procedure would appear to leave the jury little to do except to determine whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.   Whether this role makes sense is not for us to say.   If the Legislature wants to provide a greater, or more precisely defined, role for the jury, or chooses to eliminate the jury altogether as many states have done, it may still do so.”  (People v. Kelii, supra, 21 Cal.4th at pp. 458-459, 87 Cal.Rptr.2d 674, 981 P.2d 518.)

In light of Kelii, it is clear the trial court erred in declining Allen's request for a jury trial on any issue regarding the alleged prior felony convictions.   We turn then to the question of whether the error is subject to the harmless error rule.

In her concurring opinion in Kelii, Justice Werdegar joined in the result because she believed under People v. Vera, supra, 15 Cal.4th 269, 62 Cal.Rptr.2d 754, 934 P.2d 1279, any error was harmless.   Justice Werdegar reasoned that Vera had determined denial of a defendant's statutory right to a jury trial on prior convictions was not a structural error which could be waived by failure to object.   She concluded that, although the defendant in Kelii had objected, there was no dispute the conviction at issue was a serious felony and thus any error was harmless.   We think Justice Werdegar's analysis is applicable here.

In the present case there is no dispute that Allen suffered the priors alleged in the information.   He has not challenged the sufficiency of the evidence to support either identity, truth of the priors or that they were for serious felonies.   We invited the parties to file supplemental briefs following the court's decision in Kelii.   Although Allen did not concede that a harmless error analysis is appropriate, he did not raise any question as to the certainty with which the fact of his convictions had been proved.

 The Supreme Court has clearly determined the jury trial right under section 1025 is a narrow, statutory right, the denial of which is not structural error.   While the court majority has not directly addressed the applicability of harmless error to the denial of such right, we are convinced the court's analysis of this statutory right leads inexorably to the application of the harmless error rule.

As noted above, the court in People v. Vera, supra, 15 Cal.4th 269, 62 Cal.Rptr.2d 754, 934 P.2d 1279 removed any hint that denial of the statutory right to a jury trial was a structural error.   Thus, we think the denial of such narrow right is analagous to failure to comply with the court-established procedure for taking admissions to priors under In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561.   The Supreme Court has determined that the rule in In re Yurko was not constitutionally compelled, although it remains an important rule of procedure in California.   The court concluded, therefore, that violations of the rule should be subject to harmless error analysis.  (People v. Howard (1992) 1 Cal.4th 1132, 1174-1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

 We believe the analyses of Howard, Vera and Kelii all lead to the conclusion that violations of the statutory right provided by section 1025 are subject to harmless error analysis.   Applying such rule to the present case, it is undisputed that the prior convictions alleged in this case were suffered by Allen.   Thus, the trial court's erroneous ruling denying Allen his right to a limited jury trial was harmless.6

II *

DISPOSITION

The judgment is affirmed.

FOOTNOTES

2.   All further statutory references are to the Penal Code unless otherwise specified.

3.   The trial court found the prior theft-related offense within the meaning of section 666 to be true.   The determination of the truth of such prior conviction is not at issue in this appeal.

4.   Since this appeal challenges only the sentence, we will omit the traditional statement of facts.

5.   Section 1025 states:  “(a) When a defendant who is charged in the accusatory pleading with having suffered a prior conviction pleads either guilty or not guilty of the offense charged against him or her, he or she shall be asked whether he or she has suffered the prior conviction.   If the defendant enters an admission, his or her answer shall be entered in the minutes of the court, and shall, unless withdrawn by consent of the court, be conclusive of the fact of his or her having suffered the prior conviction in all subsequent proceedings.   If the defendant enters a denial, his or her answer shall be entered in the minutes of the court.   The refusal of the defendant to answer is equivalent to a denial that he or she has suffered the prior conviction. [¶] (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. [¶] (c) 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. [¶] (d) Subdivision (c) shall not apply to prior convictions alleged pursuant to Section 190.2 or to prior convictions alleged as an element of a charged offense. [¶] (e) If the defendant pleads not guilty, and answers that he or she has suffered the prior conviction, the charge of the prior conviction shall neither be read to the jury nor alluded to during trial, except as otherwise provided by law. [¶] (f) Nothing in this section alters existing law regarding the use of prior convictions at trial.”Section 1158 states:  “Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction.   The verdict or finding upon the charge of previous conviction may be:  ‘We (or I) find the charge of previous conviction true’ or ‘We (or I) find the charge of previous conviction not true,’ according as the jury or the judge find that the defendant has or has not suffered such conviction.   If more than one previous conviction is charged a separate finding must be made as to each.”

6.   In his supplemental brief, Allen urges us to reject a harmless error analysis because such rule would result in routine denials of the right to jury trial which remains under section 1025.   We have no reason to believe trial judges will deliberately deny defendants rights which have been provided by statute and clarified by the Supreme Court.   Should such an unhappy state of affairs occur, appellate courts always have the option to decline to apply the harmless error doctrine where a trial court has not attempted to comply with a rule of procedure, whether statutory or court made.  (See People v. Carroll (1996) 47 Cal.App.4th 892, 54 Cal.Rptr.2d 868.)

FOOTNOTE.   See footnote 1, ante.

HUFFMAN, J.

KREMER, P.J., and BENKE, J., concur.