PEOPLE v. CASILLAS

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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ricardo V. CASILLAS, Defendant and Appellant. IN RE: Ricardo V. CASILLAS, On Habeas Corpus.

Nos. A043679, A045539.*

Decided: November 17, 1989

Richard L. Rubin, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Senior Asst. Atty. Gen., Ronald S. Matthias, Christopher W. Grove, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

A jury convicted Ricardo V. Casillas of oral copulation, sodomy and first degree robbery.  (Pen.Code, §§ 288a, subd. (c), 286, subd. (c), 211/212.5.) 1  In a bifurcated trial the court also found that he had previously been convicted of a serious felony.  (§ 667.)   Defendant appeals from the judgment and has filed a separate petition for writ of habeas corpus.   For the following reasons we affirm the judgment but strike the five-year enhancement for the prior serious felony.

FACTS

Evidence produced at trial revealed that 27–year old W.M. supplemented his Social Security income by doing janitorial work at Doc's Bar in Richmond.   At about 4:30 p.m. on December 12, 1987, W.M. finished cleaning Doc's Bar and started walking down the street.   Defendant, who had been drinking at the bar and who W.M. had seen a few times before, followed W.M. and asked him whether he needed a couple of dollars.   When W.M. accepted, defendant said the money was in his house.

W.M. accompanied defendant to his house, entered the living room and sat on the couch while defendant went to the bathroom.   When defendant came out of the bathroom, he grabbed W.M. by the arms and took him into the bedroom.   Defendant forced W.M. to orally copulate him and then sodomized W.M.   When he was finished defendant gave W.M. two dollars.

W.M. then realized that $38 which had been in his pants pocket was gone.   He saw what he believed to be his money on the coffee table in the living room.   W.M. had not seen this money when he first arrived.

After W.M. left defendant's home he went to a cafe and had dinner.   He then went home and called the police.   After interviewing W.M., the police went to defendant's home.   There was a twenty dollar bill, a ten, and approximately seven dollars and seventy cents in change on the coffee table.

Dr. Michael Gibson examined W.M. who complained of rectal pain.   The doctor's findings were consistent with sexual assault.

DISCUSSION

Degree of Robbery

 Defendant first contends that his robbery conviction was improperly deemed to be of the first degree.   Relying primarily on People v. Gauze (1975) 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365, he maintains that it is not reasonable to interpret the language of section 212.5 2 as including the perpetrator's own home.   We disagree.

In Gauze, our Supreme Court held that one cannot burglarize his own residence, since he “invaded no possessory right of habitation.”  (Gauze, supra, 15 Cal.3d at p. 714, 125 Cal.Rptr. 773, 542 P.2d 1365.)   However, Gauze is inapposite to the instant action, since robbery and burglary statutes reflect different legislative concerns.  “Although intending to deter both theft and personal harm, robbery legislation emphasizes personal protection.”  (People v. Fleetwood (1985) 171 Cal.App.3d 982, 986, 217 Cal.Rptr. 612.)   As the Fleetwood court explained:  “Implementing its intent to protect robbery victims, the Legislature has developed a statutory scheme increasing sentences for increased victim vulnerability.  [¶] Victims inside buildings are more vulnerable to felonious conduct than victims out of doors.”  (Id., at pp. 986–987, 217 Cal.Rptr. 612, footnote and citation omitted.)

We see no reason to extend the Gauze reasoning to a residential robbery.   Clearly, if a defendant invites a guest to his home and then robs him, the guest is more vulnerable than the robbery victim on the street who has a greater chance to escape.   Thus, if defendant was properly found guilty of robbery, it was a first degree robbery.

Prosecutorial Misconduct

Defendant also contends the prosecutor committed Griffin 3 error and improperly commented on events that occurred during defendant's preliminary hearing.   The contention is without merit.

Following the close of evidence by the People, the defense rested without presenting any witnesses.   Surprised by this tactic, the prosecutor made a motion to reopen her case in order to call Police Detective Ches.   The prosecutor complained that she had been “sandbagged from presenting evidence” by defense counsel's opening statement that the jury would hear evidence that 1) there was a conversation between defendant and W.M. agreeing to the exchange of sex for money, 2) the money found in defendant's home was payment to him for work, and 3) the sexual acts were consensual—all of which, according to the prosecutor, had misled her into believing that defendant would testify on his own behalf.   The trial judge denied the motion and stated that the prosecutor was free to attack any erroneous statements made during opening argument.

Thereafter, during closing argument the prosecutor stated:  “[W.M.] never testified to you that any of these acts were consensual.  [¶] He testified to you that they were accomplished against his will․  [¶] ․ He never testified to you that he participated in those acts willingly.  [¶] The only testimony in front of you and the only evidence that you can consider is the fact that [W.M.] told you that he was forced to participate in those acts.  [¶] No one has come into this courtroom and testified to you that those acts were consensual.”

In rebuttal argument the prosecutor further stated:  “Mr. Dodd started this trial by telling you that there would be evidence that those acts were consensual.  [¶] He told you he would present evidence of a conversation between his client and [W.M.] discussing the whole sexual activity and the money to be paid.  [¶] That never was presented․  [¶] Now, why would he tell you that he was going to present that evidence when he never did?  [¶] Was that to put questions in your mind throughout the trial so you sat here thinking about, so, well, the defense attorney said that we're going to hear this other evidence?  [¶] So doesn't that keep questions in your mind?  [¶] Aren't those the questions you are having now?  [¶] The whole defense in this case has been presented through Mr. Dodd's opening and closing statements.  [¶] There has been no other evidence of the things that he showed you or told you that he would prove to you.  [¶] Is that fair?  [¶] Did I make statements to you about the evidence in my opening statement that I didn't prove, that you didn't receive evidence on?  [¶] Mr. Dodd didn't present any evidence to you.  [¶] Those things would have been very easy for him to prove, and he didn't bother to do it.  [¶] If it's the truth he can prove it.   If it is not, he can't.”   Defense counsel failed to object to these statements.

 It is well established that questions of prosecutorial misconduct cannot be raised for the first time on appeal.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)   More specifically, Griffin error is waived in the absence of a timely objection.  (People v. Johnson (1989) 47 Cal.3d 1194, 1236, 255 Cal.Rptr. 569, 767 P.2d 1047;  People v. Ratliff (1986) 41 Cal.3d 675, 691, 224 Cal.Rptr. 705, 715 P.2d 665.)

 Defendant's claim that the court's prior ruling rendered any objection futile is a vain attempt to circumvent settled rules.   The judge's statement that the prosecutor could attack defense counsel's opening-argument assertions was a correct statement of law, since otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, does not constitute misconduct.  (People v. McDaniel (1976) 16 Cal.3d 156, 177, 127 Cal.Rptr. 467, 545 P.2d 843.)   If any specific statement by the prosecutor could be viewed as an impermissible comment on defendant's failure to testify, and we do not here say that it could, an admonition by the court would have put the prosecutor on notice of the alleged violation and prevented its reoccurrence.

Defendant also asserts that the district attorney improperly argued facts outside of the record by referring to the preliminary hearing and implying that W.M. was confused by and/or afraid of the defense attorney.   This is not the case.

A great deal of W.M.'s testimony at trial was inconsistent with his testimony during the preliminary hearing.   Defense counsel extensively cross-examined the witness concerning the inconsistency.   As a result of the cross-examination, W.M. stated that he was confused, that defense counsel's questioning was too fast, and that he was unsure about his earlier testimony.   Consequently, the prosecutor's comments about W.M.'s confusion and possible fear was based on what occurred during trial.

Trial of Enhancement

On the first day of trial, the court granted the defense motion to bifurcate the issue of defendant's liability for a section 667, subdivision (a) enhancement in the event of his conviction on the primary charges.   Contrary to the Attorney General's representation, defense counsel did not stipulate that the serious-felony allegation would be tried without a jury at that time.

Following the jury's verdict on the substantive offenses, the trial judge immediately thanked and discharged the jury.   The judge then asked defense counsel if defendant was willing to proceed without a jury as to the enhancement.   Counsel agreed to proceed without a jury and to defer the decision on the prior until sentencing.   After proper advisement by the court, defendant waived his right to a jury trial.

The court subsequently denied a defense motion to strike defendant's prior conviction, and found the prior to be true.   On appeal and in a separate petition for writ of habeas corpus defendant contends that trial on the enhancement was barred pursuant to People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277 and that defense counsel was incompetent for advising him to waive a jury trial on the enhancement allegation.

 It is settled that in order to establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings.  (Johnson, supra, 47 Cal.3d at p. 1251, 255 Cal.Rptr. 569, 767 P.2d 1047;  People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144;  People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859;  Strickland v. Washington (1984) 466 U.S. 668, 687–696, 104 S.Ct. 2052, 2064–2069, 80 L.Ed.2d 674.)   Defendant has more than met his burden in the case at bench.

 Section 1025 provides in pertinent part:  “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 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 by the court if a jury is waived.”

In Wojahn, this Division held that when a jury is sworn, it is 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 attaches to both issues.   When the trial court improvidently discharges the jury after it returns a guilty verdict but before the issue of the prior conviction is tendered to it, double jeopardy considerations prohibit the impanelling of a new jury to try the issue of the prior conviction.  (Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)   At the time of trial there was no authority that held the rule to be otherwise.4

In a declaration in support of defendant's petition for writ of habeas corpus, defendant's trial counsel states that at the time of trial, he was unaware of Wojahn.   Thus, he was ignorant of the fact that if defendant refused to waive his right to a jury trial on the enhancement allegation under section 1025, the court could not proceed to trial on the enhancement and would have been compelled to dismiss it.   In sum, counsel's decision to waive a jury as to the enhancement was not a tactical decision made in light of the applicable law.   In view of the circumstances and defense counsel's declaration we can only conclude that defendant was denied effective assistance of counsel.   Had counsel not advised defendant to waive his right to a jury trial the five-year enhancement would not have been imposed.

The five-year enhancement imposed for defendant's prior conviction is stricken.   The petition for writ of habeas corpus is granted.   In all other respects the judgment is affirmed.

I agree that the five-year enhancement must be stricken, but I do not agree with the lead opinion's disposition of the cause affirming the judgment “in all other respects.”   The judgment of conviction should be affirmed, but the sentence should be vacated and the cause remanded to the trial court for resentencing.1  The trial court is entitled “to reconsider its entire sentencing scheme and choices [citation], and may elect to impose an aggregate sentence up to the aggregate term originally imposed [citation]․”  (People v. McElroy (1989) 208 Cal.App.3d 1415, 1431, 256 Cal.Rptr. 853.)

I agree with the result reached in the lead opinion in all other respects, and I therefore concur in it.   However, I am troubled by the analysis of the last issue relating to the five-year enhancement, and I write separately to examine some of the questions it raises.

The record discloses clear error on the part of the trial court when it discharged the jury before obtaining appellant's waiver of his right to have the validity of his prior conviction tried by that jury.   The record also shows that immediately after the jury departed, the court stated that there was one further matter to consider, the bifurcated issue of the prior.   The court said to defense counsel, “I assume you are ready to proceed without a jury in this matter?”   Counsel replied, “Your Honor, what I would like to do is both proceed without a jury and defer that decision until the sentencing, which would be three or four weeks, whatever.  [¶] I would like to do any additional research that I need to do and see if I have any chance of knocking out that prior.”   After ascertaining that the district attorney had no objection to continuing the resolution of the issue of validity of the prior, the court informed appellant of his right to have the matter tried by “a” jury, and appellant waived the right in accordance with his attorney's wishes.

As reflected in the lead opinion, appellant's trial attorney states in an affidavit filed in conjunction with appellant's habeas corpus petition that he, the attorney, was ignorant of the Wojahn opinion (People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277) and of appellant's rights under Penal Code section 1025 2 and under Wojahn.   Had counsel been cognizant of that decision, he declares, he would have advised appellant to refuse to waive the jury and would have moved to dismiss the prior.   These declarations amount to an unambiguous confession of incompetence, because under the applicable code provisions and case law, if counsel and appellant had refused to waive the right to have the same jury try the prior, the trial court would have had no choice but to dismiss the prior allegation.

The lead opinion accepts as true the facts alleged in trial defense counsel's affidavit in support of the petition for writ of habeas corpus.   I believe that the record as a whole sheds doubt on the wisdom of viewing the facts in this manner, but I too accept them as true for purposes of these proceedings because of the following circumstances.   The People cited portions of the reporter's transcript which they claim showed a waiver by appellant prior to the discharge of the jury.   Our examination of those portions of the transcript in context reveals no such waiver.   But the People also submitted in support of their return a declaration by the trial deputy district attorney, Mary Elizabeth Knox, in which she states that among the motions in limine which were heard by Judge Wilcox before trial was one by defense counsel to “bifurcate the trial on that enhancement pursuant to People v. Bracamonte [ (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191] and allow the defendant to waive his right to a jury trial on the validity of that enhancement.  [¶] Judge Wilcox ․ granted the request to bifurcate the enhancement and to have the validity of that prior conviction heard by himself or the sentencing judge.”

In his traverse to the return, appellant's counsel on appeal correctly pointed out that Ms. Knox's statement was not an affidavit or a declaration under penalty of perjury, but that she only stated it to be “true and accurate to the best of my knowledge.”   The statement therefore was not competent.   (See Evid.Code, §§ 165, 710;  Cal.Rules of Court, rule 260(c).)

It is noteworthy that in appellant's traverse to the defective return he fails to allege that the facts in Ms. Knox's statement are untrue.   Nor does he incorporate the allegations of his petition in order to reassert them.   It is arguable that according to proper habeas corpus procedure, we are left with no factual allegations at all.  (In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2, 152 Cal.Rptr. 528, 590 P.2d 383;  In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257;  In re Hochberg (1970) 2 Cal.3d 870, 873–876, 87 Cal.Rptr. 681, 471 P.2d 1.)   However, because the allegations in the petition were not denied by the People in their return, I concur in the lead opinion's acceptance of them.3

Double jeopardy.   The lead opinion accurately characterizes our Wojahn opinion as saying that when the jury is sworn, jeopardy attaches both to the issue of guilt of the charged substantive offense and to the issue of the truth of the alleged prior conviction.  (People v. Wojahn, supra, 150 Cal.App.3d at pp. 1032–1035, 198 Cal.Rptr. 277.)   Since deciding that case five years ago we have had, and have expressed, albeit not successfully, doubts about our double jeopardy analysis.4  I am now convinced that our jeopardy analysis in Wojahn was incorrect and that the question here is one of appellant's rights under the applicable statutes and case law, not the Constitution.

I find the reasoning of the courts in People v. Ysabel (1938) 28 Cal.App.2d 259, 82 P.2d 476 and People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523 persuasive.   The question before the Ysabel court some 50 years ago was whether the validity of charged priors could be retried with a new jury where the first jury had returned a verdict of guilt on the substantive offense, was unable to agree on the priors, and had been discharged.   The court held that the priors could not be retried, but its decision was not based on jeopardy analysis.   In fact, the court began with a disclaimer of that theory, stating that it was “well settled” that allegations of prior convictions do not place defendants in jeopardy, “but merely affect the circumstances surrounding the commission of a new offense, and the resulting increased punishment relates only to the new offense.”  (Ysabel, supra, 28 Cal.App.2d at p. 261, 82 P.2d 476.)

The Ysabel court held that proving prior convictions is a statutory proceeding and that the answer to questions about the propriety of the procedures “must depend upon the meaning of the pertinent statutes.”   (People v. Ysabel, supra, 28 Cal.App.2d at p. 262, 82 P.2d 476.)   The court noted that former section 969a, enacted in 1927, permitted prior convictions to be charged in a supplemental information any time after judgment but before service of sentence.   A prior charged in this manner could be passed on by a jury or, if jury was waived, by the court.   This provision was eliminated in 1931.   Since that date the statutory scheme in place has reflected a clear legislative intent “that the charge of prior convictions shall be passed upon in connection with the new offense charged and by the same jury.   No other procedure is ․ authorized and the whole spirit and intent of these statutes [former § 644, §§ 969a, 1158] appear to be that a prior conviction charge is to be determined solely as one of the issues in the trial for the new offense.”   (Ysabel, supra, at p. 263, 82 P.2d 476.)

My view that the right to have the same jury try both guilt and validity of the prior is statutory rather than constitutional finds additional support in cases decided since Ysabel.   Of particular importance is People v. Morton, supra, 41 Cal.2d 536, 261 P.2d 523 (opn. by Traynor, J.).   The defendant was convicted of three counts of burglary and was found to be an habitual criminal under former section 644.   He attacked the latter finding on the ground that one of his priors, suffered in Tennessee, had not been adequately proven.   The Supreme Court agreed, noting that prior convictions must be proven beyond a reasonable doubt.  (Morton, supra, at pp. 538–541, 261 P.2d 523.)   The court then grappled with the challenging question of what order to make.   The four possible types of orders which the court considered, based upon previous decisions, were (1) reverse the entire judgment and remand for new trial on both the primary offense and the prior;  (2) similar to type 1, but give the district attorney the option of moving for dismissal of the invalid prior, and permit resentencing on the remaining primary offense and valid prior;  (3) set aside the finding on the prior, modify the judgment, and remand for resentencing;  or (4) similar to option 3, but also remand for a new trial on the prior.  (Id., at pp. 541–542, 261 P.2d 523.)

The court stated that orders of types (1) and (2) in prior appellate decisions had been based on the proposition that the same jury should try both the primary offense and the prior.   The court found that this approach was appropriate where the issue of invalidity of the prior or of inadequacy of proof arises at the trial level, as it did, for example, in Ysabel.   But the Supreme Court held that the same-jury rule “has no bearing on the procedure to be followed on appeal when the evidence is found insufficient to support a finding that there was a prior conviction.”  (People v. Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523, emphasis added.)   Reasoning as follows, the court held that when the sole question on remand involves proof of an alleged prior conviction, there is no reason to force the parties to retry the primary offense.

“There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses.   That issue and proof of prior convictions are clearly severable.  [Citations.]  Proof of prior convictions ․ does not involve substantive offenses, but merely provides for increased punishment of those whose prior convictions fall within the scope of these statutes.  [Citations.]  The important relation between the primary offenses and the prior convictions charged is, therefore, the sentence to be imposed, and the jury does not participate in that.”  (People v. Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523.)

The court held that in cases where the defect is capable of correction on retrial, orders of type (4) (remand for retrial of prior) are preferred.   The court found that the procedure is proper and that it carries out the policy of recidivist statutes by preventing defendants “from escaping the penalties imposed by those statutes through technical defects in pleadings or proof.   It affords the defendant a fair hearing on the charge, and if it cannot be proved he [or she] will not have to suffer the more severe punishment.”  (People v. Morton, supra, 41 Cal.2d at pp. 544–545, 261 P.2d 523.)   The court therefore remanded the matter for a limited new trial on the prior.  (Ibid.)

I believe that the Ysabel and Morton reasoning remains sound today and that the right to have the same jury try the primary offense and the prior is based in statutes and judicial construction of them, not in the double jeopardy clause, or any other clause, of the Constitution.  Bullington v. Missouri (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 does not change my view.   There, the Supreme Court held that the double jeopardy clause applied to a capital sentencing procedure and that because a jury had fixed defendant's sentence at life imprisonment, he could not be subjected to a possible death sentence at a second trial after his motion for new trial was granted.   The court analyzed the state procedure under consideration and found that it differed significantly from sentencing procedures employed in cases where the double jeopardy clause had been found inapplicable.   In particular, in the procedure under consideration the jury was not given unbounded discretion to select the appropriate punishment.   Rather, a separate hearing was required at which the jury was given only two options and at which it was given standards to guide its choice.   The prosecution had the burden of establishing certain facts beyond a reasonable doubt;  in all relevant aspects the hearing resembled a trial.  (Id., at p. 438, 101 S.Ct. at p. 1857.)

The court found that a procedure of this type requires that the jury determine whether the state has “proved its case,” and that therefore a finding in favor of a life sentence is analogous to an acquittal, after which the double jeopardy clause prohibits retrial.  (Bullington v. Missouri, supra, 451 U.S. at pp. 442–445, 101 S.Ct. at pp. 1859–1861.)   Also, the penalty phase subjects the defendant to at least as much embarrassment, expense, ordeal, anxiety, and insecurity as does a trial.   Therefore, to give the state a second chance to win a death penalty, possibly erroneously, is unacceptable under the Constitution.  (Id., at pp. 445–446, 101 S.Ct. at pp. 1861–1862.)

While the procedure for determination of the validity of a prior conviction in California has some similarities to the procedure for determining the penalty in a capital case, determination of the validity of a prior is not so similar to a trial as to require the application of the double jeopardy clause.  (See People v. Melton (1988) 44 Cal.3d 713, 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741.)   Thus in People v. Rice (1988) 200 Cal.App.3d 647, 246 Cal.Rptr. 177, the court held that double jeopardy does not bar charging a prior in a subsequent proceeding where a jury found the prior “ ‘not true’ ” in a prior proceeding.  (Id., at pp. 653–656, 246 Cal.Rptr. 177;  cf. Durosko v. Lewis (9th Cir.1989) 882 F.2d 357.) 5  Similarly, the doctrines of res judicata or collateral estoppel are of no assistance to appellant because all the issues were never tried in one or more proceedings.  (See Melton, supra, 44 Cal.3d at p. 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741;  compare Rice with Durosko;  see generally, 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, §§ 249, 253, pp. 687–688, 691–692.)

Nevertheless, as held in Ysabel and confirmed in Morton, the statutory scheme itself effectively protects criminal defendants by acting as a bar to repeated proceedings brought solely to test the validity of priors which are alleged in a criminal proceeding.

The statutory scheme.  Section 1025 was first enacted in 1873 or 1874, and with relatively minor variation it reads today as it did then.   It provided in relevant part that if a defendant charged with a new offense denied a prior conviction, “the question whether or not he [or she] has suffered such previous conviction, shall be tried by the jury which tries the issue upon the plea of ‘not guilty,’ or in the case of a plea of ‘guilty,’ by a jury impanneled [sic ] for that purpose․”  (Amendments to the Codes of Cal. (1874) p. 332.)   Today's section 1025 provides that if a defendant charged with a new offense denies an alleged prior, “the question whether or not he [or she] 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․”  (Stats.1951, ch. 1674, § 88, pp. 3844–3845.)

Section 9691/212, enacted in 1935, protects the right to a jury trial on the prior even after the defendant pleads guilty to a new offense charged by complaint.   It provides that the complaint may be amended to charge priors and that if the defendant denies them, “the question whether or not he [or she] has suffered such previous conviction must be tried by a jury impanelled for that purpose, unless a jury is waived, in which case it may be tried by the court․”

These provisions seem clear and unambiguous, and the aspect of the right to a jury trial on prior convictions with which we are concerned required relatively little attention from the appellate courts until the decision in People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191.   In that case the court held, as a judicially declared rule of practice, that criminal defendants have the right to a bifurcated trial on the issue of guilt and the validity of prior convictions.  (Id., at pp. 650–656, 174 Cal.Rptr. 191.)   The court opined that its new rule was consistent with the statutory scheme, including section 1025, which protects the defendant's right to a jury trial on the priors but does not decree that both issues must be tried simultaneously.   (Id., at p. 652, 174 Cal.Rptr. 191.)

After Bracamonte, it became common for defendants to request a bifurcated trial.   Some defendants waived jury trial on the priors,6 but some did not.   Where defendants sought bifurcation but did not waive jury on the priors, sometimes, as here, after the jury returned a verdict of guilt, the trial court inadvertently discharged it before either obtaining defendant's waiver or having the jury try the prior.   The Courts of Appeal have grappled with how this error should be treated.   In Wojahn we opined that double jeopardy considerations prohibited impaneling a new jury to try the prior.   (People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)

The court in People v. Shaffer (1987) 195 Cal.App.3d 939, 241 Cal.Rptr. 99 was faced with a novel situation in which the trial court inadvertently discharged the jury but told the members of the jury to wait in the jury room for “further instructions.”   Defendant then waived jury trial on the priors.   The appellate court affirmed the judgment, which included a finding that one prior was true.   The court distinguished Wojahn and upheld the finding of the trial court “ ‘that it had not lost control and exposed [the] jurors to any influence by public or others including the court that could have corrupted the integrity of any further fact finding process on the issues of the priors.’ ”   (Id., at pp. 941–942, 241 Cal.Rptr. 99.)

In two cases which presented facts similar to but arguably distinguishable from those in Wojahn, the Courts of Appeal attempted to distinguish Wojahn.   In both cases the trial court inadvertently discharged the jury and then solicited and received defendant's waiver of jury on the priors.   The Courts of Appeal upheld the validity of the findings on the prior, and in both the Supreme Court denied review but ordered that the opinions not be published.  (See People v. Laury, supra, 209 Cal.App.3d at p. 717, fn. 2, 257 Cal.Rptr. 480.)

In Laury, Division Four of this court was faced with facts similar to but clearly distinguishable from Wojahn.   The defendant in Laury had not waived jury trial on the priors.   After the jury found defendant guilty, the court discharged it.   At sentencing the court found defendant ineligible for probation because of his priors despite the fact that the priors had not been proven.  (There was sufficient evidence before the court to prove them.)   These facts show a failure of proof of the priors similar to that found by the Supreme Court in Morton, and a remand could have been ordered based on the rationale of that decision.   But instead of attempting to distinguish Wojahn, the court simply refused to follow it and, citing Morton, remanded the cause with directions to resentence the defendant after a new trial on the issue of the prior convictions.  (People v. Laury, supra, 209 Cal.App.3d at pp. 717–719, 257 Cal.Rptr. 480.)   I believe the Laury opinion is correct insofar as it rejects, as I have above, Wojahn 's double jeopardy analysis (citing People v. Ysabel, supra, 28 Cal.App.2d 259, 82 P.2d 476, and People v. Morton, supra, 41 Cal.2d 536, 261 P.2d 523).   It also rejects Wojahn 's reading of section 1025 as requiring in every case that the same jury try the substantive offense and the priors.   Rather, the Laury court correctly cites Morton for the proposition that an appellate court may remand the issue of priors for a limited new trial.  (Laury, supra, 209 Cal.App.3d at pp. 718–719, 257 Cal.Rptr. 480.)   I think it goes too far, however, in its sweeping language, which may be read as indicating that section 1025 is not to be heeded.

I see that two different sets of circumstances have given rise to the appellate decisions construing the applicable statutory law.   The first situation applies where a trial court erroneously discharges a jury before the jury has tried the issue of validity of the priors, and the defendant objects in the trial court or on appeal to any further proceedings on the priors.   In this situation, the only procedure permitted is to apply the statutory bar enacted by the Legislature in section 1025 and related provisions.   If raised at trial, the objection leaves the trial court no alternative but to dismiss the prior.   If raised on appeal, this requirement of dismissal of the priors will be enforced.  (People v. Ysabel, supra, 28 Cal.App.2d 259, 82 P.2d 476, as interpreted in People v. Morton, supra, 41 Cal.2d 536, 261 P.2d 523;  People v. Wojahn, supra, 150 Cal.App.3d at pp. 1032–1035, 198 Cal.Rptr. 277.)

A second set of circumstances is evident in cases in which there was insufficient or no proof to support the determination that the defendant's priors were valid.   This may occur when there is insufficient evidence to support the finding of validity of the prior (People v. Morton, supra, 41 Cal.2d 536, 261 P.2d 523), or when the trial court erroneously believes that the priors have been proven when they have not (People v. Laury, supra, 209 Cal.App.3d at pp. 715–716, 257 Cal.Rptr. 480).   In the event of error of this kind, double jeopardy is no bar to the appellate court's remanding the cause for retrial of the issue of validity of the priors.7

This case.   The case at bench falls within the first category of cases, for here, as in those cases, the court erroneously discharged the jury before it determined the validity of appellant's prior, or before appellant had an opportunity personally to waive the jury.   Appellant's trial counsel states that if he had known the law (People v. Wojahn, supra, 150 Cal.App.3d at pp. 1032–1035, 198 Cal.Rptr. 277, and § 1025), he would have brought the error to the court's attention, and the court would have been compelled to dismiss the prior.   My analysis confirms that trial counsel is correct, and I concur in finding that his incompetence, which must be reported to the State Bar (Bus. & Prof.Code, § 6089), is cause to vacate the finding of validity of appellant's prior.

I think it is important to stress that the striking of the prior is a technical victory for appellant which has little to do with justice in this case.   The record before us contains abundant evidence of validity of the allegation that appellant suffered a prior conviction when he pled guilty, 20 years earlier, to first degree murder.   The trial court had before it a certified copy of the judgment.   There was a hearing on appellant's motion to strike the prior, which the court denied.  (See People v. Sumstine (1984) 36 Cal.3d 909, 914, 206 Cal.Rptr. 707, 687 P.2d 904.)   There was a hearing on appellant's Beagle motion (People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1), which the court granted.   There was a second hearing on a defense motion to strike the prior, at which appellant testified to what amounted to a violation of his Boykin rights (Boykin v. Alabama (1969) 395 U.S. 238, 242–243, 89 S.Ct. 1709, 1711–1712, 23 L.Ed.2d 274).   The court denied the motion because Boykin is not applied retroactively.

Prior to trial appellant had waived his right to have the judge presiding at trial sentence him.   Everyone understood that appellant would be sentenced by a different judge.   Everyone assumed that appellant would waive his right to have the jury determine the validity of his prior, both because he was to be sentenced by a second judge who presumably would take a fresh look at appellant's retroactivity-of-Boykin issue, and because appellant's argument on the prior was legal rather than factual.

The United States Supreme Court has said, “ ‘The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.’  [Citation.]”  (United States v. DiFrancesco (1980) 449 U.S. 117, 135, 101 S.Ct. 426, 436, 66 L.Ed.2d 328.)   Fortunately for appellant, our statutes, when combined with the Bracamonte bifurcation and forgetfulness due to the press of work at the trial court, appear to have set up such a “game,” from which only the defendant can benefit.   When this is combined on appeal with the affidavits of counsel who are either incompetent or willing to play more “games” with the courts, a technically correct but unjust result follows.

Apparently cognizant of the problem of Wojahn and its progeny, the Legislature amended section 1164 in 1988, so that a new subdivision (b) now reads, “(b) No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.”   Hopefully trial judges will read and heed this statute.

I concur in the affirmance of the judgment of conviction on the primary charges but I dissent from the decision of my colleagues to strike the five-year enhancement for a prior conviction on a basis of ineffective assistance of counsel.

I do not believe that we should find a trial attorney incompetent because he or she does not endeavor to “sandbag” the trial judge.   Of more importance in this case is the fact that counsel would have been unsuccessful in such an endeavor.

In the instant case the trial court granted appellant's motion to bifurcate the prior conviction enhancement charge from the trial of the primary offenses.   There is no question but that appellant intended from start to finish to bifurcate the enhancement allegation, waive a jury trial on that charge, and have it tried by the court.   Appellant does not claim otherwise.   It is true, however, that the trial judge failed to take a jury waiver from appellant, as he should have done, prior to discharging the jury.   For this reason the appellant was at this point in time still entitled to a jury trial on the enhancement charge.   But where I part company from my colleagues is on the question of what would have taken place in the event the appellant had declined to waive his right to a jury trial.   My colleagues hold that the trial court would have had no choice but to dismiss the enhancement charge.   I disagree.

First, I concur in the opinion of Justice Barry–Deal that the double jeopardy analysis in People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277 is incorrect, and that in considering the right to have the same jury try the primary offenses and the enhancement allegation, we are confronted with a statutory question and not a constitutional issue.   The enhancement allegation was never before this jury.

Second, I think the cases of People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523 and People v. Laury (1989) 209 Cal.App.3d 713, 257 Cal.Rptr. 480 made it clear that it would not have been reversible error in this case for the trial court to have ordered that the enhancement allegation be tried by a different jury, if the appellant had declined to waive a jury trial.

On the issue with which we are concerned I think Laury is right on point.   In our case the information alleges a prior conviction for purposes of a five-year enhancement to the sentence imposed, and in Laury the information alleges prior convictions as a basis for making the defendant ineligible for probation.   Thus in both cases we are concerned with proof of prior convictions.   In both cases the defendants were entitled to a jury trial on the allegations, and the juries were discharged without the defendants having waived a jury trial.   In Laury the district attorney at the time of sentencing offered evidence of the priors to establish ineligibility for probation and the appellate court held that this was improper as there had been no waiver of jury.   The court then remanded the cause for a jury trial on the alleged priors.  Laury is certainly authority for the fact that in our case if the defendant had declined to waive a jury trial, it would not have been reversible error for the trial court to order a jury trial on the alleged prior conviction.

I think a proper reading of Morton leaves no doubt that our Supreme Court is in accord with this position.   The court stated, “There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses.   That issue and the proof of prior convictions are clearly severable.  [Citations.]  Proof of prior convictions or the adjudication that the defendant is an habitual criminal does not involve substantive offenses, but merely provides for increased punishment of those whose prior convictions fall within the scope of these statutes.  [Citations.]  The important relation between the primary offenses and the prior convictions charged is, therefore, the sentence to be imposed, and the jury does not participate in that.”  (People v. Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523.)

People v. Ysabel (1938) 28 Cal.App.2d 259, 82 P.2d 476 is readily distinguishable from our case.   In Ysabel the primary offenses, upon which there was a conviction, were tried together with the allegation of prior convictions, upon which the jury was unable to reach a decision.   The judgment was pronounced sentencing the defendant to state prison before the date set for a retrial on the allegation of prior convictions.   When the matter came up for retrial the trial court dismissed all further proceedings in respect to the prior convictions and the ruling was upheld by the Court of Appeal.   As stated by the Supreme Court in Morton, “[t]he controlling question [in Ysabel ] was the propriety of the trial court's actions in pronouncing judgment on the primary offense and ordering the defendant Ysabel held for further trial on the prior conviction charges after discharging the jury, which found the defendant guilty of the primary offenses charged but could not agree on the prior conviction charges.”  (People v. Morton, supra, 41 Cal.2d at p. 542, 261 P.2d 523.)

The importance of the joinder and judgment to the decision of the court in Ysabel is reflected by the court's own statement that “[t]he matter of a previous conviction is a question of fact which is material to the aggravated offense for which the defendant is being tried and, if issue is joined, is one of the facts which must be passed upon by a jury.  [Citation.]  Being a material fact which affects the nature of the new offense it is not only one which should be tried therewith, but it is one which should be reflected in the judgment pronounced in order that the proper sentence may be determined.   Ordinarily, in the absence of specific authority, a court has not the power, after having once pronounced sentence, to modify its judgment in such a manner as to increase the punishment.  [Citations.]  This should also be true where the modification of the judgment depends upon further findings of fact, particularly upon issues which had been presented and which should have been decided as a basis for the first judgment.”  (People v. Ysabel, supra, 28 Cal.App.2d at pp. 261–262, 82 P.2d 476.)   In our case, the enhancement allegation was not joined in the trial of the primary charges, and at the time of the jury waiver sentence had not been pronounced.

For the reasons stated above, in the case at bench it is not reasonably probable that a more favorable determination would have resulted if trial counsel had advised appellant not to waive a jury trial.   There seems no doubt that if the appellant had declined to waive a jury trial on the allegation of a prior conviction the trial court would have ordered a jury trial on that charge.   The trial court certainly would have looked to Morton rather than following the double jeopardy ruling in Wojahn which is contrary to the analysis of both Morton and Ysabel.

I would affirm the judgment in its entirety, including the imposition of the five-year enhancement, and I would deny the petition for writ of habeas corpus.

FOOTNOTES

1.   All statutory references are to the Penal Code, unless otherwise indicated.

2.   Section 212.5 provides in pertinent part:  “[E]very robbery which is perpetrated in an inhabited dwelling house ․ is robbery of the first degree.”

3.   Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

4.   People v. Laury (1989) 209 Cal.App.3d 713, 257 Cal.Rptr. 480, decided in April of this year, declined to follow the double jeopardy analysis in Wojahn and, relying on People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523, held that a newly impaneled jury, or a judge if a jury trial is properly waived, may determine the truth of alleged prior convictions.  (Id., 209 Cal.App.3d at pp. 717–719, 257 Cal.Rptr. 480.)   Morton held that when a conviction for suffering a prior offense was reversed on appeal, a limited new trial on the issue of the challenged prior conviction could be tried by a jury different from that which tried the issue of guilt of the primary offense.   Unlike Wojahn, Morton is obviously not similar to the case at bar.   Faced with making a choice between Morton and Wojahn, we think it is reasonably probable that the court below would have dismissed the prior allegation had defendant not agreed to waive a jury trial.   The fact that conflicting authority has been created since the trial in this case does not alter our finding of incompetence at the time of trial.

1.   Appellant was sentenced to a total of fourteen years and four months, based on a principal upper term of eight years on the sodomy count, a concurrent midterm of six years for oral copulation, a consecutive one-third the midterm of one year, four months, for first degree robbery, and five years for the Penal Code section 667, subdivision (a), enhancement.

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

3.   I believe that this muddle demonstrates our inadequacy as a fact finder and shows that we would have been well-advised to appoint a referee or to issue the order to show cause returnable before the trial court before attempting to resolve this appeal and writ.

4.   See People v. Laury (1989) 209 Cal.App.3d 713, 717, footnote 2, 257 Cal.Rptr. 480, review denied July 20, 1989.

5.   In Durosko the Ninth Circuit Court of Appeals held that an Arizona state court finding that a prior felony enhancement had not been proven beyond a reasonable doubt “should be given the double jeopardy effect.”  (Durosko v. Lewis, supra, 882 F.2d at p. 359.)   But the court went on to hold that neither double jeopardy principles nor collateral estoppel barred a finding that the current crime was committed while on parole for the same offense charged as the prior, because the enhancement for committing a crime on parole had a different and lesser standard of proof (preponderance of the evidence).  (Id., at pp. 360–361.)

6.   The issues of when and by whom jury trial on priors should be waived has been the subject of a number of appellate decisions.  (E.g., People v. Berutko (1969) 71 Cal.2d 84, 94, 77 Cal.Rptr. 217, 453 P.2d 721 [if priors are properly charged before waiver of jury on substantive offense, that waiver applies to priors as well];  People v. Luick (1972) 24 Cal.App.3d 555, 558–559, 101 Cal.Rptr. 252 [same as Berutko;  jury waiver cannot be implied but must be personally and expressly made by the defendant];  People v. Ray (1965) 238 Cal.App.2d 734, 48 Cal.Rptr. 167 [if defendant pleads guilty in municipal court and then priors are added in superior court, defendant has not waived the right to jury trial on the priors];  People v. Houston (1937) 24 Cal.App.2d 170, 74 P.2d 517 [allegations of priors cannot be added after defendant is found guilty (§ 969a as amended in 1931) ].)

7.   I disagree with and would not follow decisions applying double jeopardy principles to prior convictions and prior prison terms.  (E.g., People v. Jones (1988) 203 Cal.App.3d 456, 460, 249 Cal.Rptr. 840 [relying on U.S. Supreme Ct. decisions applying double jeopardy principles to cases where the prosecution failed to prove guilt].)

WHITE, Presiding Justice.

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