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

The PEOPLE, Plaintiff and Respondent, v. Jose Basilio VERA, Defendant and Appellant.

No. G011699.

Decided: February 28, 1996

Shulman, Shulman & Siegel and Corinne S. Shulman, Hydesville, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont and Frederick R. Millar, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

Jose Basilio Vera appealed his convictions for three counts of robbery, three counts of kidnapping for the purpose of robbery, and one count of vehicle taking, with enhancements for using a knife during the offenses and for two prior convictions.   We affirmed with directions to stay imposition of the term for one of the kidnapping offenses.   The Supreme Court granted review and transferred the matter back to this court with directions to reconsider the matter in light of People v. Wiley (1995) 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541 and People v. Saunders (1993) 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093.   Because those cases only pertain to the question of his purported jury waiver for trial of the prior conviction enhancements, our “ ‘resolution of the other issues stands as between the parties.’  (Advisory Com. com[ment] to Cal.Rules of Court, rule 29.2.)”  (People v. Alfaro (1986) 42 Cal.3d 627, 637, fn. 9, 230 Cal.Rptr. 129, 724 P.2d 1154;  see also Agricultural Labor Relations Bd. v. Tex–Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12, 238 Cal.Rptr. 780, 739 P.2d 140.)   We are unaware of any requirement to reiterate that opinion to comply with the Supreme Court directions.   Judicial economy dictates that we attach our prior opinion to this one, and incorporate all but part I and the disposition of that opinion.

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Vera contends the finding he suffered two prior terms of imprisonment must be vacated and stricken because he did not waive his right to a jury trial.   He also argues that double jeopardy precludes a retrial on the priors.   We disagree.

Vera's trial counsel made a motion to bifurcate the issue of the priors from the trial on the underlying offenses, which the court granted.   Counsel stated, “I have discussed with Mr. Vera his option of having a jury or nonjury trial on those prior convictions, and he indicates to me that he is in fact going to waive the right to a jury trial on the prior convictions in the event that he is convicted on the case in chief․  [¶] He will allow the court to hear those as a court trial.”   The court responded, “All right.   We can take that issue up later.”

After Vera was convicted of the underlying offenses, the jury was discharged, and he agreed to continue the court trial on the priors to the day of sentencing.   Before the matter was continued, Vera's lawyer told him, “Mr. Vera, you realize you have a right to have a trial of your prior convictions held today by this judge.   Do you understand that?”   Vera indicated he did, counsel continued, “Are you willing to give up the right to that trial to be done today and agree that the judge can have the trial on the prior convictions on the same date as your sentencing, which is June 14?”   Vera again responded affirmatively.   At sentencing, the court indicated it had reviewed various exhibits submitted by the prosecution and found the allegations regarding the priors were true.

Vera claims he never waived his right to a jury trial on the priors, and since the jury was discharged before the court made its findings as to the truth of the priors, he cannot be retried.   His contention raises these issues:  (1) Did counsel's expression of Vera's desire to waive a jury trial constitute a valid waiver? 1  (2) If there was not a valid waiver, does the error require reversal? and (3) If reversal is required, can the prior convictions be retried?

 Penal Code section 1025 2 provides that if prior convictions are alleged and the defendant denies them, “the question ․ must be tried by the jury which tries the [substantive charges] ․ or by the court if a jury is waived.” 3  Vera argues that to be valid, he had to verbally express the waiver in court.   He relies on article I, section 16 of the California Constitution, which requires that a jury trial waiver in criminal cases be made “by the consent of both parties expressed in open court by the defendant and the defendant's counsel.” 4  Under that provision, the defendant must “express in words a waiver;”  it “will not be implied from a defendant's conduct.”  (People v. Ernst (1994) 8 Cal.4th 441, 445, 34 Cal.Rptr.2d 238, 881 P.2d 298, quoting People v. Holmes (1960) 54 Cal.2d 442, 443, 444, 5 Cal.Rptr. 871, 353 P.2d 583.)

 But neither the federal nor state constitutions compel a jury trial for determining prior conviction allegations.  (People v. Wiley, supra, 9 Cal.4th 580, 585–586, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   It is a statutory right;  it does not flow from the jury trial provision of either constitution.  (Id. at pp. 585, 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   If a verbal waiver of that statutory right is required, it is not due directly to the language of article I, section 16 of the California Constitution.5

 That is not to say a defendant waives the right to a jury trial on prior conviction allegations by failing to object affirmatively when there is no jury.  Section 1025 requires the jury to determine the issue unless “a jury is waived.”   Absent a valid waiver, the defendant is entitled to a jury.   Indeed, the denial of a statutorily created jury trial right implicates the federal due process clause (People v. Gastile (1988) 205 Cal.App.3d 1376, 1382–1383, 253 Cal.Rptr. 283, citing Hicks v. Oklahoma (1980) 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175;  see also People v. Moreno (1991) 228 Cal.App.3d 564, 573, 279 Cal.Rptr. 140), and no objection is required to preserve the constitutional issue.  (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 222, 4 Cal.Rptr.2d 101 [defendant did not establish due process violation];  People v. Saunders, supra, 5 Cal.4th 580, 589, fn. 5, 20 Cal.Rptr.2d 638, 853 P.2d 1093 [finding no need for objection to preserve constitutional jury trial and double jeopardy issues].)

 The question remains as to what constitutes a valid waiver of that right.   As noted, the requirement in article I, section 16 of an express verbal waiver is not directly applicable here.   And, the federal constitution does not require explicit waivers of important trial rights as a prerequisite to a valid guilty plea;  a voluntary and intelligent waiver may be inferred under the totality of circumstances.  (People v. Howard (1992) 1 Cal.4th 1132, 1177–1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   But an express waiver is required as a matter of California judicially created criminal procedure.  (Id. at pp. 1178–1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   By failing to obtain an express waiver from Vera, “the trial court clearly erred.”  (Id. at p. 1174, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

 We must determine whether the error requires a reversal.   If the error involved denial of a constitutional right to a jury trial, the standard would be reversal per se.  (People v. Ernst, supra, 8 Cal.4th at pp. 448–449, 34 Cal.Rptr.2d 238, 881 P.2d 298;  see also People v. Cahill (1993) 5 Cal.4th 478, 490, 493, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)   But, a jury trial on the prior conviction allegations was not constitutionally mandated.

We might use the approach adopted in People v. Howard, supra, 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, and determine whether the record showed a voluntary and intelligent waiver under the totality of the circumstances.   In People v. Ernst, supra, 8 Cal.4th 441, 445, 34 Cal.Rptr.2d 238, 881 P.2d 298, the Supreme Court stressed the “distinction between the requirement that a waiver of the right to a jury trial be express and the requirement that a plea of guilty be knowing and intelligent.”

The Ernst court reasoned that “Howard did not address whether denial of the right to a jury trial constitutes reversible error.   Instead, Howard considered the validity of a defendant's admission of an allegation that he had served a prior prison term․”  (Ibid.) 6  Because the Ernst court made that distinction, we hesitate to use the Howard analysis to measure whether reversal must be had in Vera's case.

 The presumptive standard of reversal in California is whether there was a “miscarriage of justice,” such that it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”  (People v. Cahill, supra, 5 Cal.4th 478, 490–492, 20 Cal.Rptr.2d 582, 853 P.2d 1037, citing Cal. Const., art. VI, § 13 and quoting People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Some errors affect the trial process so fundamentally that reversal is required no matter how likely the same result.  (See People v. Cahill, supra, 5 Cal.4th at pp. 490, 493, 20 Cal.Rptr.2d 582, 853 P.2d 1037, and cases cited.) 7  But most constitutional errors are tested under the standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, to determine whether the error is “harmless beyond a reasonable doubt.”  (Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460.)

In People v. Moreno, supra, 228 Cal.App.3d 564, 572, 279 Cal.Rptr. 140, the Court of Appeal determined the trial court did not adequately extract a waiver of the defendant's right to a jury as to special circumstances allegations in a murder trial.8  The court concluded, as we do, that article I, section 16 does not apply to jury determinations on sentencing issues.  (Id. at pp. 573–579, 279 Cal.Rptr. 140.)   Instead, it applied the Chapman standard, noting the denial of a statutory right to a jury trial implicates due process concerns.  (Id. at p. 573, 279 Cal.Rptr. 140.)   Since the special circumstance turned on simple uncontroverted facts, the court concluded the error was harmless beyond a reasonable doubt.  (Id. at p. 579, 279 Cal.Rptr. 140.)

Because Moreno was well reasoned, and out of an abundance of caution, we apply the Chapman standard as well.9  Vera points to nothing that would indicate any defect in the proof on the prior convictions.   In the absence of any defect, we conclude beyond a reasonable doubt that Vera would not have fared better with a jury.10

The judgment is ordered modified to stay imposition of the indeterminate term of life with possibility of parole, imposed in count five for kidnapping for robbery.   As modified, the judgment is affirmed.


1.   As we shall discuss, this issue subsumes the Attorney General's argument Vera waived his claim by failing to object when the trial jury was dismissed.

2.   All statutory references are to the Penal Code.

3.   Section 1025 reads in full:  “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.”Section 1158 contains parallel language, and reads in relevant part:  “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 ․ find whether or not he has suffered such previous conviction.”   Because we discern no substantive difference between the two sections, we will refer only to section 1025.

4.   That provision provides in relevant part:  “Trial by jury is an inviolate right and shall be secured to all․  A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel.”  (Cal. Const., art. I, § 16.)

5.   Because People v. Ernst, supra, 8 Cal.4th 441, 34 Cal.Rptr.2d 238, 881 P.2d 298 involved an alleged jury waiver on the substantive charges, it is inapposite.

6.   The Ernst court went on to point out that Howard held “the requirement under federal law set forth in Boykin v. Alabama [ (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, citation]—that the record of the taking of a plea of guilty affirmatively establish that the plea was intelligent and voluntary—may be satisfied despite the trial court's failure to elicit from the defendant explicit waivers of the defendant's rights to confrontation and trial by jury, and of the privilege against self-incrimination.   Although such waivers are required under state law, a plea of guilty (or an admission of an alleged prior conviction) is valid, even in the absence of such waivers, if the record of the plea ‘affirmatively demonstrate[s] that the plea was voluntary and intelligent under the totality of the circumstances.’  [Citation.]”  (People v. Ernst, supra, 8 Cal.4th at p. 445, 34 Cal.Rptr.2d 238, 881 P.2d 298.)As we have noted, the basis for the conclusion in Howard apparently was that although there was error in taking the necessary waivers, it was harmless because the record showed Howard intelligently and voluntarily gave up his rights.   The only other explanation would be the Court abandoned the California requirement of an express admonishment and waiver in favor of the federal standard which does not have that requirement.   But that explanation contradicts the Court's express retention of the California procedure.  (People v. Howard, supra, 1 Cal.4th at pp. 1178–1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

7.   As noted, the right to a jury trial on the substantive charges, in the absence of an explicit waiver, is one of those instances.   (People v. Ernst, supra, 8 Cal.4th at p. 449, 34 Cal.Rptr.2d 238, 881 P.2d 298.)

8.   The Supreme Court disapproved of this conclusion in People v. Wrest (1992) 3 Cal.4th 1088, 1104–1105, 13 Cal.Rptr.2d 511, 839 P.2d 1020, but that disapproval does not affect the Moreno court's analysis of the appropriate standard for reversal.

9.   Curiously, although the Howard court said it found error, it never expressly stated what standard of reversal it applied.   In other words, the court did not say whether it was reasonably likely the defendant voluntarily and intelligently waived his rights, or whether the court was certain beyond a reasonable doubt that he did so.   Of course, the court could not apply any standard of proof to prior convictions, since none was necessary after he admitted them.

10.   Because we conclude the error was harmless, we need not address Vera's claim that double jeopardy bars retrial, although we observe People v. Saunders, supra, 5 Cal.4th 580, 596–597, 20 Cal.Rptr.2d 638, 853 P.2d 1093 determined that issue adversely to him.

WALLIN, Associate Justice.

SILLS, P.J., and CROSBY, J., concur.

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