Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
[Certified for Partial Publication. ]
. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and parts I through III of the Discussion.
See footnote, ante, page 604.
See footnote, ante, page 604.
[As modified May 20, 1998.]
Superior Court of Los Angeles County, No. KA027420, Charles A. Stromwall, Judge. [Copyrighted Material Omitted] COUNSEL
Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Neoma Kenwood and Jennifer Cohn, under appointments by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka and Audree S. Wong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GRIGNON, J.
Defendant and appellant Alan R. Kidd appeals from a judgment following a jury trial in which he was convicted of second degree murder with the use of a knife and found not to be insane, and two prior serious felony conviction allegations were found to be true. In the published portion of this opinion, we conclude the question of whether a prior felony conviction is a serious or violent felony within the meaning of Penal Code sections 667 and 1170.12 is for the trial court, not the jury, to determine. In the unpublished portion of this opinion, we address defendant's remaining contentions. He contends: The trial court erred when it refused to instruct the jury as to the lesser included offense of voluntary manslaughter; the sanity verdict must be reversed because of improper questioning of a defense witness by the trial court; the prosecutor engaged in misconduct during the sanity phase; the trial court erred when it used the same two prior serious felony convictions to triple the minimum term of his life sentence and add ten years; and the sentence for the knife enhancement is one year, not three years. We modify the judgment to reduce the weapon enhancement and otherwise affirm.
Procedural Background
Defendant was charged by information with the murder of Lola Mary Ramirez in violation of Penal Code section 187, subdivision (a). It was further alleged defendant personally used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b). It was also alleged defendant suffered two prior serious felony convictions within the meaning of Penal Code sections 1170.12 and 667, subdivision (a). Defendant pled not guilty and not guilty by reason of insanity. The jury convicted defendant as charged in the information, finding the murder to be of the second degree. The jury found defendant not to be insane. The jury found the two prior serious felony conviction allegations to be true. The trial court sentenced defendant to 45 years to life, consecutive to 3 years for the use of a knife, consecutive to 10 years for the prior serious felony conviction enhancements. Defendant appealed.
Facts * * * *
Discussion
I. -III. * * * *
IV. Penal Code Section 12022, Subdivision (b) Enhancement
The jury found true an allegation that defendant personally used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b). The trial court imposed a three-year enhancement for the use of a knife. However, the Penal Cpde section 12022, subdivision (b) enhancement for offenses other that carjacking or attempted carjacking is one year. The abstract of judgment must be amended.
V. Prior Serious Felony Conviction Allegation
In 1988, defendant was convicted of a felony violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon or by means of force likely to cause great bodily injury. The abstract of judgment for the 1988 conviction indicates that the deadly weapon was a tire iron. The jury found the prior serious felony conviction allegation, based on the 1988 assault conviction, to be true. In sentencing defendant, the trial court used the 1988 assault conviction and another prior serious felony conviction to triple the minimum 15-year term of his life sentence and add 10 years to the sentence.
Defendant contends the evidence is insufficient to establish that the 1988 assault was a serious or violent felony, because an assault is a serious or violent felony only if the defendant personally inflicts great bodily injury on the victim (Pen. Code, sections 667.5, subd. (c)(8), 667, subd. (d)) or personally uses a deadly or dangerous weapon (Pen. Code, sections 1192.7, subd. (c)(23), 667, subd. (d)). Defendant argues that there is no evidence great bodily injury was inflicted on the victim by anyone. Defendant argues further that there is no evidence defendant personally used the tire iron, but rather may have been only an aider and abettor. (See People v. Armendariz (1985) 174 Cal.App.3d 674, 684-686 [220 Cal.Rptr. 229].) Defendant concedes that he testified during the sanity phase of the trial that he personally used the tire iron on the victim in the 1988 case. He contends, however, that the jury was instructed to disregard the evidence presented in connection with the murder conviction and therefore his testimony cannot support the true finding.
The jury was instructed in the language of CALJIC No. 17.26 in pertinent part as follows: "In considering this question, you must not be influenced by the previous conviction of Penal Code section 187 on which you have already returned a verdict or any evidence received in support of that allegation."
Defendant's contention would have some merit if we were to agree that the question of whether a prior felony conviction is a serious or violent felony is one for the jury. We, however, are not in accord with this proposition. The Supreme Court has never decided this precise question, but rather has recently indicated that it continues to be an open question. (People v. Woodell (1998) 17 Cal.4th 448, 460 [71 Cal.Rptr.2d 241], mod. 17 Cal.4th 969b ["(Here the issue was presented to the jury. We express no view regarding the respective roles of the court and jury. [See Pen. Code, section 1025.])"].)
"It is clear that the federal Constitution does not confer a right to have a jury determine [any] aspect of a sentence enhancement imposed upon a defendant for previously having been convicted of a serious felony .... In general, 'there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.' " (People v. Wiley (1995) 9 Cal.4th 580, 585 [38 Cal.Rptr.2d 347].) "Neither does the California Constitution grant a right to have a jury determine the truth of prior conviction allegations that relate to sentencing." (Id. at p. 586.) "Thus, the ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned." (Ibid.) "Although there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement, California is one of a minority of states that, by statute, has granted defendants the right to have a jury determine the truth of such prior conviction allegations. [Citation.] The applicable statutes, however, are limited in nature ...." (Id. at p. 589.) Thus, a defendant does not have the right to have a jury determine whether charges were brought and tried separately within the meaning of Penal Code section 667, subdivision (a). (9 Cal.4th at p. 589.) Nor does a defendant have the right to have a jury determine whether the defendant is the person who has suffered the prior conviction. (Pen. Code, section 1025, subd. (c).)
Penal Code section 1025 was amended effective January 1, 1998, to read in full as follows: "(a) When a defendant who is charged in the accusatory pleading with having suffered a prior conviction pleads either guilty or not guilty of the offense charged against him or her, he or she shall be asked whether he or she has suffered the prior conviction. If the defendant enters an admission, his or her answer shall be entered in the minutes of the court, and shall, unless withdrawn by consent of the court, be conclusive of the fact of his or her having suffered the prior conviction in all subsequent proceedings. If the defendant enters a denial, his or her answer shall be entered in the minutes of the court. The refusal of the defendant to answer is equivalent to a denial that he or she has suffered the prior conviction. [¶] (b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury. [¶] (d) Subdivision (c) shall not apply to prior convictions alleged pursuant to Section 190.2 or to prior convictions alleged as an element of a charged offense. [¶] (e) If the defendant pleads not guilty, and answers that he or she has suffered the prior conviction, the charge of the prior conviction shall neither be read to the jury nor alluded to during trial, except as otherwise provided by law. [¶] (f) Nothing in this section alters existing law regarding the use of prior convictions at trial."
"[Penal Code s]ection 1025 provides that if a defendant denies having suffered an alleged prior conviction, '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 ....' Similarly, [Penal Code] section 1158 states that if a defendant is found guilty of an offense charged in an accusatory pleading that also alleges that the defendant suffered a prior conviction, 'the jury, or the judge if a jury trial is waived, must ... find whether or not he has suffered such previous conviction.' By their terms, [Penal Code] sections 1025 and 1158 grant a defendant the right to have the jury determine only whether he or she 'suffered' the alleged prior conviction ...." (People v. Wiley, supra, 9 Cal.4th at p. 589.)
Questions concerning prior conviction sentence enhancements that are largely legal in nature and depend upon the interpretation of complex and detailed provisions of California criminal procedure are properly matters for the trial court to determine. (People v. Wiley, supra, 9 Cal.4th at p. 590.) Questions concerning whether alleged prior felony convictions qualify as serious or violent felonies within the meaning of Penal Code sections 667 and 1170.12 are just such questions, legal in nature and dependent on the interpretation of complex and detailed provisions of California criminal procedure. In pertinent part, Penal Code section 667, subdivision (c) provides: "[I]f a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d)," the court shall sentence the defendant in the manner prescribed. Penal Code section 1170.12, subdivision (a) refers to its own subdivision (b) and is substantially the same. In pertinent part, Penal Code section 667, subdivision (d) defines "a prior conviction of a felony" as follows: "(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Penal Code section 1170.12, subdivision (b) is virtually identical. Penal Code sections 667.5, subdivision (c) and 1192.7, subdivision (c) are themselves exceedingly complex provisions. They enumerate a large number of specifically identified offenses. Complicating the analysis even further, is the fact that some offenses, while not specifically identified as violent or serious felonies, become such as a result of the manner in which they are committed. For example, a prior felony conviction for violation of Penal Code section 245, subdivision (a) is not a specifically identified serious or violent felony, but it becomes so when the defendant personally inflicts great bodily harm within the meaning of Penal Code section 12022.7 or 12022.9, personally uses a firearm within the meaning of Penal Code section 12022.5 or 12022.55, or personally uses a dangerous or deadly weapon. (Pen. Code, sections 667.5, subd. (c)(8), 1192.7, subd. (c)(8) and (c)(23).)
A jury cannot reasonably be expected to wade through this morass of Penal Code sections. Accordingly, we hold that whether prior felony convictions alleged under Penal Code section 667 or 1170.12 are serious or violent felonies is to be determined by the trial court and not the jury. The jury is to determine whether the defendant suffered the prior convictions.
Our holding is supported by the Supreme Court's citation in Wiley to People v. Leever (1985) 173 CalApp3d 853 [219 Cal.Rptr. 581]. (People v. Wiley, supra, 9 Cal.4th at p. 591.) The Supreme Court noted that "... in Leever, the jury's role was limited to finding true the allegations that defendant had suffered the prior convictions. It was the trial court that determined whether those prior convictions qualified as serious felonies within the meaning of [Penal Code] section 667[, subdivision] (a). [Citation.] The Court of Appeal in Leever did not suggest that the jury, rather than the court, should have determined whether the prior convictions constituted serious felonies." (Ibid.)
We note that our colleagues in Division Six of this district, in People v. Winslow (1995) 40 Cal.App.4th 680 [46 Cal.Rptr.2d 901], discussed at length the requisite jury instructions concerning whether the alleged conviction was a serious or violent felony. However, in Winslow, the question had been presented to the jury and the opinion was concerned with the adequacy of the instructions. Thus, the issue of whether the question is one for the court or one for the jury was not squarely before the court. To the extent, Winslow suggests that the jury must decide this issue, we respectfully disagree.
In this case, the trial court impliedly found defendant's 1988 conviction for a violation of Penal Code section 245, subdivision (a)(1) to be a serious felony as defined in Penal Code section 1192.7, subdivision (c)(23), personal use of a dangerous or deadly weapon. This implied finding is supported by defendant's testimony that he personally used the tire iron on the victim. (People v. Harris (1992) 8 Cal.App.4th 104, 106-110 [10 Cal.Rptr.2d 42].) We conclude substantial evidence supports the prior serious felony conviction true finding for the 1988 assault conviction.
Even were the jury required to find personal use of a dangerous or deadly weapon in connection with the 1988 assault conviction, their failure to do so was harmless in light of defendant's testimony admitting such personal use. (Cf. People v. Winslow, supra, 40 Cal.App.4th at p. 689.) If the jury were required to make such a finding, they also would have been permitted to consider defendant's testimony for this purpose.
Disposition
The judgment is modified by reducing the weapon enhancement from three years to one year. In all other respect, the judgment is affirmed.
Turner, P. J., and Godoy Perez, J., concurred.