PEOPLE v. GONZALEZ (1999)

Alfred Gonzalez appeals from the judgment entered upon his conviction by jury of receiving stolen property (Pen.Code, § 496, subd. (a)), with findings by the court that he had sustained five prior serious felony convictions within the meaning of the Three Strikes law (Pen.Code, §§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)) and two prior felony convictions for which he served separate prison terms (Pen.Code, § 667.5, subd. (b)).¹  He was sentenced to prison for 25 years to life.

Appellant contends that the trial court abused its discretion when it denied him a jury trial on his prior conviction allegations.   Respondent contends that the judgment must be modified to impose a parole revocation fine pursuant to section 1202.45 and that the abstract of judgment must be modified to reflect the restitution fine imposed as well as the parole revocation fine.

FACTS

The evidence established that in November 1997, a South El Monte bakery employee locked his bicycle with a padlocked chain to a rack at his workplace.   Later that day, he found the bicycle missing.   He told his manager about the theft.   About week later, on November 18, 1997, the manager saw appellant across the street walking the bicycle.   The police were summoned, and appellant was placed under arrest.   He was in possession of a tool bag which included numerous keys and a bolt cutter.   Appellant told two officers different stories about when, and for what price, he had bought the bicycle, and neither story coincided with the testimony appellant's wife gave at trial in his behalf.   Appellant's wife testified that appellant had trouble remembering things.

PROCEDURAL BACKGROUND

The information alleged that appellant had suffered five prior felony convictions under the Three Strikes law and two prior felony convictions for which he served separate prison terms.   Trial commenced in March 1998.   Appellant's pretrial motion to bifurcate the trial on the prior conviction allegations was granted.   The trial court asked the parties to research the issue of whether, under the 1997 amendment of section 1025, appellant was entitled to a jury trial on the prior conviction allegations.   Appellant argued that he was entitled to trial by jury on the issue of the prior prison terms alleged under section 667.5, subdivision (b) as well as on issues other than identity.   The prosecutor argued that appellant had no right to jury trial except as to the prior prison term allegations.

After the jury returned its verdict of guilt, the trial court ruled that under the amendment to section 1025, appellant was not entitled to trial by jury on the prior Three Strikes allegations, where the issues of identity and whether the priors were serious felonies were for the court, although he was entitled to a jury trial on the prior prison term allegations.   Appellant waived jury on the latter allegations.   The trial court excused the jury, and a court trial was held on the prior conviction allegations.

At the court trial on the prior conviction allegations, the prosecutor introduced a certified priors packet, a photograph, and a fingerprint card, as well as the testimony of a fingerprint expert who concluded that the fingerprints contained on the card were those of appellant, from whom he had lifted prints.   Appellant presented no evidence and submitted the issue of the priors without argument.   The trial court found the prior conviction allegations true.

DISCUSSION

I. The right to trial by jury on prior conviction allegations under section 1025 as amended effective January 1, 1998

Appellant contends that the trial court erred in ruling that he was not entitled to a jury trial on the prior “strike” convictions.   He asserts that because of this error, he was denied his statutory right to have the jury determine all issues as to the truth of the prior conviction allegations except for the issue of his identity.

Section 1025 was amended, effective January 1, 1998 (Stats.1997, ch. 95, § 1) to provide, in pertinent part, as follows: ²  “(a) When a defendant who is charged in the accusatory pleading with having suffered a prior conviction pleads either guilty or not guilty of the offense charged against him or her, he or she shall be asked whether he or she has suffered the prior conviction.   If the defendant enters an admission, his or her answer shall be entered in the minutes of the court, and shall, unless withdrawn by consent of the court, be conclusive of the fact of his or her having suffered the prior conviction in all subsequent proceedings.   If the defendant enters a denial, his or her answer shall be entered in the minutes of the court.   The refusal of the defendant to answer is equivalent to a denial that he or she has suffered the prior conviction. [¶] (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. [¶] (d) Subdivision (c) shall not apply to prior convictions alleged pursuant to Section 190.2 or to prior convictions alleged as an element of a charged offense.”

Appellant points out that section 1025 is clear on its face in stating in subdivision (b) that a defendant has the right to trial by jury on “the question of whether or not the defendant has suffered the prior conviction,” except as provided in subdivision (c).   Subdivision (c) provides that the court, not a jury, shall try the question of whether the defendant is the person who sustained the prior conviction.   Appellant argues that the statutory language thus clearly provides that, except for the issue of identity, the jury is to determine whether the defendant has prior convictions.

Respondent claims that under section 1025, as amended, there is no longer a right to jury trial on prior conviction allegations.   Respondent points out that in People v. Wiley (1995) 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541, the Supreme Court held that, for purposes of section 667, subdivision (a), the issue of whether convictions were “brought and tried separately” is a legal question to be decided by the trial court, not the jury.  (Id. at pp. 589-592, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   Since under section 1025, as amended, the question of whether the defendant was the person who suffered the prior conviction is for the trial court, and since, under Wiley, issues which are legal in nature are for the trial court, respondent asserts that other than the issues set forth in section 1025, subdivision (d), which are not present here, there are no remaining issues for a jury to resolve regarding prior conviction allegations.

 The right to jury trial on prior conviction allegations derives solely from statute;  there is no state or federal constitutional right to jury trial on such allegations.  (People v. Vera (1997) 15 Cal.4th 269, 277, 62 Cal.Rptr.2d 754, 934 P.2d 1279;  People v. Wiley, supra, 9 Cal.4th at pp. 585-586, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   The practical effect of section 1025 may indeed be largely as described by respondent.   However, the clear language and the legislative history of the 1997 amendment establish that the Legislature, in amending section 1025, did not intend to abrogate the statutory right to jury trial on prior conviction allegations except to preclude the jury from deciding “whether the defendant is the person who has suffered the prior conviction.”  (Pen.Code, § 1025, subd. (c).)

We must determine what remains for the jury to decide after the Legislature amended Penal Code section 1025.   The amendment does not seem to affect the Supreme Court's previous determination that legal questions concerning priors are for the trial court, not the jury.  (People v. Wiley, supra, 9 Cal.4th at pp. 589-592, 38 Cal.Rptr.2d 347, 889 P.2d 541.)

Our primary task in construing a statute is to determine the intent of the Legislature.  (People v. Fuhrman (1997) 16 Cal.4th 930, 937, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)  “When the statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.  [Citation.]   The plain language of the statute establishes what was intended by the Legislature.”  (Ibid.) In subdivision (b) of the amended version of section 1025, the Legislature clearly stated:  “Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by ․ jury․”   We must harmonize the constituent parts of the legislation by considering each clause or section in the context of the entire statutory framework.³  (People v. Craft (1986) 41 Cal.3d 554, 560, 224 Cal.Rptr. 626, 715 P.2d 585.)   To conclude that there is no longer a right to trial by jury on prior conviction allegations would render subdivision (b) nugatory, and such construction is to be avoided.  (Ibid.)

As appellant points out, the legislative history of the 1997 amendment ⁴ indicates that Senate Bill No. 1146, as first submitted in February 1997, would have required the trial court to determine the issue of whether the defendant had suffered the prior conviction when alleged as a sentence enhancement.   The purpose of the bill was “to take away a defendant's right to a jury trial on the question of priors.”  (Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 1146 (1997-1998 Reg. Sess.), May 6, 1997.)

However, the bill was then revised to retain the right to trial by jury except as to specifically limited issues.   The Assembly Committee on Public Safety Analysis of Senate Bill No. 1146 observed, “This bill initially allowed the judge to determine all issues concerning the prior conviction.   However, the bill was amended in the Senate Public Safety Committee to restrict the issue before the judge.”  (Assem.   Com. on Pub. Safety, Analysis of Sen. Bill No. 1146 (1997-1998 Reg. Sess.), June 24, 1997.)   The Assembly analysis inquired, “Since This Bill States that the Judge Determines Who Suffered the Prior Conviction, What Is the Jury's Role Concerning that Conviction?”   The analysis stated, “According to this bill, the judge determines whether the defendant was the person who suffered the prior conviction, but the jury must resolve the other questions concerning the prior conviction,” including “Was someone convicted?   What was the offense?   What is the date of conviction?  ․ [W]as the defendant sentenced to prison based on that conviction?   How long has the defendant been out of custody since he or she suffered the prior conviction?”  (Ibid.) ⁵

 We conclude that section 1025, as amended, does not abrogate the right to trial by jury on prior conviction allegations, although it limits that right.   The Assembly analysis suggests that under Penal Code section 1025 the jury may decide:  Is there a prior conviction?   When did it occur?   Was the defendant sentenced to prison based on the conviction and/or was the defendant incarcerated in prison?   How long has the defendant been out of custody since suffering the conviction?   The trial court should inquire of a defendant concerning what issues he or she is raising regarding the prior conviction allegations to determine whether any of these issues are for the jury before it discharges the jurors.

 Appellant's attorney did initially suggest appellant might raise issues concerning whether he was “in fact convicted, what was the offense, the date of the conviction, where [he] was convicted.”   These are issues mirroring the comments in the Assembly analysis.   Ultimately, appellant raised none of those issues, presented no evidence concerning the priors, and submitted without argument.   Thus, our conclusion that section 1025 preserves the right to trial by jury on prior conviction allegations in certain circumstances does not mandate reversal of the findings on the prior conviction allegations in appellant's case.

 Here, it is apparent that the only issues raised were the identity of the person who suffered the prior convictions and whether the prior convictions were for serious felonies.⁶  In accordance with section 1025, subdivision (c), and the trial court's correct interpretation of People v. Wiley, supra, 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541, those issues were tried by the trial court.   The trial court found, after considering fingerprint testimony from an expert witness and examining the photograph provided in the prior packet, together with the documentary proof of the prior convictions, that appellant was indeed the person who suffered the prior convictions and that they constituted serious felonies.

 The issue of identity was clearly for the trial court under section 1025 subdivision (c).   We believe that the trial court also properly decided the issue of whether the prior convictions were serious felonies.⁷  The question of whether a prior conviction constitutes a serious felony is an issue “largely legal in nature” which depends on the trial court's “interpretation of complex and detailed provisions of California criminal procedure.”  (People v. Wiley, supra, 9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   It was therefore an issue for the trial court, not the jury.   Appellant therefore received the trial to which he was entitled under section 1025 and case authority.   It was incumbent upon appellant to show the trial court that he had a triable issue that was for the jury to decide.   Appellant did not do so, and on appeal does not now demonstrate he had any such issue.

II. The parole revocation fine and correction of the abstract of judgment

 At sentencing, the trial court imposed a restitution fine of $200.   It did not impose a parole revocation fine pursuant to section 1202.45.   Section 1202.45 provides, “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.   This additional restitution fine shall be suspended unless the person's parole is revoked.”   Appellant's sentence includes a period of parole.  (Pen.Code, § 3000, subds.(a), (b).)  The trial court was thus required to impose, and suspend, an additional $200 restitution fine.  (People v. Hong (1998) 64 Cal.App.4th 1071, 1084, 76 Cal.Rptr.2d 23.)   The abstract of judgment must be amended to reflect this fine, as well as the $200 restitution fine.  (Ibid.) ⁸

DISPOSITION

The judgment is modified to reflect a parole revocation fine of $200 pursuant to section 1202.45.   The abstract of judgment is to be corrected to reflect imposition of the parole revocation fine as well as the restitution fine of $200.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Unless otherwise specified, all further statutory references are to the Penal Code.

2.   Prior to the amendment, section 1025 provided as follows:  “When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction.   If he answers that he has, his answer must be entered in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings.   If he answers that he has not, his answer must be entered in the minutes of the court, and 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.   The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction.   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.”

3.   We observe that section 1158, providing for verdicts on the question of “whether or not [the defendant] has suffered” an alleged prior conviction, still provides for jury trial on prior conviction allegations.   Section 969.5, formerly section 9691/212, providing for the amendment of accusatory pleadings after a guilty plea to set forth prior felony convictions, was amended effective January 1, 1999, to conform substantially to section 1025, subdivisions (b) and (c).  (Stats.1998, ch. 235, § 1.)

4.   Pursuant to appellant's request, we take judicial notice of the legislative history of Senate Bill No. 1146.  (Evid.Code, §§ 452, 459.)

5.   That committee further observed that since “the identity of the person suffering the prior conviction is the most common issue (and often the only issue) in a jury trial on a prior conviction ․ there is reason to believe that this bill will significantly reduce the number of such jury trials,” which was the stated purpose of the bill as originally framed.  (Assem.   Com. on Pub. Safety, Analysis of Sen. Bill No. 1146 (1997-1998 Reg. Sess.), June 24, 1997.)   The analysis pointed out that “[i]f a defendant is charged with a prior ‘strike’ under the ‘Three Strikes' law, the judge will determine whether the defendant is the person who suffered that ‘strike.’ ”  (Ibid.)

6.   As defense counsel commented in his closing argument, there was an additional conviction in the abstract of judgment entered in evidence at the trial on the priors, for assault in violation of section 245, subdivision (a)(1), which had not been alleged as a prior conviction within the meaning of the Three Strikes law.   This prior conviction lacked an allegation of infliction of great bodily injury, firearm use or use of a deadly weapon, and thus could not be alleged or found to be a serious felony.  (People v. Rodriguez (1998) 17 Cal.4th 253, 261, 70 Cal.Rptr.2d 334, 949 P.2d 31.)

7.   The issue of whether the trial court or the jury is to decide whether a defendant's prior felony conviction constitutes a “serious felony” is currently pending before the Supreme Court in People v. Kelii (S070960, review granted July 29, 1998) and other cases.   The Supreme Court has also granted review in People v. Valentine (S078564, review granted June 30, 1999) (formerly 70 Cal.App.4th 1168), which likewise held that the 1997 amendment of Penal Code section 1025 did not abrogate the right to jury trial of prior convictions.

8.   The issue of whether an appellate court may decline to consider imposition of such fines where the People have not raised the issue first in the trial court is currently before the Supreme Court in People v. Parker (S074831, review granted Feb. 24, 1999) and other cases.

BOREN, P.J.

ZEBROWSKI, J., and MALLANO, J.*, concur.