PEOPLE v. JACKSON (1988)

A jury found appellant guilty of robbery (Pen.Code, § 211); ¹  the trial court found four prior convictions valid, but dismissed two of them and sentenced him to thirteen years' imprisonment.   This timely appeal followed.   Appellant contends that his waiver of the right to jury trial on the priors was invalid, that resubmission of the issue would violate his right against double jeopardy, and that therefore the enhancements imposed on his sentence because of the priors must be stricken.   We conclude that no prejudicial error occurred and affirm the judgment.

Background

The details of appellant's crime are not relevant to our discussion.   This brief summary will suffice.   Appellant entered a 7–Eleven store, pretended to have a gun, and robbed the clerk, who knew him through a Bible class, of less than $20 that was in the till.   An officer saw what happened, confirmed with the clerk that he had been robbed, and arrested appellant as his getaway car was backing away from the curb.   A camera activated by the clerk and a video tape recorder photographed appellant robbing the store.

Admission of the Priors

The information alleged that appellant had suffered four prior serious felony convictions (three robberies and one attempted robbery) within the meaning of sections 667, subdivision (a), and 1192.7, subdivision (c).²

Before commencement of the jury trial the court granted defense counsel's motion to bifurcate trial on the priors until after trial of the robbery count.   Later, at the close of the prosecutor's case-in-chief and before appellant presented his case, defense counsel moved that the priors be excluded for the purpose of impeaching appellant if he took the stand.   He argued that they were remote in time, having occurred in 1972, 1975, and two in 1980, and that they had a great potential for prejudice.   The court ruled that the two crimes committed in 1980, robbery and attempted robbery, could be used to impeach appellant.

On direct examination appellant testified that in 1980 he pled guilty to and in fact was guilty of felony robbery and felony attempted robbery.

On May 18, 1987, the jury returned its verdict, and the court thanked and discharged them.   The court then set June 15 for receipt of the supplemental probation report and pronouncement of judgment and sentence.   At this point the district attorney stated, “[W]e also have the matter of the priors to take up.  [¶] I believe Mr. Willis [defense attorney] has indicated that [appellant] will waive his right to a jury trial on that matter and we can put that over to the sentencing date of the 15th․”

Defense counsel responded, “[Y]es, he does wish to waive a jury as to the priors.  [¶] We want to have a court trial as to the priors.  [¶] I think it would make sense to go ahead and put that on the same date as the supplemental probation report.”   The court replied, “Very good.”

The next day, May 19, the court reconvened, stated that it had previously neglected to obtain appellant's waiver of jury trial on the priors, and asked whether counsel had discussed the question with his client.   Counsel replied that he had discussed it with his client “both then and ․ now,” and that appellant was prepared to waive time and have the matter determined on June 15.   The following exchange then occurred:  “THE COURT:  All right.   You have had full opportunity to discuss this with your attorney, Mr. Jackson?  [¶] THE DEFENDANT:  Yes, Your Honor.  [¶] THE COURT:  And it is your desire to have the matter heard without a jury?  [¶] You realize you are entitled to have a jury even with respect to these proceedings?  [¶] THE DEFENDANT:  Yes, Your Honor.   [¶] THE COURT:  And it's your wish to have a jury waived and have the Court hear the matter?  [¶] THE DEFENDANT:  Yes, Your Honor.”

On June 15, at the sentencing hearing, the deputy district attorney introduced in evidence three documents proving appellant's prior convictions.   Defense counsel stated that he had no objection to the evidence and that he had seen it before.   He then said, “On the issue of their constitutional sufficiency, I am prepared to submit that on the submission of the documents.   [¶] There is a related issue as to whether they should be struck for sentencing purposes, which makes more sense to address.”   The court then found the documentary evidence “constitutionally sufficient” to prove the priors, and defense counsel argued for a middle term with enhancements stricken.

Validity of Waiver

Citing In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561, and other Boykin–Tahl progeny, appellant contends that the trial court erred in failing to give him express and specific admonitions about his constitutional rights.  (See Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)  Yurko is not applicable here.   It dealt with the admonitions and waivers required where a criminal defendant wishes to admit allegations of prior convictions.   Here appellant denied the priors at arraignment, later admitted them on the stand, and now questions not the propriety of his admission but of his waiver of jury trial on their validity.

Article I, section 16, of the California Constitution applies.   It provides in relevant part:  “․ A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel․”  Section 1025 provides for arraignment of criminal defendants on charged priors and requires that if the priors are denied, their validity “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․”  Section 1158, which deals with the form of the verdict or finding, provides that “the jury, or the judge if a jury trial is waived, must ․ find whether or not he [or she] has suffered such previous conviction․” ³

 Express waiver by counsel alone of a jury trial on the validity of priors is not sufficient (e.g., People v. Maes (1965) 236 Cal.App.2d 147, 148, 45 Cal.Rptr. 903), and the constitutional requirement of a personal waiver of a jury trial by defendant applies to the waiver of jury trial of the validity of alleged priors (People v. Luick (1972) 24 Cal.App.3d 555, 558–559, 101 Cal.Rptr. 252).

Appellant argues that here defense counsel's May 18 waiver of jury trial on the priors was not adequate because appellant's personal waiver was required.   In light of the clear constitutional and statutory provisions as interpreted by the cited appellate decisions, we are compelled to agree.   However, error in eliciting waiver of jury trial has been held harmless under appropriate circumstances, and under the peculiar facts of this case, we hold that the error was harmless here.   On this record we find that there is no reasonable probability that if the court had sought appellant's personal waiver on May 18, he would have done anything but given it.  (People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917.)   When voir-dired the next day, appellant confirmed his waiver as stated by his attorney, and there is no question this is what he would have done had he been asked, as he should have been, on May 18.

That this is the case is clear because, although appellant did not expressly admit the priors at arraignment, there was no real dispute at trial that he had suffered them.   In fact, appellant admitted the two prior convictions which were ultimately used in his sentence when he took the stand, a fact which may properly be viewed as an admission for purposes of the recidivist allegations.  (People v. Sullivan (1962) 206 Cal.App.2d 36, 44–45, 23 Cal.Rptr. 558, disapproved on another ground in People v. Hosner (1975) 15 Cal.3d 60, 67, fn. 5, 123 Cal.Rptr. 381, 538 P.2d 1141.)   This scenario distinguishes the case at bench from all the authorities upon which appellant relies.

The recent decision in People v. Ware (1988) 205 Cal.App.3d 697, 252 Cal.Rptr. 641, is closely analogous to this case.   There, after a month-long jury trial, the court inadvertently excused the jury before it held a hearing on the bifurcated issue of validity of a prior.   Defendant was then advised of and waived his rights.   Later, however, the court granted a defense motion to strike the prior because the proceedings during which it had been found true were a nullity.   The Court of Appeal reversed.   The court first pointed out that, after enactment of section 1025 giving a defendant the right to have the “same jury” try the main case and the priors, courts consistently held that defendants had no right to bifurcated trials.  People v. Bracamonte (1981) 119 Cal.App.3d 644, 654, 174 Cal.Rptr. 191, changed this rule and established the right to bifurcation for the benefit of the defendant, but defendants commonly continued to waive jury trial on the prior after the verdict of guilt.   The Ware court stated several reasons for this, including that the guilt jury probably is perceived as prejudiced against the defendant, and he or she has no right to a second jury, that there is almost never a disputable issue about the prior, and that the waiver saves time and expense.  (People v. Ware, supra, 205 Cal.App.3d at p. 701, 252 Cal.Rptr. 641.)

The Ware court emphasized that the defendant there, as here, wanted a nonjury trial on the prior and got exactly that.   Accordingly, it found that the trial court erred in striking the prior.  (People v. Ware, supra, 205 Cal.App.3d at p. 701, 252 Cal.Rptr. 641.)

The holding in People v. Jaquish (1966) 244 Cal.App.2d 444, 53 Cal.Rptr. 123, overruled on another ground in People v. Rivers (1967) 66 Cal.2d 1000, 1005, 59 Cal.Rptr. 851, 429 P.2d 171, is also persuasive.   There, the record did not indicate that defendant had been arraigned on his priors, as required by section 1025.   At the conclusion of the prosecution's case, the district attorney offered in evidence documentary proof of defendant's priors, and the defense attorney stipulated to its admission.  (Id., 244 Cal.App.2d at p. 447, 53 Cal.Rptr. 123.)   The Court of Appeal held that when the defense stipulated to admission of proof of the priors during trial, defendant waived any error under section 1025 in failure to arraign him.  (Id., at p. 450, 53 Cal.Rptr. 123;  see also People v. Tahtinen (1958) 50 Cal.2d 127, 134–135, 323 P.2d 442 [admission of prior at arraignment is conclusive at subsequent proceeding after mistrial];  People v. Evans (1960) 185 Cal.App.2d 331, 334, 8 Cal.Rptr. 410 [admission of prior at time of guilty plea is conclusive at sentencing].)  By a parity of reasoning, we hold that when appellant took the stand and admitted his priors under oath, he effectively rendered moot and waived any defect in the manner in which those priors were charged and proved.

 Appellant claims that jeopardy had attached regarding the priors when the jury was impaneled and that it would deprive him of his constitutional right against double jeopardy if his priors were to be heard by a different jury or by the court.   The facts of the case at bench are distinguishable from People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, upon which appellant relies.   There at the close of trial the court dismissed the jury.   Three weeks later, on motion of the district attorney and over defense objection, the court instituted a new proceeding to try the prior.   With his objection overruled, defendant was effectively coerced into having the court try the issue.   We held that jeopardy had attached to both the issue of guilt of the substantive offense and the issue of the truth of the prior allegation.   Therefore, when the court dismissed the jury, it was barred from trying the prior on double jeopardy principles.  (Id., at p. 1035, 198 Cal.Rptr. 277.)   Here, by way of contrast, appellant admitted the priors during trial, and thereafter freely waived a jury trial of them.  (See People v. Ware, supra, 205 Cal.App.3d at p. 701, 252 Cal.Rptr. 641.) ⁴

Appellant complains that his waiver on May 19 was invalid because he was not told that he had a right to have the same jury try the prior as had tried the principal offense.   Although this argument appears to have merit in the abstract, in reality it is of no assistance to appellant because what occurred on May 19 is not in issue here.   The error with which we are concerned occurred on May 18, when the court accepted defense counsel's waiver and neglected to elicit appellant's.   The only aspect of the May 19 proceeding which is relevant here is appellant's waiver, because it clearly demonstrates his consistent desire to waive jury trial on the priors and supports our holding that the error in failing to solicit that waiver on May 18 was harmless.

After the jury returned its verdict of guilty, the predominant concern of defense counsel was to minimize the potential impact on the sentence of the 20–year enhancement for the unquestionably valid priors.   He argued that the court should strike them and had the discretion to do so because the offense occurred after our Supreme Court upheld such discretion in People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833 and before the Legislature amended Penal Code section 667, making imposition of the 5–year enhancement for each prior serious felony mandatory.   Defense counsel's concern for appellant was shared by the trial court, which exercised its discretion and struck the 2 oldest priors, reducing appellant's sentence by 10 years.   Appellant's waiver was in harmony with concerns of his counsel and the court and ultimately worked to his advantage;  we find no reversible error.

The judgment is affirmed.

I concur in affirming the judgment of conviction, but respectfully dissent from the refusal to strike the enhancements.   In my view, People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, which was decided by this Division, requires that we strike the prior conviction enhancements because they are barred by double jeopardy.

In Wojahn, the court bifurcated the issues of guilt and prior convictions.   At the end of the guilt phase, the court “mistakenly” discharged the jury.   Some three weeks later, the court over the defendant's objection instituted a new proceeding to determine the truth of the prior.   The defendant waived his right to a jury trial and the court found the allegations true.  (150 Cal.App.3d at p. 1032, 198 Cal.Rptr. 277.)   We held “that when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction.   Consequently jeopardy attached to both issues.   When 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 the impanelling of a new jury to try the issue of the prior conviction.”  (Id., at p. 1035, 198 Cal.Rptr. 277, emphasis in original.)

Similarly, in the present case, after the jury returned its verdict on the substantive offense, the court thanked and discharged them.   Once defunct and beyond his immediate control, the trial court at law could not revive the jury.  (People v. Lee Yune Chong (1892) 94 Cal. 379, 385, 29 P. 776.)   At that point double jeopardy considerations prohibited a new jury or the trial court from trying the prior conviction allegations.  (Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.)

The majority is unwilling to explicitly disavow Wojahn and instead tries to distinguish that case, a task which I believe to be impossible.   The majority makes much of the fact that after the jury was discharged in the present case the appellant “freely waived” a jury trial, while in Wojahn the defendant was “coerced” into having the court try the issue after the jury was discharged.  (Maj. opn. at p. 643.)   However, the majority fails to explain what conceivable effect this distinction can have on our double jeopardy analysis.  “Once jeopardy has attached, discharge of the jury without a verdict is tantamount to an acquittal and prevents a retrial, unless the defendant consented to the discharge or legal necessity required it.”  (Stone v. Superior Court (1982) 31 Cal.3d 503, 516, 183 Cal.Rptr. 647, 646 P.2d 809.)   Here, the appellant did not consent to discharge of the jury before they were excused.   What happened after the court discharged the jury is simply irrelevant to our double jeopardy analysis, since the discharge was “tantamount to an acquittal.”

In my view of the May 19 proceedings, appellant's subsequent waiver of his right to jury trial did not with knowledge and understanding waive his right to the protection afforded by double jeopardy considerations.   Reviewing the record, appellant was never adequately informed by court or counsel that he had the valued right to have the same jury try the substantive offense and the enhancements, and the viable alternatives open to him resulting from the court's misadventure on the previous day.   Moreover, it is simply inconceivable to me that appellant would waive double jeopardy protection knowing that he was needlessly exposing his liberty interest to 20 years of enhancements.   Understandably, defense counsel would feel obligated to keep his word with the court and opposing counsel;  but, of course, appellant personally was under no such ethical compulsion.   All know without my reminder where appellant's counsel's paramount duty remained.

In the absence of an express waiver of this right, or an express waiver of the protection afforded by double jeopardy, I believe the court was absolutely barred from trying the enhancements after the jury was discharged.

Consequently, I would strike the enhancements.   In 1984, when Justice Feinberg circulated Wojahn, I concurred, finding his double jeopardy consideration analysis sound and enduring even as I do today.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   Section 667, subdivision (a), provides that a defendant convicted of a serious felony who was previously convicted of a serious felony or felonies shall suffer a five-year consecutive sentence enhancement for each such prior serious felony.   Section 1192.7, subdivision (c), defines serious felony as including robbery and attempted robbery.

3.   Section 9691/212 contains similar provisions for cases in which defendant pleads guilty but denies the priors.

4.   Cf. People v. Shaffer (1987) 195 Cal.App.3d 939, 241 Cal.Rptr. 99 [jury discharged but court did not lose “control” over it;  subsequent waiver of jury and court trial of prior affirmed;  Wojahn distinguished];  People v. Romo (1962) 200 Cal.App.2d 83, 92–94, 19 Cal.Rptr. 179 [proof of prior introduced during court trial;  hearing on validity of prior 20 days after finding of guilt held valid].We think serious question can be raised regarding whether and when jeopardy attaches to an allegation of a prior;  we express no view on the validity of our double jeopardy discussion and holding in Wojahn.

BARRY–DEAL, Associate Justice.

MERRILL, J., concurs.