Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF133088. Byron K. McMillan, Judge. (Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed in part; reversed in part with directions.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant, Justin Casey Cleveland, appeals from convictions following a jury trial for being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), committed for the benefit of a street gang (§ 186.22, subd. (b)), possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and actively participating in a criminal street gang. (§ 186.22, subd. (a).) The accusatory pleading also alleged that defendant had previously suffered a conviction for a serious or violent felony (five-year enhancement per § 667, subd. (a)), as well as an allegation he suffered a prior conviction for a serious or violent felony under the Three Strikes Law (Strike). (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
All statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant raises various sentencing issues: (1) Conflict between the oral pronouncement of judgment and the clerk’s minutes; (2) error in imposing a sentence under the Strikes law where the Strike prior was not submitted to the jury, nor admitted by the defendant; and (3) the sentence for count 4, active participation in a street gang, violates the multiple punishment prohibition of section 654. The respondent concedes those errors, and acknowledges that there was no finding on the five-year enhancement allegation as well, urging us to remand the matter to the trial court for further proceedings on those allegations. We reverse the sentence.
BACKGROUND
On November 2, 2006, Deputy Lamb and his partner saw five suspected gang members huddled near a dark colored SUV parked on the side of the road. The defendant was a member of the group. In the past, defendant had been contacted by sheriff’s deputies in Dorner Blocc territory. Defendant had admitted being a member of the Dorner Blocc Crips in the past. In fact, prior to November 2006, defendant was convicted of a felony, and admitted that the crime was committed for the benefit of the Dorner Blocc Crips when he pled guilty. Defendant’s moniker is J Hood.
The group spells “block” with a “c” instead of a “k” because “ck” means “crip killer” to rival gangs.
The deputy approached the group and shined a spotlight on the group. One member of the group began walking away while the remaining four individuals crouched down near the vehicle. As the deputies exited their patrol car, they saw an object flying into the yard of the residence adjacent to where they were situated. As the deputies contacted the group, another object was seen flying through the air, into the yard of the same residence. After the five subjects, including defendant, were detained, the objects that had been thrown were recovered. The objects were two handguns, a.357-caliber Ruger, and a.22-caliber black Beretta semi-automatic handgun. The deputies searched defendant and found a large plastic bag, containing six smaller bags that contained marijuana, totaling approximately 12 grams in weight.
Defendant was charged with being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 1), with an allegation that the crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) He was also charged with possession of marijuana for sale (Health & Saf. Code, § 11359, count 3), with a gang enhancement allegation (§ 186.22, subd. (b)), and with being an active participant in a criminal street gang. (§ 186.22, subd. (a), count 4.) It was further alleged that he had previously been convicted of a serious felony as an enhancement (§ 667, subd. (a) [a five-year enhancement]), as well as under the Strikes law. (§ 667, subds. (c), (e)(1); § 1170.12, subd. (c).)
Count 2 pertained to a codefendant.
Defendant was tried by a jury and convicted of the substantive offenses of being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 1), possession of marijuana as a lesser offense within count 3 (Health & Saf. Code, § 11357, subd. (b)), and active participation in a criminal street gang. (§ 186.22, subd. (a), count 4.) The jury also made a true finding that the firearm possession was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The jury was then discharged. No findings were made on the Strike allegation, or on the five-year enhancement allegation.
On November 6, 2007, the defendant was sentenced to an aggregate term of 10 years in state prison. The oral pronouncement of judgment indicates the court imposed the middle term for the gun possession charge, and the middle term for the gang enhancement. The marijuana count was dismissed, and the term for the active participation in a street gang (§ 186.22, subd. (a)) was ordered to run concurrent. The clerk’s minutes reflect that the term for the gun charge and the attendant enhancement were doubled under the Strikes law. Defendant appealed.
DISCUSSION
Defendant raises several claims regarding his sentence: (1) the minutes and the abstract conflict with the oral pronouncement of sentence by showing the court doubled the sentence under the Strikes law; (2) any doubling of the sentence was unauthorized because there was no finding or admission as to the truth of the Strike allegation; (3) even if the Strikes law were applicable, it did not apply to the gang enhancement; and (4) the trial court should have stayed the term for the active participation in a street gang count, pursuant to section 654, where it was part of an indivisible course of conduct resulting in multiple convictions.
Respondent concedes that defendant did not admit the five-year enhancement allegation, or the Strike allegation, and agrees that a separate term for the active participation in a street gang would violate the prohibition against double punishment. (People v. Vu (2006) 143 Cal.App.4th 1009, 1034-1035.) Thus, the parties agree the sentence should be reversed, obviating the need to decide the substantive issues raised in appellant’s opening brief. However, in response to our request for supplemental briefing, respondent asserts that “retrial” of the prior conviction allegations (both the five-year enhancement and the Strike allegation) is permissible. We disagree.
Unless the defendant admits an allegation of a five-year enhancement or a Strike, the truth of the allegation must be determined by a jury or, if the defendant waives his or her right to a jury, by the court. (§§ 1025, subd. (b), 1158; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) A defendant is entitled to have the determination of the truth of such allegations bifurcated from the jury trial of the currently charged offenses. (People v. Saunders (1993) 5 Cal.4th 580, 585, citing People v. Bracamonte (1981) 119 Cal.App.3d 644, 654.) Unless the trial is bifurcated, the defendant is entitled to have the same jury that determined his guilt of the substantive charges also determine the truth of the alleged prior convictions. (§ 1025, subd. (b).)
It has long been held that a trial court errs if it imposes a sentence based on a finding of fact which the jury did not make. (People v. Eppinger (1895) 109 Cal. 294, 297-298.) This rule is still followed: “When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of ‘not true.’” (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440, quoting Eppinger, supra.) As both parties agree, no evidence was presented and there were no findings made as to either of the prior conviction allegations.
The facts that the allegations relating to the prior conviction allegations were not bifurcated and the defendant did not waive his right to have the jury decide the truth of the allegations, are pivotal here. Where a defendant has agreed to bifurcate and informed the court he would waive jury, a retrial might be proper. (People v. Saunders, supra, 5 Cal.4th at p. 593.) In Saunders, the defendant had originally informed the court that he would waive his right to a jury trial on the issue at the time the jury was discharged, but he revoked the waiver afterwards. The trial court impaneled a new jury for the prior conviction allegations and true findings were made. On appeal, defendant claimed that impaneling a new jury after discharge of the original jury violated double jeopardy principles. The Supreme Court held that because the anticipated proceedings relating to the alleged prior convictions had not yet transpired at the time the trial court discharged the jury, jeopardy did not then terminate as to those allegations. Therefore, the defendant had not been placed twice in jeopardy. (People v. Saunders, supra, 5 Cal.4th at p. 593.) Saunders does not aid our analysis because there was no bifurcation of the issues and no eventual trial of the enhancement or Strike allegations.
Cases in which retrials have been ordered have involved a prior conviction allegation that had been adjudicated and reversed. We agree that the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of the evidence. (People v. Barragan (2004) 32 Cal.4th 236, 254-255.) It has also been held that double jeopardy principles do not limit the power to retry prior conviction allegations, at least, prior to the decision of Apprendi v. New Jersey, supra, 530 U.S. 466. (Monge v. California (1998) 524 U.S. 721, 734 [118 S.Ct. 2246, 141 L.Ed.2d 615].) For our purposes here, we assume that Barragan is still good law since the United States Supreme Court has not yet determined whether Monge has been affected by Apprendi with respect to Strike allegations that have been reversed and remanded.
But here there is no reversal of a finding as to the truth of a five-year enhancement or a Strike, and there was no trial on those allegations. There was no adjudication of the five-year prior or the Strike allegation to review, much less to reverse. Monge is therefore inapposite.
Enhancements and Strikes must be both pled and proven. (§§ 667, subd. (g), 1170.1, subd. (e).) Issues of fact require a jury determination, unless defendant has waived jury or has pleaded guilty. (People v. Najera (1972) 8 Cal.3d 504, 510.) Absent a factual finding of guilt or an admission, a defendant may not be sentenced on a substantive crime. (People v. Moore (1974) 11 Cal.3d 790, 792; see also People v. Zackery (2007) 147 Cal.App.4th 380, 386 [punishment for drunk driving count had to be vacated because defendant did not plead guilty to that count].) The same principles apply to a sentence imposed for an enhancement, or a sentence under the Strikes law: without true findings on the allegations, punishment may not be imposed. (See People v. Spencer (1972) 22 Cal.App.3d 786, 801-802 [retrial of gun use enhancement barred where jury made no specific finding of gun use].) Thus, in People v. Najera, supra, where the defendant was charged with robbery while “armed with a deadly weapon,” and the prosecution omitted to request an instruction regarding the “use” of a firearm (§ 12022.5), retrial to enable the prosecution to seek a finding of personal use of a firearm was prohibited.
At oral argument, respondent urged us to rely on the holdings of People v. Washington (1971) 17 Cal.App.3d 470, and People v. Henderson (1972) 25 Cal.App.3d 371. Both cases predate the Apprendi decision. The holding of Washington was disapproved in People v. Najera, supra, 8 Cal.3d at page 509, because allowing retrial of a gun use allegation where the defendant was charged with being armed with a firearm did not give the defendant fair notice of the charges against him. Henderson involved a reversal of a gun use finding made by the jury due to improper instructions. Neither case involved a situation where the prosecution omitted to present evidence on a factual issue prior to discharge of the jury, as was the case here. The decisions do not support the position urged by respondent.
Fundamental fairness forbids piecemeal litigation so the failure of the People to obtain an adjudication of an enhancement precludes remand for retrial. (People v. Esquibel (1992) 3 Cal.App.4th 850, 858, 859.) Enhancements, i.e., punishment allegations, must be pled and proved to a jury, unless a jury is waived. (Ibid.) Remanding the matter to allow the prosecution to reopen its case in order to prove up the prior conviction allegation would result in a piecemeal trial, and ignores the fact that bifurcation was neither requested nor ordered, and jury was not waived. Remanding for a prove-up of the prior conviction allegation would undercut defendant’s right to have the same jury decide all the issues, and would violate double jeopardy principles in light of the discharge of the jury.
When the People fail to have the applicability of enhancements determined at trial, whether by the court or by jury, they are deemed to have waived it. (People v. Najera, supra, 8 Cal.3d at p. 512; see also, People v. Salas (2001) 89 Cal.App.4th 1275, 1282-1283 [jury did not make a finding of personal use of firearm within the meaning of § 12022.52, subd. (e)(2) precluded sentencing under that section]; People v. Anderson (1975) 50 Cal.App.3d 325, 334.) Once a defendant is placed on trial and the jury is duly impaneled and sworn, a discharge of the jury without a verdict is equivalent to an acquittal and bars retrial unless (1) the defendant consents to the discharge or (2) legal necessity requires it. (Larios v. Superior Court (1979) 24 Cal.3d 324, 329.) Forgetting to prove up the prior conviction allegation does not constitute “legal necessity” requiring remand. The discharge of the jury without a verdict, without a request to bifurcate the proceedings, and without a waiver of the right to have the same jury decide the issues relating to the prior conviction allegations, therefore bars further prosecution. Remand is improper.
DISPOSITION
The conviction is affirmed, and the sentence is reversed and remanded with directions to resentence defendant without an enhancement for the prior conviction of a serious felony (§ 667, subd. (a)), and without application of the Strikes law. (§ 667, subds. (b)-(i).) The court is also directed to stay the term for count 4 pursuant to section 654.
We concur: Richli Acting P. J. MillerJ.