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

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Dean GREEN, Defendant and Appellant.


Decided: February 18, 1986

John K. Van de Kamp, Atty. Gen., Mary Roth, Deputy Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. William Flenniken, Jr., P.C., San Francisco, for defendant and appellant.

Defendant Green was convicted by a jury's verdict of assault with a deadly weapon, a knife, in violation of Penal Code section 245, subdivision (a).   And the information having further alleged three prior felony convictions of Green, and the parties having stipulated to a bifurcation of those issues, the trial judge proceeded to adjudicate them.   He found the prior conviction allegations to be true.   Judgment was entered on the trial jury's verdict and on the trial judge's findings.

On Green's appeal from the judgment he contends only that:  “The trial court had no jurisdiction to try the prior conviction absent a waiver of a jury trial.   No waiver of a jury trial appears from the record.   Accordingly, the one-year consecutive enhancement added to Green's upper-term sentence must be stricken.”

The People concede that “since appellant did not personally waive his right to jury trial on the prior conviction,” error appears, “and the case must be remanded.”

The only remaining question of the appeal is whether, as argued by the People, the cause should be remanded to the superior court for trial by jury, unless waived, on the issue of the prior convictions, or, as argued by Green, the sentence enhancement resulting from the prior conviction should be stricken, and the lesser sentence be given effect.

We are here concerned with the one-year sentence enhancement of Penal Code section 667.5, “for each prior separate prison term served for any felony.”   Section 667.5 is one of the many recent statutes indicating a strong public policy that recidivist criminals, upon conviction of a felony, shall suffer a greater penalty by reason of their earlier such crimes.

We observe that Green's trial on the issue of his guilt was free from error.   And it has long been the rule that:  “If a trial is free from reversible error, but prejudicial error is committed in the choice of the penalty, there is no need to retry the issue of guilt;  reversal will be ordered only to redetermine the sentence.”  (Witkin, Cal. Criminal Procedure (1963) Appeal, § 727, p. 700;  and see Pen.Code, § 1260;  People v. Love, 53 Cal.2d 843, 858, 3 Cal.Rptr. 665, 350 P.2d 705;  People v. Mariano, 144 Cal.App.3d 814, 820–821, 193 Cal.Rptr. 47;  People v. Vanbuskirk, 61 Cal.App.3d 395, 405, 132 Cal.Rptr. 30;  People v. Massengale, 10 Cal.App.3d 689, 693, 89 Cal.Rptr. 237.)

 We are of the opinion that the interests of justice, and of public policy, would best be served by affirming the judgment as to Green's guilt and remanding the cause for further, and proper, sentencing proceedings on the issue of the Penal Code section 667.5 enhancement.

 Nor do we observe any double jeopardy issue in the appeal before us.   It is a “settled rule that the double jeopardy clause does not prohibit retrial after a reversal premised on error of law.”  (People v. Garcia, 36 Cal.3d 539, 558, fn. 13, 205 Cal.Rptr. 265, 684 P.2d 826.)   Nor is bifurcation for trial before different fact finding tribunals, offensive to that concept.   (See People v. Troche, 206 Cal. 35, 44, 273 P. 767;  People v. Davis, 94 Cal.App. 192, 195–196, 270 P. 715.)

The judgment as to defendant Green's guilt is affirmed, and the cause is remanded to the superior court for further proceedings, in accordance with law and not inconsistent with the views we have expressed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.

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