IN RE: Gary Lee WARE (1991)

The trial court, “under the compulsion of People v. Wojahn,” struck its finding of defendant's prior conviction, holding that trial counsel was constitutionally ineffective in waiving a jury trial on the prior after the jury was discharged.   In this appeal we again consider the application of People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277 to defendant Gary Lee Ware and again we must decline to follow Wojahn.¹  We hold that when the trial of an allegation of prior felony conviction has been bifurcated (People v. Bracamonte (1981) 119 Cal.App.3d 644, 654, 174 Cal.Rptr. 191) and the jury is mistakenly discharged immediately after the verdict on the main charge, the court retains the power to try the defendant on the prior conviction allegation, whether by way of admission, nonjury trial, or if necessary by a new jury.   We further hold that trial counsel for defendant was not constitutionally ineffective in waiving jury trial on defendant's prior.

Defendant Gary Lee Ware was charged with murder and with using a firearm in commission of the offense.   In addition, pursuant to Penal Code section 667, subdivision (a), the prosecution alleged that defendant had suffered a prior serious felony conviction, robbery.   At defendant's request, the allegation of prior felony conviction was bifurcated pursuant to People v. Bracamonte, supra.

The jury returned a verdict finding defendant guilty of voluntary manslaughter, a necessarily included offense, and of using a firearm.   The court thanked the jurors for their service and excused them.   The trial judge, defense counsel and the prosecutor forgot that the bifurcated allegation of the prior conviction was still pending.   Later that same afternoon the court realized its mistake and gave defendant three alternatives for disposing of the prior conviction:  jury trial, nonjury trial, or admission.   Defendant waived a jury trial and requested a nonjury trial of the prior.   Certified records of defendant's prior conviction were admitted into evidence and the court promptly found the prior to be true.

Prior to the sentencing hearing, however, defendant's trial counsel learned for the first time of People v. Wojahn, supra.   Defendant moved to strike the prior conviction on the ground that under Penal Code section 1025 and Wojahn, defendant could not be tried on the prior conviction after the jury was improvidently discharged.  Penal Code section 1025 provides that the question whether the defendant has suffered an alleged previous conviction must be tried by the jury which tries the issue of guilt.  Wojahn held that where the issue of the prior was bifurcated and “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” further proceedings on the prior.  (People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)

Although the trial court granted defendant's motion, that order was reversed on the prior appeal by the People.   This court ordered the prior conviction reinstated.  (People v. Ware, supra, B021999 filed Oct. 28, 1988, fn. 1, ante.)   On defendant's subsequent petition for review, the Supreme Court denied review but ordered the appellate opinion not to be published in the official reports.

The subsequent proceedings in the superior court on defendant's habeas corpus petition established that at the time defendant waived jury trial on the prior after consulting with counsel, defense counsel was ignorant of the Wojahn case and therefore unable to advise defendant that under Wojahn the court no longer had any power to proceed.

At the conclusion of the evidentiary hearing the superior court under the compulsion of Wojahn granted the writ of habeas corpus and ordered that the finding of truth of the prior conviction be stricken.   The court found trial counsel was incompetent in being unaware of Wojahn at the time of waiver of jury trial and that defendant suffered prejudice because under Wojahn defendant could not otherwise be subjected to a five-year enhancement of sentence for the prior conviction.

The People appeal from the order granting habeas corpus relief.  (Pen.Code, § 1506.)

DISCUSSION

 We need not decide whether trial counsel's failure to raise Wojahn at the time of the jury waiver resulted from ignorance amounting to incompetence.   A defendant seeking relief on the basis of ineffective assistance of counsel must show not only that counsel failed to render reasonably competent assistance but also that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144;  People v. Mattson (1990) 50 Cal.3d 826, 876, 268 Cal.Rptr. 802, 789 P.2d 983.)

 If Wojahn is followed, the prejudice to defendant from trial counsel's error is obvious.   We decline to follow Wojahn, however.   We hold the court had authority to proceed notwithstanding the premature discharge of the jury.   Since further proceedings were authorized, defendant is not entitled to relief from the effect of the finding of truth of the prior.

As noted in Wojahn, 150 Cal.App.3d at p. 1034, 198 Cal.Rptr. 277, Penal Code section 1025 provides for the same jury to try both the main charge and the prior conviction.²  We disagree, however, with Wojahn's elevation of this statutory policy to a principle of constitutional double jeopardy for the defendant's benefit which prevents a trial on the prior if the jury is mistakenly discharged.

Wojahn refers to the defendant's “ ‘ “ ‘valued right to have his trial completed by a particular tribunal.’ ” ' ”  (Id. at p. 1035, 198 Cal.Rptr. 277.)   In connection with an allegation of prior conviction, this reasoning is unrealistic.   The requirement of Penal Code section 1025 that the same jury hear both issues is not for the benefit of the defendant;  it is an economy measure for the benefit of the public.  (See People v. Owens (1980) 112 Cal.App.3d 441, 447, 169 Cal.Rptr. 359.)   When Penal Code section 1025 was enacted in 1905, it was contemplated both issues would be submitted to the jury simultaneously.   For many years defendants argued that they should have a right to a separate trial or separate jury on the prior.   The courts repeatedly rejected this argument.  (People v. Collins (1953) 117 Cal.App.2d 175, 183, 255 P.2d 59;  People v. Hoerler (1962) 208 Cal.App.2d 402, 409, 25 Cal.Rptr. 209;  People v. Owens, supra, 112 Cal.App.3d at pp. 446–447, 169 Cal.Rptr. 359.)   If, as hypothesized in People v. Bracamonte, supra, 119 Cal.App.3d at page 650, 174 Cal.Rptr. 191, a jury which hears one issue with knowledge of the other may be prejudiced, the last thing a defendant should want is to have the prior determined by the same jury which just found defendant guilty of a new crime.

To hold nevertheless, as Wojahn does, that the defendant has a valuable right to have the same jury decide the issue and is entitled to dismissal of the prior if the jury is improvidently discharged, elevates result over intent.   Having the same jury which already knows the defendant to be a criminal determine whether he has committed other crimes is a valuable right only as a trap for the trial court.   In other words, the right to be tried by the same jury is valuable only if, through inadvertence, it is not utilized.

The court in Wojahn also noted that a central objective of the double jeopardy proscription is “that the prosecution should not be given the opportunity of a second trial in order to marshal evidence it failed to provide at the first trial.”  (150 Cal.App.3d at p. 1034, 198 Cal.Rptr. 277, emphasis added.)   This objective can be given short shrift.   Clearly the prosecution did not in our case, nor in Wojahn, “fail” to produce evidence.   Because of the court-imposed procedure mandated by Bracamonte, it was prohibited from presenting evidence of the prior and deprived of the procedure provided by the Legislature in Penal Code section 1025 of presenting all of its evidence at once.   At no time prior to the jury being discharged had the prosecution the opportunity to present its evidence of the prior conviction.

The court in Wojahn also rests its double jeopardy argument in part on the premises that bifurcation as required by Bracamonte is not severance and that the jury is still sworn pursuant to Penal Code section 1025 to try both the main charge and the prior conviction even though in the trial's first phase the jury receives no charge, evidence, argument or instructions regarding the prior.  Wojahn is based upon Bracamonte's argument that Penal Code section 1025 does not require the jury to hear or try both issues simultaneously and that seriatim trial of the issues satisfies the statute.   The latter conclusion is tenuous at best since the purpose of the statute is one of economy, a benefit to the public.³  Bifurcation is inherently less economical than a unitary trial.   A trial in two stages will take longer because there likely will be two sets of opening statements, evidence presentation, closing arguments and instructions to the jury.   The longer duration of a bifurcated trial with its concomitant greater utilization of government resources (courtroom, judge, court personnel, prosecuting attorney, public defender or court-appointed attorney) is necessarily more expensive than a unitary trial in which the various stages occur only once.

The language of Penal Code section 1025 need not be taken so literally as to preclude the impanelment of a different jury in necessary circumstances.   For instance, in People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523, there was reversible error affecting the determination on the prior conviction which did not affect the verdict of guilt on the main charge.   The court held that the defendant could be subjected to a limited new trial on the prior without reversal of the verdict of guilt.  (Id. at pp. 544–545, 261 P.2d 523.)   The court stated, “There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses.   That issue and the proof of prior convictions are clearly severable.”  (Id. at p. 543, 261 P.2d 523.)   Such a procedure “carries out the policy of the statutes imposing ‘more severe punishment, proportionate to their persistence in crime, of those who have proved immune to lesser punishment’ [citation], and prevents defendants from escaping the penalties imposed by those statutes through technical defects in pleadings or proof.   It affords the defendant a fair hearing on the charge, and if it cannot be proved he will not have to suffer the more severe punishment.”  (Id. at pp. 544–545, 261 P.2d 523.)

Here too, the wording of Penal Code section 1025 should not prevent the impanelment of a new jury if necessary to prevent an unjust windfall to recidivist felons through mere inadvertence.

Although the Legislature has made clear that it expects trial courts to be careful to prevent this type of mistake,⁴ the question remains, what is the appropriate remedy when the inevitable mistake occurs?   We find nothing in the language or policy of Penal Code sections 1025 and 1164, subdivision (b) which suggests the Legislature intended that dangerous recidivist felons should be relieved of the additional imprisonment mandated by law in cases of such technical inadvertent mistake.   As indicated long ago by People v. Morton, supra, there is justice and strong public interest in imposing such additional imprisonment and no inherent prejudice to the defendant in having a new jury, if necessary, determine the issue.   A failure of justice is not compelled where, contrary to Wojahn, we conclude that the “ ‘ “great principle of freedom from double jeopardy” ’ ” is not squarely and genuinely involved.  (Cf. People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)

Since we reject the reasoning of Wojahn and conclude a defendant can be subjected to trial of a bifurcated allegation of prior conviction notwithstanding the premature discharge of the jury, there is no reasonable probability a result more favorable to defendant would have occurred or could occur had counsel raised the Wojahn issue in a more timely manner.

The order granting the writ of habeas corpus and striking the finding of the truth of the prior conviction is reversed and the trial court is directed to enter a new order modifying the judgment to provide that defendant is sentenced to a total term of thirteen years in the state prison, consisting of an upper term of six years for voluntary manslaughter (Pen.Code, § 192, subd. (a)), a consecutive term of two years for use of a firearm (Pen.Code, § 12022.5) and a consecutive term of five years pursuant to Penal Code section 667, subdivision (a).

FOOTNOTES

1.   On a previous appeal involving this defendant this court ordered the prior conviction reinstated.  (People v. Ware, B021999 filed October 28, 1988.)   The prior opinion distinguished Wojahn on the ground that defendant Ware did not timely object and waived jury trial as authorized by Penal Code section 1025.   In response to defendant's suggestion of incompetence of trial counsel, the opinion stated such claim would more appropriately be left to habeas corpus proceedings.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)   This second appeal is by the People from the trial court's subsequent order granting habeas corpus relief.

2.   Penal Code section 1025 provides in pertinent part that when the defendant denies the allegation of previous conviction “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 the case of a plea of guilty, by a jury impaneled for that purpose, or by the court if a jury is waived.”

3.   Of course, the very idea of a jury trial on a prior is anomalous, because there is almost never a genuine issue, appropriate for jury determination, as to the truth of the prior.  (See People v. Trujillo (1984) 154 Cal.App.3d 1077, 1091, 202 Cal.Rptr. 832.)

4.   In 1988 the Legislature amended Penal Code section 1164 by adding subdivision (b) which provides, “No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.”

ASHBY, Associate Justice.

TURNER, P.J., and BOREN, J., concur.