PEOPLE v. SAUNDERS

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

The PEOPLE, Plaintiff and Respondent, v. Dennis Romero SAUNDERS, Defendant and Appellant.

No. B050162.

Decided: August 07, 1991

Paul M. Posner, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Susan D. Martynec and Pamela C. Hamanaka, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

In 1905, our Legislature declared that when a defendant pleads not guilty to a current offense and denies an allegation that he has suffered a prior felony conviction, the truth of the allegation must be “tried by the jury which tries the issue upon the plea of not guilty” or by the court if a jury is waived.  “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.”  (Pen.Code, § 1025;  emphasis added.) 1

For the following 75 years, our courts consistently read section 1025 to mean what it says—that the jury would hear about the prior unless the defendant either admitted the allegation or waived jury on that issue—and with rhythmic regularity rejected the notion of a bifurcated trial, refusing to impose by judicial legislation a two-tiered trial process never contemplated by section 1025 (or a two-jury process expressly prohibited by section 1025).2

But then along came People v. Bracamonte (1981) 119 Cal.App.3d 644, 650–651, 174 Cal.Rptr. 191, telling us we were all naive in our assumption that the prejudicial effect of evidence of priors could be overcome by instructions to the jury and that the “ ‘weight of modern authority calls for a mandatory two-stage trial for the trial of the collateral issue of enhanced punishment to avoid prejudice to the defendant in the initial determination of the issue of guilt.’  ․” Bifurcation, we were told, “would be at least as economical of court time as the unitary practice” and would “ ‘not offend any principle of orderly procedure nor tend to delay justice.   In fact it might well expedite justice, for if a defendant is acquitted on the substantive charge, there is no occasion to take time to present evidence of prior convictions.’  ․” (Id. at p. 653, 174 Cal.Rptr. 191.)

Time and experience have proved Bracamonte wrong.   The problem is that Bracamonte did not anticipate the next step—the California rule that if the trial court improvidently discharges the jury after it returns its guilty verdict but before the issue of the prior is tendered to it, double jeopardy considerations prohibit the impaneling of a new jury to try the issue of the prior.  (People v. Wojahn (1984) 150 Cal.App.3d 1024, 1035, 198 Cal.Rptr. 277.)   Not surprisingly, several courts have recognized the problem thus created and have refused to follow either Bracamonte or Wojahn or both.   What is surprising is that each of those decisions has been decertified by our Supreme Court and a petition for review has yet to be granted on this issue.3

The message is clear, but there is a dark side to it.   A defense attorney who represents to the court that jury will be waived on the issue of the prior must renege if the trial court erroneously discharges the jury before taking the jury waiver or be found incompetent.   As will appear, that is precisely what happened in this case.

We can no longer go along with the game.   For the reasons we explain in more detail below, we part company with Bracamonte and conclude that neither constitutional considerations nor concepts of fundamental fairness require bifurcation when a prior felony conviction is alleged.   If a defendant stands on his right to have a jury decide whether in fact he has suffered a prior felony conviction as alleged, that issue should be determined along with all other issues in the case and bifurcation is not required.   If there is a bifurcated trial and the defendant is convicted of the new charges, a discharge of the jury does not preclude trial of the priors.

FACTS

By amended information, Dennis Romero Saunders was charged with attempted murder (with a firearm), commercial burglary and assault with a firearm.   Among other special allegations, sixteen prior convictions (three prior separate prison terms) were also alleged:

Saunders pleaded not guilty, denied all of the special allegations (including the priors) and the case was tried to a jury.   Saunders' motion to bifurcate trial on the priors was granted but his motion to preclude impeachment by reference to the priors in the event he testified was denied (although the trial court did limit the prosecutor to three counts of burglary, six counts of robbery, one count of attempted robbery, and the conviction for possessing stolen mail).

Saunders testified on his own behalf.   On direct, he admitted his prior convictions for possession of stolen mail (in 1975), three counts of burglary (in 1980) and one count of attempted robbery (in 1988), explaining to the jury that he had pleaded guilty to all of these offenses because “I was guilty of the charges.”   He also admitted on direct that he was on parole at the time of the offenses charged in this case.   On cross-examination, Saunders admitted that his 1980 guilty plea included five counts of robbery in addition to the three counts of burglary;  that in 1980 he was convicted of six and not merely five counts of robbery;  and clarified that in 1988 he was convicted of attempted robbery, not robbery.   Thus, eleven of the sixteen priors were admitted.

On March 15, 1990, the jury acquitted Saunders of the attempted murder and assault charges but convicted him of commercial burglary.   Without obtaining a waiver from Saunders of his right to have the jury determine whether the allegations concerning his priors were true, the jury was discharged and the matter was continued to the next day.   All of this took place in the absence of Saunders' trial counsel (Deputy Public Defender Janet Aldapa), who could not be present and had another attorney from her office stand in for her.

Ms. Aldapa was back in court on March 16, 1990.   In response to the trial court's inquiry, she confirmed that it was Saunders' intent to waive jury on the priors and the trial court then obtained a jury waiver from Saunders, with Ms. Aldapa's concurrence.   The Deputy District Attorney joined in the waivers and offered certified copies of Saunders' prior convictions.   The documents were received and the trial court indicated it would hear argument at the next hearing date.   The matter was continued to March 19, without any inquiry from Ms. Aldapa about the status of the jury.

On March 19, Ms. Aldapa asked the trial court to strike the priors on the ground that the jury was dismissed prior to Saunders' jury waiver.   The trial court reminded counsel that she had “indicated to the court that [after she reviewed the paperwork] there would most likely be a stipulation to [the priors].   But at the very most, we would need a court trial in regards to that and for sure there would be a waiver of the jury.”   The court indicated its intent to reject counsel's jeopardy argument on the ground that the court had been misled by her representations that jury would be waived, but offered to relieve Saunders of his jury waiver and call in a new jury to try the priors.

Without apology, Ms. Aldapa explained that when she returned to court on March 16, she “assumed” the jury had been “excused,” not “discharged,” and based on that assumption had told her client “there's no issue because a jury has not been discharged, so just waive jury ․ it's the best thing to do under the circumstances.   He agreed to a jury waiver based on the information I gave to him.  [H]ad I been informed that the jury had been discharged, I would never have waived jury.”

The trial court stood by its intended decision and a second jury was selected.   Pursuant to stipulation, the new jury was informed that Saunders had, in two prior trials (there was an earlier mistrial in the case at bench) admitted several of the charged felonies.   This was followed by testimony from a fingerprint classifier that Saunders' prints matched the prints on a certified record obtained from the United States Penitentiary at Lompoc, California, and by the custodian of records for the Department of Corrections of the State of California who authenticated and explained the “proof of priors” package for Saunders' state court convictions.   The People rested.   Ms. Aldapa's motion to dismiss the prior federal conviction was denied and the defense rested.

Upon completion of the prosecutor's opening argument, Ms. Aldapa waived closing argument.4  The jury was instructed and retired to deliberate at 3:00 p.m.   At 4:06 p.m., the jury returned to the courtroom with its verdict, finding true the allegations (1) that Saunders had been convicted of possession of stolen mail (for which he served a prior prison term) prior to his conviction in this case and that he remained free of custody for a period of less than five years;  (2) that Saunders had been convicted of two counts of rape, two counts of oral copulation, three counts of burglary, and six counts of robbery (for which he served a prior prison term) prior to his conviction in this case and that he remained free of custody for a period of less than five years;  and (3) that Saunders had been convicted of attempted robbery (for which he served a prior prison term) prior to his conviction in this case and that he remained free of custody for a period of less than five years.

Saunders was sentenced to the upper term of three years on the commercial burglary conviction, plus one year each for the three prior separate prison terms, a total of six years.   This appeal followed.

DISCUSSION

I.

 Saunders contends that the verdict on the priors cannot stand because jeopardy attached when the first jury was sworn and, upon discharge of that jury, he was home free insofar as the priors were concerned.   We disagree.

A.

Section 1025 requires that when a defendant is charged with having suffered a prior felony conviction, he must be asked at the time he pleads to the charged offense whether he has suffered the prior conviction.   If he admits the prior, his answer is conclusive of the fact in all subsequent proceedings.   If he denies the prior, “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․  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.”

From the time section 1025 was enacted in 1905 until 1981, the courts uniformly rejected suggestions that, when the prior was denied, the defendant was entitled either to bifurcation or to a separate jury on the issue of the prior.  (See cases cited in fn. 2, ante.)

B.

Things changed in 1981.   In People v. Bracamonte, supra, 119 Cal.App.3d 644, 174 Cal.Rptr. 191, the information charged one count of burglary and alleged that Bracamonte had suffered five prior felony convictions within the meaning of subdivision (b) of section 667.5.   Bracamonte, who pled not guilty and denied the priors, moved to bifurcate the trial on the issues of guilt and the validity of the prior convictions on the ground that it would be “highly prejudicial” to have the same jury determine both issues at the same trial.   The motion was denied.   Bracamonte also moved to exclude the use of his prior convictions for impeachment.   That motion too was denied and, since he testified on his own behalf, the jury was instructed that the priors could be considered to evaluate Bracamonte's credibility.  (Id. at p. 648, 174 Cal.Rptr. 191.)   The jury convicted Bracamonte of the charged offense and found four of the five priors to be true.

Division Three of our District reversed, holding that the “unitary procedure, though heretofore accepted in this state, needlessly exposed defendant to serious potential prejudice by revealing his prior criminality without advancing any legitimate state interest.”  (Id. at p. 649, 174 Cal.Rptr. 191.)   The court also held that, under the Beagle standard then in effect (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1), four and possibly all five of the priors (possession of heroin, escape without force, attempted robbery and two burglaries) should not have been admitted for impeachment.  (People v. Bracamonte, supra, 119 Cal.App.3d at pp. 649, 655–656, 174 Cal.Rptr. 191.)

More specifically, Bracamonte held the unitary procedure was “unnecessarily prejudicial and, under the circumstances of this case, deprived defendant of his due process rights to a fair trial․”  (Id. at p. 650, 174 Cal.Rptr. 191.)   According to Bracamonte, the “ ‘weight of modern authority calls for a mandatory two-stage trial for the trial of the collateral issue of enhanced punishment to avoid prejudice to the defendant in the initial determination of the issue of guilt.’ 5  (People v.Fullerton (1974) 186 Colo. 97 [525 P.2d 1166, 1167.)   The bifurcated procedure ․ whereby the same jury determines both issues separately is considered the fairest, most desirable procedure, because it combines efficiency, adequate notice to the defendant, and due regard for the right to a jury trial with lack of prejudice to the defendant․  Under this procedure, the prior convictions are alleged in the latter part of the information, which is not read to the jury unless it first finds the defendant guilty of the charged offense;  then the jury is read the allegations of the priors, the evidence thereon is presented and the jury determines the validity of the prior convictions.”  (Id. at p. 651, 174 Cal.Rptr. 191.)

Conceding that California's courts had until then consistently upheld the validity of the unitary procedure as serving the twin aims of judicial convenience and economy, Bracamonte nevertheless concluded “that there is no justification for further adherence to this rule.”  (Id. at p. 652, 174 Cal.Rptr. 191.)   A two-tier trial would not conflict with the requirement of section 1025 that the same jury hear both issues and it would “be at least as economical of court time as the unitary practice.   Such a procedure ‘does not offend any principle of orderly procedure nor tend to delay justice.   In fact it might well expedite justice, for if a defendant is acquitted on the substantive charge, there is no occasion to take time to present evidence of prior convictions.’  (State v. Stewart (1946) 110 Utah 203 [171 P.2d 383, 387].)”  (People v. Bracamonte, supra, 119 Cal.App.3d at pp. 652–653, 174 Cal.Rptr. 191.)

With commendable candor, Bracamonte announced as a “judicially declared rule of practice” that when “a defendant pleads not guilty of priors and a jury trial thereof is not waived, he is entitled to a bifurcated proceeding wherein the jury is not informed of his prior convictions, either through allegations in the charge or by the introduction of evidence, until it has found the defendant guilty․  ‘Whether or not it is constitutionally permissible, the practice is prejudicial and unfair to the ․ defendant and must be altered․’ ”  (Id. at pp. 654–655, 174 Cal.Rptr. 191.) 6

C.

It was inevitable that, post-Bracamonte, trial judges would through inadvertence sometimes discharge juries after receiving the verdict on the new charges without first obtaining a jury waiver on the issue of priors.   It was equally inevitable that on appeal a creative lawyer would suggest that a defendant's statutory entitlement to trial of both issues by the same jury barred a trial by a second jury or by the court.   So too was it inevitable that a reviewing court would agree.   The inevitable happened in People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, in which Division Three of the First District held that section 1025 does not permit the trial court, for good cause or any cause, to impanel a new jury to try the prior.   “On the contrary, the Legislature has said, as plainly as can be said in legislative jargon, that the jury that convicts must try the issue of whether or not the defendant suffered the alleged prior conviction.”  (Id. at p. 1034, 198 Cal.Rptr. 277.)

Accordingly, Wojahn 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․  [¶]  It may be that the result of our decision is that something less than a full measure of justice will have been done in this case but as our Supreme Court said in Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345, ․ ‘ “ ‘Assuming a failure of justice in the instant case, it is outweighed by the general personal security afforded by the great principle of freedom from double jeopardy.   Such misadventures are the price of individual protection against arbitrary power.’ ” ' ”  (People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.) 7

D.

In our view, the “failure of justice” cavalierly dismissed by Wojahn transcends any one case and is no longer (if it ever was) outweighed by any principle of freedom, great or small.   The price is too high.

The Bracamonte–Wojahn conundrum places defense counsel in an untenable position.   If counsel permits the defendant to waive jury on the prior at the beginning of trial without giving the trial court an opportunity to improvidently discharge the jury, counsel is per se ineffective and thus creates reversible error on appeal, at least insofar as the resulting sentence enhancement is concerned.   If counsel represents to the court that there will be a jury waiver as to the prior, counsel must renege if the trial court erroneously discharges the jury before taking the jury waiver, or again be found incompetent.   The price, then, is a “gotcha” type of advocacy which, although inconsistent with professional candor and trust, is nevertheless mandated by Bracamonte and Wojahn.

Once the jury is discharged, counsel's obligation to the court ends and is replaced with the absolute duty to ensure that the defendant takes advantage of the trial court's mistake.   There can be no valid reason ever to waive a jury earlier in the proceedings, for to do so deprives the defendant of the possibility of a beneficial error.   A pre-trial or mid-trial representation by counsel to the court that there will be a jury waiver on the prior must be withdrawn.   Either way, the defendant walks, at least on the enhancement.

To make matters worse, this extravagant price does not buy the “individual protection against arbitrary power” contemplated by the cases.   We are not talking about precious rights.   We are not proposing to deprive a defendant of a trial by jury on the issue of guilt.   In the context of the case at bench, we are not even talking about placing before the jury evidence that would otherwise be inadmissible.   Although in Bracamonte the court determined that the priors were not admissible for impeachment, there is no such claim of error made here.8  Eleven of the sixteen priors were admitted by Saunders at trial.   Viewed from this perspective, the last thing Saunders wanted was to have the jurors who heard his admissions decide he had suffered the same priors he admitted.

The Bracamonte–Wojahn temple of “individual protection against arbitrary power” is built of straw and is easily blown away by a slight gust of reality.   First, bifurcation does not expedite justice.   The time saved when a defendant is acquitted of the current charges is de minimus.   In the vast majority of cases, priors are either admitted (requiring no proof) or are proved in uncontested hearings by certified copies of court and prison records.   Even when testimony is presented, as it was in Saunders' case, the whole process is over in the blink of an eye.

Second, when the defendant testifies in his own defense, the priors often will be admissible for impeachment purposes.

Third, but for the cat-and-mouse game created by Bracamonte and Wojahn, in most cases the right to a jury determination on the priors is meaningless.   There are no questions of credibility, no issues fueling the fires of passion or prejudice, nothing provocative to grab a juror.   All the jury is asked to do is to determine whether uncontroverted certified documents showing that the defendant served a prior prison term for a prior felony conviction mean that the defendant suffered a prior felony conviction.   To describe the process is to demonstrate its absurdity.  (People v. Trujillo, supra, 154 Cal.App.3d at pp. 1090–1091, 202 Cal.Rptr. 832;  People v. Martinez (1985) 175 Cal.App.3d 881, 900, 221 Cal.Rptr. 258 (conc. opn. of Woolpert, J.) [“If the defendant testifies and admits the prior conviction for impeachment purposes, it is likely the deferred issue will then disappear with a belated admission for enhancement purposes”].)

Fourth, Wojahn's conclusion that double jeopardy considerations apply to proof of priors alleged as enhancements is not universally accepted and, in our view, is not constitutionally mandated.  (See, e.g., State v. Rogers, supra, 602 P.2d at pp. 618–619;  State v. McIntyre, supra, 496 So.2d at p. 1207.)

E.

There are a number of ways to correct this problem.   We could preserve the concept of bifurcation but do away with the notion that double jeopardy considerations apply to trial of the priors.   If we felt compelled to stick with the jeopardy notion, we could put Bracamonte on the ash heap, return to the unitary procedure, and once again require members of the bar to honor their obligations to the court, to their profession and to their reputations.   And since the right to a jury trial on the priors is not constitutionally created but rather exists as a creature of statute, the Legislature could amend section 1025 to abolish the right to trial by jury on the priors (or at least eliminate the right to trial by the same jury) when priors are alleged not as an element of a new offense but only as enhancements.

In our view, the legally correct analysis requires a return to the unitary system of trial and we therefore choose not to follow Bracamonte.   The fact that other courts have tried to do the same and failed does not deter us.9  If nothing else, we add our voices to those of our colleagues with the hope that, at some point, the cry for help will be heard by the Supreme Court.

 We hold that neither constitutional considerations nor concepts of fundamental fairness require bifurcation when a prior felony conviction is alleged.   If a defendant denies the allegation and exercises his right to have a jury decide whether in fact he has suffered a prior felony conviction, that issue may be determined in a unitary trial.   If in the exercise of its discretion the trial court does bifurcate trial of the prior, a jury waiver is valid if given following discharge of the jury after it returns its verdict on the issue of guilt.   In the latter circumstance, the defendant's agreement to the discharge of the jury (whether expressed or by failure to object) is, as a matter of law, a waiver of the right to claim that double jeopardy considerations preclude a subsequent trial of the prior.   If there is no waiver of a jury trial on the priors before or after the jury is discharged, the defendant's agreement to the discharge of the jury (whether expressed or by failure to object) is, as a matter of law, a waiver of the right granted by section 1025 to have the same jury try both issues and considerations of double jeopardy do not preclude trial of the priors to a second jury.10

As applied to Saunders, this means his failure timely to object to the discharge of the first jury waives his claims of double jeopardy and ineffective counsel.   Trial of the enhancements to a second jury was proper and there was no error.

II.

 Saunders contends that his prior federal conviction for possession of stolen mail cannot enhance his sentence because the elements of the former offense do not include all of the elements of a California felony.   We disagree.

 Subdivision (f) of section 667.5 permits enhancement of prison terms for a new offense based on a prior prison term arising from a conviction in another jurisdiction “for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.”   What this means is that “enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony.”  (People v. Crowson (1983) 33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389.)   The fact that California does not have a specific crime labeled the same as the federal offense is immaterial and the trier of fact may look to the entire record to determine the substance of the prior foreign conviction.  (People v. Guerrero (1988) 44 Cal.3d 343, 352–355, 243 Cal.Rptr. 688, 748 P.2d 1150.)

Saunders was convicted in federal court of a violation of 18 U.S.C. section 1708, which prohibits the theft or receipt of stolen mail.11  More specifically, the federal indictment charged in count one that Saunders' two codefendants “unlawfully had in their possession the contents of a letter, which had been stolen from the mail, addressed to Litton Industries, Inc., at P.O. Box 5555, Beverly Hills, California 90210, and at said time and place the defendants well knew said contents of said letter had been stolen.   [¶]  At said time and place the defendant Dennis Saunders aided, abetted, counseled, and procured the commission of the above alleged offense.”   Count two charged the same offense with regard to a second letter.   Following a plea of guilty to count one, Saunders was sentenced (he was originally granted probation but it was subsequently revoked and he was sentenced to prison) and count two was dismissed.

Reduced to plain English, Saunders was convicted of aiding and abetting his codefendants' possession of a stolen letter, knowing the letter was stolen.   These are, in fact, the elements of the federal offense of possession of stolen mail (possession of mail that was stolen, with knowledge that it was stolen).   (United States v. Hall (5th Cir.1980) 632 F.2d 500, 502.)

 In California, section 496, subdivision 1, provides (as relevant) that “[e]very person who ․ receives any property which has been stolen ․ or who conceals, ․ withholds or aids in concealing ․ or withholding any such property from the owner, knowing the property to be so stolen or obtained, is punishable by imprisonment in a state prison, or in a county jail for not more than one year;  provided, that where the district attorney or the grand jury determines that such action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed ․ $400, specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in the county jail not exceeding one year.”   Concealing stolen property is a distinct and separate offense from receiving stolen property.  (Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343, 146 Cal.Rptr. 311.)

We see no difference between aiding and abetting the possession of stolen mail, knowing it to be stolen, and aiding and abetting the concealment of stolen property (which necessarily includes stolen mail), knowing it to be stolen.   The fact that concealing stolen property may be prosecuted as a misdemeanor is, in our view, immaterial.   It may also be prosecuted as a felony and that is all that matters.   The enhancement was properly imposed.

III.

 Saunders next contends the trial court should not have imposed the upper term of three years for his second degree burglary conviction.   We disagree.   Among several other factors cited by the trial court, reference was made to the fact that Saunders was on parole at the time of the current offense (Cal.Rules of Court, rule 421(b)(4)).   Since one factor alone warrants imposition of the upper term (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319, 262 Cal.Rptr. 331), no more was required.

IV.

Saunders' final contention is that the trial court made a mistake in calculating good time/work time credits.   The People agree and so do we.   Saunders is entitled to 434 days credit, not 347.

DISPOSITION

The judgment is affirmed with directions to the trial court to modify the abstract of judgment to reflect the credits to which Saunders is entitled, a total of 434 days (consisting of 290 days actually served, plus 144 days for good time/work time credits).

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Penal Code.

2.   See, e.g., People v. Kingsbury (1945) 70 Cal.App.2d 128, 131, 160 P.2d 587;  People v. Collins (1953) 117 Cal.App.2d 175, 183, 255 P.2d 59;  People v. Douglas (1960) 187 Cal.App.2d 802, 808, 10 Cal.Rptr. 188;  People v. Hoerler (1962) 208 Cal.App.2d 402, 408–409, 25 Cal.Rptr. 209;  People v. Hickok (1964) 230 Cal.App.2d 57, 60, 40 Cal.Rptr. 687;  People v. Mason (1969) 269 Cal.App.2d 311, 313, 74 Cal.Rptr. 708;  People v. Cruz (1970) 6 Cal.App.3d 384, 394, 85 Cal.Rptr. 918;  People v. Guillen (1974) 37 Cal.App.3d 976, 979, 113 Cal.Rptr. 43;  People v. Owens (1980) 112 Cal.App.3d 441, 446–447, 169 Cal.Rptr. 359.

3.   See People v. Armstrong, 225 Cal.Rptr. 545 (Cal.App. A028438) review denied August 14, 1986, and opinion ordered depublished;  People v. Ware, 252 Cal.Rptr. 641 (Cal.App. B021999) review denied February 2, 1989, and opinion ordered depublished;  People v. Jackson, 254 Cal.Rptr. 639 (Cal.App. A039259) review denied April 5, 1989, and opinion ordered depublished;  People v. Laury, 257 Cal.Rptr. 480 (Cal.App. A043042) review denied July 20, 1989, and opinion ordered depublished April 26, 1990;  People v. Casillas, 263 Cal.Rptr. 915 (Cal.App. A043679) opinion ordered depublished April 26, 1990.   Compare People v. Trujillo (1984) 154 Cal.App.3d 1077, 1090–1091, 202 Cal.Rptr. 832, which somehow survived despite its criticism of Bracamonte, with People v. Crenshaw, 225 Cal.Rptr. 567 (Cal.App. B010160) review denied August 5, 1986, and opinion ordered depublished, which required a trial court sua sponte to advise a defendant charged with an allegation of a prior of his right to bifurcation.

4.   The “trial” of the priors was a farce.   As the court observed in People v. Trujillo, supra, 154 Cal.App.3d at p. 1091, 202 Cal.Rptr. 832, “[i]t is doubtful that a true factual question appropriate for a jury's resolution has ever arisen with respect to a charged prior term of imprisonment.   An accused either is the person who was so imprisoned or he is not.   Not only will he and his counsel entertain no doubt on this score, fingerprints, photographs and official documents resolve any rational dispute on the point beyond cavil.   Any debate concerning the constitutionality of the underlying convictions or the nature of the offenses involved therein, present legal, not factual, issues as to which a jury's opinion will be quite irrelevant in any event.”

5.  While it is technically true that “the weight of modern authority” favors bifurcation, it is not true that other jurisdictions employ the procedure with the same conditions now extant in California.   Our cursory research shows that, in addition to the Model Penal Code, at least 20 states which now provide for bifurcated trials also provide that the issue whether the defendant has suffered a prior conviction may be determined by a court trial.  (Model Pen.Code, § 7.03;  Ala.Code, § 13A–5–10, Ala.R.Crim.Proc., rule 26.6;  Alaska Stat., § 12.55.145;  Del.Code Ann., tit. 11, § 4215;  D.C.Code, § 23–111;  Fla.Stat.Ann., § 775.084;  Hawaii Rev.Stat.Ann., §§ 706–662, 706–666;  Kan.Stat.Ann., § 21–4504;  La.Rev.Stat., § 15:529.1;  Md.Code Ann., Md.Rules, rule 4–245;  Mont.Code Ann., § 46–18–503;  Neb.Rev.Stat., § 29–2221;  Nev.Rev.Stat.Ann., § 207.010;  N.H.Rev.Stat.Ann., § 651:6;  N.J.Stat.Ann., § 2C:44–6;  N.M.Stat.Ann., § 31–18–20;  N.Y.Crim.Proc.Law, § 400.15 et seq.;   N.D.Cent.Code Ann., § 12.1–32–09;  Ore.Rev.Stat.Ann., § 161.725;  Pa.Consol.Stat.Ann., tit. 42, § 9714;  R.I.Gen.Laws, § 12–19–21.)At least one state permits the use of a second jury to try a prior conviction allegation upon a showing of “good cause.”  (See, e.g., Ky.Rev.Stat., § 532.080.)   Still other states have hybrid systems where both judge and jury participate in the decision making process regarding allegations of priors.  (Compare Ark.Code Ann., § 5–4–502 [court determines the number of priors and instructs jury which then determines sentence] with Iowa Code Ann., § 813.2, Iowa R.Crim.Proc., rule 18 [jury determines whether the defendant is the same person previously convicted;  judge determines “all other objections”].)Finally, at least two jurisdictions have rejected the Wojahn double jeopardy analysis and, upon a failure of proof on an allegation of a prior conviction, permit retrial of the prior.  (See State v. Rogers (1979) 93 N.M. 519, 602 P.2d 616, 618–619;  State v. McIntyre (La.App. 5th Cir.1986) 496 So.2d 1204, 1207.)

6.   The unitary practice is clearly constitutional.  (See Spencer v. Texas (1967) 385 U.S. 554, 567–569, 87 S.Ct. 648, 655–56, 17 L.Ed.2d 606 [“To say that the two-stage jury trial ․ is probably the fairest, as some commentators and courts have suggested, and with which we might well agree were the matter before us in a legislative or rule-making context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment.   Two-part jury trials are rare in our jurisprudence;  they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.   With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to [compel a bifurcated trial].   This we are unwilling to do”].)

7.   Other jurisdictions have held that jeopardy does not attach where there has been a failure of proof on an allegation of a prior criminal conviction.  (See, e.g., State v. Rogers, supra, 602 P.2d at pp. 618–619;  State v. McIntyre, supra, 496 So.2d at p. 1207.)

8.   Times have changed.   Today, “[a]ny prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding․”  (Cal. Const., art. I, § 28, subd. (f) [“Proposition 8”].)   Although the one opinion holding that Proposition 8 abolished the Bracamonte bifurcation rule was withdrawn after the Supreme Court granted hearing and transferred the case back to the Court of Appeal (People v. Miller (Cal.App. 2 Crim. 43611, Div. I) hg. granted Mar. 22, 1984 (Crim. 23735) retrans. to Ct.App. with directions, Feb. 14, 1986, and opn. ordered nonpub.), subdivision (f) of section 28 survives insofar as it addresses the admissibility of priors for purposes of impeachment, subject to the trial court's exercise of discretion under Evidence Code section 352 to exclude priors when the risk of prejudice is substantial.  (People v. Castro (1985) 38 Cal.3d 301, 312, 211 Cal.Rptr. 719, 696 P.2d 111;  see also People v. Tipton (1984) 160 Cal.App.3d 853, 856, 206 Cal.Rptr. 821 [holding that Proposition 8 did not overrule Bracamonte ].)

9.   In People v. Armstrong (as in all of the decertified cases cited in fn. 3, ante, and the case at bench), the trial court inadvertently discharged the jury after it returned its verdict of guilty.   The trial court (when reminded of the prior) held that it was a “legal issue” to be tried by the court.   On appeal, Division One of the First District affirmed the conviction but remanded for a jury trial on the prior, holding that two juries were better than one because voir dire of the second jury could then properly address issues relevant to the priors.  Armstrong was decertified by order of the Supreme Court.   (Compare People v. Trujillo, supra, 154 Cal.App.3d at p. 1091, 202 Cal.Rptr. 832.)In People v. Ware, the trial court inadvertently discharged the jury after it returned its verdict of guilty, without objection from defense counsel or the prosecutor.   After he was later given his choice of admitting the prior or trying it to the court or a jury, the defendant waived jury.   A few days later, defense counsel woke up and filed a motion to strike the prior.   Under the compulsion of Wojahn, the trial court granted the motion.   Division Five of our District reversed, distinguishing Wojahn by finding the waiver valid and explaining that while section 1025 requires that the same jury try both issues, it specifically authorizes a jury waiver.  Ware was decertified by order of the Supreme Court.In People v. Jackson, Division Three of the First District—the same court that authored Wojahn—backed down from its earlier position.   In Jackson, the jury was inadvertently discharged after it returned its verdict of guilty and after an indication from defense counsel that jury would be waived on the priors (two of which had been admitted by the defendant when he testified).   The defendant later personally waived jury.   On appeal, the court held that while a waiver by counsel alone is insufficient, any error was harmless because the record reflected that a waiver by the defendant would have been forthcoming earlier had it simply been requested.  “We think serious question can be raised regarding whether and when jeopardy attaches to an allegation of a prior;  we express no view on the validity of our double jeopardy discussion and holding in Wojahn.”  Jackson was decertified by order of the Supreme Court.In People v. Laury, the jury was inadvertently discharged after the jury returned its verdict of guilty, and without a jury waiver on the priors (one of which had been admitted by the defendant while testifying during trial).   The prior was tried to the court without objection.   Division Four of the First District affirmed the conviction but remanded for retrial of the prior because the defendant had not waived his right to a jury trial on that issue.   On the jeopardy issue, the court refused to follow Wojahn (notwithstanding its awareness that the Supreme Court had decertified Ware and Jackson ), noting that the defendant “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.”  Laury was decertified by order of the Supreme Court.In People v. Casillas, the jury was inadvertently discharged after it returned its verdict of guilty and a jury waiver was thereafter obtained.   A later motion to strike the prior was denied.   On appeal, the defendant claimed his trial counsel was incompetent for advising him to waive jury on the prior.   Division Three of the First District—the same court that wrote Wojahn and Jackson—accepted the argument on the ground that, by declaration, defense counsel admitted he was unaware of Wojahn at the time of trial.  “Had counsel not advised defendant to waive his right to a jury trial the five-year enhancement would not have been imposed.”   A concurring opinion questioned the analysis of this issue and a dissenting opinion criticized the majority for finding “a trial attorney incompetent because he or she does not endeavor to ‘sandbag’ the trial judge.”   Casillas was decertified by order of the Supreme Court.

10.   One of the underpinnings of Bracamonte—the “naive assumption that prejudicial effects can be overcome by instructions to the jury”—is not, in our view, the “unmitigated fiction” perceived by that court.  (People v. Bracamonte, supra, 119 Cal.App.3d at p. 650, 174 Cal.Rptr. 191.)   The “jury is expected to follow instructions in limiting [evidence of prior offenses] to its proper function” (Spencer v. Texas, supra, 385 U.S. at p. 562, 87 S.Ct. at p. 653) and, as graphically established by the record before us, a defendant's admission of eleven priors does not lead inexorably to conviction of all new crimes charged—Saunders was acquitted of two of the three new offenses charged against him and was convicted only of the least serious charge.   We do ourselves a great disservice if we underestimate the ability of a jury to reach the right result in a criminal case.  (Id. at p. 565, fn. 8, 87 S.Ct. at p. 654, fn. 8 [describing a study of “prior crime evidence” admitted on the issue of credibility which contrasted the effect of such evidence on judges and juries and concluded that “ ‘Neither the one nor the other can be said to be distinctively gullible or skeptical’ ”].)

11.   Section 1708 provides that:“Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein;  or“Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter;  or“Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted—“Shall be fined not more than $2,000 or imprisoned not more than five years, or both.”

VOGEL, Associate Justice.

DEVICH, Acting P.J., and ORTEGA, J., concur.

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