Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA289357, George G. Lomeli, Judge.
Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Dennis Charles Harris appeals from the judgment entered following a jury trial that resulted in his conviction for assault with a deadly weapon. He was sentenced to a term of 20 years in prison. Harris contends: (1) the trial court erred by allowing amendment of the information to add two prior prison term allegations (Pen. Code, § 667.5, subd. (b)) after the jury was discharged; (2) the evidence was insufficient to prove the section 667.5, subdivision (b) allegations; (c) the trial court improperly imposed a five-year serious felony enhancement; and (4) imposition of an upper term sentence violated his jury trial rights (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct 856]). We order several sentence enhancements vacated, and remand for further proceedings. In all other respects, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 28, 2005, Harris stabbed Winses Beliz in the hand several times with a knife. Because the issues presented on appeal concern only errors purportedly occurring in regard to sentence enhancements, we dispense with a detailed recitation of the facts underlying the conviction. Instead, we focus on the facts related to the sentence enhancements.
The information alleged that Harris had suffered three prior convictions: a 1976 Missouri conviction for murder (former Mo. Stat. § 559.020); a 1997 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)); and a 1997 conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The assault and murder convictions were alleged to be serious or violent felonies under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The assault and drug possession convictions were alleged to be serious felonies within the meaning of section 667, subdivision (a)(1). All three prior convictions were alleged to preclude a grant of probation under section 1203, subdivision (e)(4). None of the convictions were alleged as prior prison term convictions (§ 667.5, subd. (b)).
During trial, Harris waived his right to a jury trial on the prior conviction allegations included at that time in the information. The trial court recited the originally-pleaded prior conviction allegations when taking Harris’s waiver.
On December 6, 2006, the jury convicted Harris of assault with a deadly weapon (§ 245, subd. (a)(1)). It found an allegation that the offense was a hate crime not true. The jury was discharged. The parties agreed to a sentencing hearing to be held in January 2007.
At the January 12, 2007 sentencing hearing, the prosecutor moved to amend the information to allege that the assault with a deadly weapon and drug possession convictions constituted prison priors within the meaning of section 667.5, subdivision (b). Without objection, the trial court allowed the amendment.
After the motion to amend the information was granted, the prosecutor advised Harris of his rights. He stated, “Mr. Harris, it’s been alleged against you that you have suffered prior convictions in felony cases and that you’ve also served time in state prison on numerous occasions: [¶] First of all, regarding the conviction in Missouri, that’s occurring in the year 1976, the conviction was on January 30, 1976, and it was case number 75-2097, the charge was murder, and the Missouri statute, that was statute number 559.020; [¶] Next, that here in California, in 1986, you suffered a conviction for assault with a deadly weapon, that is, a bottle, the case number is A772878. It’s also alleged against you that you went to prison on that offense; [¶] And, finally, that in 1997, you suffered a conviction for Health and Safety Code section 11350, possession of cocaine, and you went to prison on that offense, and that was in case number BA154469. [¶] I understand [that] you want to admit that you have suffered those convictions and spent that time in prison.” The prosecutor then advised Harris of his rights to a court trial, to subpoena and cross-examine witnesses, and against self-incrimination. Harris indicated he understood and waived his rights. The prosecutor then queried, “All right, Mr. Harris, to all of the allegations that I listed to you, that is, the convictions in each case and the fact that you served time in state prison, do you now admit that?” Harris answered affirmatively.
The trial court struck one of prior “strike” allegations, the Missouri murder conviction, in the interests of justice (§ 1385). It sentenced Harris to a term of 20 years in prison, configured as follows: the upper term of 4 years, doubled pursuant to the Three Strikes law, plus two 5-year serious felony enhancements (§ 667, subd. (a)), plus two 1-year prison term enhancements (§ 667.5, subd. (b)). It imposed a restitution fine, a suspended parole revocation fine, and a court security assessment. Harris appeals.
DISCUSSION
1. Imposition of section 667.5, subdivision (b) enhancements.
As noted, Harris’s sentence included two one-year prior prison term enhancements pursuant to section 667.5, subdivision (b) (hereinafter section 667.5(b)). The parties raise several issues related to the imposition of these enhancements. We conclude: the trial court erred when it allowed amendment of the information to allege the section 667.5(b) allegations, but by failing to object to the amendment, Harris forfeited his section 1025 right to a priors trial by the same jury that adjudicated his guilt. Harris’s admissions to the section 667.5(b) allegations were deficient, requiring that the section 667.5(b) enhancements be vacated and the matter be remanded to the trial court. If on remand the section 667.5(b) allegations are admitted or found true, the trial court may not impose both a five-year section 667, subdivision (a)(1) enhancement and a one-year section 667.5(b) enhancement based on the same conviction.
a. Amendment of the information.
Relying on People v. Tindall (2000) 24 Cal.4th 767, Harris contends the trial court exceeded its jurisdiction by allowing the postdischarge amendment to the information alleging two of the priors under section 667.5, subdivision (b). Tindall held that an information cannot be amended to allege new prior convictions after the jury has been discharged, absent the defendant’s waiver or forfeiture. (Id. at p. 782.) In Tindall, the defendant waived jury trial on various prior conviction allegations after the jury convicted him of the underlying offenses. The jury was then discharged. At a subsequent hearing, over defendant’s objection, the trial court granted the People’s motion to amend the information to allege three prior “strikes” and prior prison term enhancements based on three newly discovered prior federal bank robbery convictions. (Tindall, supra, at p. 770.) Tindall harmonized section 1025, which provides that prior conviction allegations shall be tried by the jury that tries the issue of guilt, with section 969a, which states that prior conviction allegations may be added whenever it is discovered that a pending information fails to charge all prior felonies. (Tindall, supra, at pp. 771-772.) Tindall concluded, “in the absence of a defendant’s forfeiture or waiver, section 1025, subdivision (b) requires that the same jury that decided the issue of a defendant’s guilt ‘shall’ also determine the truth of alleged prior convictions. Because a jury cannot determine the truth of the prior conviction allegations once it has been discharged [citation], it follows that the information may not be amended to add prior conviction allegations after the jury has been discharged.” (Tindall, supra, at p. 782.) The court recognized that its ruling would on occasion prevent the prosecution from charging defendants with all their prior convictions, but “[did] not find this circumstance distinctly unjust, when the prosecution has what we consider a fair opportunity, i.e., until the conclusion of the guilt phase trial, to discover and charge the prior convictions.” (Id. at p. 781.)
Harris contends that under Tindall, the amendment was improper and his two one-year prior prison term enhancements pursuant to section 667.5(b) must be reversed. The People, on the other hand, contend that Harris waived his right to a jury trial on all prior conviction allegations, and in any event forfeited his claim by failing to object to amendment of the information and by admitting the section 667.5(b) allegations.
In Tindall, the information was amended to allege entirely new prior convictions. Here, in contrast, the information already alleged the prior convictions as they pertained to other sentence enhancements, but failed to allege that the convictions formed the basis for section 667.5(b) enhancements.
Nonetheless, we believe that on the facts presented here this distinction is immaterial. Harris had a statutory right to a jury trial on the section 667.5(b) allegations. “Penal Code section 667.5, subdivision (b) provides that the sentence imposed on any person convicted of a felony must be enhanced by one year for each prior prison term alleged and proven by the prosecution. A criminal defendant has the statutory right to have a jury determine the truth of an allegation that the accused suffered a prior felony conviction and prison term. [Citations.]” (People v. Vera (1997) 15 Cal.4th 269, 271-272; cf. People v. Epps (2001) 25 Cal.4th 19, 23.) In a trial on section 667.5(b) allegations, the contested issues include more than just identity, a matter for the trial court (§ 1025, subd. (c)), or whether the defendant suffered the conviction. Instead, “[i]mposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.) The enhancement may not be imposed for any prior felony for which the defendant did not serve a prior separate prison term. (§ 667.5, subd. (e).) Under section 1025, subdivision (b), Harris was statutorily entitled to have the same jury that determined his guilt determine the truth of the section 667.5(b) allegations, unless he waived or forfeited that statutory right.
Harris’s waiver of a jury trial on the original prior conviction allegations did not waive his right to jury trial on the postdischarge prior conviction allegations. (People v. Gutierrez (2001) 93 Cal.App.4th 15, 23-24.) Likewise, his failure to object when the jury was discharged cannot be considered a waiver of a jury trial right on allegations that had not yet been made. (Cf. People v. Tindall, supra, 24 Cal.4th at p. 772 [a defendant may forfeit the right to a jury trial on prior conviction allegations by failing to timely object to discharge of the jury that decided defendant’s guilt].)
However, Harris’s failure to object when the People moved to amend the information over a month after the jury had been discharged constituted a forfeiture of his section 1025 rights. People v. Tindall, supra, 24 Cal.4th 767, clarified that by failing to object, a defendant may waive or forfeit the right to challenge a trial court’s order granting a postdischarge amendment. Tindall explained, “[A] court’s act in excess of its jurisdiction is valid until set aside, and a party may be precluded from setting it aside, due to waiver, estoppel or the passage of time. [Citation.] Thus, . . . a violation based on section 1025 will accommodate the circumstance of a defendant’s forfeiture or waiver . . . .” (Id. at p. 776, fn. 6.) Harris did not object to the timing of the amendment and did not assert his section 1025 right to have the same jury determine the truth of the section 667.5(b) allegations. After the amendment was allowed, Harris purported to admit the section 667.5 allegations. He has therefore forfeited his statutory section 1025 right.
Harris does not contend that his trial counsel provided ineffective assistance by failing to object to the amendment, and accordingly we do not consider such a claim here. Should Harris wish to raise an ineffective assistance claim, the issue is best left to a petition for writ of habeas corpus. .
b. Harris’s admission of the section 667.5 enhancements was deficient.
Harris next contends his admission of the section 667.5(b) enhancements was defective, because he did not admit all the elements of the enhancement, in particular that he failed to remain free of prison custody or the commission of a new offense for five years after his prison terms. He asserts that because he did not admit, and the People did not prove, the elements of the enhancements, they must be reversed. We agree, and remand for a new trial on the section 667.5(b) enhancements.
As noted above, an enhancement under section 667.5 requires proof that: (1) the defendant was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction (People v. Tenner, supra, 6 Cal.4th at p. 563), as well as a showing of a prior separate prison term. (§ 667.5, subd. (e).)
In general, a defendant’s guilty plea or admission of a sentence enhancement allegation is deemed to constitute a judicial admission of every element of the offense charged. (People v. Bowie (1992) 11 Cal.App.4th 1263, 1266.) A defendant who admits a charge of a prior conviction is held to have admitted as great a charge as is contained in the information. (People v. Welge (1980) 101 Cal.App.3d 616, 623.) When an information specifically alleges the elements of section 667.5(b), a defendant’s admission of the prior conviction provides an adequate basis for imposition of the enhancement. (People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“Generally, an admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served”]; People v. Welge, supra, at p. 623; People v. Ebner (1966) 64 Cal.2d 297, 303 [“Defendant’s admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information”].)
Here, the record before us does not contain a written amendment to the information, and it appears one was never prepared. The prosecutor’s oral request to amend was as follows: “there is a People’s motion to amend the information to add the allegation of a Penal Code section 667.5(a) [sic], that is two one-year state prison priors, and the case number and the date for those priors are the same as is listed in the strikes.”
Apart from the fact that the prosecutor cited the incorrect subsection, it is readily apparent that the oral amendment did not make reference to the elements of a section 667.5(b) enhancement. The oral amendment did not reference the five-year “washout” period or the requirement that the prison terms were separately served. Harris admitted spending time in prison on each of the three prior convictions, but nothing more. The prosecutor did not query whether Harris admitted serving prior prison terms within the meaning of section 667.5(b), or similar language. Under these circumstances, the admissions were insufficient. (People v. Epperson (1985) 168 Cal.App.3d 856, 864-865; cf. People v. Lopez (1985) 163 Cal.App.3d 946, 951.) Therefore we vacate the two section 667.5(b) enhancements and remand for further proceedings in which the section 667.5 allegations may be retried if Harris declines to admit them.
When pronouncing sentence, the trial court stated it was imposing two years under section 667.5, subdivision (a). Defense counsel caught the error, and the trial court corrected the record.
c. The same prior conviction cannot serve as the basis for both a section 667.5(b) enhancement and a section 667, subdivision (a)(1) enhancement.
The trial court imposed both a section 667.5(b) one-year prior prison term enhancement and a five-year section 667, subdivision (a)(1) enhancement based upon Harris’s 1997 conviction for assault in case No. A772878. As the People concede, it is not permissible for a court to impose both a section 667.5(b) enhancement and a section 667, subdivision (a)(1) serious felony enhancement based on the same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1151.) Therefore, on remand if the section 667.5(b) allegations are admitted or found true by the trier of fact, the trial court may not use the 1997 conviction for assault with a deadly weapon as the basis for both a serious felony enhancement (§ 667, subd. (a)(1)) and as a prior prison term enhancement (§ 667.5, subd. (b)).
2. The conviction for violation of Health and Safety Code section 11350, subdivision (a), does not qualify as a serious felony under section 667, subdivision (a)(1).
Harris contends, and the People concede, that Harris’s 1997 conviction in case No. BA154469 for possession of a controlled substance (Health & Saf. Code, § 11350) does not qualify as a serious felony within the meaning of section 667, subdivision (a)(1) and therefore cannot form the basis for an enhancement under that statute. Section 667, subdivision (a)(1) provides for a five-year enhancement for defendants who have been previously convicted of specified serious felonies, when their current offense is also a serious felony. Section 667, subdivision (a)(4) defines “serious felony” as “a serious felony listed in subdivision (c) of Section 1192.7.” Violation of Health and Safety Code section 11350 is not listed as a serious felony in section 1192.7. Therefore the five-year serious felony enhancement based on Harris’s 1997 possession of a controlled substance conviction must be vacated.
The People “request[ ] a remand” to amend the information to allege that Harris’s 1976 Missouri murder conviction is a serious felony within the meaning of section 667, subdivision (a)(1), enabling imposition of an additional five-year sentence enhancement. The People assert such an amendment would not violate Harris’s rights to notice, jury trial, or his double jeopardy rights. Harris, on the other hand, urges that, among other things, amendment would be improper because the jury that adjudicated his guilt has already been discharged; the trial court already struck the prior conviction allegation for purposes of the Three Strikes law, precluding resurrection of it now as a section 667, subdivision (a)(1) serious felony; and he lacked adequate notice.
3. Imposition of the upper term did not violate Harris’s jury trial rights.
As noted, the trial court imposed the upper term of four years for the assault with a deadly weapon conviction. The court indicated it was imposing the upper term due to “the defendant’s prior criminal history” and because the victim was vulnerable.
Harris argues that imposition of an upper term sentence violated his federal constitutional right under the Fifth, Sixth, and Fourteenth Amendments to have the jury determine all factual issues relating to a charged offense. (Blakely v. Washington, supra, 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466; Cunningham v. California, supra, 127 S.Ct. 856.) We discern no error.
In Apprendi v. New Jersey, supra, 530 U.S. at page 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at pp. 870-871; People v. Black (2007) 41 Cal.4th 799, 805; People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
Imposition of an upper term sentence “does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (Id. at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, at p. 812.)
Here, the trial court relied upon at least one constitutionally permissible factor, i.e., Harris’s recidivism. Imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendant’s criminal history. (See People v. Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 [“the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction”].) This recidivism exception applies not only to the fact of the prior conviction, but also to “other related issues that may be determined by examining the records of the prior convictions,” including the question of whether the defendant’s convictions are numerous or increasingly serious. (People v. Black, supra, at pp. 819-820.) Harris’s probation report indicates, in addition to the aforementioned prior convictions for murder, assault with a deadly weapon, and possession of a controlled substance, a 1985 conviction for misdemeanor battery (§ 242); convictions in 1993 and 1994 for misdemeanor assault with a deadly weapon or by means likely to cause great bodily injury (§ 245, subd. (a)(1)); convictions in 1994 and 1995 for resisting an officer (§ 148); a 1997 conviction for misdemeanor battery on a peace officer (§243, subd. (b)); and a 2003 conviction for disorderly conduct/soliciting a lewd act (§ 647, subd. (a)). Harris’s convictions were clearly numerous. (See People v. Black, supra, at p. 818 [three prior convictions are numerous]; Cal. Rules of Court, rule 4.421(b)(2) [specifying as an aggravating circumstance that defendant’s prior convictions are numerous or of increasing seriousness].) Because Harris’s criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term, he was not legally entitled to the middle term and his right to a jury trial was not violated. (People v. Black, supra, at p. 820.)
DISPOSITION
Sentence on the two section 667.5, subdivision (b) enhancements is vacated. Sentence on the section 667, subdivision (a)(1) enhancement related to Harris’s conviction in case No. BA154469 is likewise vacated. The matter is remanded for further proceedings consistent with the opinions expressed herein. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.
We decline to address the People’s contention because the issue is not ripe for review. “ ‘The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. . . . It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion.’ [Citation.]” (People v. Johnson (2006) 142 Cal.App.4th 776, 789, fn. 4.) We have already remanded for resentencing. We observe that the trial court struck the Missouri murder allegation for purposes of Three Strikes sentencing, due to the facts the conviction was 31 years old, Harris had a history of mental deficiency, and he had had minimal criminal contact and conduct since the 1976 conviction. The trial court did not strike the Missouri conviction allegation for purposes of a section 667, subdivision (a)(1) enhancement, because such an enhancement was not pleaded. However, the record is unclear regarding whether the court intended to strike the Missouri prior for all purposes, or just in regard to Three Strikes sentencing. If the former, a request to amend to allege the prior as a serious felony would be untenable. On remand, the trial court may clarify whether it intended to strike the Missouri conviction for the purpose of the Three Strikes law only, or for purposes of all sentencing enhancements. We offer no opinion on the matter. Should the prosecutor thereafter seek leave to amend the information to add an allegation that the Missouri conviction is a serious felony under section 667, subdivision (a)(1), “the trial court would have ample opportunity to decide if section 969a applied to this fact situation and, if it did, whether any constitutional principles militated against its application.” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1235-1236.)