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

The PEOPLE, Plaintiff and Respondent, v. Erik Dean ELLISON, Defendant and Appellant.

No. G015884.

Decided: October 27, 1995

Phillip I. Bronson, 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, Jeffrey Koch and Bradley Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey Koch and Bradley Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

*   *   *

Erik Dean Ellison appeals from the judgment following his conviction for a sale of rock cocaine (Health & Saf.Code, § 11352, subd. (a)) 1 enhanced by his prior drug conviction (Health & Saf.Code, § 11370, subd. (a), (c)) 2 and the fact he committed the offense within 1,000 feet of a junior high school.  (Health & Saf.Code, § 11353.6, subd. (b).) 3  The jury convicted him of the offense, but he contends it did so only after the trial court erred in admitting certain photographs of him.   Additionally, he disputes that he waived his right to a jury for the bifurcated portion of his trial related to the special allegations.   Accordingly, he concludes that the court's finding those enhancements true must be reversed.   He also argues the trial court abused its discretion when it failed to commit him to the California Rehabilitation Center (CRC) as an addict.   We affirm in part, and reverse and remand in part.


In September 1993, an undercover investigation began, with its focus on an area frequently used by narcotics dealers.   This area was located only 500 feet from Willard Junior High School.   An undercover officer parked his car on the corner and was approached by Ellison after making eye contact.   Ellison asked him what he wanted;  the officer replied he wanted $20 of rock cocaine.   As they talked, the officer noted Ellison's appearance and clothing for future identification.   Ellison then walked off “to see what he could do․”

Ellison walked into a carport nearby and talked to another man, a 30–year–old male Hispanic.   The undercover officer could see Ellison hand some money to the man in exchange for something else.   Ellison returned to the officer's car with the object clutched in his hand.   He opened his hand, revealing a cocaine rock which he gave to the officer, who handed him $20 and drove away.

During the transaction, the officer could see some children playing in the school yard within view of the entire incident.   As the officer drove away, he radioed other officers to arrest Ellison who was walking away.   The officers found him—alone—in a nearby alley.   He was the only person matching the description (actually, the only person in the area).   As the arresting officers approached him, he dropped something from his hand, which was retrieved and determined to be more rock cocaine.   The undercover officer saw Ellison at the booking station and identified him as the source from whom he bought the rock cocaine.

The defense presented no evidence but contended the prosecution failed to prove Ellison was the purveyor of the rock cocaine the undercover officer purchased.


IAdmission of Photographs ***


Waiver of Jury Trial

Ellison disputes he personally waived a jury for trial of the two special allegations.   A review of the record reveals that, on the first day of trial, he moved to bifurcate the trial on the enhancements from the issue of guilt on the sale count.   Following the granting of the bifurcation motion, the court conducted a conversation with both defense counsel and the defendant about the indicated waiver of the jury for the enhancement trial.

“The Court:  Good morning.   Mr. Ellison, in chambers your attorney advised the court that you would like to waive your right to a jury trial with regard to the enhancement that has been charged under Health and Safety Code section 11353.6(b) and with regard to your prior conviction, convictions.   Have you had an opportunity to discuss that with your attorney?

“[Ellison]: 4  Yes, I have.

“The Court:  And is there anything else that you would like to bring up regarding this, [defense counsel]?

“[Defense Counsel]:  Yes, your Honor.   I did discuss Mr. Ellison's right to a jury trial on those matters with him and explained to him what that meant and also his ability to have a court trial on those matters, if the court bifurcates the matters, and I believe we are now ready and he understands those rights or says he understands them and agrees to waive his right to a jury trial on the second section, enhancements.

“The Court:  I will make those decisions.   Do you understand that, Mr. Ellison, and the jury will not make those decisions?   All right, thank you․”  (Italics added.)

 Citing People v. Ernst (1994) 8 Cal.4th 441, 34 Cal.Rptr.2d 238, 881 P.2d 298, Ellison now argues he never personally waived his right to a jury trial because no audible response was recorded.  Ernst held that California Constitution article I, section 16 guarantees every defendant the right to a trial by jury for any criminal charge.   A criminal defendant can waive this right, but only if there is a “consent [to the waiver] expressed in open court by the defendant and the defendant's counsel.”  (Cal. Const. art. I, § 16;  Ernst, supra, 8 Cal.4th at pp. 445–447, 34 Cal.Rptr.2d 238, 881 P.2d 298.)   A waiver of this right will not be found if the defendant merely acquiesces to his attorney's waiver of the jury, or fails to object to proceeding with a court trial.  (Id. at pp. 444–445, 34 Cal.Rptr.2d 238, 881 P.2d 298.)   Ernst's attorney waived this right to a jury for the full charge Ernst faced when the case was called in the master calendar court, and then represented to the trial court that a formal waiver had already been entered, even though Ernst never expressed a thing.   The resulting conviction by court trial was reversed because “defendant did not expressly [and personally] waive his right to a trial by jury.”  (Id. at p. 448, 34 Cal.Rptr.2d 238, 881 P.2d 298.)

We are in the anomalous position of knowing Ellison affirmatively indicated to the trial court he was waiving his right to a jury trial of the enhancements, yet, because there was no audible declaration to that effect, we are being asked whether his expression of consent through conduct is sufficient.   Can assertive conduct (although not reflected in the transcript itself) in response to a trial court's inquiry about the consequence of a jury trial waiver constitute the “express waiver” required by the Constitution?   Both parties focus exclusively on that question, but a true resolution of the issue requires consideration of not only what constitutes a valid, express waiver, but also what effect the presence of a valid bifurcation has in that determination.

 First, we look at the waiver itself.   Even though it is clear the trial court interpreted Ellison's gesture as a waiver of his right to a jury trial, the record remains ambiguous as to what actually happened.   In all probability, Ellison nodded his head or made some other affirmative movement.   Unfortunately, whatever he did is not stated in the transcript.   Irrespective of his gesture, no words were spoken by Ellison, and mere conduct is insufficient to constitute an implied waiver of the right to a jury.5  (E.g., People v. Holmes (1960) 54 Cal.2d 442, 443–444, 5 Cal.Rptr. 871, 353 P.2d 583 [no implied waiver of jury when court informed defendant of right to jury trial, but only obtained a waiver of the right from defense counsel];  see also People v. Ernst, supra, 8 Cal.4th at p. 443, 34 Cal.Rptr.2d 238, 881 P.2d 298 [explicit waiver of jury by defendant necessary although totality of circumstances can still imply jury waiver when admitting a prior conviction ];  People v. Randle (1992) 8 Cal.App.4th 1023, 10 Cal.Rptr.2d 804 [defendant's admission of a prior conviction sufficient even though no express waiver of the right to jury because the totality of circumstances indicate defendant's true desire to admit the prior conviction].)   In the past, assertive conduct, even if unequivocal, was deemed insufficient to meet the constitutional requirements of a waiver.  (People v. Pechar (1955) 130 Cal.App.2d 616, 618–619, 279 P.2d 570 [defendant's nodding head in response to court's question regarding waiver is insufficient];  see also 5 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) § 2647, pp. 3178–3179.)   Although this appears to place form over substance—essentially eliminating symbolic speech from language altogether—we wait for a later day to debate whether an affirmative nod means “yes,” because nowhere is it recorded that Ellison specifically waived his right to a jury trial by gesture.   The record failed to record what movement he made which the court accepted as affirmance.

 That does not end the inquiry, however.   We must also review the effect of Ellison's motion to bifurcate before we can determine the appropriate remedy for the defective waiver.   Whenever an enhancement is bifurcated from the trial of the underlying charges, two issues are raised:  Will the enhancement be decided by a jury, and will double jeopardy bar multiple, subsequent hearings?   If a defendant desires to waive a jury on the enhancement, but the subsequent court trial be in error, can a new jury be impaneled and resolve the enhancement?   Yes.  As stated in People v. Esquibel (1992) 3 Cal.App.4th 850 at page 856, 5 Cal.Rptr.2d 47, “(1) the right against double jeopardy, although fundamental, is not within the ambit of Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] and In re Tahl (1969) 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].)”  (Original italics.)

Esquibel made a motion to bifurcate the issue of his prior felony conviction enhancement from the issue of his guilt of the present drug offense.   Following the court's granting that motion, defense counsel then informed the court that if the jury convicted Esquibel of the present charges, the “ ‘defense wishe[d] to bifurcate that issue, if necessary.   If it needs to be decided at a later date, we would have a court trial on that issue.’ ”  (Esquibel, supra, 3 Cal.App.4th at p. 856, 5 Cal.Rptr.2d 47.)   He was convicted and the jury discharged before any further proceedings occurred in relation to the waiver.   Subsequently, Esquibel personally waived the right to a jury, and the court then accepted his admission of the truthfulness of that allegation.   He appealed, contending he had not personally waived the jury prior to its discharge, so double jeopardy barred all further proceedings.   Wrong.  The court discharged the jury in reliance on defense counsel's motion for bifurcation with his indication the jury likewise would be waived.   Rejecting Esquibel's well-orchestrated ploy, the court held that manipulations by defendants and their counsel would not be successful.   Once the enhancement is bifurcated from the underlying charges and defense counsel states a jury waiver will be made, the trial court is not barred by double jeopardy from conducting further proceedings to determine the truth of those enhancements.

 Similarly, here.   Ellison bifurcated the enhancement from the underlying charges.   The trial court then fulfilled its duty in determining whether Ellison understood what a jury waiver meant.   It inquired of Ellison whether he wished to waive his right to a jury trial and if he had discussed that right with his attorney.   Then the court specifically asked him if the court, instead of the jury, was to determine the issue of the enhancements.   To this, he indicated by some gesture that the court should.   By interpretation, one could conclude that he was waiving the right, but as we have been cautioned, the right to a jury trial is too important to be left to interpretation.  “․ California law requires that a waiver of a right to a jury trial must be expressed in words by the defendant and cannot be implied from the defendant's conduct․”  (People v. Kemick (1971) 17 Cal.App.3d 419, 424, 94 Cal.Rptr. 835, relying on People v. Holmes, supra, 54 Cal.2d at p. 443–444, 5 Cal.Rptr. 871, 353 P.2d 583.) 6

Under these circumstances, what is the remedy for this ambiguous—and therefore inadequate—waiver?   It is not reversal without remand.   As shown in Esquibel, supra, 3 Cal.App.4th at 856, 5 Cal.Rptr.2d 47 and further discussed in People v. Saunders (1993) 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093, double jeopardy does not bar a subsequent jury determination of the enhancement even though it is a different jury than the one which decided the present offense.   Jeopardy terminates only after a jury decision on the enhancement.  (Id.  At pp. 596–597, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   Here, the jury waiver was not audible—something the court was in a unique position to resolve if there had been any question in its mind as to Ellison's true desire for waiver.   We cannot assume, however, that the waiver was effectively made without a record to support the inference.  (Cf. In re Birch (1973) 10 Cal.3d 314, 320, 110 Cal.Rptr. 212, 515 P.2d 12 [failure to record advisement of right to counsel eliminates even possibility that waiver occurred].)

The judgment imposed for the enhancements is reversed as is the court's finding the two enhancements true.   The issue of the enhancements is remanded to the trial court for a new jury trial.   Ellison's appeal of his waiver indicates he desires a jury to decide the truth of the enhancements.   Therefore, a new jury must be impaneled to make that decision and, if the enhancements are found to be true, new terms imposed for both of them.   The trial court can thus address the appropriate term for the prior drug conviction enhancement which was—inadvertently—ignored at the time of the previous sentencing but which, through this appeal, has been brought to our attention.


The CRC Commitment

At sentencing, Ellison requested a grant of probation with a condition of a drug treatment program.   After the court noted Ellison's particular crime involved sales of drugs near a school—implying this was not a victimless crime involving only personal ingestion or consumption of drugs—the defense then added that the penal facilities of CRC was a more restrictive alternative.   The prosecution argued against the grant of probation because of Ellison's criminal history, and contended he was unsuitable as a candidate for CRC because “[h]e's not shown to be an addict.   In fact, not only that, but his prior is involved with the sales of drugs.   And as such we do not believe he is a suitable candidate for CRC.”   The court then found he was ineligible for probation, but even if he were eligible, he was unsuitable, citing the following reasons:  (1) He was an active participant in the crime, having sought out the officer to whom he sold the drugs;  (2) he exhibited criminal sophistication and professionalism;  (3) he possessed an extensive—and increasingly serious—criminal record as an adult;  and (4) he failed at his opportunities on probation, having violated the terms of his probation twice.

 A decision for a CRC commitment lies within the discretion of the trial court, to be disturbed on appeal only in the event of an abuse of discretion.  (People v. Perez (1987) 196 Cal.App.3d 686, 691, 242 Cal.Rptr. 135.)   The burden is on a criminal defendant to prove the trial court failed to exercise its discretion in accordance with Welfare and Institutions Code section 3051, the authorizing statute.7  (People v. Young (1991) 228 Cal.App.3d 171, 183, 278 Cal.Rptr. 784, citing People v. Flower (1976) 62 Cal.App.3d 904, 909, 133 Cal.Rptr. 455.)   Citing a trial court's silence on the ultimate issue of addiction is insufficient to prove it failed to exercise its discretion on the issue.  (People v. Flower, supra, 62 Cal.App.3d at p. 910, 133 Cal.Rptr. 455.)   Even when there is evidence in the record of the possibility that the defendant is an addict (“or in imminent danger of becoming one”), the trial court can properly—and without declaring so on the record—reject the CRC procedure when there is evidence of unsuitability such as excessive criminality of an escalating nature.   When “ ‘[t]he information before the trial judge indicate[s] a pattern of criminality, irresponsibility and indifference to the requirements and sanctions of the penal law [implied rejection is acceptable.]   For his past offenses defendant had had the benefit of minimum sentences, Youth Authority training, probation and parole.   His response was to progress to more serious offenses.   The narcotic rehabilitation program requires in the subject a certain amount of cooperation and some capacity for accepting responsibility.   It was not an abuse of discretion for the trial court to find that defendant was unfit.’   [Citations.]”  (Id. at p. 912, 133 Cal.Rptr. 455.)

The quotation could not be more pertinent than here.   Ellison had failed four separate grants of probation.   His prior convictions were for a variety of offenses, including possession of concentrated cannabis and methamphetamine, convictions for which Ellison argued to the probation officer that he was unfairly caught or convicted.   Even after conviction for the present offense—which was of greater seriousness—he denied responsibility, contending “some other dude did it.”   Finally, the trial court found the very factors which would support a denial of a CRC procedure when it voiced its denial of probation due to unsuitability.   Failure to invoke the CRC procedure here was not an “arbitrary, capricious [or] patently absurd” decision, the definition of an abuse of discretion.  (Cf. People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal.Rptr. 197, 721 P.2d 79.)

The judgment on the sale count is affirmed;  the judgment on the two enhancements is reversed and that portion of the case remanded to the trial court for proceedings consistent with this opinion.


1.   Health and Safety Code section 11352, subdivision (a) states, in pertinent part, “․ [e]very person who transports, imports into this state, sells, ․ or gives away ․ (1) any controlled substance specified in ․ paragraph (1) of subdivision (f) of Section 11054, ․ shall be punished by imprisonment in the state prison for three, four, or five years.”

2.   Health and Safety Code section 11370, subdivision (a) states, “Any person convicted of violating Section ․ 11352 ․ shall not, in any case, be granted probation by the trial court or have the execution of the sentence imposed upon him or her suspended by the court, if he or she has been previously convicted of ․ [¶] [a]ny felony offense described in ․ paragraph (13) ․ of subdivision (d) of Section 11054 [marijuana]․”

3.   Health and Safety Code section 11353.6, subdivision (b) states “Any person 18 years of age or over who is convicted of a violation of Section ․ 11352 ․, where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high school or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, shall receive an additional punishment of 3, 4, or 5 years at the court's discretion.”

FOOTNOTE.   See footnote *, ante.

4.   The transcript reflects that defense counsel answered the court's inquiry;  but that makes no sense and we assume it is a typographical error.

5.   An implied waiver based on the totality of the circumstances is sufficient as part of an admission of a prior conviction.  (See People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   This does not automatically mean the same test is appropriate for the jury waiver for an enhancement;  quite the opposite, according to Ernst.   We are aware of the divergence between language found in People v. Saunders (1993) 5 Cal.4th 580, 589, 20 Cal.Rptr.2d 638, 853 P.2d 1093, at footnote 5 and that of People v. Wiley (1995) 9 Cal.4th 580, 585–586, 38 Cal.Rptr.2d 347, 889 P.2d 541.  Saunders stated, in the context of the discharge of the jury before the determination of the prior conviction enhancement, that a defendant's “failure to object ․ would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial․”  (Saunders, supra, 5 Cal.4th at p. 589, fn. 5, 20 Cal.Rptr.2d 638, 853 P.2d 1093, emphasis added.)  Wiley, however, held there was neither a federal nor a state constitutional right to a jury trial on the truth of prior conviction allegations.  (Wiley, supra, 9 Cal.4th at pp. 585–586, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   How that disparity will impact future discussions of the adequacy of jury waivers of prior conviction enhancements must await the Supreme Court's visiting that specific issue.   Until then, we must apply Ernst;  doubting that this record would meet even the requirements of an implied waiver under the totality of the circumstances test.

6.   We note that Kemick concludes the expression must be in words, although it cites for its authority the language of the Constitution and Holmes, neither of which state exactly that requirement.   Those authorities only mandate the waiver be express;  nowhere do they state it must be in words.

7.   Welfare and Institutions Code section 3051 states, in pertinent part, “Upon conviction of a defendant for any crime in any superior court, ․ and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section․”

SILLS, Presiding Justice.


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