Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-041709-7
Pollak, Acting P. J.
Defendant Oscar Maurice Pearson appeals from a judgment imposing a six-year prison sentence following his conviction by a jury of burglary and related offenses. He asserts four grounds of appeal, two of which are conceded to be correct by the Attorney General and one of which has been conclusively resolved by an intervening decision of our Supreme Court. The remaining issue is whether the trial court prejudicially erred in impaneling a second jury over defendant’s objection to determine the truth of four prior prison term allegations. We conclude that it did.
On September 5, 2007, defendant personally filed a handwritten document entitled “Declaration of Conflict of Interest Between Appellate [sic] and his Appeals Court Appointed Counsel, Janice Wellborn.” To the extent defendant is requesting to replace his court-appointed appellate attorney, the request is denied. To the extent the document includes matters extraneous to the issue of representation, the court declines to consider those matters because defendant is represented by counsel. (See People v. Clark (1992) 3 Cal.4th 41, 173.)
Background
Defendant was charged by information with second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) (count 1), petty theft with a prior theft conviction (§§ 484, 666) (count 2), possession of stolen property (§ 496, subd. (a)) (count 3), and resisting a peace officer (§ 148, subd. (a)(1)) (count 4). The information also alleged that defendant previously suffered four prior convictions resulting in prison terms (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the enhancement allegations. The court granted defendant’s motion to bifurcate trial of the prison priors from the trial of the substantive offenses. The jury found defendant guilty on all counts and, under circumstances described more fully below, the jury was then discharged. Over defendant’s objection, a second jury was impaneled and found true three of the prior prison term allegations. The court sentenced defendant to the upper term of three years on count 1, concurrent two-year midterms on counts 2 and 3, a concurrent 180-day jail term on count 4, and consecutive one year terms on each of the three prior prison term enhancements, for a total of six years’ imprisonment. Appellant filed a timely notice of appeal.
All statutory references are to the Penal Code unless otherwise indicated.
All four counts arose out of events occurring in the early morning hours of August 26, 2004. Following the report of a security alarm having been activated at Payless Cleaners on San Pablo Avenue in Richmond, defendant was observed by a police officer walking approximately 100 feet from the cleaners with something in his hands. Following a chase, defendant was apprehended and items which he dropped at various points were identified as coming from the cleaning establishment. Since defendant raises no questions regarding the sufficiency of the evidence, it is unnecessary to relate other evidence linking defendant to the burglary. Defendant acknowledged having been near the cleaners at the time in question but denied having committed the burglary or possessing the stolen articles. He claimed to have noticed that the cleaners appeared to have been burglarized and fled from the police because he feared being falsely accused of the crime.
Discussion
The conviction on count 3 must be reversed.
Defendant first contends that the conviction on count 3, for receiving stolen property (§ 496, subd. (a)), must be reversed because he cannot be convicted both for this offense and for the theft of the same property. (People v. Allen (1999) 21 Cal.4th 846, 851.) The Attorney General acknowledges that counts 1 and 3 involved the same property and that the conviction on count 3 therefore must be reversed.
The sentence on count 2 must be stayed.
Defendant contends that although this objection was not raised in the trial court, the court nonetheless erred in imposing a concurrent sentence under count 2, petty theft with a prior, rather than staying the sentence under section 654. The Attorney General acknowledges that the waiver doctrine generally does not apply to section 654 claims (People v. Mustafa (1994) 22 Cal.App.4th 1305, 1312, fn. 2), and that “[b]ecause the burglary [charged in count 1] and theft were incident to a single objective, the sentence on count two should have been stayed.” (See People v. Bernal (1994) 22 Cal.App.4th 1455, 1457-1458.)
The court did not err in imposing the upper term on count 1
Defendant’s opening brief, filed before the decision of our Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II), contended that in imposing the upper term on count 1 the trial court violated his rights as defined in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] and the prior cases on which that decision is based. The trial court explained its reasons for selecting the upper term as follows: “The court has imposed the upper term as defendant was on parole when he committed the instant offense. Prior record as adult indicates a pattern of criminal conduct spanning some seventeen years consisting of theft, assault and weapons related offenses. I find the circumstances in aggravation outweigh the circumstances in mitigation to justify the upper term.”
Defendant’s contention lacked merit even before the recent decision in Black II. An exception to the rule requiring jury determination or an admission to establish aggravating sentencing factors has long been made for recidivism factors, including the fact that a defendant was on parole when committing the current offense. (Almendarez-Torres v. United States (1998) 523 U.S. 224.) In Black II the Supreme Court strongly reaffirmed the vitality of this exception: “defendant’s criminal history . . . also rendered defendant eligible for the upper term sentence. (§ 1170, subd. (b).) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi v. New Jersey (2000)] 530 U.S. [466,] 490; Almendarez-Torres[, supra,] 523 U.S. 224.) ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at p. 818.) The trial court’s use of this factor in the present case was well within the parameters of the exception. Moreover, even if defendant was on parole for one of the convictions for which a one year enhancement was imposed, there was no dual use of the same fact as proscribed by California Rules of Court, rule 4.420 (c). The fact that defendant was on parole when he committed the current offense is a very different fact from his prior conviction and prison term.
Impaneling a second jury
The only substantial question presented by defendant’s appeal is whether the trial court committed reversible error in discharging the jury that convicted him of the substantive offenses and impaneling a second jury to determine the truth of the enhancement allegations. The Attorney General does not dispute that the trial court erred, but argues that the error was harmless. We do not believe the court’s premature discharge of the jury can be rescued by the harmless error doctrine.
Section 1025, subdivision (b) provides that “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.” Moreover, to ensure that the jury determining guilt is not prematurely discharged, the Legislature in 1988 added a sudivision (b) to section 1164, providing: “No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, . . . the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.” (See People v. Saunders (1993) 5 Cal.4th 580, 588-589 (Saunders).) Although the objective of the same-jury requirement apparently is judicial economy, and the requirement “may not particularly inure to defendant’s benefit,” the defendant is nonetheless entitled to insist on compliance with the statute. (People v. Tindall (2000) 24 Cal.4th 767, 773-775 (Tindall).) The defendant forfeits the right to appellate relief if he fails to make a timely objection before the first jury is discharged. “[A]lthough sections 1025 and 1164 prohibit a trial court from discharging a jury until it has determined the truth of any alleged prior convictions, a defendant may not complain on appeal of a departure from this procedural requirement unless the error has been brought to the attention of the trial court by means of a timely and specific objection.” (Saunders, supra, 5 Cal.4th at p. 590; see People v. Vera (1997) 15 Cal.4th 269, 276.) But “unless jury trial is waived,” our Supreme Court has reiterated, “[t]he statute is clear in its procedural instructions—the same jury that decides the issue of guilt shall also decide the truth of the alleged prior convictions.” (Tindall, supra, 24 Cal.4th at p. 774.)
The procedural background leading to the premature dismissal of the jury in this case is somewhat unusual. During the guilt phase of the trial, defendant admitted on cross-examination that he had been convicted of prior burglaries and a redacted record of one conviction was introduced in evidence. To the apparent surprise of both attorneys, the court construed defendant’s testimony as a withdrawal of his request for bifurcation of trial on the enhancement allegations. After the jury had begun its deliberations, the prosecutor raised the matter with the court, initially seeking to modify the instruction that had been given to the jury on the elements of petty theft with a prior conviction and to supplement the record with additional evidence, to which the defendant objected. The court refused the prosecutor’s request, observing that “it’s simply a sentencing issue.” The prosecutor then asked: “Is the court’s view that when Mr. Pearson testified that he withdrew his request for bifurcation on the priors?” The court responded: “That’s my view. That’s my view, yes.” When pressed by the prosecutor, “Is that a right that is solely within Mr. Pearson’s purview? Don’t the People have a right to be heard on that issue?”, the court reiterated: “As far as I am concerned it’s a sentencing issue, it’s before me and there has been admission under oath of prior conviction and that’s a waiver. That obviates the need for bifurcation. That’s going to be my ruling. If you want to research it, you can, but that’s what it’s going to be.”
The discussion in chambers began as follows: “MR. FEINBERG [Deputy District Attorney]: I have a concern. Defendant moved to bifurcate the prior theft conviction and I understand when he took the stand he admitted it, which in essence made People’s burden significantly lighter. However, at that time I did not understand that to be a waiver of his bifurcation so I did not introduce documentary evidence regarding prior theft convictions other than People’s 11 . . . subsequently redacted into 11A. [¶] Bottom line, on this record right now, if the court were to require the jury to return a verdict on the prior theft conviction I don’t think there’s evidence that he served a period of time in any correctional or penal institution. And I’m concerned about that because when we bifurcated the proceedings I understood that to mean for the duration of the guilt phase we didn’t have to prove up the priors. [¶] Now, after both parties presented and argued, the court did instruction on 14.40 and I should have caught it at the time, but for some reason I didn’t, which again I don’t think anybody had a burden during the guilt phase to address. And I would just ask that the instruction—first ask the jury verdict form be altered so that reflects the defendant’s initial intention, which was bifurcation of the priors, and ask for verdict only on the petty theft charge. And if necessary that we provide the corrected jury instruction so the jury is not misled into thinking that prior theft conviction is an element under this phase of the trial. [¶] If we can’t do that, at the very least I’d ask the Court to review its ruling regarding the redaction of People’s 11 to allow the full document to go before the jury because I believe that document shows prior theft conviction and I think a two years sentence in the Department of Corrections. One way or another we have to fashion a remedy because I am afraid we created an issue inadvertently.”
“THE COURT: . . . [I]t’s a sentencing issue. Now, there was ample testimony in the record from Mr. Pearson regarding the fact that he was concerned about a parole violation, that you impeached him with at least three prior convictions that I heard. And we had official testimony from CDC regarding the fact he was printed and that document is a prison document. [¶] Now I don’t see it as an issue. He admitted it on the stand. He admitted being on parole. I think there are a number of factors which would contribute to the jury’s belief he served time in a penal institution. Since it’s simply a sentencing issue I don’t view it as a problem. I’m not going to send in corrected exhibits because the jury has exhibits, and I agree with Ms. Gray [defense counsel], that would not be proper for this court to do.”
The jury returned with its guilty verdicts a few hours later. Before the jury was excused, counsel approached the bench for a sidebar conference. The prosecutor again expressed his “concern regarding the fact defendant is entitled to jury trial on the 667.5(b)” and the court reiterated that “we would not be using the services of the jury for that purpose.” Defense counsel advised the court that defendant “had not waived his right to trial on the priors.” The court proceeded to excuse the jury and advised the attorneys that they would discuss the issues concerning the prior convictions at a later date. “I want case law from both of you on the matter to support your position,” the court stated, “I will also be getting some case law myself.”
The sidebar discussion was not transcribed, but after the jury had been excused the discussion was summarized on the record by the attorneys and the court. During the course of doing so, the prosecutor acknowledged, “I don’t know procedurally where we are at,” because there was only partial evidence in the record concerning one of the prior convictions and nothing specific concerning the others, to which the court responded: “I understand what you are saying, Mr. Feinberg. I disagree with it. And as I said, I thought we had that settled early this morning, otherwise I would have notified the jury, had there been this disagreement at the bench, that they would have had to stay. Not hearing anything this morning at 9:00 o’clock when we discussed it, it was not my intent once I was excusing them to have them remain in order to further the proceeding.” Defense counsel observed, “Well, judge, I am also confused. I just stated at the bench before the jury left he had not waived his right to trial on the priors. I don’t think you have taken a personal waiver of Mr. Pearson on this matter. We have not intended by anything we have done to give implicit waiver. He has a right to a jury trial on the prior convictions if they’re used for enhancement purposes.” It is not entirely clear precisely how much of defendant’s objection was expressed at the sidebar.
On the continued date, following argument concerning Saunders and other cases, the court declared: “Here is where we are. I had intended before this argument to only sentence on one of the 667.5(b) prior convictions because I did believe he admitted and during the relevant time frame, and it constituted a waiver. However, I am familiar with the Saunders case and I am going to impanel a second jury to hear these priors.” The court did so over the defendant’s objection and, as indicated above, the jury found true three of the four alleged enhancements.
There is no doubt that the court erred in dismissing the first jury before it considered the enhancement allegations. Defendant’s acknowledgement on cross-examination that he had previously been convicted of prior theft offenses—a fact necessary to establish the petty-theft-with-a-prior charged in count 2—did not establish all of the elements necessary for imposition of the section 667.5, subdivision (b) enhancements, specifically the service of prison terms within the five year period specified in the statute. As both counsel tried to tell the court, defendant had not waived his right to have those issues decided by the jury. Defense counsel reasserted his demand immediately before the court excused the first jury. Therefore, the jury was improperly dismissed and defendant is entitled to raise the issue on appeal. (Tindall, supra, 24 Cal.4th 767; Saunders, supra, 5 Cal.4th 580 .)
The Attorney General does not question the sufficiency of defense counsel’s objection to preserve defendant’s right to challenge the trial court’s action. The objection might be regarded as insufficient because, so far as appears, no specific reference was made to section 1025 or to the right to have the original jury determine the enhancement issues. However, in this case any further elaboration of the objection would have been futile. The court had repeatedly made clear its position that there were no further issues for determination by a jury. There would have been no reason to argue with the court that if, contrary to its ruling, additional issues were submitted to a jury, it would have been necessary to use the same rather than a second jury.
Upon the premature dismissal of the jury that had been sworn to try the charges contained in the information, defendant was entitled to have the unadjudicated allegations dismissed. (§ 1164, subd. (b); cf. Saunders, supra, 5 Cal.4th at pp. 588-589; People v. Wojahn (1984) 150 Cal.App.3d 1024, 1032-1035, disapproved on issue of double jeopardy in Saunders.) In Tindall, the trial court permitted the prosecution to amend the information to add allegations of several prior offenses after the jury which found him guilty of the charged offense had been excused. Over the defendant’s objection the court impaneled a new jury that found the allegations of prior offenses to be true and the court accordingly imposed a sentence for the charged offense as a third “strike” under section 1170.12. The Supreme Court reversed, requiring the defendant to be sentenced on the current offense without regard to the enhancement allegations. The court held that despite the apparent conflict with section 969a, “we must interpret section 1025, subdivision (b) as we find it, requiring the same jury to decide both the issue of a defendant’s guilt and the truth of any prior conviction allegations in the absence of a defendant’s waiver or forfeiture.” (Tindall, supra, 24 Cal.4th at p. 782.) The Supreme Court implicitly rejected the suggestion of the two dissenters that the enhanced sentence should be upheld because prejudice from the impanelment of a new jury was speculative and conjectural. (Id. at p. 788 (dis. opn. of Brown, J.).)
In Saunders the Supreme Court rejected the constitutional basis for insisting on trial by the same jury, but did not question the mandatory nature of the statutory provision.
Section 969a provides in part, “Whenever it shall be discovered that a pending . . . information does not charge all prior felonies of which the defendant has been convicted . . ., said . . . information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court . . . .”
Disposition
The matter is remanded to the trial court with directions to (1) vacate the conviction on count 3; (2) stay the sentence on count 2; and (3) vacate the findings and sentences with respect to the three enhancements imposed pursuant to section 667.5 subdivision (b). In all other respects the judgment is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.