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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Ricky Lynn RYAN, Defendant and Appellant.

No. F014171.

Decided: September 20, 1991

K. Douglas Cummings, under appointment by the Court of Appeal, Sacramento, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Arnold O. Overoye and Robert R. Anderson, Asst. Attys. Gen., Michael J. Weinberger and Joel Carey, Sacramento, Deputy Attys. Gen., for plaintiff and respondent.


Following a bifurcated trial in which defendant Ricky Lynn Ryan was convicted of selling cocaine (Health & Saf.Code, § 11352) and found to have suffered an enhancement under Penal Code section 667.5, subdivision (b), Ryan appeals.   He cites as reversible error insufficiency of the evidence, improper instruction of the jury, prosecutorial misconduct and denial of his right to a jury trial on the enhancement.   We will affirm.

 In the published portion of this opinion, we hold that to the extent the double jeopardy clause is invoked by the erroneous discharge of a jury in a bifurcated proceeding, the right to assert double jeopardy may be waived by conduct of counsel.



Penal Code Section 667.5, Subdivision (b) Enhancement

After the verdict on the substantive charge was read and the jury polled, the trial judge told the jurors, “you were admonished earlier that you could not discuss the case.   You are now relieved of that admonishment.”   The court thanked the jurors and told them to report back for jury service next week.   The jury was never apprised of the existence of the prior conviction.

The trial judge then stated:

“THE COURT:  The record should reflect that I let them go;  but, you know, on your representation, Mr. Petilla, I haven't got a jury waiver.   I should have waited until I got that.   But on your representation that it was going to be a court trial I let them go.   Do you think I should hold them until I get the waiver?

“MR. PETILLA:  I talked to my Defendant, your Honor.   He wants a court trial.”

Immediately thereafter the trial judge conducted voir dire of Ryan to ensure Ryan's understanding of his right to a jury trial.   He then took a personal waiver of jury trial from Ryan.

Ryan contends that the imposition of sentence on the enhancement must be vacated because the trial court dismissed the jury prior to the waiver of jury trial, in derogation of his statutory right to have the same jury try the enhancement that tried the underlying case and in derogation of his right against double jeopardy.   The People counter by arguing that Ryan waived his right to a jury trial by his counsel's representation to the trial court, prior to the discharge of the jury, that a jury was going to be waived.

Upon the facts presented, we conclude there was a waiver by the representations of defense counsel;  however, the waiver effected was not of a jury trial, but of the statutory right under Penal Code section 1025 and the constitutional right against double jeopardy.

Penal Code section 1025 establishes the right of each person who is charged in an accusatory pleading with having suffered a previous conviction to have the issue of the previous conviction tried by the same jury which tried the issue upon the plea of not guilty.2

It has long been held that rights guaranteed only by statute can be waived by counsel alone or by implication.  (See, e.g., Townsend v. Superior Court (1975) 15 Cal.3d 774, 780, 126 Cal.Rptr. 251, 543 P.2d 619;  People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008.)

Therefore, if Penal Code section 1025 were merely a statute bereft of constitutional support, our discussion would end here.   However, section 1025 does have fundamental constitutional underpinnings.   It has been declared to be an embodiment of double jeopardy principles.  (People v. Hockersmith (1990) 217 Cal.App.3d 968, 976, 266 Cal.Rptr. 380.)

In People v. Bracamonte (1981) 119 Cal.App.3d 644, 651, 174 Cal.Rptr. 191, it was held that the defendant has the right to a two-stage or bifurcated proceeding which requires the trial of the underlying charge first and, if guilt is found, trial of the prior convictions.

In People v. Wojahn (1984) 150 Cal.App.3d 1024, 1033–1035, 198 Cal.Rptr. 277, it was held that, in addition to statutory provision under Penal Code section 1025 requiring the same jury to try both issues, double jeopardy principles compelled the same result.   The court stated, “․ when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction.   Consequently jeopardy attached to both issues.”  (Id. at p. 1035, 198 Cal.Rptr. 277.)

While we may question the basis for the conclusion reached by Wojahn (see, e.g., People v. Saunders (1991) 232 Cal.App.3d 1574, 1585, 285 Cal.Rptr. 485 discussing Wojahn ), with the exception of Saunders, there are no cases extant which hold otherwise.

As noted by Justice King in People v. Dee (1990) 222 Cal.App.3d 760, 763, 272 Cal.Rptr. 208, wherein he charted the survival of those cases following Wojahn and the demise by depublication of those cases in disagreement, “The message from the Supreme Court is obvious:  ․ Wojahn [is] correct.”

In this case, however, we do not have a simple inadvertence of the trial court in discharging a jury prematurely;  we have a discharge ordered in reliance upon the representation of defense counsel that Ryan wanted a court trial.

Ryan correctly notes that in order for an effective waiver of a jury trial to be made, the defendant personally must do so.  (See Cal. Const., art. I, § 16;  In re Tahl (1969) 1 Cal.3d 122, 131, 81 Cal.Rptr. 577, 460 P.2d 449.)   However, he misinterprets what transpired in the trial court.   After the jury was discharged, the judge took a personal waiver of jury trial from Ryan which complied in all respects with Tahl.   Therefore, we are not presented with an issue of whether counsel could validly waive the right to a jury trial for Ryan.   There was a valid personal waiver.   We are instead presented with the issue of whether counsel can effectively waive his client's right against double jeopardy.   Under the circumstances presented, that is precisely what occurred.

In Boykin v. Alabama (1969) 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, the United States Supreme Court held that certain specific rights must be waived in order to plead guilty;  the privilege against self-incrimination, the right to jury trial and the right to confront one's accusers.  In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, held that those same three “important federal rights” cannot be presumed from a silent record.  (Id. at p. 130, 81 Cal.Rptr. 577, 460 P.2d 449.)   There must be an express waiver of those rights prior to acceptance of his guilty plea.  (Id. at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

It cannot be disputed that as a specific right guaranteed under the Fifth Amendment, the double jeopardy clause is an “important federal right.”   Nevertheless, while the “important federal rights” of jury trial, right against self-incrimination and the right of confrontation require a personal waiver, courts have held that the right against double jeopardy can be waived by counsel or by implication.  (People v. Ramirez (1972) 27 Cal.App.3d 660, 671, 104 Cal.Rptr. 102;  People v. Moore (1983) 140 Cal.App.3d 508, 513, 514, 189 Cal.Rptr. 487.)

 Absent legal necessity or the inability of the jury to reach a verdict, the defendant must consent to a mistrial.  (Curry v. Superior Court (1970) 2 Cal.3d 707, 713–714, 87 Cal.Rptr. 361, 470 P.2d 345.)   A formal motion for a mistrial made by defendant through counsel is construed as consent to a mistrial on the defendant's part.  (Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 692, 21 Cal.Rptr. 753.)

In Curry v. Superior Court, supra, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345, our Supreme Court granted a writ of prohibition sought by the defendant, finding that the trial judge's actions in ordering a mistrial, without either express or implied consent of the defendant, invoked double jeopardy principles.   However, in concluding that the judge's order was sua sponte, the Supreme Court recognized that affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent.  (Id. at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345.)

In People v. Terry (1970) 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961, the Supreme Court, in response to the Attorney General's argument that the trial judge could not have granted a mistrial, so as to grant a severance, without invoking the double jeopardy clause, stated:

“This assertion is unsound.   Before trial began and before [People v.] Aranda [ (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265] was decided, a motion to sever had been made and the judge said it was denied by the court.   The defendants never indicated in any way thereafter that they no longer desired a severance.   Therefore, if, when the Aranda question later arose, the judge had granted a mistrial on his own motion, defendants would be deemed to have consented to the mistrial, since it was granted to achieve their original objective of severance.   Of course, if defendants consent to a mistrial they cannot successfully later urge former jeopardy.”  (23 Cal.3d at p. 386, 85 Cal.Rptr. 409, 466 P.2d 961, fn. omitted.)

In United States v. Dinitz (1976) 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, defendant had retained as counsel, Jeffrey Meldon.   Five days prior to trial, defendant also retained as cocounsel, Maurice Wagner.   After trial commenced, Wagner committed what was perceived by the trial judge as several acts of misconduct.   Ultimately, the trial judge ordered Wagner from the court and directed Meldon to proceed.   Meldon indicated that Wagner was retained for the trial and that he (Meldon) was unprepared.   The following day, Meldon advised the court that defendant wanted Wagner to represent him at trial.   The trial court then offered to defendant an alternative of requesting a mistrial.   Following a short recess, Meldon moved for and was granted a mistrial.

Prior to retrial, defendant moved to dismiss the indictment, asserting double jeopardy application.   The Court of Appeals held that the procedure employed by the trial judge had left defendant no choice but to move for mistrial and held that retrial was barred.  (424 U.S. at p. 605, 96 S.Ct. at p. 1078.)   The United States Supreme Court reversed the appellate court holding that, under those circumstances, double jeopardy did not apply.   The defendant retained primary control over the course he wanted to follow.   He had the choice of whether or not to move for mistrial.  (Id. at pp. 609–611, 96 S.Ct. at pp. 1080–1082.)

In Dinitz, one of the arguments propounded by the defendant was that since a defendant's mistrial motion is a waiver of his right not to be placed twice in jeopardy, in order to be valid, the waiver must meet a knowing, intelligent and voluntary standard established in Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (and reiterated in Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709 and In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449).  (United States v. Dinitz, supra, 424 U.S. at p. 609, fn. 11, 96 S.Ct. at pp. 1080–1081, fn. 11.)

Responding to this argument, the Supreme Court stated:

“This approach erroneously treats the defendant's interest in going forward before the first jury as a constitutional right comparable to the right to counsel.   It fails to recognize that the protection against the burden of multiple prosecutions underlying the constitutional prohibition against double jeopardy may be served by a mistrial declaration and the concomitant relinquishment of the opportunity to obtain a verdict from the first jury.   This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right.”  (United States v. Dinitz, supra, 424 U.S. at pp. 609–610, fn. 11, 96 S.Ct. at pp. 1080–1081, fn. 11.)

In the case of People v. Ramirez, supra, 27 Cal.App.3d 660, 104 Cal.Rptr. 102, we held that affirmative conduct by the defendant constitutes a waiver if it clearly evidences consent.  (Id. at p. 671, 104 Cal.Rptr. 102.)

In Ramirez, after the jury was sworn, defense counsel moved for continuance on the basis of an amendment of the information allowed at trial.   The trial court granted the motion and discharged the jury.   Trial was later held before another jury which resulted in defendant's conviction.   On appeal, defendant argued that since jeopardy attached when the first jury was sworn, the discharge of that jury without consent or legal necessity was equivalent to an acquittal.   We viewed the request of a lengthy continuance and agreement to assignment to the master calendar for resetting as implying consent to the discharge of the jury.  (27 Cal.App.3d at p. 670, 104 Cal.Rptr. 102.)   Having consented, he waived his right to claim jeopardy at the subsequent trial.  (Ibid.)

In People v. Moore (1983) 140 Cal.App.3d 508, 189 Cal.Rptr. 487, the Court of Appeal, Fourth District, upheld a conviction challenged on double jeopardy principles which issue arose from a mistrial granted upon motion made by counsel outside the presence of the defendant.   The motion for mistrial was made during a hearing in chambers, at which hearing the defendant's presence was waived by counsel.   The motion was granted in chambers, also outside the presence of the defendant.  (Id. at pp. 510–511, 189 Cal.Rptr. 487.)

On appeal, the defendant argued that the tactical decision of whether to keep or discharge a jury is so personal in nature, it could not be made by counsel.  (140 Cal.App.3d at p. 511, 189 Cal.Rptr. 487.)   The Fourth District disagreed, holding that, although a fundamental right, the decision of whether or not to keep a jury is one that should and could be exercised by experienced legal minds and is not beyond the control of counsel.  (Id. at pp. 513–514, 189 Cal.Rptr. 487.)  Moore harmonized its decision with previous Supreme Court cases which appeared to require consent (and therefore knowledge) of the defendant by noting that in both Curry v. Superior Court, supra, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345 and People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537, the Supreme Court inferred that the consent could be in person or through counsel.  (Moore, supra, 140 Cal.App.3d at p. 514, 189 Cal.Rptr. 487.)   The underlying premise in Moore, that counsel's intimate knowledge of the case places him in a unique position to determine when to take affirmative action in requesting a mistrial (ibid.), receives support in the recent case of In re Horton (1991) 54 Cal.3d 82, 95, 284 Cal.Rptr. 305, 813 P.2d 1335.

“In the criminal context, too, counsel is captain of the ship.   As we said recently:  ‘When the accused exercises his constitutional right to representation by professional counsel, it is counsel, not defendant, who is in charge of the case.   By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel's complete control of defense strategies and tactics.’  [Citations.]  It is for the defendant to decide such fundamental matters as whether to plead guilty [citation], whether to waive the right to trial by jury [citation], whether to waive the right to counsel [citation], and whether to waive the right to be free from self-incrimination [citation].   As to these rights, the criminal defendant must be admonished and the court must secure an express waiver;  as to other fundamental rights of a less personal nature, courts may assume that counsel's waiver reflects the defendant's consent in the absence of an express conflict.”  (54 Cal.3d p. 95, 284 Cal.Rptr. 305, 813 P.2d 1335.)

 From the foregoing review of cases, we conclude the following:  (1) the right against double jeopardy, although fundamental, is not within the ambit of Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709 and In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 and does not require personal waivers;  (2) the right can be waived by consent to the discharge of a sworn jury;  (3) counsel, on behalf of a defendant, can consent to discharge;  and (4) the practical effect of counsel informing a trial judge that a defendant wants a court trial on the issue of the validity of a prior conviction which results in a jury's discharge is a waiver of the right of that defendant to later claim jeopardy attached.   A defendant who is desirous of waiving a trial by jury can hardly be heard to complain when he gets his wish.  (Cf. People v. Cooper (1991) 53 Cal.3d 771, 827, 281 Cal.Rptr. 90, 809 P.2d 865.)

Having decided that there was such a waiver, we should also discuss its import beyond this appeal.   In its sundering from People v. Bracamonte, supra, 119 Cal.App.3d 644, 174 Cal.Rptr. 191, and People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, People v. Saunders, supra, 232 Cal.App.3d at pp. 1584–1585, 285 Cal.Rptr. 485 stated:

“The Bracamonte–Wojahn conundrum places defense counsel in an untenable position.   If counsel permits the defendant to waive jury on the prior at the beginning of trial without giving the trial court an opportunity to improvidently discharge the jury, counsel is per se ineffective and thus creates reversible error on appeal, at least insofar as the resulting sentence enhancement is concerned.   If counsel represents to the court that there will be a jury waiver as to the prior, counsel must renege if the trial court erroneously discharges the jury before taking the jury waiver, or again be found incompetent.   The price, then, is a ‘gotcha’ type of advocacy which, although inconsistent with professional candor and trust, is nevertheless mandated by Bracamonte and Wojahn.”

We need not decide whether the analysis set forth above is correct.

Since we have concluded the defendant got what he wanted by the waiver of the jury trial, it can hardly be argued that in helping to achieve that result, counsel was incompetent.   A defendant seeking relief on the basis of ineffective assistance of counsel must show that counsel failed to render reasonably competent assistance.  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)


The judgment is affirmed.


FOOTNOTE.   See footnote, *, ante.

2.   Penal Code section 1025 reads:  “When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction.   If he answers that he has, his answer must be entered in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings.   If he answers that he has not, 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.   The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction.   In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.”

BUCKLEY, Associate Justice.

BEST, P.J., and REID,*** J., concur.