PEOPLE v. MOORE (1991)

In the published portion of this opinion, we hold that the former jeopardy principle does not bar retrial of a prior conviction, alleged for purposes of sentence enhancement, ineligibility for parole, or both, where a plea admitting the prior is overturned because of a failure to admonish the defendant of constitutional rights or to take waivers of those rights.

The appellant, David Moore, was charged with a narcotics offense.   Two prior convictions also were alleged against him.   Trial of the narcotics charge was bifurcated from trial of two prior convictions.   After the jury reached its verdict on the narcotics violation, the jurors retired to the jury room to await further proceedings.   At that point, appellant admitted the first prior conviction, but did so without the requisite advisements and waivers of his constitutional rights to jury trial, confrontation and the privilege against self-incrimination.   Then, following a minimal but adequate advisement and waiver of his rights, appellant admitted the second prior conviction.   The jury was then discharged.

Appellant contends that his admission of the first prior conviction was invalid and that the doctrine of former jeopardy precludes retrial of the issue of whether he suffered that conviction.  (See People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.)   We explain in the published part of this opinion that while we agree that the findings on this prior conviction must be set aside, the former jeopardy rule does not preclude retrial of the issue.

In the unpublished portion of this opinion, we reject appellant's claims that he was not adequately advised of his constitutional rights with respect to the second prior conviction and that he did not admit that conviction, and we agree with appellant's contention with respect to presentence credit.

FACTUAL AND PROCEDURAL SUMMARY

The appellant was charged with possession of cocaine base for sale.   (Health and Saf.Code, § 11351.5.)   The information also alleged two prior felony convictions, one for assault with a deadly weapon (Pen.Code, § 245, subd. (c)),¹ and the other for possession of a controlled substance for sale (Health and Saf.Code, §§ 11351, 11370.2 and 11370, subds. (a) and (c)).   Appellant was charged with violation of his probation in case number A987155, which arose from the earlier narcotics conviction.   We need not discuss the underlying facts of the new charge since appellant does not challenge his conviction for that offense.

Prior to impanelling the jury, the trial court granted appellant's request to bifurcate trial on the issue of whether he had suffered the prior convictions from the trial of the primary offense.   The jury convicted appellant of possession of cocaine base for sale, and the trial court immediately directed the jurors to return to the jury room to await further instructions.   The jury was not discharged.

The following colloquy then took place.  “The Court:  People have charged the defendant with commission of a prior felony by which he has served a separate term in the state prison within five years of this crime.  [¶] Will counsel for the defendant stipulate to the prior?  ․ [¶] [Counsel for appellant]:  The defendant wants to admit the prior, Your Honor.   Stipulate to the prior.   [¶]․  [¶] The Court:  Mr. Moore, is that your own desire, to admit the prior?  [¶] The defendant:  Yes.  [¶] The Court:  Do you admit that on or about February 12, 1985, in the Superior Court of the State of California, for the County of Los Angeles, in Case No. A–629717 you were convicted of the crime of assault with a deadly weapon, a felony, in violation of section 245(c) of the Penal Code and that you served a separate term in the state prison for that offense;  is that correct?  [¶] The defendant:  Yes.”

This record fails to reflect any admonishment to or waiver by appellant of his rights to jury trial, confrontation and cross-examination, or the privilege against self-incrimination.   After appellant admitted the prior conviction for assault with a deadly weapon, the prosecuting attorney discussed the second alleged prior conviction.

The district attorney stated that appellant was entitled to admit the allegation of the second prior, or to have the issue tried by jury or by the court.   At first, the court expressed its belief that the allegation referred only to a violation of appellant's probation.   The district attorney corrected the court, explaining that the second prior conviction also was alleged as an enhancement.   The prosecutor requested the trial court to obtain a waiver of jury trial from appellant and his counsel.

The trial court directed the district attorney to take the jury waiver.   The following then occurred:  “[The District Attorney]:  It is my understanding that you are going to admit that on or about the 12th day of July, 1989, in Case No. A–987155 you were convicted of Health and Safety Code section 11351;  is that correct?  [¶] The defendant:  Yes.  [¶] [The District Attorney]:  Is it your intention today that you wish to waive a jury trial on the allegation that you suffered a prior?  [¶] The defendant:  Yes.  [¶] [The District Attorney]:  Mr. Tucker [counsel for appellant], do you concur?  [¶] Mr. Tucker:  And all the rights thereto, yes.  [¶] [The District Attorney]:  Mr. Moore, do you waive your right to a jury trial and you waive your right to confront and cross-examine witnesses?  ․ [¶] The Defendant:  Yes.  [¶] [The District Attorney]:  You waive your right to the privilege against self-incrimination?  [¶] The Defendant:  Yes.  [¶] [The District Attorney]:  And, Mr. Tucker, you concur in the waiver of all the rights;  is that correct?  [¶] Mr. Tucker:  Yes.”

The district attorney went on to advise appellant of the sentencing consequences of his admission of both the assault and narcotics prior convictions.   The trial court found appellant to be in violation of probation, and then excused the jury.   Appellant was sentenced to prison for the mid-term of four years.   He was sentenced to one additional year for the prior conviction of assault (§ 667.5, subd. (b)), and to three additional years pursuant to Health and Safety Code section 11370.2, subdivision (b) for the prior narcotics conviction.

Appellant received a consecutive two-year term for the earlier conviction for which he was on probation.   His aggregate sentence amounted to 10 years.   Appellant received credit for 120 days of actual time and 120 days of conduct credit.   The sentence order was corrected and an amended abstract of judgment was filed imposing a one-year consecutive sentence (one-third the mid-term of three years) for the crime for which probation had been granted and revoked.   Appellant filed a timely notice of appeal.

DISCUSSION

IThe Prior Conviction for Assault with a Deadly Weapon

 It is established that a defendant must be expressly and specifically advised of the constitutional rights to confrontation, jury trial, and the privilege against self-incrimination, and that this must be done prior to the admission of a prior felony conviction.  (In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561;  People v. Balderrama (1990) 221 Cal.App.3d 282, 284, 270 Cal.Rptr. 432.)   The defendant also must be advised of the increase in the term which might be imposed as a result of the admission.  (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)   The record must clearly reflect defendant's waivers of these rights.  (Id. at p. 865, 112 Cal.Rptr. 513, 519 P.2d 561.)

 The record in this case establishes that the trial court failed to advise appellant of any of these rights with respect to his admission of the prior conviction of assault with a deadly weapon.   It follows that the one-year sentence enhancement imposed as a result of his admission of that prior conviction cannot stand.   We must consider whether the People are entitled to retry the issue of this prior conviction.

 Appellant argues that the doctrine of double jeopardy precludes remand for a new trial of the prior conviction.   He invokes the rule of People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.   The Attorney General responds that Wojahn does not apply because the appellant waived jury and admitted the prior conviction before the jury was discharged.   As we have seen, however, the record does not support the claim that appellant waived jury (or any of his other constitutional rights) as to the prior conviction for assault.   Whether or not Wojahn was correctly decided in its former jeopardy holding,² we agree that the decision has no application to this case because the admission was made while the jury was still available.

In Wojahn, the trial court granted a defendant's motion to bifurcate the trial of his prior conviction from the trial of new substantive offenses.   The jury was discharged after it returned verdicts on the substantive offenses but before any evidence of the prior conviction had been offered.   Three weeks later the trial court instituted a new proceeding to determine the truth of the prior conviction.   The defendant then waived jury trial, and the trial court sustained the prior conviction allegation.  (150 Cal.App.3d at p. 1032, 198 Cal.Rptr. 277.)   The Wojahn court concluded that the former jeopardy principle prohibited the impanelling of a new jury to try the truth of the prior conviction.  (Id. at p. 1035, 198 Cal.Rptr. 277.)

Here, the jury had not been excused when appellant admitted the prior conviction for assault.³  Unlike Wojahn and its progeny, the issue before us is not the consequence of an improvident discharge of a jury followed by an admission or court trial of prior conviction allegations.   Instead, the issue is whether the doctrine of double jeopardy prohibits retrial of a prior conviction following reversal of a sentence due to a procedural error by the trial court.

In Lockhart v. Nelson (1988) 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265, the defendant was subject to a particular enhancement upon a fourth conviction.   Three prior convictions were alleged against him, and all were sustained.   It later developed that one of the prior convictions was improperly charged because the defendant had received a pardon for that crime.   The issue was whether the prosecution could allege a different prior conviction, not previously presented, in order to sustain the enhancement.   The high court held that there was no jeopardy bar in its doing so, since the enhancement had been set aside due to error in receiving evidence of the pardoned prior conviction rather than on account of an insufficiency of evidence.  (See also People v. Hockersmith (1990) 217 Cal.App.3d 968, 976, 266 Cal.Rptr. 380.)   This case presents a similar trial court error:  the trial court sentenced appellant on the basis of a prior conviction that had not been established.   In Nelson, the prior could not be used because a pardon had been issued.   In this case, the prior was unavailable as a sentencing factor because of an absence of proper advisements and waivers of constitutional rights.

Another decision by the United States Supreme Court, United States v. Tateo (1964) 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448, is particularly pertinent to the issue presented in this case.   In Tateo, the defendant was tried for kidnapping and four related charges of bank robbery.   During the course of the trial, the district judge told defense counsel that if Tateo were found guilty, the court would impose a life sentence on the kidnapping charge and consecutive sentences on the other charges.  (Id. at p. 464, 84 S.Ct. at p. 1588.)   The defense attorney conveyed this information to Tateo and advised him of the probability that he would be convicted.   Tateo pleaded guilty to the four bank robbery charges.   The jury was then discharged, the kidnapping count was dismissed, and Tateo was sentenced to prison.

In a subsequent proceeding, a different district judge granted Tateo's motion to set aside the conviction and granted a new trial on the ground that the guilty plea was not freely given.  (Id. at p. 464, 84 S.Ct. at p. 1588.)   Tateo was re-indicted on the kidnapping charge and was brought to trial on that charge and the four bank robbery charges to which he originally had pleaded guilty.

The district court took the view that all five counts were barred by the double jeopardy doctrine, and granted Tateo's motion to dismiss.   The Supreme Court reversed.   It held that while “[t]he Fifth Amendment provides that no ‘person [shall] be subject for the same offense to be twice put in jeopardy of life or limb․’ ”, this principle “does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction․”  (Id. at p. 465, 84 S.Ct. at p. 1588.)

The California Supreme Court applied Tateo in People v. Shirley (1982) 31 Cal.3d 18, 71, 181 Cal.Rptr. 243, 723 P.2d 1354, holding that retrial of a defendant whose rape conviction was reversed because of the erroneous admission of evidence was not barred by double jeopardy.

Here appellant's admission of his prior conviction for assault must be set aside only because of the trial court's failure to advise him of his constitutional rights and to obtain appellant's waiver of those rights.   There is no issue of the sufficiency of the evidence of the prior conviction.   Under Tateo, we conclude that the former jeopardy principle does not preclude retrial of the prior conviction for assault.

 Appellant argues that he cannot be retried for the assault prior conviction because the jury which determined his guilt on the new charges did not also determine the truth of the alleged prior conviction.   That, he claims, violates the command of section 1025, which provides that the same jury must try both the primary offense and the truth of any alleged prior convictions.⁴

Section 1025 speaks to the initial trial of a defendant who is charged with a new offense and prior convictions alleged for purposes of sentence.   It does not address the circumstance of an appellate reversal of only an alleged prior conviction, coupled with an affirmance of the conviction on the primary offense.   There is nothing in the statute to suggest that when this occurs, the defendant cannot be retried because the jury has been discharged.   The consequence of the construction urged by appellant would be a windfall:  he would forever escape the effect of his prior conviction on his present sentence.   That is the sort of absurd result that courts are abjured to avoid in construing statutes.  (See People v. Boggs (1985) 166 Cal.App.3d 851, 856, 212 Cal.Rptr. 683.)

While we find no reported appellate decision that has addressed the construction of section 1025 in the context of the issue we are discussing, we note that there is a well-established practice of ordering a retrial on the issue of an alleged prior conviction in cases where reversal is confined to the prior conviction and the conviction for the primary offense is affirmed.  (See, e.g., People v. Weathington (1991) 231 Cal.App.3d 69, 91, 282 Cal.Rptr. 170 [vacating appellant's admission of prior convictions and sentence imposed thereon because the trial court refused to bifurcate the trial of the prior convictions, and remanding to the trial court for further proceedings on the issue of the prior convictions];  People v. Tipton (1984) 160 Cal.App.3d 853, 857, 206 Cal.Rptr. 821 [vacating sentence where motion to bifurcate trial of prior conviction denied, and remanding to the trial court for jury trial on the prior conviction].)

This practice is consistent with the decision of the Supreme Court in People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523.   In that case the court examined the question of whether a retrial of the issue of a prior conviction may be ordered on remand after a conviction of the new charges had been confirmed.   While the opinion does not cite section 1025, the reasoning of the court is instructive on the retrial issue.   The court concluded that “[w]hen the sole question on remand from an appellate court involves the proof of an alleged prior conviction, there is no reason to require the parties to retry the question of guilt of the primary offenses when the correctness of the determination of this question is not challenged by either party.   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.  [Citations.]  Proof of prior convictions or the adjudication that the defendant is an habitual criminal does not involve substantive offenses, but merely provides for increased punishment of those whose prior convictions fall within the scope of these statutes.”  (Id. at p. 543, 261 P.2d 523.)

As we have pointed out, appellant does not challenge his conviction for the primary offense of possession of cocaine base for sale.   The only claim of error pertinent to this issue concerns his admission of the prior conviction for assault.   We conclude that remand for the limited purpose of a trial on the truth of the prior conviction for assault with a deadly weapon is proper.

II–III **

DISPOSITION

The judgment of conviction of a violation of Health and Safety Code section 11351.5 and the additional three-year enhancement imposed pursuant to Health and Safety Code section 11370.2, subdivision (b) are affirmed.   That part of the judgment imposing an additional sentence of one year pursuant to section 667.5, subdivision (b) for the prior conviction for assault with a deadly weapon is reversed, and the cause is remanded for trial on the issue of whether appellant suffered that conviction, and for resentencing.   Appellant is to have presentence credit for time served in county jail as a condition of probation in case number A987155.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   The Wojahn issue is now before the Supreme Court, review having been granted in People v. Saunders, S022903.

3.   The decision of the trial court to recess the jury, rather than to discharge it, is consistent with the 1988 amendment of section 1164.   The amendment added subdivision (b) to the statute, which provides that “No jury should 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.”  (Stats.1988, ch. 413, § 1;  Stats.1989, ch. 1417, § 21;  Stats.1990, ch. 800, § 1.)

4.   Section 1025 provides in pertinent part:  “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 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.”

FOOTNOTE.   See footnote *, ante. 13.

EPSTEIN, Associate Justice.

ARLEIGH M. WOODS, P.J., and COOPER, J.***, concur.