PEOPLE v. WINSLOW (1993)

Concurring Opinion

The word “enhancement” is bound to send shivers down the spine of any person charged with a felony.   In some cases, such as the instant one, the “enhancement” punishment may exceed the punishment selected for the underlying substantive offense.   The responsibility to see that there is a lawful determination of its truth is a solemn one.   All too frequently, this responsibility is lost upon the prosecutor who concentrates on the substantive charge or charges.   Here, the prosecutor did not tender adequate jury instructions and the trial court did not sua sponte instruct on the general principles of law governing the “enhancements.”

The CALJIC committee has provided a general framework for the jury's resolution of “enhancements.”  (See CALJIC 17.15 et. seq.)   However, the statutory “enhancement” scheme is so complex that the CALJIC committee has not drafted instructions for each and every situation.  (See CALJIC 17.24.1 and use note.)

We agree with the previously articulated criticism of the Determinate Sentence Law.¹  It is capable of trapping not only the unwary but the wary as well.   Our colleagues' views have apparently gone unheard in the Legislature.   There is not an appellate calendar that goes by where a defendant does not challenge some application of the Determinate Sentence Law.   Here there is a novel attack, an instructional challenge to the law's convoluted “enhancement” scheme.   We are compelled to reverse for retrial on the “priors.”

Anthony Franel Winslow appeals following his conviction by jury of residential burglary (Pen.Code, §§ 459 and 460).²  The jury also found that he suffered three prior felony convictions:  two resulting in prior prison terms (§ 667.5, subd. (b)) and one “serious felony” (§ 667.5, subd. (a)).³  He was sentenced to an aggregate seven years;  the low term of two years for the burglary and five years for the “serious felony” enhancement.   The prior prison term enhancements were stricken.

Appellant contends, inter alia:  “I The trial court erred in denying the motion to strike the alleged Nevada prior conviction.  [¶] II Even if the trial court did not err in failing to strike the Nevada prior, it remained to be an issue of fact for the jury to determine whether appellant had personally used a firearm in its commission.  [¶] III The trial court committed reversible error in the manner the jury was instructed on the issue of the Nevada prior.  [¶] IV Instructional error concerning the two other prior convictions mandates they be reversed as well․”

The trial court bifurcated the trial as to the enhancements.  (People v. Bracamonte (1981) 119 Cal.App.3d 644, 654, 174 Cal.Rptr. 191;  see also People v. Saunders (1993) 5 Cal.4th 580, 585, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   Appellant's trial counsel unsuccessfully moved to strike the “serious felony” enhancement allegation on the ground the Nevada prior did not constitute a California “serious felony.”

The conviction in Nevada was for a violation of Nevada Revised Statutes 200.471, assault with a deadly weapon.   The statute provides in pertinent part:  “1.   As used in this section ‘assault’ means an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another․  [¶] (2)(b) If the assault is made with the use of a deadly weapon, or the present ability to use a deadly weapon, by imprisonment in the state prison․”

Section 667 provides in pertinent part:  “(a) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”

Our California Supreme Court has recently held that “․ the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the [foreign] prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense.”   (People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

During the pretrial motion regarding the Nevada conviction, the transcript of the plea (exhibit 13) was presented to the trial court to determine whether the prior was a qualifying one under section 667.⁴  Felony Nevada Revised Statute 200.471 prohibits assaults both involving the use of a deadly weapon or the ability to use a deadly weapon.   Consequently, a conviction thereunder may or may not involve the personal use of a dangerous or deadly weapon or a firearm as required by section 1192.7(c), subdivisions (23), (8).   However, during the course of the plea in Nevada appellant admitted that he shot the victim with “․ a .22 caliber firearm.”  (Ex. 13, p. 8.)

 A defendant personally uses a dangerous or deadly weapon under section 12022 subdivision (b) when he “displays such a weapon in an intentionally menacing manner” or intentionally strikes or hits a human being with it.  (See CALJIC 17.16.)   He most certainly personally uses a firearm when he shoots a victim with a .22 caliber firearm.  (CALJIC 17.19.)   Consequently the trial court did not err in determining the Nevada conviction constituted a “serious felony.”  (People v. Myers, supra, 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   Thereafter, it was for the jury to determine the truth or falsity of the allegation.

 “Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction․”  (Pen.Code, § 1158.)   Thus, if not admitted, the defendant has the right to a jury trial on the truth or falsity of the prior conviction.  (Pen.Code, § 1025;  see also People v. Ysabel (1938) 28 Cal.App.2d 259, 261, 82 P.2d 476.)   This “․ material fact must be proven as any other material fact in the trial of the cause.”  (People v. Coleman (1904) 145 Cal. 609, 612, 79 P. 283.)   Material facts of the prior conviction necessarily includes those aspects which give rise to additional punishment, e.g., that the defendant personally used a dangerous or deadly weapon or a firearm in the commission of the prior offense.  (See People v. Morton (1953) 41 Cal.2d 536, 539, 261 P.2d 523;  People v. Hockersmith (1990) 217 Cal.App.3d 968, 973, 266 Cal.Rptr. 380, see also Witkin & Epstein, Cal.Criminal Law, (2d ed.) vol 3, § 1527, p. 1820.)   The right to jury trial is “inviolate.”  (Cal. Const., art. I, § 16.)   It is no less so for prior conviction “enhancements.”

 As to the “serious felony,” the jury was not instructed that it must find appellant personally used a dangerous or deadly weapon, or a firearm.   As to the priors which resulted in prison terms, the trial court did not instruct that it must find appellant served prison terms and that they were separate.   The only instruction given at the bifurcated trial on the “priors” was a modified version of CALJIC 17.26.⁵

CALJIC 17.18 (1992 rev.), which was not given here, defines prior prison term and requires the jury to find the separate service of such term for each prior prison term alleged.

CALJIC 17.16, which was not given here, defines “dangerous or deadly weapon,” what “use” means, and the personal nature of the use.

CALJIC 17.19, defines firearm, “use,” and the personal nature of the use.⁶

Here, the trial court neglected to provide substantive instructions on the 667.5 subdivision (b) prior prison terms enhancements and the 667.5 subdivision (a) prior “serious felony” conviction enhancement.

 “The trial court must instruct even without request on the general principles of law relevant to and governing the case.  [Citation.]  That obligation includes instructions on all elements of a charged offense.   [Citation.]”  (People v. Cummings (1993) 4 Cal.4th 1233, 1312, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   These rules apply to the “elements” of an “enhancement.” ⁷  Contrary to respondent's request, we cannot “save” this judgment on a harmless error analysis.

 The cases do not suggest “․ that a harmless error analysis may be applied to instructional error which withdraws from jury consideration substantially all of the elements of an offense․”  (People v. Cummings, supra, 4 Cal.4th at p. 1315, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   This rule applies to “enhancements.”   Here the instructional error withdrew from jury considerations substantially all of the elements of the enhancements.   The sole instruction given (ante, p. 331, fn. 5) was, in essence, only a re-reading of the information.   This was tantamount to a complete removal of the enhancement issues from the jury's consideration and may constitute a denial of federal due process.  (People v. Lee (1987) 43 Cal.3d 666, 673, 675, fn. 1, 238 Cal.Rptr. 406, 738 P.2d 752.)   We need not and do not decide whether a harmless error analysis may be appropriate when some substantive instruction is given on an enhancement.   Reversal is appropriate and the sentence must be vacated.   Appellant's remaining contentions are moot.

The findings pursuant to section 667.5 subdivision (b) and section 667 subdivision (a) are reversed and the matter is remanded for new trial, consistent with this opinion.   In all other respects the judgment is affirmed.

I concur with the well-reasoned majority opinion, but think it is advisable to point out other deficiencies that occurred during the trial.   This I hope will reduce the chances of future appeals.

In determining the truth of the prior conviction, the jury must have all of the evidence before it.   Here the prosecutor did not move to admit into evidence the transcript of the prior plea proceeding in Nevada.  (Exh. 13.)   In that proceeding, the court asked appellant “did you in fact shoot Wayne Pulsifer with a firearm?”   Appellant answers by saying, “guilty.”   The court apparently lost track of its questions, apologized, and then asked appellant, “did you attempt—now I'm with the program—did you attempt, Mr. Winslow, to shoot, or state that you were going to shoot Wayne Pulsifer with a gun?”   Appellant answers, “yes.”

It is certainly reasonable to conclude from the transcript that the word “guilty” is tantamount to saying, “I shot Wayne Pulsifer with a firearm.”   On the other hand, the word “guilty” may mean appellant is admitting his guilt of the offense, but not necessarily the specific factual elements that comprise that offense.   This is a factual question for the jury, quite apart from the legal question whether the Nevada statute contains the elements of a serious felony.

Appellant also argues that there is another ambiguity in the transcript of the proceeding.   When the court asked appellant did he attempt to shoot, or state that he was going to shoot Wayne Pulsifer, appellant answered “yes” to the compound question.   Appellant asks whether the answer is “yes I attempted to shoot Wayne Pulsifer,” or “yes I stated that I was going to shoot Wayne Puslifer.”   This, argues appellant, is an ambiguity for the jury to resolve.

 Appellant's right to a trial by jury on the issue of whether he had been convicted of a serious felony may not be decided solely as a legal question by the court.  (See People v. Barre (1992) 11 Cal.App.4th 961, 14 Cal.Rptr.2d 307.)   Appellant is correct that it is proper and mandatory that the jury consider the factually contested issue whether appellant's prior conviction was for a serious felony.

 I am also not convinced that the so-called special verdict form submitted to the jury on the Nevada prior conviction allegation adequately informed the jury that it had to make a separate determination of a personal use finding.   The verdict form, entitled “Special Finding” contains three items for which the jury was asked to make a determination.   The jury was asked (1) whether appellant has served the prior prison term in the State of Nevada, (2) whether his prison term was for a conviction of assault with the use of a deadly weapon, and (3) whether he personally used a firearm.   The jury's choices, however, were limited to a finding of either “true” or “not true.”   The way these verdict forms were prepared, one could not tell whether a finding of true meant that all three items were true, or whether the jury only found one or two of the items to be true.   The use of a special verdict form that asks the jury to make a specific finding on the single issue whether appellant personally used a dangerous or deadly weapon or a firearm in the commission of the Nevada prior felony conviction would alleviate this problem.  (See Pen.Code, §§ 1150, 1158.)

FOOTNOTES

1.   E.g. “[S]entencing statutes are mind-numbingly complicated and, by virtue of continued legislative tinkering, not likely to soon become any easier to apply.   As the trial judge in this case remarked:  ‘I regard it as one of the principal credits to my professional career that I had nothing to do with designing the determinate sentencing law.’   Such frustration is widely spread․  [¶] The frequency with which both simple and vexatious sentencing questions are raised on appeal strongly suggests that the Legislature can and should undertake with the help of bench and bar a solid comprehensive overhaul of the system to help all potential defendants and the public generally.”  (People v. Reyes (1989) 212 Cal.App.3d 852, 858–859, 260 Cal.Rptr. 846.)“It is hardly ‘man-bites-dog’ news to the trial judges of this state to observe that the new determinate sentence law is hardly a model of legislative clarity.1”  Footnote 1 of the quoted passage provides:  “As a sentencing judge wends his way through the labyrinthine procedures of section 1170 of the Penal Code, he must wonder, as he utters some of its more esoteric incantations, if, perchance, the Legislature had not exhumed some long departed Byzantine scholar to create its seemingly endless and convoluted complexities.   Indeed, in some ways it resembles the best offerings of those who author bureaucratic memoranda, income tax forms, insurance policies or instructions for the assembly of packaged toys.”  (Community Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 815, 154 Cal.Rptr. 383.)“When in 1976, the Legislature ended its 60–year–old romance with the Indeterminate Sentence Law, few tears were shed at the demise of that highly visonary, but woefully unsuccessful, effort at effective penology.   [¶] Alas, few hosannas have been heard in the judicial system for its successor, the so-called determinate sentence law, Penal Code section 1170 et seq., a legislative monstrosity, which is bewildering in its complexity.   Superimposed on Penal Code section 1170 et seq. are the sentencing rules (Cal.Rules of Court, rule 401 et seq.) promulgated under the aegis of Penal Code section 1170.3.   Here, the already perplexing provisions of Penal Code section 1170 et seq. are further refined into a kind of labyrinthine formalism under which trial judges carefully pick their way in a kind of ceremonial ritual during the sentencing processes.1  Footnote 1 of the quoted passage provides:  “Whether all of this results in any uniformity of sentencing is doubtful.   Tough judges still sentence severely, easy judges leniently—all within the rules.   One result is crystal clear—sentencing today affords a rich field of appellate litigation.   It has long since passed that old standby, inadequacy of counsel, and is neck and neck with Penal Code section 1538.5 in Shepard's citations.”  (People v. Sutton (1980) 113 Cal.App.3d 162, 164, 169 Cal.Rptr. 656;  see also People v. Begnaud (1991) 235 Cal.App.3d 1548, 1551, 1 Cal.Rptr.2d 507.)

2.   All further section references are to the Penal Code unless otherwise designated.   The facts and circumstances of the residential burglary are irrelevant on this appeal.   It is sufficient to simply note that substantial evidence supports the jury's determination.

3.   The information alleged that appellant violated Nevada Revised Statute 200.471, assault with a deadly weapon, “․ said defendant having personally used a firearm while in the commission of the above offense, within the meaning of Penal code section 1192.7 subdivision (c)(8) and (23).”

4.   While there was no formal motion to receive the transcript into evidence, the trial court's use of it at the hearing constituted a de facto admission into evidence for purposes of the motion to strike.   We have had the exhibit transferred to us pursuant to California Rules of Court, rule 10, subdivision (d).For reasons which are unknown, the transcript was not introduced at the bifurcated trial on the truth or falsity of the “serious felony.”  (See Evid.Code, §§ 1271, 1220, 1230.)

5.   “The defendant Anthony Franel Winslow was accused in the information of having violated PC § 459, residential burglary, and the jury has now returned a verdict of guilty as to that particular charge.   [¶] It is also alleged in the information that the defendant, Anthony Franel Winslow, previously has been convicted of a violation of section NRS 200.471, assault with the use of a deadly weapon in the State of Nevada, for the County of Clark, case number C82346 on or about April 28, 1988, and section 245(a)(1) of the California Penal code, assault with great bodily injury and with deadly weapon in the State of California, for the County of San Mateo, case number C12354–01 on or about July 29, 1983, and section 11359 of the California Health and Safety Code, possession of marijuana for sale in the State of California, for the County of San Francisco, case number 115449, on or about March 5, 1985.  [¶] You must now determine the truth of these allegations.”

6.   The CALJIC committee has not drafted an instruction for prior “serious felonies.”   Here the People alleged two theories on how appellant could have committed a prior “serious felony,” i.e., one, that he personally used a firearm (1192.7, subd. (c)(8)) in the prior felony and two, that he personally used a dangerous or deadly weapon (1192.7, subd. (c)(23) in the commission of the prior felony.   Portions of CALJIC 17.16 and 17.19 may be utilized to draft an appropriate instruction.

7.   We recognize that an “enhancement” is not a criminal offense, per se.  (People v. Waite (1983) 146 Cal.App.3d 585, 593, 194 Cal.Rptr. 245;  California Rules of Court, rule 405, subd. (c).  [“ ‘Enhancement’ means an additional term of imprisonment added to the base term.”] )   Nevertheless, it does have the equivalent of “elements” without which there can be no true finding.