PEOPLE v. WARE (1988)

By jury trial defendant Gary Lee Ware was convicted of voluntary manslaughter, a lesser included offense of murder as charged.   The jury also found defendant used a firearm in commission of the offense.   After the jury verdict defendant waived trial by jury on an allegation of a prior felony conviction pursuant to Penal Code section 667, subdivision (a), and the court found the prior to be true.   At the time of sentencing defendant to state prison, however, the court struck the prior conviction on the ground that under People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, the court had been without jurisdiction to try the prior after the jury was discharged.   Defendant appeals from the judgment of conviction;  the People appeal from the order striking the prior conviction.   On defendant's appeal, Part I of this opinion, we affirm.   On the People's appeal, Part II of this opinion, we reinstate the prior conviction and modify the sentence accordingly.

I DEFENDANT'S APPEAL **

II PEOPLE'S APPEAL

By amendment to the information defendant was charged pursuant to Penal Code section 667, subdivision (a), with a prior felony conviction of robbery.   The trial of the prior was bifurcated at the request of the defense.   The trial of the substantive offense was lengthy, approximately a month.   At 3:07 p.m. on April 8, 1986, the jury returned its verdict finding defendant guilty of voluntary manslaughter and of using a firearm.   The court thanked the jurors for their service and told them, “You'll now be excused to go back down to the jury assembly room and get your parole.”   Neither defense counsel nor the prosecutor objected to discharging the jury.   The court set a date for the sentencing hearing.

A few minutes later, however, at 4:15 p.m., the following proceedings occurred, involving the court, defendant, defense counsel and the prosecutor.   The court stated, “We still have unresolved in this case the issue of whether the defendant was previously convicted of a felony alleged, which was bifurcated at the request of the defense.  [¶] What's the defendant want to do with this issue?  ․ [¶] He has the right to have this issue tried by a jury or a judge or he can admit it.   Those are the three choices.”   After an indication from the defense that defendant might even want to waive a probation report and request immediate sentencing, defendant and defense counsel conferred, and counsel stated that defendant wanted to give up his right to a jury trial and have a court trial of the prior.   After appropriate advice of his constitutional rights, defendant expressly waived his right to a jury trial in order to have a court trial.   Certified records of defendant's prior conviction were admitted into evidence and the court promptly found the prior to be true.   The sentencing hearing was set for May 6.

On April 17, however, defense counsel filed a motion to strike the prior conviction, citing People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.   At sentencing on May 6, the court granted the motion to strike the prior.   The court stated that the court had discharged the jury after the verdict of guilt because, due to the length of the trial, the court had forgotten there was a bifurcated trial, and no one had reminded the court before the jury was discharged.   The court reluctantly concluded, under the compulsion of Wojahn, that even though defendant had waived a jury trial on the prior, those proceedings were a nullity.

 We conclude to the contrary, that this case is distinguishable from Wojahn and that defendant's waiver of jury trial is valid.  Wojahn held that a court may not, over the objection of the defendant, impanel a new jury to try the prior conviction, once the jury which tried the main offense was discharged.  Wojahn based its holding on the express language of Penal Code section 1025 that the allegation of the prior conviction must be tried by the same jury which tries the issue of guilt.  (People v. Wojahn, supra, 150 Cal.App.3d at 1033–1034, 198 Cal.Rptr. 277.)   But Penal Code section 1025 also expressly authorizes waiver of jury trial on the prior, as occurred in this case.³  When section 1025 was originally enacted, the Legislature contemplated that the jury would hear the evidence of the prior at the same time it heard the evidence of the substantive offense.   The courts repeatedly held that a defendant had no right to a bifurcated trial.  (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 (1980) 112 Cal.App.3d 441, 446–447, 169 Cal.Rptr. 359.)   In 1981, however, People v. Bracamonte, 119 Cal.App.3d 644, 174 Cal.Rptr. 191 departed from this well-established precedent and declared that a defendant “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.”   (Id. at 654, 174 Cal.Rptr. 191.)   The Bracamonte procedure is for the benefit of the defendant, to avoid any possibility that the jury would be prejudiced by knowing of the defendant's ex-felon status before determining guilt of the substantive charge.   The record reflects that in the instant case, bifurcation was at the request of the defense and that at the commencement of trial only the murder and firearm use allegations were read to the jury.

Even after a bifurcation under Bracamonte, it is nevertheless quite common for a defendant to waive jury trial on the prior after the verdict of guilt.   (See, e.g., People v. Guillen (1974) 37 Cal.App.3d 976, 980 and fn. 2, 113 Cal.Rptr. 43.)   There are several good reasons for doing so.   Having just been found guilty by a jury, a defendant might think that the jury is now prejudiced against him.   Although Wojahn treated the “same jury” provision as if it were a “ ‘valued right’ ” to a defendant (People v. Wojahn, supra, 150 Cal.App.3d at 1034–1035, 198 Cal.Rptr. 277), most defendants would find no benefit in submitting the prior to a jury which had just convicted the defendant on the main charge.   The defense would probably prefer a new jury, but the statute prohibits that in the interests of judicial economy and convenience.  (See People v. Owens, supra, 112 Cal.App.3d at 447, 169 Cal.Rptr. 359.)   Moreover there is almost never a disputable issue about the prior, and a defendant might want to save the time and expense of a jury trial on the prior.  (See People v. Trujillo (1984) 154 Cal.App.3d 1077, 1091, 202 Cal.Rptr. 832.)   In the instant case, the record shows defendant was even considering waiving a probation report and requesting immediate sentencing, so he might have wished to save the time involved in a jury trial on the prior.   So far as the record shows, defendant wanted a nonjury trial of the prior and he received exactly what he wanted.   Although his express waiver occurred after the jury had been discharged, we conclude it is nevertheless valid.   (Cf. People v. Dyer (1961) 188 Cal.App.2d 646, 649, 10 Cal.Rptr. 613.)

Defendant's technical argument that the court lost jurisdiction to try the prior as soon as the jury stepped out of the jury box is based on principles which we find distinguishable.   Because of the defense request for bifurcation, the issue of the prior had never been submitted to the jury before the jury was discharged.   Therefore this case is not analogous to authorities cited by defendant involving a jury's failure to return a verdict on an issue which had been submitted to the jury.  (See People v. Eppinger (1895) 109 Cal. 294, 298, 41 P. 1037 and cases cited in People v. Huffman (1967) 248 Cal.App.2d 260, 261, 56 Cal.Rptr. 255.)⁴  For the same reason, this case is not like an attempt to change a verdict which has already been acknowledged by the jury and recorded in the minutes.  (See People v. Thornton (1984) 155 Cal.App.3d 845, 852, 202 Cal.Rptr. 448, cited by defendant, and cases cited in People v. Hendricks (1987) 43 Cal.3d 584, 597, 238 Cal.Rptr. 66, 737 P.2d 1350.)

 Defendant contends alternatively that his trial counsel was incompetent by advising and participating in the express jury waiver rather than promptly moving to strike the prior under Wojahn.   Since the record does not show the reasons for counsel's conduct, defendant's claim is more appropriately left to habeas corpus proceedings wherein the circumstances outside the record could be shown and trial counsel would have the opportunity to explain.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

We conclude, therefore, that the trial court erred in striking defendant's prior conviction.   It is unnecessary to remand the matter, since the record makes clear that the court would have sentenced defendant to the maximum term and would not have struck the prior unless compelled to do so by Wojahn.

The judgment is modified to provide that defendant is sentenced to a total term of 13 years in the state prison, consisting of an upper term of 6 years for voluntary manslaughter (Pen.Code, § 192, subd. (a)), a consecutive term of 2 years for use of a firearm (Pen.Code, § 12022.5) and a consecutive term of 5 years pursuant to Penal Code section 667, subdivision (a).   As so modified the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

3.   Penal Code section 1025 provides:  “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 the 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.”  (Emphasis added.)

4.   Although defendant cites People v. Morton (1953) 41 Cal.2d 536, 544, 261 P.2d 523 as having approved People v. Eppinger, supra, we find Morton to be more significant for the fact that the Supreme Court did not take the language of Penal Code section 1025 so literally as to prevent a new trial on a prior by a different jury in the appropriate circumstance of a reversal on appeal.  (41 Cal.2d at 544–545, 261 P.2d 523.)

ASHBY, Associate Justice.

LUCAS, P.J., and BOREN, J., concur.