PEOPLE v. EPPS (1999)

PROCEDURAL BACKGROUND

On November 14, 1997, a six-count information was filed against appellant Dennis Lee Epps. Counts 1 and 6 charged appellant with assault with a firearm (Pen.Code, § 245, subd. (a)(2)) ¹ and included an allegation that appellant personally used a firearm (§ 12022.5, subds.(a) & (d)).   Count 2 charged appellant with possession of a firearm by a felon (§ 12021, subd. (a)(1)).   Count 3 charged appellant with sale or transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)).  Count 4 charged appellant with possession of marijuana for sale (Health & Saf.Code, § 11359).   Count 5 charged appellant with possession of a controlled substance for sale (Health & Saf.Code, § 11351).²

The information alleged as to counts 3 and 4 that appellant was armed with a firearm (§ 12022, subd. (a)(1)).   Furthermore, the information alleged that appellant had a prior conviction for a serious or violent felony or juvenile adjudication (§§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)), a prior conviction for a serious felony (§ 667, subd. (a)(1)), and four prior convictions (§ 667.5, subd. (b)).

Appellant pled not guilty and denied the allegations.   The trial court bifurcated trial of the prior conviction allegations, and trial by jury commenced on March 11, 1998.   On March 16, 1998, the jury found appellant guilty on all counts and found true the allegations concerning the personal use of a firearm.   On the same date, the trial court held a bench trial on the prior conviction allegations, and found the allegations of prior convictions to be true.

On April 15, 1998, the trial court sentenced appellant to a term of 34 years, 8 months in state prison, and ordered appellant to pay a $5,000 restitution fine (§ 1202.4).   This appeal followed.

FACTS

A. Prosecution Evidence

At approximately 9:30 p.m. on October 17, 1997, two plainclothes police officers, James McBride and Steve Carrillo, were conducting surveillance of a residence located at 1537 East 53rd Street in Los Angeles.   While McBride and Carrillo drove past the residence, McBride saw appellant standing on the residence's front porch.   The officers executed a U-turn and parked in front of the residence.

Appellant approached the officers' vehicle, removed a handgun from his coat pocket, pointed the gun at the two officers, and said something like, “ ‘Do you want some of this?’ ”   The officers immediately drove away and tried unsuccessfully to radio for assistance.   They went to the Newton Police Station and told Police Officers Alan Farber and Greg McKnight about the incident.   Farber, McKnight, McBride, Carrillo, and several uniformed police officers returned to the residence and arrested appellant.   When arrested, appellant had a partially opened suitcase in his possession.   The suitcase contained a loaded .32 caliber chrome revolver, small plastic bags containing marijuana and heroin, balloons, and a scale.

B. Defense Evidence

On October 17, 1997, Sally Pritchett, who lives at 1535 East 53rd Street, heard a commotion outside.   Ms. Pritchett went to the door and observed the police lead appellant, her neighbor, away from a car in which her son had been seated.   Ms. Pritchett saw a police officer remove a suitcase from the rear passenger side of the car and place it on the car's trunk.

DISCUSSION

Appellant contends that the trial court improperly (1) failed to give Boykin/Tahl admonitions, (2) denied appellant's request for a jury trial on the issue of prior convictions, and (3) instructed the jury on the intent element of assault.

A. Boykin/Tahl Admonitions

 Appellant contends that the trial court erroneously failed to give Boykin/Tahl admonitions when he stipulated to his prior felony convictions in connection with count 2, which charged him with possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)).   We are not persuaded.

The admonitions in question arise from the holdings in 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.   In Boykin, the United States Supreme Court held that when a defendant voluntarily enters a guilty plea, the trial court must affirmatively establish that the defendant is aware of the constitutional rights that he or she is waiving.  (Boykin v. Alabama, supra, at pp. 242-244, 89 S.Ct. 1709.)   These rights include the right to a jury trial, the right against self-incrimination, and the right to confront one's accusers.  (Id. at p. 243, 89 S.Ct. 1709.)   In Tahl, our Supreme Court extended the Boykin ruling by requiring that the record must expressly show the defendant entered a guilty plea and waived his or her constitutional rights following the trial court's enumeration of those rights.  (In re Tahl, supra, 1 Cal.3d at pp. 131-132, 81 Cal.Rptr. 577, 460 P.2d 449.)

Here, the trial court addressed count 2 before trial and suggested that appellant's counsel stipulate to a sanitization of the prior felony convictions.   Appellant's counsel agreed.   The trial court then asked appellant:  “THE COURT:  Mr. Epps, it is alleged in the information that you have a number of prior felony convictions.   Rather than tell the jury about all of these prior felony convictions, what I am asking is, do you contest-that means, do you say that hey, I don't have these prior felony convictions-If you say you don't have them, then the People have to prove them.   If you admit that you have them, that moots that issue and that is only as to count 2.” Appellant agreed to this proposal.

The trial court later instructed the jury that to convict appellant on count 2, the prosecution must prove that appellant had a prior qualifying conviction, a firearm in his possession or under his control, and knowledge of the firearm's presence.  (CALJIC No. 12.44.)   The jury was also instructed that appellant had stipulated to having been convicted of a felony.

Our analysis of the question presented here is guided by People v. Adams (1993) 6 Cal.4th 570, 24 Cal.Rptr.2d 831, 862 P.2d 831.   In Adams, the defendant was charged with committing three felonies while he had been released on bail pending finality of judgment concerning an earlier offense, and he was thus potentially subject to a sentencing enhancement for committing secondary offenses while released on bail pending adjudication of a primary offense (§ 12022.1, subds.(a), (d), (e), (f), (g)).  (People v. Adams, supra, at p. 574, 24 Cal.Rptr.2d 831, 862 P.2d 831.)   The defendant stipulated that he had been on bail at the time of the three charged offenses, but did not receive Boykin/Tahl admonitions.  (People v. Adams, supra, at p. 574, 24 Cal.Rptr.2d 831, 862 P.2d 831.)   Following the defendant's conviction, he argued on appeal that his stipulation was invalid because the trial court had failed to admonish him under Boykin/Tahl.  (People v. Adams, supra, at p. 575, 24 Cal.Rptr.2d 831, 862 P.2d 831.)

The court in Adams held that the stipulation was valid because the fact that the defendant admitted did not conclusively establish that he was subject to the sentencing enhancement, reasoning thus:  “When a defendant who has asserted and received his right to trial, and has waived none of his constitutional rights, elects to stipulate to one or more, but not all, of the evidentiary facts necessary to a conviction of an offense or to imposition of additional punishment on finding that an enhancement allegation is true, the concerns which prompted the Boykin holding are not present.”  (People v. Adams, supra, 6 Cal.4th at p. 581, 24 Cal.Rptr.2d 831, 862 P.2d 831, emphasis added.)   The Adams court thus stated that Boykin/Tahl admonitions are not required when, as here, the defendant stipulates to evidentiary facts that establish fewer than all the elements of an offense.  (People v. Adams, supra, at p. 577, 24 Cal.Rptr.2d 831, 862 P.2d 831.)

 Our Supreme Court's dicta, though not binding upon us, command our serious respect.  (Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212, 262 Cal.Rptr. 513;  People v. Jackson (1979) 95 Cal.App.3d 397, 402, 157 Cal.Rptr. 154.)   We recognize that the dictum in Adams potentially conflicts with statements by our Supreme Court in In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 ³ and People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826, disapproved on other grounds in People v. Valentine (1986) 42 Cal.3d 170, 181, 228 Cal.Rptr. 25, 720 P.2d 913.⁴  However, because the Adams court expressly considered Yurko and Hall, the Adams dictum represents our Supreme Court's fullest analysis of the issue before us, and we therefore follow this dictum.  (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1358, 20 Cal.Rptr.2d 515.)

In sum, the trial court did not err in failing to give Boykin/Tahl admonitions when appellant stipulated to his prior convictions.

B. Right to a Jury Trial on the Issue of Prior Convictions

Appellant contends that the trial court committed reversible error by denying his request for a jury trial on the issue of prior convictions.   We agree.

Section 1025 provides:  “(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.”

Here, the record discloses that after the jury returned its verdict, the following exchange occurred:  “THE COURT:  All right.   I plan to excuse the jurors and do the priors trial myself.   I just wanted to give you an opportunity to object on the record if you wanted to object.   I believe Penal Code section 1025 allows the court to hear priors trials.  [¶] MR. PLAUT [appellant's counsel]:  Well, for the record, I'm going to object [.]”  The trial court then immediately dismissed the jury.

During the subsequent bench trial, the prosecutor presented documentary evidence that a Dennis Epps had been convicted of kidnapping in 1982, that a Dennis Epps had been convicted of possession of a controlled substance in 1986, and that a Dennis Lee Epps was convicted of possession of a firearm by a felon in 1990, of possession of a controlled substance and of cocaine base in 1992, and of receiving stolen property in 1995.   The trial court admitted this evidence over appellant's objection.   In addition, a fingerprint expert testified that the fingerprint samples in the documentary evidence matched appellant's fingerprints.   Appellant's counsel presented no affirmative defense, and argued in closing that there was insufficient evidence that appellant was the individual who had committed the prior offenses.   The trial court found that there had been six prior convictions and that appellant was the individual who had suffered these convictions.

 Whether section 1025 permitted the trial court to deny appellant's request for a jury trial is a question that our Supreme Court substantively resolved in People v. Kelii (1999) 21 Cal.4th 452, 87 Cal.Rptr.2d 674, 981 P.2d 518, which was filed while respondent's petition for rehearing in the present case was pending before this court.   In Kelii, the court held that under section 1025, the trial court may properly assess whether a prior conviction qualifies as a strike under the Three Strikes law because this determination is primarily legal in character.  (Id. at pp. 454-456, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   In reaching this conclusion, the court stated that section 1025 preserves a role for the jury in the trial of prior conviction allegations.  (Id. at p. 458, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   Although section 1025 permits the trial court to determine whether the defendant is the person who suffered the alleged prior convictions, it reserves at least one issue for the jury, namely, whether the prior convictions, as alleged, actually exist.  (Id. at pp. 458-459, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   Here, appellant asked for a jury trial, and absent a stipulation or waiver by appellant concerning the issues properly presented to a jury, the trial court erred in denying appellant's request.

 The remaining question is whether the error here is reversible per se.   Article VI, section 13 of the state Constitution declares that generally error is reversible only if it is prejudicial.   This provision states in full:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

 Nonetheless, in criminal proceedings, some errors require reversal without regard to the state of the evidence.  (6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Reversible Error, § 3303, p. 4084.)   These errors include denials of due process under the federal Constitution, as well as denials of state constitutional and statutory rights not rising to a deprivation of federal due process.  (Ibid.) Historically, errors of the latter kind have sometimes been deemed reversible per se when they violate an important limitation on the powers of the trial court, and thus amount to an error in excess of jurisdiction, on the theory that the error would entitle the defendant to relief by writ of habeas corpus or prohibition.  (Ibid.)

 Denial of the constitutionally protected right to a jury trial in a criminal or civil proceeding is reversible per se.  (6 Witkin & Epstein, Cal.Criminal Law, supra, § 3306, p. 4088 [criminal proceedings];  9 Witkin, Cal Procedure (4th ed.   1997) Appeal, § 447, pp. 493-494.)   However, the right to a jury trial under section 1025 is purely statutory in nature.  (People v. Vera (1997) 15 Cal.4th 269, 278, 62 Cal.Rptr.2d 754, 934 P.2d 1279.)

We find guidance on the question before us in cases concerning denials of requests for a jury trial in probate proceedings.   The right to a jury trial in such proceedings is entirely a creature of statute.  (Estate of Beach (1975) 15 Cal.3d 623, 642, 125 Cal.Rptr. 570, 542 P.2d 994; 12 Witkin, Summary of Cal. Law (9th ed.   1990) Wills and Probate, § 381, pp. 406-407.)   Nonetheless, the courts have repeatedly determined that denial of a proper request for a jury trial in probate proceedings is an error in excess of the trial court's jurisdiction, entitling the requesting party to relief from the denial by writ of prohibition.  (Le Jeune v. Superior Court (1963) 218 Cal.App.2d 696, 698, 32 Cal.Rptr. 390;  Mallarino v. Superior Court (1953) 115 Cal.App.2d 781, 784, 252 P.2d 993;  Budde v. Superior Court (1950) 97 Cal.App.2d 615, 622, 218 P.2d 103;  Knight v. Superior Court (1950) 95 Cal.App.2d 838, 839-840, 214 P.2d 21.)   In view of this authority, appellant would have been entitled to relief from the denial of his request without demonstrating prejudice had he sought review by writ rather than by appeal.

 This does not end our inquiry.   As our Supreme Court has explained, the presence of an error in excess of jurisdiction does not entail that it is reversible per se.   In People v. Wilson (1963) 60 Cal.2d 139, 150-154, 32 Cal.Rptr. 44, 383 P.2d 452, the court held that violations of a defendant's constitutional and statutory rights to a speedy trial, although the basis for relief by writ without a showing of prejudice, were not reversible error per se.   The court in Wilson noted that a defendant can waive writ relief from such an error by failing to raise it in a timely fashion, and reasoned that because appellate review, unlike a writ proceeding, could not prevent any improper delay in the trial, it was indistinguishable on appeal from any other procedural error subject to the requirement for a showing of prejudice.

Similarly, in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 528-529, 165 Cal.Rptr. 851, 612 P.2d 941, the court held that violations of a defendant's statutory rights during the preliminary examination, though errors in excess of jurisdiction, were not reversible per se.   The court stated that such errors did not involve the trial court's fundamental power to hear and determine the action, and it limited the right to relief without any showing of prejudice to pretrial challenges by application for extraordinary writ.  (Id. at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941.)

In our view, the case before us falls outside the scope of Wilson and Pompa-Ortiz for three reasons.   Jury trials, whether rooted in constitution or in statute, occupy a privileged position in our legal system.   As the United States Supreme Court stated in Jacob v. New York (1942) 315 U.S. 752, 752-753, 62 S.Ct. 854, 86 L.Ed. 1166, a right to jury trial is “so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, [that this right] should be jealously guarded by the courts.”   Accordingly, the trial court's flagrant denial of a jury trial, though not a departure from its fundamental jurisdiction, is an especially serious act in excess of its jurisdiction.

Second, unlike the situations in Wilson and Pompa-Ortiz, writ proceedings did not offer appellant an effective means of securing his full right to a jury trial under section 1025 before the trial court conducted the bench trial on his prior convictions.   Section 1025 accorded appellant the right to be “tried by the jury that tries the issue upon the plea of not guilty [.]”  Here, the trial court dismissed the jury immediately upon ruling that it would hold a bench trial on the prior convictions.   Because the trial court could not reconvene the jury once it lost control of the jurors (People v. Hendricks (1987) 43 Cal.3d 584, 597, 238 Cal.Rptr. 66, 737 P.2d 1350), no writ, however promptly pursued, could have secured appellant's full right to a jury trial under section 1025.

 Thus, the reasoning in Wilson and Pompa-Ortiz, which presupposes that writ proceedings, in contrast with review by appeal, offer aggrieved defendants an expeditious and fully effective remedy (see People v. Wilson, supra, 60 Cal.2d at pp. 151-152, 32 Cal.Rptr. 44, 383 P.2d 452;  People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941), is inapplicable here.   In the present circumstances, a writ proceeding and review by appeal offer the same limited remedy, namely, a new trial with a new jury.   Absent a principled difference between these two forms of review, we see no basis for requiring a showing of prejudice on appeal but not on application for extraordinary writ.⁵

Third, unlike the errors at issue in Wilson and Pompa-Ortiz, it is highly unlikely that an appellant denied a jury trial under section 1025 could ever show prejudice from this denial.   As respondent observes, there is rarely a disputable factual issue concerning prior conviction allegations.   (People v. Trujillo (1984) 154 Cal.App.3d 1077, 1091, 202 Cal.Rptr. 832.)   Accordingly, requiring appellants denied a jury trial under section 1025 to show prejudice would virtually guarantee that they will never win a jury trial through appellate review.

Respondent contends otherwise, citing People v. Wims (1995) 10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77 and People v. Garcia (1998) 63 Cal.App.4th 820, 73 Cal.Rptr.2d 893.   However, these cases are factually distinguishable.   In both cases, the trial court improperly (but apparently inadvertently) failed to instruct the jury adequately during the guilt phase of the trial to make certain factual determinations pertinent to sentencing.   In Wims, the jury received only partial instructions before it made the sentencing determinations.  (10 Cal.4th at pp. 301-302, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   In Garcia, the governing statute lacked an express provision requiring the jury to make the determinations, and thus the trial court did not instruct the jury to make the determinations, but made these determinations itself after the guilt phase was completed.  (63 Cal.App.4th at pp. 826, 832-833, 73 Cal.Rptr.2d 893.)   The courts in Wims and Garcia concluded that the duty to instruct in the pertinent circumstances arose from a purely statutory right to have the jury resolve the sentencing allegations, classified the errors as “misdirection of the jury” within the meaning of article VI, section 13, and required the appellants to show prejudice.  (People v. Wims, supra, 10 Cal.4th at pp. 303-315, 41 Cal.Rptr.2d 241, 895 P.2d 77;  see People v. Garcia, supra, 63 Cal.App.4th at pp. 832-835, 73 Cal.Rptr.2d 893.)   By contrast, the trial court here did not merely fail to instruct the jury but flatly denied appellant his right to a jury trial.

Following the filing of our original opinion in this case, respondent brought to our attention by petition for rehearing People v. Gonzalez (1999) 73 Cal.App.4th 885, 87 Cal.Rptr.2d 28.   In Gonzalez, the information alleged that the defendant had suffered five prior felony convictions under the Three Strikes law and two prior felony convictions for which he had served separate prison terms.  (Id. at p. 888, 87 Cal.Rptr.2d 28.)   The defendant requested a jury trial on the prior convictions, suggesting that he intended to challenge the existence and details of the prior offenses, as alleged.  (Id. at pp. 888, 892, 87 Cal.Rptr.2d 28.)   The trial court ruled that the defendant was entitled to a jury trial only on the prior prison term allegations, and otherwise denied the defendant's request for a jury trial.  (Id. at p. 888, 87 Cal.Rptr.2d 28.)   The defendant then waived his right to a jury trial on the prior prison term allegations.  (Ibid.)

During the bench trial, the prosecutor presented documentary evidence of the existence of the prior convictions and a fingerprint expert who matched the defendant's fingerprints with those found in the documentary evidence.  (73 Cal.App.4th at p. 888, 87 Cal.Rptr.2d 28.)   The defendant presented no evidence and submitted without argument.  (Ibid.)  The trial court then found the prior conviction allegations true.  (Ibid.)

On appeal, the defendant contended that he was entitled to a jury trial on the prior “strike” convictions.  (73 Cal.App.4th at p. 888, 87 Cal.Rptr.2d 28.)   The court in Gonzalez concluded that although section 1025 does not abrogate the right to a jury trial on prior conviciton allegations, it narrows this right to issues concerning the existence and factual circumstances of the prior convictions.  (73 Cal.App.4th at p. 892, 87 Cal.Rptr.2d 28.)   The court further concluded that when a defendant requests a trial, the trial court should determine whether there are any issues properly presented to a jury.  (Ibid.)  Nonetheless, citing the defendant's failure to raise a triable issue in requesting the jury trial and his failure to challenge the existence and factual circumstances of the prior convictions during the bench trial, the Gonzalez court held that the denial of the request for a jury trial did not mandate reversal of the trial court's findings on the prior convictions.  (Id. at pp. 892-893, 87 Cal.Rptr.2d 28.)

 We agree with the Gonzalez court that the trial court should determine whether a defendant facing prior conviction allegations is willing to stipulate to determinations on issues properly consigned to the jury or waive a jury trial on these issues.   In this manner, the need for a jury trial may be eliminated altogether.

 However, to the extent that the Gonzalez court may have concluded that the defendant waived his right to a jury trial on the prior “strike” allegations due to his failure to make an offer of proof in requesting the jury trial or his conduct during the bench trial, we respectfully disagree.   Section 1025, by its plain language, indicates that, with the exception of the identity issue, material factual questions concerning prior convictions are to be tried to the jury unless “a jury is waived.”  (§ 1025, subd. (b).)  Although the defendant in Gonzalez expressly waived a jury trial on the prior prison term allegations, he requested a jury trial on the prior “strike” allegations and did not expressly waive his right to such a jury trial.   As our Supreme Court explained in People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6, 20 Cal.Rptr.2d 638, 853 P.2d 1093, forfeiture is “the failure to make the timely assertion of a right,” and waiver is “ ‘the intentional relinquishment or abandonment of a known right.’ ”  (Quoting United States v. Olano (1993) 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508.)   In our view, a defendant who properly requests a jury trial in a timely manner has not waived or forfeited the right to a jury trial, regardless of his failure to make an offer of proof in requesting the jury trial or his failure to present an affirmative defense during the subsequent bench trial.

Furthermore, to the extent that the Gonzalez court may have concluded that the trial court's denial of a proper request for a jury trial is not prejudicial when the defendant does not litigate the existence and circumstances of the prior convictions, we again disagree.   As we have explained, such denials are reversible per se.

In sum, the trial court committed reversible error in denying appellant's request for a jury trial under section 1025.

C. Assault Instruction

Appellant contends that the jury was misinstructed concerning the intent element required for assault.

Here, the trial court instructed the jury with CALJIC No. 9.00 (6th ed.1996) which states:  “In order to prove an assault, each of the following elements must be proved:  [¶] 1. A person willfully committed an act which by its nature would probably and directly result in the application of physical force on another person;  and [¶] 2. At the time the act was committed, the person had the present ability to apply physical force to the person of another.  [¶] ‘Willfully’ means that the person committing the act did so intentionally.  [¶] To constitute an assault, it is not necessary that any actual injury be inflicted.”   The record indicates that appellant did not object to this instruction and did not request additional clarifying instructions.   Appellant contends that the jury should have been instructed that the intent element required for assault is established only by proof that the defendant intended a forcible touching as a desired consequence of his conduct or knew that such a touching was substantially certain to result.

 In our view, appellant has waived this contention of error.  “[T]he court is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case.   It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.   [Citation.]”  (People v. Owen (1991) 226 Cal.App.3d 996, 1004-1005; , 277 Cal.Rptr. 341 5 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Trial, § 2925, pp. 3586-3587.)   Generally, the burden of requesting supplemental or clarifying instructions falls on the defendant, and failure to request such instructions waives the contention of error.  (People v. Lang (1989) 49 Cal.3d 991, 1024, 264 Cal.Rptr. 386, 782 P.2d 627.)

 CALJIC No. 9.00 is correct as a general statement of law.   In People v. Colantuono (1994) 7 Cal.4th 206, 214, 26 Cal.Rptr.2d 908, 865 P.2d 704, our Supreme Court stated that the mens rea for assault with a deadly weapon “is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery,” and clarified that to establish this mens rea, “the prosecution need not prove a specific intent to inflict a particular harm.”  (Ibid.) Because CALJIC No. 9.00 closely tracks the Colantuono court's statement of the requisite intent, this instruction correctly stated the general principle of law governing intent.

The key issue therefore is whether the instruction required clarification and supplementation on the facts of this case.   However, because appellant requested no clarifying or supplementary instructions, he has waived any claim of error on this issue.

 Nonetheless, even if there were no waiver, the contention is meritless.  “The defendant is entitled to have the jury instructed on the law applicable to the evidence he presents;  doubts as to the sufficiency of the evidence to warrant an instruction should be resolved in favor of the accused.  [Citations.]”  (People v. Ratliff (1986) 41 Cal.3d 675, 694, 224 Cal.Rptr. 705, 715 P.2d 665.)   Nevertheless, a trial court need only give those requested instructions supported by substantial evidence.   (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)   Here, the record is devoid of any evidence supporting a clarifying instruction, and his counsel did not argue that he lacked the requisite intent.

Appellant contends that a clarifying or amplifying instruction was necessary, citing People v. Smith (1997) 57 Cal.App.4th 1470, 67 Cal.Rptr.2d 604.   However, Smith is factually distinguishable.

In Smith, defendant was stopped at a police barricade, but drove forward and struck a police officer.  (Id. at pp. 1474-1475, 67 Cal.Rptr.2d 604.)   The defendant was charged with assaulting an officer with a deadly weapon.   At trial, the defendant testified that he moved forward only after he observed officers motioning him forward.  (Ibid.) The jury was instructed under a prior version of CALJIC No. 9.00, which described the requisite intent as the intent “to commit an act, the direct, natural and probable consequences of which if successfully completed would be the application of physical force upon the person of another.”  (People v. Smith, supra, at p. 1477, fn. 4, 67 Cal.Rptr.2d 604.) When the jury requested clarification regarding intent, the trial court instructed the jury that “ ‘[m]ere ․ reckless conduct alone does not constitute a sufficient basis for conviction of assault with a deadly weapon.   However, if a person intended to commit an act, the natural and probable consequence of which if successfully completed would be the application of physical force upon the person of another, this would not constitute reckless conduct․’ ”  (Id. at p. 1478, fn. 5, 67 Cal.Rptr.2d 604.) The jury then found the defendant guilty.  (Id. at p. 1474, 67 Cal.Rptr.2d 604.)   The court in Smith concluded that the additional instruction allowed the jury “to convict the defendant for criminally negligent conduct․”  (Id. at p. 1484, 67 Cal.Rptr.2d 604.)   Thus, in Smith, unlike the present case, substantial evidence raised an issue about the defendant's intent, and jury confusion necessitated an amplifying instruction.

In sum, the trial court did not err in instructing the jury with CALJIC No. 9.00.

DISPOSITION

Appellant's sentence is reversed and the matter is remanded for resentencing following further proceedings consistent with section 1025.   The judgment is affirmed in all other respects.

FOOTNOTES

1.   All further statutory citations are to the Penal Code unless otherwise stated.

2.   Count 5 also charged appellant with possession for sale of 14.25 grams of heroin (Health & Saf.Code, § 11352.5, subd. (1)).  The trial court struck this allegation on March 10, 1998.

3.   In Yurko, the Supreme Court held that Boykin/Tahl admonitions should have been given to a defendant who stipulated to three prior felonies when the stipulation established that he was subject to enhanced sentencing as an habitual criminal.  (In re Yurko, supra, 10 Cal.3d at pp. 860-863, 112 Cal.Rptr. 513, 519 P.2d 561.)

4.   In Hall, the Supreme Court held that, absent special circumstances, when a defendant who is charged with possession of a firearm by a felon offers to stipulate to a prior felony, the trial court may not permit evidence on this element of the crime to be presented to the jury.   (28 Cal.3d at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826.)   In a footnote, the court in Hall suggested that such stipulations are subject to the Boykin/Tahl requirements.  (People v. Hall, supra, at p. 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826.)

5.   Appellant contends that the double jeopardy clause of the federal and state Constitutions preclude retrial on the issue of the prior conviction allegations.   This contention is meritless.  (Monge v. California (1998) 524 U.S. 721, ---- - ----, ----, 118 S.Ct. 2246, 2249-2250, 2253, 141 L.Ed.2d 615.)

CURRY, J.

CHARLES S. VOGEL, P.J., and HASTINGS, J., concur.