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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Samuel SANTEY, Defendant and Appellant.

No. D009254.

Decided: May 18, 1990

Jeffrey J. Stuetz and Barbara A. Smith, San Diego, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster and M. Howard Wayne, Deputy Attys. Gen., for plaintiff and respondent.

 On this appeal we conclude a trial court has the power under Penal Code section 969a 1 to permit the filing of an amended or supplemental information, after verdict but before sentence is imposed, to allege a defendant's prior felony conviction or convictions belatedly discovered by the prosecution.


On June 15, 1988, Samuel Santey 2 was arrested for burglary of a La Jolla residence.3  The information filed in superior court on July 12, 1988, charged him with burglary of an inhabited dwelling (§§ 459, 460), but contained no prior felony conviction allegations.   The case was eventually assigned to Judge Hayes for trial on September 9, 1988.   At that time, further plea negotiations were held in chambers and placed on the record in Santey's presence.

During those discussions the deputy district attorney expressed concern Santey might have a criminal record because he had noticeable tattoos which were often seen on people who had been in prison.   The prosecutor represented that record checks under the name Santey had indicated he had no such record.

Defense counsel then represented to the court Santey had no significant criminal record and explained why the prosecutor's previous plea offer was not lenient enough for Santey to accept.   He said in part:

“I—for the record, I have conveyed the offer to my client.   Frankly, I view it as an offer that really doesn't offer him much.   I have suggested possibly low term or 416, rule 416.   But that has not been forthcoming.

“If there was any prior incident in Cuba, it appears that it was not theft related and it was a juvenile offense.   He would have been approximately 18 years old when he left Cuba.   So, I don't think we are faced with a situation where we have anyone with a significant record or a theft-related record of any kind.”

Jury trial then commenced and Santey testified in his own defense.   He identified himself as Samuel Santey.   In response to the prosecutor's question of where he had been living immediately before the current offense, Santey stated he had lived at the Las Flores Hotel for two or three days and before that he had lived with friends for three or four years at an apartment at 27th and C. Santey was not impeached with any prior felony convictions.

On September 15, 1988, the jury found Santey guilty of burglary as charged.   Sentencing was set for October 13, 1988, and the jury was discharged.

When the probation officer's report was filed on October 12, 1988, it revealed Santey had used seven different identities, three different birthdates, had suffered prior felony convictions, and had recently been released from prison for a residential burglary under the name of Rodriquez.

On that same day, the District Attorney filed a motion for leave to file a supplemental information alleging the prior felony conviction for residential burglary.   A declaration accompanying the motion stated the prosecutor had first learned of the prior through the probation report and that he had been unable to locate the record before that time.   Santey filed points and authorities in opposition to the motion.   Over Santey's objection, the court continued the sentencing until October 17, 1988.

At that time, the court found Santey had perpetrated a fraud on the court by concealing his identity and by his misrepresentations:

“As a matter of practice and policy it is incumbent upon the prosecution to file these priors in a timely fashion.   But does that mean that when a defendant perpetrates a fraud on the court that the court's hands are tied in terms of permitting the filing of the prior or priors that have been alleged?   I don't know as to whether or not there was any such indication of a fraud in any cases that have been cited.   I found none.   But in this particular case, on the 17th of June the defendant appeared in municipal court before Judge Riddle, told Judge Riddle his true name was Samuel Santey.   He testified during the course of this trial.   And under oath he testified that his name was Samuel Santey.   The question I have is whether or not the defendant should be permitted to profit from what in effect is a fraud on the court.

“And I'm inclined to think that notwithstanding those cases that are cited without a rationale behind them, that the court does have the authority under these very unusual circumstances to permit the filing of this document.   To do otherwise would let the defendant in this case profit from the lie that he testified to in court in terms of his identification in this court, and would permit the defendant to profit from the falsehood that he perpetrated upon Judge Riddle at the time of his arraignment on a complaint in municipal court.   It would just seem to me to be unconscionable to permit one to profit from such a wrong․”

The court thus permitted the filing of the supplemental information.

Jury trial on the supplemental information was set for November 7, 1988.   After a jury was empanelled, Santey moved to be discharged and released because the court had failed to sentence him within the 28–day jurisdictional time after the original jury had found him guilty on the underlying offense.   He alternatively requested he be immediately sentenced on the underlying offense and that he be tried on the prior before the original jury.

Finding the fraud to be the cause of the prosecutor's failure to allege the prior conviction in the original information and that Santey's conduct had resulted in the jury being discharged without considering the prior, the court denied the motions.   Jury trial continued and on November 9, 1988, the jury found Santey had previously suffered a serious felony prior conviction for burglary of an inhabited dwelling under sections 667(a) and 1192.7(c)(18).   The court sentenced Santey to eleven years in prison, consisting of an upper six-year term for this offense and five years for the prior.

Santey then filed a timely notice of appeal.


Before discussing the merits of this appeal, we briefly note that much of the material counsel has submitted to us is not helpful to the issue to be decided.   Santey's counsel has devoted a great deal of his briefs (both opening and reply) to unprofessional personal attacks on the prosecutor.   His belief that the district attorney should have discovered Santey's identity earlier, before verdict, could have been made without the unseemly venting of his spleen.   The deputy attorney general has had to address those attacks.   Declining to referee a street brawl, we turn to the merits of Santey's argument.

Santey contends the 1931 amendment to section 969a creates a jurisdictional time limit after which a court cannot permit amendment or supplement of pleadings to allege prior felony convictions.   Specifically, he argues the term “pending” as used in the section refers to proceedings before a verdict has been returned, thereby prohibiting any amendment or supplement after that time.4

Restated, the crux of the matter is whether the People are permitted to file an amended or supplemental information after a verdict has been returned on the initial charges.   The answer turns on our interpretation of section 969a.  (See fn. 1, ante, at p. 1.)   This statute was first enacted in 1927 and changed the preexisting law to permit amendments of a pending indictment or information to charge such prior felonies.  (Stats.1927, ch. 631, § 1.)   The 1927 enactment also contained a provision permitting the People to file a supplemental information to allege a prior conviction or convictions discovered after a defendant had been sentenced on the original information or indictment so long as the sentence had not expired.  (Ibid.)  In 1931, section 969a was amended to delete only this latter provision, which authorized the filing of supplemental informations to charge prior convictions after the imposition, but before the expiration, of a sentence.  (Stats.1931, ch. 485, § 1.)

Thus, the part of section 969a with which we are concerned, the provision relating to the amendment of a pending information or indictment, has remained unchanged since its enactment in 1927, except that the Legislature has substituted discretionary language for the mandatory wording regarding the duty of the People to file such an amendment.  (Stats.1957, ch. 1617, § 1;  see analysis in (1957) 32 State Bar J. 616.) 5  Hence, an apparent appellate belief the 1931 amendment altered the power of a trial court to permit an amendment of an information post-verdict but pre-sentence, is clearly wrong.

Both before 1931 and after, the statute only authorized amendments of “a pending indictment or information.”  (§ 969a;  italics added.)   With the exception of People v. Grimes (1928) 94 Cal.App. 238, 240, 270 P. 1000, we have found no case before 1931 which actually considered whether the 1927 statute permitted a post-verdict pre-sentence amendment.   While this case interpreted section 969a as permitting the amendment of an information after verdict and before sentence, it relegated its comment to dictum because the amended information was dismissed following a jury's inability to reach a verdict on the prior convictions.   However, we have found no case suggesting the legal perception expressed in Grimes was incorrect.

In People v. Ysabel (1938) 28 Cal.App.2d 259, 263, 82 P.2d 476 (disapproved on other grounds in People v. Thomas (1959) 52 Cal.2d 521, 534, 342 P.2d 889), the court correctly noted the 1931 amendment eliminated the provision “permitting the raising or trying of issues as to prior convictions after sentence has been pronounced.”  (Ibid., italics added.)  Ysabel, however, did not deal directly with the issue before us;  it dealt with whether prior felony convictions could be retried when the issue of guilt on the underlying offense had been determined and the defendant already sentenced on that underlying offense.6  (Ibid.)   It concluded the intent of the Legislature in amending section 969a in 1931 was to have the prior conviction charge determined by the same jury which decided the underlying charges.   In light of this interpretation, the court held it was inconsistent with the intent and purpose of the amendment to permit a retrial of prior conviction allegations to modify a judgment which had already been entered.   (Id. at pp. 263–264, 82 P.2d 476.)

In People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523, our Supreme Court disapproved of language in People v. Nicholson (1939) 34 Cal.App.2d 327, 333, 93 P.2d 223, which suggested the 1931 amendment to section 969a removed any statutory authority to permit a jury other than the one deciding the underlying charge to determine the truth of prior conviction allegations.   (People v. Morton, supra, 41 Cal.2d at p. 542, 261 P.2d 523.)   To the extent that court relied on language in Ysabel to support its view the Legislature intended to absolutely prohibit ever trying prior conviction allegations before a jury other than the one determining the underlying charge, the Supreme Court in Morton found its reliance and reasoning erroneous.   (Ibid.)  The Supreme Court specifically rejected the conclusion in Nicholson reversible trial error based solely on the alleged prior conviction could only be redressed by having a new jury retry both the prior and the underlying charge on which a proper guilty verdict had already been returned.  (People v. Morton, supra, 41 Cal.2d at pp. 542–543, 261 P.2d 523.)

Although Morton only addressed and decided questions relating to the propriety and manner of new trials on prior felony conviction allegations after appeal, its analysis includes dicta relating to our issue.   Its discussion of section 969a's history contains the following observations:

“The 1931 amendment to section 969a deleted a provision permitting the filing, at any time after judgment and before sentence had expired, of a supplemental indictment or information to charge newly discovered prior convictions.   As amended, the statute relates only to the amendment of a pending indictment or information to add new prior conviction charges before verdict [citing People v. Houston (1937) 24 Cal.App.2d 170, 74 P.2d 517 and People v. Louviere (1939) 34 Cal.App.2d 62, 93 P.2d 179], and all charges made before that time would of course be tried by the same jury that tried the primary offenses charged.”  (People v. Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523.)

Literally interpreted, these statements would suggest the 1927 legislation only permitted amendment of an information or indictment to include prior felony allegations before verdict and after sentence, and not during the period between verdict and sentence.   That is, this interpretation implies the Legislature was perfectly satisfied to permit a different trier of fact to consider late-filed allegations after a person had been sentenced, but not to permit a new trier of fact to consider late-filed allegations filed after verdict but before sentence.   This dicta in Morton can only be rationally explained by assuming the Supreme Court believed “pending indictments or informations” characterizing those pleadings meant until the filing of a judgment.  Morton, however, did not discuss the definition of “pending indictment.”   Nor, so far as we can determine, has any reported California decision directly addressed that term or phrase.7

Regardless, we can infer the court in Morton assumed an indictment or information was “pending” even after a verdict was returned.   Support for this inference is found in that court's statement “[t]he legislative purpose expressed in [section 969a], and in the 1931 amendment, was to fix a time after which no further charges could be made.”  (People v. Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523.)   From this it is clear the court was not limiting the definition of “pending” informations to only those before verdict.8

That court's statement “the statute relates only to the amendment of a pending indictment or information to add new prior conviction charges before verdict” (People v. Morton, supra, 41 Cal.2d at p. 543, 261 P.2d 523) must not be read out of context but must be viewed in light of its own perception of the legislative intent behind the enactment of section 969a.   Thus, contrary to this tangential comment based on People v. Houston, supra, 24 Cal.App.2d 170, 74 P.2d 517 and People v. Louviere, supra, 34 Cal.App.2d 62, 93 P.2d 179, a plain reading of the statute together with Morton 's determination of legislative intent, supports our interpretation “pending” in section 969a means until judgment or sentence.

As noted earlier, a reading of section 969a both before and after the 1931 amendment reveals the only change in the statute was to prohibit post-judgment filings of amendments or supplements to charge prior felony convictions.   The 1931 amendment did not change the law as to the validity of amending an information to charge prior convictions before sentence.   Moreover, Morton merely cited Houston and Louviere without discussion.   Nothing in those cases, however, provides support for Morton 's surmise section 969a relates only to pre-verdict amendments of pending indictments or informations.

In Houston, the court of appeal agreed, without discussion, with the Attorney General's concession of error that the filing of a supplemental information alleging two prior convictions filed after a guilty verdict and before judgment was improper.  (People v. Houston, supra, 24 Cal.App.2d at p. 171, 74 P.2d 517.) 9  Houston does not inform as to the circumstances under which the prosecutor filed the supplemental information and the court there did not make any findings concerning the section 969a problem, merely remarking “the procedure followed here cannot be supported.”   (Ibid.)

In People v. Louviere, the appellate court, relying solely on People v. Houston, supra, 24 Cal.App.2d 170, 74 P.2d 517, held the trial court there improperly allowed an amended information charging a prior conviction to be filed after verdict.  (People v. Louviere, supra, 34 Cal.App.2d at p. 64, 93 P.2d 179.)   As in Houston, the decision in Louviere contains no analysis of the section 969a issue.   Nor does it state any facts from which one can determine whether the amended information was filed before or after sentence.

The only limitation we find in the language of section 969a is that the pleading to be amended must be “pending.”   This requirement has remained unchanged since 1927.   Under the 1927 enactment as interpreted in Grimes, supra, 94 Cal.App. at p. 240, 270 P. 1000, the People could either file an amended information after verdict and before sentence, or include the same in a supplemental information after sentence.   The 1931 amendment only affected the trial court's authority to retain jurisdiction after sentencing for the purpose of trying prior felony conviction allegations in the supplemental complaint, an exception to the general rule the trial court loses jurisdiction after the entry of final judgment or pending appeal.   The 1931 amendment only eliminated this exception.

We are thus satisfied the Legislature intended section 969a to permit the People to charge prior convictions by way of amendment or supplemental pleadings up to the time of sentence and not to permit the People to file amendments or supplemental informations after that point.   Thus, we believe the Legislature used the term “pending information” to mean one upon which no judgment or sentence had yet been entered.

To construe the term “pending indictment or information” as one on which no verdict has been entered would have left the People powerless under the original enactment of section 969a to comply with the mandatory requirement of charging a defendant with prior convictions once it was learned they had not been included in the original pleading during the period between verdict and sentence.   Interpreting the Legislature's intent to create such a “window period” until after a defendant had been sentenced, makes no practical sense.   The Legislature could not have intended such a result.   Under this interpretation a defendant would have been burdened by unnecessary delay and inconvenience in having to wait until after sentence to be tried on prior felony allegations which were ready pre-sentence.   It would have also created separate appeals, the necessity to modify judgments, and interfered with the rehabilitative benefit available to prisoners whose sentence should have been served without interruption.

Further, to construe the 1931 amendment as evidencing a legislative intent to change the effect of the remaining provision of the statute which allowed amendment of pending indictments or informations, is equally absurd.   The practical interpretation of section 969a leads to our conclusion the appellate perception expressed in Grimes is correct, and section 969a has always authorized filing a post-verdict amended or supplemental information to charge prior felonies before sentence or judgment is entered.

We note that judicial concern with successive prosecutions of related offenses was not in evidence at the time section 969a was enacted or amended.   As explained in Kellett v. Superior Court (1966) 63 Cal.2d 822, 826, 48 Cal.Rptr. 366, 409 P.2d 206, this factor found its meaningful inception in 1961.   Although Kellett 's emphasis on the importance of avoiding needless harassment normally requires the People to prosecute all related matters in a single proceeding, it does not find this concern so compelling as to prevent successive prosecutions when the People are “reasonably unaware” of the matters which could be joined in a single proceeding.  (Id. at p. 828, 48 Cal.Rptr. 366, 409 P.2d 206.)   That is the case here.

 To the extent Santey feels harassed because he is being forced to undergo successive trials, under the facts of this case the imposition of that burden cannot be construed as needless.   Santey not only testified at trial under a different name than he used when last before the superior court, he stated he had been living in an apartment in San Diego during the three years before this crime, a fact his prison records show untrue.   In addition, he sat by quietly while his attorney attempted to bargain with the deputy district attorney and the court for a lenient plea in light of his lack of criminal record, knowing such representation was false.10

Assuming a concern against needless harassment is cognizable in determining whether to bar proceedings on an amended or supplemental information alleging only prior convictions after return of verdict on the underlying charge, Santey has deliberately contributed to his own problem.   In his various appearances in felony courts he has identified himself by several different names, none of which may be accurate.  (See ante, fn. 2 at p. 53.)   He has, in effect, precluded the People from originally charging him in this case with his prior felony convictions by masking his true identity.   We can conceive of no logical explanation for such conduct other than Santey was trying to avoid being identified and treated as a felony recidivist because his criminal career was temporarily interrupted by arrest and prosecution.

We recognize in our accusatory system the prosecution has the burden of proof as to a defendant's criminal history and a defendant has no responsibility to alert the prosecution to a prior conviction of which it is ignorant.   A different story is told, however, where a defendant affirmatively misleads the court and jury.   Santey actively attempted not only to conceal his prior felony conviction, but sought to affirmatively take advantage of his claimed status as a “first offender”.   He has voluntarily elected his continuing identity scam to avoid the heavier base sentences and enhancements which might otherwise be imposed if his felony recidivism were exposed.

Santey's protests in this case the district attorney should have caught him in his lies carry little weight.   He cannot equate the People's conduct here with “needless harassment” where the delay in obtaining the information as to his true identity and prior felony convictions was the desired result of his fraudulent scheme.   His cries of foul ring hollow.11

Further, the law is well settled that any statutory right may be waived by a defendant's conduct.   Even if section 969a were construed as a legislative preference for single-jury resolution of prior felony charges and the new offense, Santey deliberately chose to take a chance the information in his case would be amended or supplemented if the People discovered his prior convictions before the trial court lost jurisdiction.   This time his gamble was not successful.   The supplemental information amending his underlying charges was not barred by section 969a nor can the subsequent proceeding pursuant to that document be categorized as needless harassment under the doctrine pronounced in Kellett, supra, 63 Cal.2d at p. 826, 48 Cal.Rptr. 366, 409 P.2d 206.

Because Santey had not yet been sentenced in this case, we hold the trial court did not error in permitting the People to file the supplemental information alleging Santey's prior serious felony convictions belatedly discovered due to his own fraudulent conduct.


The judgment is affirmed.


1.   Penal Code section 969a provides:  “Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary.   Defendant shall promptly be rearraigned on such information or indictment as amended and shall be required to plead thereto.”All statutory references are to the California Penal Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

2.   Records show the validity of this given identity is uncertain because his birth certificate has not been produced in this proceeding or any earlier proceedings where he has used various aliases.   As of the time of this offense, however, he had been on parole for about one week.   He had been in prison for first degree burglary as a result of his conviction in San Diego County in 1984 under the name of Rafael Comendador Rodriguez.   Perhaps suffering an identity crisis at the time of his arrest, he gave police the name of Samuel Santey which he used during the trial court proceedings in this case and which he also uses in this court of appeal.   We therefore refer to him in this opinion as Santey, although we express no opinion as to the validity of that identity.

3.   As Santey does not challenge his conviction for burglary nor contest the imposition of the upper term for that offense, we do not set forth any facts relating to the burglary.

4.   Santey's reliance on People v. Carson (1941) 45 Cal.App.2d 554, 114 P.2d 619 and People v. Berutko (1969) 71 Cal.2d 84, 94, 77 Cal.Rptr. 217, 453 P.2d 721 for the proposition the power to amend informations under section 969a is limited to pre-verdict amendments is misplaced.   These cases involved applications and interpretations of section 9691/212 and are therefore inapposite to this case.

5.   The 1957 amendment substituted in the first sentence the words “if such amendment is made it shall be made” for “such amendment may and shall be made.”

6.   In People v. Ysabel, supra, 28 Cal.App.2d 259, 82 P.2d 476, the defendant had been charged with prior convictions in the initial pleading, but the jury's verdict finding him guilty of the underlying charge indicated it could not agree on the truth of the prior conviction allegations.   After sentencing (pronouncement of judgment), the trial court set the matter of the prior conviction allegations for retrial.   The reviewing court considered the propriety of permitting further proceedings to determine the truth of the priors after sentence in light of the statute which had been amended to eliminate the authority to consider supplemental pleadings following sentencing.   Noting there was no functional difference between retrying prior conviction allegations after a defendant has been validly sentenced on the underlying charges and the modification of such a judgment by allegations brought for the first time after sentence has been imposed by way of a supplemental information, and relying on its interpretation of language in People v. Fewkes (1931) 214 Cal. 423, 6 P.2d 250, the court perceived the effect of the 1931 amendment was to eliminate the authority to submit issues of prior convictions to a different jury than that which determined the underlying charges.   (People v. Ysabel, supra, 28 Cal.App.2d at p. 263, 82 P.2d 476.)

7.   Although People v. Fewkes, supra, 214 Cal. 423, 425, 6 P.2d 250, in comparing the pre–1931 version of the statute with its 1931 amended language, stated the 1931 version only provided for amendments to “pending indictment[s] or information[s],” it did not further refine the term “pending.”  Fewkes also limited its holding to those defendants who were convicted of crimes before the 1931 amendment.  (Ibid.)

8.   Although dictum, Morton was cited in People v. Martin (1978) 87 Cal.App.3d 573, 579, 151 Cal.Rptr. 141, for the proposition that amendments to allege priors could be made until after the defendant had been “found guilty and sentenced.”  (Italics added.)

9.   Assuming a supplemental information is different than an amended pending information, there was and is no statutory authority for filing such a document before judgment either before or after the 1931 amendment.However, we find such technical distinction of form over substance inappropriate and unnecessary.   A supplemental information filed to add prior convictions while an indictment or information is “pending” is, in effect, no different than an amended information filed to do the same thing;  both seek to correct an oversight in not including the prior convictions in the original indictment or information before the defendant is sentenced.

10.   We do not imply misconduct on the part of trial counsel.   On this record we assume trial counsel was also mistaken as to his client's true identity and criminal history.

11.   To quote a far better writer, Santey “doth protest too much, methinks!”  (Shakespeare, Hamlet, III, ii, 242.)

HUFFMAN, Associate Justice.

KREMER, P.J., and WORK, J., concur.

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