PEOPLE v. LAURY

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

 The PEOPLE, Plaintiff and Respondent, v. Donald Lee LAURY, Defendant and Appellant.

No. A043042.

Decided: April 12, 1989

 C. Elliot Kessler, Berkeley, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Christopher J. Wei, Brenda P. Reyes, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant Donald Lee Laury was found guilty by jury of selling cocaine.  (Health & Saf.Code, § 11352.)   The trial court denied probation and sentenced Laury to three years in state prison.   Laury appeals, contending that (1) the trial court improperly considered his prior felony convictions in denying probation, and (2) double jeopardy bars a subsequent trial on prior conviction allegations.   We conclude that Laury did not expressly waive his right to have a jury determine the truth of the allegation of his prior convictions.   We therefore remand the cause with directions to resentence defendant after a new trial on the limited issue of prior convictions.

I. FACTS

Appellant Donald Lee Laury was charged with violating Health and Safety Code section 11352 (sale or transportation of narcotics).   It was also alleged that Laury was ineligible for probation under Penal Code section 1203, subdivision (e)(4) 1 because he had been convicted of two prior felonies.   Laury denied the allegations.

Before trial, Laury moved to exclude the use of priors for impeachment and to prohibit the reading of the probation ineligibility clause to the jury.   The court allowed only one prior conviction to be used for impeachment and prohibited the reading of the probation ineligibility clause.   Laury testified at trial, admitting the one prior conviction.   After the jury found him guilty, it was discharged without being offered evidence or rendering a verdict on the prior conviction allegations.

At sentencing, the district attorney introduced evidence of Laury's prior felony convictions without objection.   Despite a lack of express findings regarding these convictions, the court denied probation under section 1203,  subdivision (e)(4) and sentenced Laury to three years in state prison.   In doing so, the court stated:  “I would have granted probation if he were statutorily eligible.”

II. JURY WAIVER

 Laury contends the trial court improperly considered his prior felony convictions in denying probation because there was no jury finding on these charges.   As we find that Laury did not expressly waive his right to have a jury determine the truth of the alleged prior convictions, we remand the cause for a new trial on the issue of prior convictions.

Article I, section 16, of the California Constitution provides, in pertinent part:  “Trial by jury is an inviolate right and shall be secured to all․”  This right applies to determinations of the truth of the allegation of prior convictions.  (People v. Ford (1964) 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892.)   Under section 1158, “[w]henever 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 [the defendant] 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 [the defendant] has suffered such previous conviction․  If more than one previous conviction is charged a separate finding must be made as to each.”

Laury was charged with having suffered two prior convictions and denied these allegations.   The jury found him guilty of selling cocaine but was discharged without finding whether Laury had suffered the previous convictions.   This denied Laury his right to a jury determination of the existence of his prior convictions.  (See People v. Bracamonte (1981) 119 Cal.App.3d 644, 652–653, 174 Cal.Rptr. 191.)

The People argue that Laury impliedly waived his right to a jury trial when he moved to prohibit the reading of the probation ineligibility clause to the jury.   It appears that the parties and the judge simply treated the jury as waived and may well have believed it had been.   But even if we were to draw the same inference as the People, an implied waiver is not sufficient to waive jury trial on the issue of prior convictions.

When allegations of prior convictions have been made, the defendant must, personally and expressly, waive jury trial on this issue.  (People v. Luick (1972) 24 Cal.App.3d 555, 559, 101 Cal.Rptr. 252.)   Such a waiver cannot be implied from conduct.  (Id., at p. 558, 101 Cal.Rptr. 252.)   At no point did Laury expressly waive a jury trial on the issue of prior convictions.   Failing to secure express personal waiver was error.  (Id., at p. 559, 101 Cal.Rptr. 252.)

 III. DOUBLE JEOPARDY

Laury contends that if we do find error, double jeopardy bars a subsequent trial on prior conviction allegations when the jury has been discharged without making specific findings on such allegations.   We conclude that jeopardy does not attach to an allegation of priors and that there is no constitutional or statutory requirement, under the circumstances of this case, that the same jury determine both substantive guilt and the truth of the alleged prior convictions.

Laury relies on People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, decided by Division Three of this court.2  In Wojahn, the trial court bifurcated the issues of guilt and prior convictions.   After the guilt phase, the court discharged the jury before tendering the issue of an alleged prior conviction.   On appeal, the court held “that 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.   When the trial court improvidently discharged the jury after it returned a guilty verdict but before the issue of the prior conviction was tendered to it, double jeopardy considerations prohibited the impanelling of a new jury to try the issue of the prior conviction.”  (Id., at p. 1035, 198 Cal.Rptr. 277 emphasis in original.)   In so holding, the Wojahn court acknowledged “that something less than a full measure of justice will have been done in this case․”  (Ibid.)

 The facts of the present case are similar to those of Wojahn.   Although Laury did not expressly ask for a bifurcated proceeding, he denied the allegation of the priors and he did not waive jury trial.   Whenever a defendant denies the allegations of priors and a jury trial is not waived on that issue, that defendant is entitled to a bifurcated proceeding in which the jury is not informed during the guilt phase of the defendant's prior convictions.  (People v. Bracamonte, supra, 119 Cal.App.3d at p. 654, 174 Cal.Rptr. 191.)   Here, the jury was sworn to try both the issue of Laury's substantive guilt and his alleged prior convictions.   They were discharged after rendering a guilty verdict on the substantive offense but before the issue of Laury's convictions was presented.   If we were to follow the holding of Wojahn, double jeopardy would attach in the present case.   Because we disagree with the holding of Wojahn, we find that a newly impaneled jury, or a judge if jury is properly waived, may determine the truth of Laury's alleged prior convictions.

 As early as 1938, California recognized that the statutory provisions for alleging and proving prior convictions do not have the effect of again placing a defendant in jeopardy in connection with the former offenses.   (People v. Ysabel (1938) 28 Cal.App.2d 259, 261, 82 P.2d 476.)   Proof of prior convictions does not involve substantive offenses.   It merely provides for increased punishment of those whose prior convictions fall within the scope of certain statutes.  (People v. Morton (1953) 41 Cal.2d 536, 543, 261 P.2d 523.)   Proof of Laury's prior convictions does not place him in jeopardy in connection with those former offenses.   It prohibited probation under section 1203, subdivision (e)(4).   There is nothing prejudicial involved in a limited new trial on the issue of Laury's challenged prior convictions.   (See People v. Morton, supra, at p. 543, 261 P.2d 523.)

The court in Wojahn based its holding on the express language of section 1025.   That section states that when a defendant denies a previous conviction, “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 Wojahn court held that section 1025 required the two issues be tried by the same jury and that jeopardy attaches to both issues at the swearing in of the jury.  (People v. Wojahn, supra, 150 Cal.App.3d at pp. 1034–1035, 198 Cal.Rptr. 277.)   We decline to follow Wojahn.   Rather, we find that jeopardy does not attach to an allegation of priors and that section 1025 need not be read so literally as to prevent a new trial on a prior by a different jury.   In appropriate circumstances such as these, where bifurcation of the issues is warranted and a reversal is required relating only to the prior convictions on appeal, a new jury trial on the limited issue of prior convictions is proper.

In People v. Morton, supra, 41 Cal.2d 536, 261 P.2d 523, the defendant was convicted of burglary and adjudged an habitual criminal.   In support of its order of a limited new trial on the issue of the challenged prior conviction, the California Supreme 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.]”  (Id., at p. 543, 261 P.2d 523.)   The court also stated that the procedure of reversing the judgment and ordering a limited new trial on the prior convictions was a proper one because it “carries out the policy of the statutes imposing ‘more severe punishment, proportionate to their persistence in crime, of those who have proved immune to lesser punishment’ [citation], and prevents 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 will not have to suffer the more severe punishment.”  (Id., at pp. 544–545, 261 P.2d 523.)   Although Wojahn cited Morton  in part (People v. Wojahn, supra, 150 Cal.App.3d at p. 1034, 198 Cal.Rptr. 277), it ignored its holding in reaching its conclusion (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937).   We prefer to follow Morton.3

In our case, Laury clearly did not dispute his prior convictions.   He asks, instead, that he receive a windfall from the trial court's error.   By ordering a limited new trial, we will be preserving the possibility that a “full measure of justice” may be done.  (See People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)   We will further the policies of section 1203, subdivision (e)(4) while affording Laury a fair hearing on the allegations of prior convictions.

IV. CONCLUSION

We affirm the judgment of conviction and reverse that part of the judgment imposing sentence.   The cause is remanded to the trial court with directions to resentence the defendant after a new trial on the issue of prior convictions.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   Two recent cases, including one by the same division which had decided Wojahn, sought to distinguish Wojahn.   In each, the Supreme Court denied hearing and directed the Reporter of Decisions not to publish the opinion.  (People v. Ware (Cal.App. B021999) hg. den. Feb. 2, 1989, and opn. ordered nonpub.;   People v. Jackson (Cal.App. A039259) hg. den. Apr. 5, 1989, and opn. ordered nonpub.)   In this case, we decline to follow Wojahn.

3.   In a supplemental letter brief submitted after oral argument, appellant's counsel cites two additional cases, each of which is distinguishable from this one.   In Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, the United States Supreme Court held that the double jeopardy clause precludes a second trial when a conviction is reversed solely for lack of sufficient evidence.  (Id., at pp. 2, 18, 98 S.Ct. at pp. 2142, 2150.)   In People v. Najera (1972) 8 Cal.3d 504, 105 Cal.Rptr. 345, 503 P.2d 1353, our Supreme Court denied a prosecution request to retry a crime-related enhancement, i.e., use of a firearm, after there had been a failure of proof in the first trial.   The court stated that the admissible evidence bearing upon that limited issue would be practically coextensive with that received at the plenary trial.  (Id., at p. 510, 105 Cal.Rptr. 345, 503 P.2d 1353.)Here, the error for which we reverse relates to a procedural irregularity, there was documentary evidence of the prior convictions before the court, and the evidence necessary on the limited issue of appellant's prior convictions is limited and severable from that presented at the trial on the merits.   The cases cited by appellant are inapplicable.

CHANNELL, Associate Justice.

ANDERSON, P.J., and PERLEY, J., concur.

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