PEOPLE v. SIMS (1984)

OPINION

Defendant Jerry Sims was charged by information with a violation of Penal Code section 487, subdivision (1), grand theft.   The information further alleged that Sims had suffered two prior felony convictions (Pen. Code, § 667.5, subd. (b)).  The questions presented by this appeal are sufficiency of evidence to prove the value of the things taken, whether the procedure by which it was determined that Sims had suffered prior convictions was proper as against a challenge that such a finding must be made by the same jury which adjudicated guilt of the main offense and whether principles of double jeopardy invalidated the verdict which found that the defendant had suffered convictions of the priors.

I. FACTS

There was substantial evidence that Sims stole a television set from the apartment of his sister.

II. VALUE EVIDENCE 1

III. PROOF OF PRIORS

A. PROCEDURAL BACKGROUND

On the first morning of trial, defense counsel stated that defendant Sims wanted to admit the priors.   Shortly thereafter the defendant personally joined in the request.   We set forth the scenario of what occurred in the margin.²  To summarize, after a full advisement, the defendant announced that he did not wish to admit the priors and his attorney requested the matter be tried by the court after the jury had returned its verdict on the underlying charge.   Although both attorneys entered into a stipulation for a bifurcated court trial in accordance with that request (before the jury was impaneled and sworn), the defendant did not personally waive his right to trial by jury.   After the verdict was returned and the jury excused, the defendant was again advised of the requirement that the question of whether or not he had suffered the previous convictions be tried by the same jury that heard the grand theft charge.   The defendant Sims is not a slow learner, and immediately asked “When did I give up that right?”   The court recessed until the next morning when the defendant, through his attorney, stated he wanted the issue tried by the same jury which tried the underlying offense.

Faced with this dilemma, the court announced that it would honor the stipulation for a court trial on the issue of the priors and following that, impanel a jury for a trial on the same issue.³  Although not directly stated, it is implicit in the procedure adopted by the court that if either the court or jury found that it was not true that the defendant had suffered one of both of his alleged priors, he would have the benefit of that determination.   This follows from the fact that the judge felt obligated to accord both a court trial and a jury trial to the defendant.   The court trial reflected the stipulation and the jury trial reflected the fact that the defendant would not personally waive his right to trial by jury.   As noted in footnote 3, the court found one of the priors to be true and continued the hearing on the other prior to a date later in the same week.   We have searched the record but find no indication that the court called the hearing as continued.   The next procedures involved assignment of the matter to a trial department and the impanelment of a jury to try the issues.   The jury then found that the defendant had suffered the two prior convictions.

Defendant raises two related issues:  Whether his right not to be placed twice in jeopardy was violated and, if not, whether the failure to follow the requirement in Penal Code section 1025 that the same jury hear the underlying offense and the question of whether the defendant has suffered the alleged prior convictions invalidates the proceedings relating to the prior.

B. DOUBLE JEOPARDY

Two Supreme Court cases shed light on the double jeopardy issue.   Both review a Massachusetts procedure wherein a defendant charged with certain crimes (including misdemeanors and felonies having a maximum potential sentence of five years or less and specified felonies having a maximum potential sentence in excess of five years) is tried by a two-tiered system.   Prior to the Massachusetts Court Reorganization Act of 1978, a defendant so charged was required to participate in a bench trial.   An acquittal there terminated the proceeding.   If the defendant was convicted, however, he could request a de novo jury trial in superior court.   In Ludwig v. Massachusetts (1976) 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732, this scheme was upheld against a charge that the defendant was thereby placed twice in jeopardy.   In upholding the Massachusetts system then in effect, the court stated:

“The Massachusetts system presents no danger of prosecution after an accused has been pardoned;  nor is there any doubt that acquittal at the first tier precludes reprosecution.   Instead, the argument appears to be that because the appellant has been placed once in jeopardy and convicted, the State may not retry him when he informs the trial court of his decision to ‘appeal’ and to secure a trial de novo.

“Appellant's argument is without substance.   The decision to secure a new trial rests with the accused alone.   A defendant who elects to be tried de novo in Massachusetts is in no different position than is a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand of his case for a new trial.   Under these circumstances, it long has been clear that the State may reprosecute.   United States v. Ball, 163 U.S. 662 [16 S.Ct. 1192, 41 L.Ed. 300] (1896).   The only difference between an appeal on the record and an appeal resulting automatically in a new trial is that a convicted defendant in Massachusetts may obtain a ‘reversal’ and a new trial without assignment of error in the proceedings at his first trial.   Nothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal.”  (Ludwig v. Massachusetts, supra, 427 U.S. at pp. 631–632, 96 S.Ct. at p. 2788.)

The Supreme Court had occasion to reexamine Massachusetts' two-tiered trial procedure in Justices of Boston Municipal Court v. Michael Lydon (1984) 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311.   The procedure had been modified in 1978 so that one could choose a jury trial outright and need not go through a court trial first.   If a defendant selected a bench trial, he had an absolute right to a jury trial de novo.   Lydon elected to undergo a first-tier bench trial and was convicted.   He then requested a jury trial.   Before the jury trial commenced he moved to dismiss the charge on the ground that one of the elements of the crime had not been proven at the court trial.   He contended that retrial was barred under the principles of Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.   The trial court denied the motion and the Massachusetts Supreme Judicial Court affirmed.   A United States District Court then granted a writ of habeas corpus.   The Supreme Court reversed.

The court noted that the Double Jeopardy Clause of the Fifth Amendment embraces three separate guarantees:  It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.   The court held that its earlier Ludwig opinion was dispositive.   It noted that the Double Jeopardy Clause is not an absolute bar to successive trials, and a defendant may be retried when his conviction is overturned on appeal, unless the conviction is set aside on the ground that there had been insufficient evidence presented at the trial in support of the verdict.   (United States v. Ball (1896) 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300;  Burks v. United States, supra, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.)   The lead opinion noted that implicit in the Ball rule which permits retrial after reversal of a conviction is the concept of “continuing jeopardy.”   There was a continuing course of judicial proceedings in which Lydon got more, not less, of the processes normally extended defendants.   The court observed that features of the Massachusetts system were not oppressive—nothing could happen to a defendant at the first-tier trial that he could not avoid by asking for a de novo jury trial.

A concurring opinion stressed that double jeopardy issues should be analyzed in terms of the policies underlying the clause.   A first verdict under the Massachusetts two-tier trial system has substantially less significance for the defendant than it would in a traditional one-tier system.   Lydon knew from the outset of the first tier that he could demand the right to have a second fact finder determine that the prosecution had not proven its case.   This knowledge substantially diminished the burden imposed by the first proceeding.

What the trial court did in the instant case was to adopt on an ad hoc basis the Massachusetts system.   For double jeopardy purposes, we should test the procedure in the context of two of the guarantees of the Double Jeopardy Clause discussed in Lydon:  protection against a second prosecution for the same offense after acquittal and against a second prosecution for the same offense after conviction.

 The primary goal of barring reprosecution after acquittal is to prevent the state from wearing down the defendant from successive prosecutions.  (Green v. United States (1957) 355 U.S. 184, 187–188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199.)   As we have explained, the defendant in the instant case did not face successive prosecutions after acquittal.   It is manifest that the trial judge was intent on according Sims his right to a jury trial and also giving him the benefit of the stipulation for a court trial.   Although not expressly stated for the record, inherent in the procedure adopted was the understanding that a bench trial finding that the defendant had not served a prior would terminate the litigation as to it.

We must determine whether there was a violation of the second principle mentioned by the Lydon court:  a second prosecution for the same offense after conviction.   After a bench trial, the court found that the defendant had, in fact, suffered one of the priors.⁴  It is significant to us that the bench trial could never have resulted in a binding finding that the allegations in respect to the prior were true.   The defendant had his right to a jury trial on that issue and the court was willing to afford it to him.   Nothing could have happened to Sims during the court trial that he could not have avoided by standing on his right to a jury trial.   Jeopardy attached upon receipt of evidence at the bench trial.  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr. 302, 531 P.2d 1086.)   However, jeopardy did not terminate—the jury trial was yet to be held.   We find the language in Lydon persuasive:

“The Double Jeopardy Clause is not an absolute bar to successive trials.   The general rule is that the Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal.  United States v. Ball, supra.   The justification for this rule was explained in United States v. Tateo, 377 U.S. 463, 466 [84 S.Ct. 1587, 1589, 12 L.Ed.2d 448] (1964), as follows:

“ ‘While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice.   Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.   It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.’

“In Price v. Georgia, 398 U.S. 323, 329 [90 S.Ct. 1757, 1761, 26 L.Ed.2d 300] (1970), we recognized that implicit in the Ball rule permitting retrial after reversal of a conviction is the concept of ‘continuing jeopardy.’   See also Breed v. Jones, 421 U.S. 519, 534 [95 S.Ct. 1779, 1788, 44 L.Ed.2d 346] (1975).   That principle ‘has application where criminal proceedings against an accused have not run their full course.’  Id. [398 U.S.] at 326 [90 S.Ct. at 1759].”  (Justices of Boston Municipal Court v. Michael Lydon, supra, [104 S.Ct. at pp. 1813–1814].)

The trial court below was marked by a complete absence of any kind of governmental oppression.   Any advantage was taken by the defendant, who secured for himself a bifurcated trial, who conversed with his attorney immediately preceding the entry of the stipulation that the matter of the priors would be submitted to court trial, and who, when he learned of the necessity of a personal jury trial waiver and that the same jury should try both the underlying offense and the priors, insisted that he be tried by the jury which the court had dismissed pursuant to the stipulation.   The defendant retained primary control over the course of his trial.  (People v. Allen (1980) 110 Cal.App.3d 698, 168 Cal.Rptr. 227.)

There is absolutely no evidence of the kind of governmental oppression that might, apart from analytical considerations, compel invocation of the Double Jeopardy Clause.   We do not suggest that the absence of such oppression standing alone would defeat an otherwise valid double jeopardy claim, but such absence permits us to test the procedure used as against traditional double jeopardy principles.

 Since 1896, retrials have been permitted after reversal for trial error.  (United States v. Ball, supra, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300.⁵ )  The rationale undergirding the Ball rule was discussed in Burks v. United States, supra, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1:

“[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.   As such, it implies nothing with respect to the guilt or innocence of the defendant.   Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect․  When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished․”

It is unquestioned that if the trial court had determined to hold Sims to his stipulation that the issue of the priors be tried to the court, we would have been compelled to reverse and remand for jury trial.⁶  The lower court, in effect, invalidated its own proceeding and announced its invalidity prior to undertaking the court trial.   The procedure was without statutory authority but for double jeopardy purposes is analogous to the Massachusetts system approved in Lydon and Ludwig.

The facts in the instant case are unlike those before the court in People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.   There, in addition to the charge of miscellaneous crimes, the information alleged a prior conviction.   On defendant's motion, the issue of the prior conviction was bifurcated.   After returning verdicts on the substantive offenses and before any evidence as to the truth of the prior convictions was offered, the jury was improvidently discharged.   Over objection, the court instituted a new proceeding to determine the truth of the prior before a different jury.   It found the allegations respecting the prior true and a five-year enhancement for the prior was imposed.   On appeal the appellate court affirmed the judgment but ordered it amended by striking the five-year sentence enhancement.   The court reasoned that a bifurcation of a jury trial is unlike a severance.   In a bifurcation, the different issues in the case are tried seriatim by the same jury with it returning separate verdicts to the issues bifurcated.   Therefore, when the jury was impaneled and sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and of the issue of the truth of the prior conviction.   Consequently, jeopardy attached to both issues, and double jeopardy considerations prohibited the impaneling of a new jury to try the defendant on the prior conviction.

In the instant case, before the jury was impaneled and sworn, there was a stipulation for a bifurcation with the jury to try the substantive offense only.   When the jury was sworn to try the case, the only issue before it was the charge of grand theft.  (Pen. Code, § 487, subd. (1).)  It was not sworn to try the truth of the priors.   If Sims' attorney had the power to make an election to have the jury try only the issue of grand theft, leaving the issue of the priors to a later proceeding, Wojahn is not controlling.   He had such power.

 An attorney may stipulate to the chemical composition of contraband.  (People v. McCoy (1974) 40 Cal.App.3d 854, 115 Cal.Rptr. 559.)   He may stipulate to waive his client's right to have his trial continued beyond the time limits provided by Penal Code section 1382, subdivision (2) so long as the continuances are reasonable.  (Townsend v. Superior Court (1975) 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619.)   Language in People v. Moore (1983) 140 Cal.App.3d 508, 189 Cal.Rptr. 487, is appropriate.   In discussing the power of counsel to move for a mistrial, the court stated at page 514, 189 Cal.Rptr. 487:

“It is well established the power to control judicial proceedings is vested exclusively in counsel.  [Citation.]  Defense counsel is generally authorized to make tactical decisions concerning introduction of evidence and to control court proceedings, without the necessity of first obtaining a personal waiver from the client.  [Citations.]  Counsel does have the authority to make decisions involving the client's constitutional rights.  [Citations.]

“ ‘Counsel's control, of course, is not unlimited, and there are certain fundamental protections guaranteed an accused which counsel may not waive without his client's concurrence.’  [Citation.]”

 The question before the court in Moore was whether the defendant's attorney was ineffective for failure to raise an issue of double jeopardy before the second trial.   He would have been derelict if he did not have the power to make a motion for mistrial on the grounds of prosecutorial misconduct at the first trial without having his client join in the request.   It was held that he had such power and that therefore there was no viable double jeopardy issue.   If an attorney has the authority to move for a mistrial without recorded assent by his client, thereby losing the chance to invoke the Double Jeopardy Clause in a second trial, he has the authority to bind his client to a stipulation which removes the issue of the priors from a jury impaneled to try the substantive offense.   The fact that he may not also waive his client's right to a trial by jury on the issue of the priors is not determinative.   At this juncture, we need only analyze whether the stipulation withdrawing the issue from the first jury was effective.   We find that it was.

Since Sims' attorney had the power to bind his client to submitting the issue of the priors to a different finder of fact, but did not have the right to waive Sims' right to a jury trial, the trial court did the only thing it could do—accord the defendant his right to jury trial.   The confusion incident to the procedure adopted by the trial court consumed some extra time.   We must examine whether that procedure unconstitutionally burdened defendant's right to a jury trial by right:  (1) by imposing the financial cost of two trials;  (2) by subjecting him to a potentially harsher sentence if he asserts his right to the trial of the issue by jury;  and (3) by imposing an increased psychological and physical hardship by being subjected to two trials.  (See Ludwig v. Massachusetts, supra, 427 U.S. at p. 626, 96 S.Ct. at p. 2786.)

The financial cost to defendant was nil.   He was represented by the public defender.   There was no possibility of a harsher sentence;  Penal Code section 667.5 sets forth the terms of the enhancement, and there is no contention that the court was considering a stay.   Finally, the psychological and physical hardship was slight.   The issue to be tried in the two proceedings was simple and not time consuming.   The stress level of the first trial was moderated by the certain knowledge that if there was an adverse finding, the defendant would get a second chance in a jury trial.   The defendant was in jail on the underlying charge.

We conclude that defendant's right to a jury trial was not compromised.   We must next determine whether the failure to have the same jury try all issues violated defendant's Penal Code section 1025 rights.

C. PENAL CODE SECTION 1025

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 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.)

Article I, section 16, of the California Constitution provides in part that “Trial by jury is an inviolate right and shall be secured to all, ․  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.”

 A defendant's waiver of jury trial must be expressed in words and will not be implied from a defendant's conduct.  (People v. Holmes (1960) 54 Cal.2d 442, 443–444, 5 Cal.Rptr. 871, 353 P.2d 583.)   Although a defendant's waiver cannot be implied, no specific words are necessary to effectuate a waiver, what is necessary is that the record shows that the defendant is aware of his constitutional rights and waives them.  (People v. Gloria (1980) 108 Cal.App.3d 50, 53, 166 Cal.Rptr. 138.)

The defendant having a right to have the jury determine the existence of the priors unless he personally and expressly waives it, the question then becomes whether the same safeguards should be applied to a waiver of having the same jury decide both the guilt issue on the underlying offense and the existence of the priors.

Penal Code section 1025 serves the cause of the efficient administration of justice since there is a great savings of time in not having to call, voir dire, select and impanel a new jury.   Over and above considerations of judicial efficiency is the right of a defendant to have a prompt trial.   The Legislature may have had both considerations in mind when it employed the word “must” in declaring that the same jury try the issue of the priors as tried the substantive offense.

 In reference to the evident intent of the Legislature to accord a defendant a right to a speedy trial of all issues, we see no reason why such a right may not be waived.   Further, in view of the fact that the right is statutorily and not constitutionally mandated, there is no logical reason to require that the waiver be personal.   If an attorney may stipulate to a reasonable trial delay without defendant's on-the-record assent (Townsend v. Superior Court, supra, 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619), we see no reason why a criminal defense attorney may not consent to having a different jury try the issue of priors.

The Legislature may have intended to impose less financial hardship and less physical and psychological stress on a defendant by the procedure provided in Penal Code section 1025.   We have examined those issues in connection with our discussion of the double jeopardy clause;  the same analysis applies here.   As to this defendant, such considerations are minimal.

We can think of no other advantage to a defendant by having one jury try both the issue of the substantive offense and the priors.   From a defendant's standpoint, a jury which has found him guilty, which often entails a rejection of his testimony, is not ideal for a trial of whether or not he has suffered priors.   If he has any chance of prevailing, he would be advantaged by submitting the issue to a fresh jury.

 When the object of a statute is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose.   As Chief Justice Gibson explained in Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262, 175 P.2d 1, the test is not mechanical.

“In order to determine whether a particular statutory provision as to time is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent.   In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time.  (East Bay Municipal U. Dist. v. Garrison, 191 Cal. 680, 686 ․, 218 P. 43)  When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose (Calaveras County v. Brockway, 30 Cal. 325, 343), and the courts will look to see whether the provision is of the essence of the thing to be accomplished.  (Francis v. Superior Court, 3 Cal.2d 19, 28 ․ [43 P.2d 300] ).”

 Some statutory procedures which are obligatory in nature are nevertheless accorded only directory effect because of the statute's purpose.   (Morris v. County of Marin (1977) 18 Cal.3d 901, 909–910, 136 Cal.Rptr. 251, 559 P.2d 606.)   To the same effect, see Ryan v. Byram (1935) 4 Cal.2d 596, 604, 51 P.2d 872, and French v. Edwards (1872) 80 U.S. 506, 511, 20 L.Ed. 702.

To the extent that the statutory requirement at issue was intended to afford defendant a speedy trial, it was waived.   There is nothing in the collateral, administrative purpose of judicial efficiency which compels setting aside the jury determination that the defendant had suffered two priors.   The state's interest in enhanced punishment of certain recidivists would be thwarted unnecessarily by such conclusion.   It would serve no one's legitimate interest.   In People v. Luick (1972) 24 Cal.App.3d 555, 558, 101 Cal.Rptr. 252, the court, in discussing the statutory scheme that the determination of priors and the issue of guilt be made by the same trier of fact, stated “[w]e cannot accept that proposition as absolute.   While the priors must be determined in the same proceeding and, ordinarily, at the same trial, it is common practice in cases tried to a jury to submit the priors to the court, without a jury, at the time of sentence.   We can see no reason why defendant, if he should so desire, might not reverse the process.”  (Fn. omitted.)

We hold that in the circumstances of this case, the language was directory, not mandatory and that the procedure adopted by the court afforded defendant a fair trial on the issue of the priors.

IV. CONCLUSION

The judgment is affirmed.

FOOTNOTES

1.   See footnote *, ante, page 31 of typed opinion.

2.     “THE COURT:  ․ [Y]ou have a Constitutional Right to have the issue of the truth or falsity of the alleged prior felony convictions tried by the same jury which will determine whether you're guilty or not guilty of the crime charged against you at this time.   If you stand on your denial the Court is required—well, under Proposition 8, if you stand on your felony denial, the Court is required to tell the jury of the allegations of the prior convictions that up to this point you deny.   And that if you are found guilty of any felony charge the jury will have to make a further finding as to whether the allegations are true or not true with respect to the felony, prior felony conviction.“On the other hand, you—if you admit the truth of the allegations, the Court will not tell the jury about the allegations and the jury will not make any determination as to whether the allegations are true or false.   So, that if you admit—the way this trial is scheduled to proceed, if you admit these prior convictions, the jury will not be informed of them.   Mr. Austin?“MR. AUSTIN [prosecutor]:  Yes, your Honor, I want to make it clear for the record at this point too, that the People in this area would be willing to allow and would not object to the Defendant having a bifurcated trial before this Court outside of the presence of the jury with respect to those two priors and would stipulate that they need not be mentioned before the jury.“THE COURT:  Very well, the People have just stipulated that rather than telling the jury about the prior convictions and having the jury make the determination as to whether you have those prior convictions that that matter would be tried separately by the jury.   Mr. Austin?“MR. AUSTIN:  By the Court.“THE COURT:  By the Court.   So that you deny those alleged prior convictions the matter of whether the allegations are true or not will be tried separately from the jury trial and will be tried and determined by the Court.“So the jury will not in any event know about your prior convictions if you admit them then there's going to be no trial by the Court.   If you denied them then the Court will try those issues separately and out of the jury's presence which could be done at the time—at the end of the jury trial or can be done anytime, but in all probability will be done at the end of the jury trial.“It is true that if he admits the prior and there's no conviction then the admission is of no effect.“MR. MILLER [defense counsel]:  Your Honor, Mr. Sims has decided to proceed to admit the priors at this time.“THE COURT:  Very well.   And do you understand the procedure that would be involved then if you don't admit them.   They would be tried separately by the Court out of the presence of the jury, out of the jury's presence?“THE DEFENDANT:  Would you say that one more time.“THE COURT:  If you did not admit these alleged prior convictions, at this time, the issue as to whether you did suffer those prior convictions would be tried by the Court not by the jury and would be tried separately from the jury trial.“THE DEFENDANT:  You mean it wouldn't be brought up in the jury trial?“THE COURT:  That's correct.“THE DEFENDANT:  Whether I testify or not?”The court then informed Sims that if he testified the court would have to rule on whether the evidence could be used for impeachment and that there is the possibility that the priors would be brought before the jury.   The court then discussed the penalties that Sims would incur if he admitted the priors.   Sims then denied the priors and the following occurred:“THE COURT:  All right.   Then, the record will show that the Defendant denies both of the alleged prior convictions and that order just made that the previous denial is ordered withdrawn, is vacated.   So that the alleged prior convictions stand at this time as being denied.“MR. MILLER [defense counsel]:  Now, your Honor, so the record is perfectly clear, that is being done at this time based on Mr. Austin's offer to stipulate that the issue of the prior prison commitments may be tried to the Court in bifurcated trial after the jury has rendered its verdict?“THE COURT:  Yes, that's correct.“MR. MILLER:  All right.“MR. AUSTIN [prosecutor]:  So stipulated.“THE COURT:  Yes.“MR. MILLER:  Thank you.”The jury trial commenced and the jury found Sims guilty of grand theft.   Immediately following the receipt of the verdict, the court dismissed the jury.   The following discussion then occurred:“MR. AUSTIN [prosecutor]:  Your Honor, there is the issue of the—“THE COURT:  Oh, that's right, there is the issue of the two prior, the alleged two prior convictions.   And Mr. Austin had reminded me of that earlier.   We were to take that up at the conclusion of this case.   That is the jury portion and we can do that now since everybody is here.   The Defendant is present, both Counsel are present and all of the jurors are out of the courtroom.“․“MR. MILLER [defense counsel]:  Your Honor, Mr. Sims has indicated to me that he does not desire to protract these proceedings any further.   He is prepared at this time to admit the two prior convictions.“THE COURT:  Very well.   Mr. Sims, your Counsel has stated that you desire to withdraw your denial of the—as to the—as to the first and second alleged prior convictions and that is what you—is that your request, Mr. Miller?“MR. MILLER:  That's correct, Your Honor.“THE COURT:  And that is your request, Mr. Sims?“DEFENDANT SIMS:  Yes, it is.”The court then stated what the allegations of the two prior convictions were.   Following this the court began advising Sims of his rights.“THE COURT:  It is my duty, Mr. Sims, to inform you that you have a constitutional right to have the issue of the truth or falsity of each of those alleged prior felony convictions tried by the same jury.—Well, off the record.“(Whereupon the Court went back on the record.)“THE COURT:  It was alleged, I mean, that the alleged prior conviction would be tried by the same jury, you would have that right.   They would determine not only your guilt or your innocence as they've already done as far as the charge is concerned.   And, of course, the jury would have been informed, if you had denied these matters, and it was to be tried before the jury and we did not go through this on the record.   I mean stating some of these things at that time.   If the matter was not to be tried by a jury, which was not to be here, after our earlier discussions, you are entitled to have a Court trial in regard to both of these alleged prior convictions.“On the other hand, if you admit the truth of the allegations and as to each prior conviction, the Court will not try the question of whether these prior convictions are true;  do you understand that first you did have the right to the jury trial and that—“DEFENDANT SIMS:  When did I give up that right?“THE COURT:  Well, we'd have to go back on the record.   Off the record.”

3.   We set forth the court's statements:“Now, I am going to proceed on the basis of the stipulation.   I am going to accept in evidence Exhibit 8, offered by the People.   I have looked at it, examined it and I am going to make my findings and then at this time it's my intention to also, and I realize that this certainly would appear to be redundant, and I may be chastised for it by an Appellate Court, but then, I'm going to have a jury [i]mpaneled, a trial will take place which will probably take ten minutes at expense to the tax payers [sic ].  And let the jury determine what appears to be the very obvious fact that this Defendant did, in fact, suffer the two prior alleged convictions.“․ And on the basis of that I'm going ahead with the [i]mpaneling—ordering the [i]mpaneling of a second jury.   I'm going to make the finding, myself, on the basis of the stipulation which we all entered into in good faith.   And, in the event that an Appellate Court will uphold the Court's proceeding in accordance with the stipulation entered into through Defense Counsel and consultation with the Defendant and if that doesn't hold up then, maybe the jury trial will.”After finding that it is true that the defendant had suffered one of the two alleged priors and continuing the matter as to the second to the morning on which the judge was going to go on vacation, the following transpired:“MR. MILLER [defense counsel]:  Your Honor, I would remind the Court there was some indication by the Court that the Court should be [i]mpaneling a jury.“THE COURT:  Well, I will refer that matter to, on Thursday, to the Criminal Law and Motion Department for further proceeding.   I don't have to try that.“MR. MILLER:  All right.“THE COURT:  So, that's what my intention is that the matter will be referred, therefore, the purpose of empaneling a jury to try the same thing that I'm finding unless somebody can show me but this is so far out of the ballpark that it can't be done, but I don't see any reason why the law should be frustrated over technicalities because there isn't any question in my mind that the Defendant consented it.   It was at his request that we have this bifurcation and it was so thoroughly discussed in his presence that it was going to be a determination by the Court and not by a jury.   That he's well aware of that, but rather than allow technicalities to rule supreme, I'm going through this process.“MR. MILLER:  All right.   Don't have any authority to cite to the Court, but I would just for the sake of the record, and on Mr. Sims['] behalf, impose an objection to the issue of the priors being tried by a different judge, make that objection on the record.“THE COURT:  Well, if you want it tried by the same judge I will be back on September 20th, it can be tried that day.   In fact, that may be what will happen.   I don't know, but I will be back on September 20th from my vacation.“MR. MILLER:  All right.   Well, as the Court is well aware I have been instructed by Mr. Sims not to waive any of his rights.   And I am making the record that he would oppose any continuances.   He would impose—he is not willing to waive time and he objects to the issue being tried by a different judge and by a different jury than the jury that tried his underlying offense.“THE COURT:  Yes, well you're [sic ] objection is noted and I certainly understand your position.”

4.   The matter was continued as to the other prior.

5.     Retrial is precluded if a reviewing court reverses a conviction on the ground that the evidence presented at the first trial was not legally sufficient.  (Burks v. United States, supra, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.)

6.     (See People v. Granger (1980) 105 Cal.App.3d 422, 164 Cal.Rptr. 363.)   The defendant personally waived his right to a jury trial on the issue of whether or not he committed a murder.   But the jury waiver as the issue of special circumstances was imperfectly secured.   The appellate panel affirmed the judgment insofar as it found the defendant guilty of murder in the first degree, but reversed insofar as it found the alleged special circumstances true.   The special circumstance finding was not stricken;  the case was remanded with directions to conduct a jury trial on the issue of special circumstances.

ANDREEN, Associate Justice.

FRANSON, Acting P.J., and PAULINE DAVIS HANSON, J., concur. Hearing denied;  BIRD, C.J. and MOSK, J., dissenting.