Opinion
3 C034224
10-24-2001
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO GUTIERREZ, Defendant and Appellant. C034224 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) Filed
THE PEOPLE, Plaintiff and Respondent,
v.
ALBERTO GUTIERREZ, Defendant and Appellant.
C034224
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Placer)
Filed 9/25/01
10/24/01
(Super.Ct.No. 627093)
APPEAL from a judgment of the Superior Court of the County of Sacramento, John L. Cosgrove, Judge. Affirmed.
Law Offices of John F. Schuck and John F. Schuck, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Acting Senior Assistant Attorney General, John G. McLean and Carlos A. Martinez, Supervising Deputy Attorneys General, and Julia Bancroft, Deputy Attorney General, for Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION
CALLAHAN , J.
OPINION ON REHEARING
A jury convicted defendant of second degree robbery (Pen. Code, 211; undesignated section references are to this code) and false imprisonment by violence ( 236) and found that he was armed with a firearm during the commission of the offenses ( 12022, subd. (a)(1)). In bifurcated proceedings, the court found that defendant had a prior felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12) and within the meaning of section 667, subdivision (a) and that defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Thereafter, but prior to sentencing, the court granted the prosecutions motion to file an amended information adding two 1982 Nevada priors for robbery as strike priors ( 667, subds. (b)-(i), 1170.12) and as five-year enhancements ( 667, subd. (a)). Prior to trial on the priors, the prosecutor indicated there was only one Nevada prior, not two. A jury found the Nevada state robbery conviction to be true.
The court granted defendants motion to strike the Nevada state robbery conviction as a strike prior ( 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497). Defendant admitted that the Nevada state robbery conviction came within the meaning of section 667, subdivision (a). The court sentenced defendant to state prison for an aggregate term of 18 years (six years for the robbery [the midterm of three years, doubled for the remaining strike prior], two years for two prior prison terms [the other prior prison term enhancement was not imposed because the prior was used for a five-year enhancement], and 10 years for two 5-year enhancements; the court stayed the term for the false imprisonment and for the arming enhancements).
Defendant appeals. He contends the prosecutor committed prejudicial misconduct by inquiring into defendants in-custody status and in arguing facts not in evidence. He argues the cumulative effect of the misconduct prejudiced him and requires reversal. He also contends that the Nevada prior must be stricken in its entirety because the trial court prejudicially erred in allowing amendment of the information after the jury was discharged. We will reverse the Nevada state robbery conviction findings, strike the allegations and modify the sentence striking the five-year enhancement imposed for the Nevada prior. As modified, we will affirm.
FACTS
Steven Marks worked as a clerk and cashier on the swing shift at Cisco Grove Chevron gas station. About 11:00 p.m. on February 11, 1999, while picking up trash outside, Marks saw a red compact car drive up. Three people were in the car. Marks went inside and waited for the customers.
Manuel Quiroga, wearing dark clothing from head to foot, got out of the car and went into the store and asked for a pack of Marlboros and a pack of Newports. Marks put the cigarettes on the counter. Quiroga then walked to the back of the store to grab something out of the cooler. About that time, defendant, wearing a dark top and light-colored pants, walked into the store carrying a plastic bottle which he set on the counter. Defendant stood at the counter and looked at Marks and then outside. Quiroga walked up to the counter carrying a gun which he pointed at Markss head ordering him to put his face down, not to look at Quiroga and to be quiet. Quiroga demanded money and Marks said the money was in the cash drawer. Quiroga could not open the drawer and ordered Marks to do it. Marks opened the drawer and Quiroga grabbed $100. Quiroga thought there should be more and defendant told him to look for a drop safe. Defendant and Quiroga found a box under the counter which contained $300. Quiroga put the gun to Markss back and threatened to kill him for lying. Defendant persuaded Quiroga not to and tied up Marks with strips from a terry cloth towel. Quiroga threatened to kill Marks if he told anyone.
Defendant and Quiroga also took Markss wallet that had $70. After grabbing more cigarettes, defendant and Quiroga left the store. Marks immediately called 911. Deputy Sheriffs Paul Nicholas and Michael Cunningham arrived and obtained the details of the robbery from Marks.
About 11:10 p.m., California Highway Patrol Officers Paul San Gregorio and Lowell Monday were notified of the robbery. As they headed east on Interstate-80 toward Cisco Grove, they saw a red car matching the suspects vehicle heading in the opposite direction. The officers turned around and caught up with the red car which had pulled over to the shoulder with its hazard lights activated. The officers passed the red car and saw a person in the drivers seat and defendant in a dark top and light-colored pants outside next to the passenger door. The officers backed up and stopped behind the car. The man outside the car had disappeared. The officers contacted the driver, Joyce Mello, who told the officers that Quiroga was lying in the back seat. Officers ordered Quiroga out of the car.
The officers searched the car and found a firearm, cartons of cigarettes, gloves, ski mask, and rolled coins. Officer San Gregorio, another deputy and a police dog followed a trail of empty cigarette cartons, a few packages of cigarettes and some muddy footprints.
At 3:40 a.m. on February 12, 1999, defendant was found stepping over a guardrail near Rollins Lake Road. He attempted to flee but his path was blocked. A search of defendant revealed $248 and one or more strips of terry cloth towel.
A videotape of the robbery was played for the jury.
Defendant did not testify at trial. Quiroga testified that he had a prior conviction for voluntary manslaughter and had entered a guilty plea in the instant case. Quiroga explained that he had asked defendant for a ride to Reno in exchange for drugs or money. Quiroga claimed he had not planned on committing the robbery but when a revolver he had stolen fell out of his pants inside the store, he considered the possibility of "get[ting] some free money." Quiroga, on drugs during the robbery, asserted that he had ordered defendant in Spanish to participate in the robbery and had ordered defendant out of the car after the robbery because defendant was "irritating."
When interviewed at the jail on February 12, 1999, Quiroga did not provide any details of the robbery nor did he describe his behavior toward defendant. Quiroga could not remember what happened in the store. Quirogas tape-recorded statement was played for the jury.
Additional facts relevant to defendants contentions will be recounted in our discussion of the same.
DISCUSSION
I
During cross-examination of Quiroga, the following discourse ensued:
"Q. [Prosecutor]: When was the first time in the last four months and 17 days that you told a Placer County sheriffs deputy at the jail who are around you 24 hours a day that you had forced [defendant] to participate in the robbery?
"A. [Quiroga] I havent talked about the robbery to anyone.
"Q. Where are you housed? Where have you been housed at the jail?
"A. In tank 8 and 233.
"Q. Do you ever see the defendant in the jail?
"A. Yes. We are in the same tank.
"Q. All of the time?
"A. All of the time.
"Q. Mr. Quiroga, have you ever been --
"[Defense counsel]: Your Honor, I am going to object to the last question and answer. I want to move for a mistrial. The district attorney has apparently made a decision that its okay for him to tell the jury my client --
"THE COURT: Do you want to do that at this time or outside of the presence of the jury?
"[Defense counsel]: Outside the presence is fine.
"THE COURT: I will reserve your motion.
"[Defense counsel]: Fine."
Later, prior to argument on defense counsels mistrial motion, the court commented: "We all go to great lengths to comply with the current status of the law, and that is that when people are in custody, we do all we can not to highlight that. I really dont think the jurors believe that [defendant] is in custody. At least from all appearances its not an item of display. He has regular clothing on. He is not paraded in front of the jurors in chains or under excessively close security measures. So it is something we take -- we go to some lengths to try to minimize the custodial aspects of the defendants situation. [] I would like to go back and -- I know the fact he is in custody I think is in front of the jurors" based on the prosecutors question. After argument the court concluded that although the prosecutors conduct was "egregious," the prosecutors isolated comment on defendants in-custody status was not prejudicial relying on People v. Bradford (1997) 15 Cal.4th 1229, and denied the motion. The court offered to admonish the jury but defense counsel declined, preferring not to draw the jurys further attention to the issue.
Defendant contends the prosecutor committed prejudicial misconduct by asking Quiroga questions which were "clearly intended" to inform the jury that defendant was in custody with Quiroga who had already pleaded guilty to the offense. We could not disagree more. The questions were clearly intended to demonstrate the opportunity for collusion.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. "A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ""the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 819.)
"Generally, a reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citations.]" (People v. Gionis (1995) 9 Cal.4th 1196, 1215.)
"To determine whether an admonishment would have been effective, we consider the statements in context. [Citation.] If the defendant objected or if an objection would not have cured the harm, we look to see whether the improper conduct was prejudicial, i.e., whether it is reasonably probable that a jury would have reached a more favorable result absent the objectionable comments. [Citation.]" (People v. Herring (1993) 20 Cal.App.4th 1066, 1074.)
Here, defense counsel objected but declined the courts offer to admonish the jury. An admonishment would have cured any harm. Thus, the issue is not preserved. In any event, the claim lacks merit.
In Bradford, the California Supreme Court concluded that the jury should not be constantly reminded of defendants in-custody status:
"The [United States] Supreme Court has observed that the defendants jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. [Citation.] [Citation.] It may be inferred that other information, having the same tendency to remind the jury that a defendant is in custody, might have a similar effect. [] . . . [A]n isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury. In addition, we observe that in certain circumstances a jury inevitably will learn a defendant is in custody for the current charged offense, for example where the jury is presented with the testimony of a jailhouse informant. [Citation.]" (15 Cal.4th at p. 1336, original italics.)
Here, the prosecutor asked Quiroga, "Do you ever see the defendant in the jail?" Quiroga answered, "Yes" and then volunteered, "We are in the same tank." The prosecutor queried, "All of the time?" and Quiroga answered affirmatively. When the prosecutor began his next question, defense counsel objected to the previous question and answer, moving for a mistrial.
When interviewed about the robbery, Quiroga never claimed defendant participated in the robbery only at Quirogas command. At trial, however, Quiroga, who had already pleaded guilty to the robbery, explained that he had forced defendant to participate in the robbery.
The prosecutor was entitled to attack Quirogas credibility by suggesting that he and defendant had concocted the story Quiroga told at trial. When the prosecutor asked Quiroga if he ever saw defendant in the jail, the question called for a yes or no answer. The question did not necessarily imply that defendant was in the jail. The jury knew that Quiroga was in jail. A reasonable juror could infer from the question that defendant visited Quiroga in the jail. Defendant was dressed in civilian clothes at the trial. Quiroga volunteered that he and defendant were in the same tank. There was no objection or motion to strike at this point. The prosecutor followed up, "All of the time?" and Quiroga answered affirmatively. Defense counsel only objected to the last question and answer.
In any event, the prosecutor never questioned Quiroga about defendants in-custody status again. The isolated comment about defendants in-custody status "simply d[id] not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury." (Bradford, supra, 15 Cal.4th at p. 1336, original italics.)
Defendant argues the facts here are similar to those in People v. Robinson (1995) 31 Cal.App.4th 494. We disagree.
The prosecutorial misconduct in Robinson occurred as follows:
"Before defense counsel called [eyewitness] Mark Lytle to the stand she informed the trial court he was in custody and indicated that in order to insure the jury would not be prejudiced by his being in custody, she requested Mark Lytle be brought into the courtroom before the jury entered. The prosecutor had no objection and the trial court agreed.
"However, the prosecutor conducted the following cross-examination of Mark Lytle:
"Q. Have you talked to the defendant at all about this case?
"A. Have I talked to him at all?
"Q. Yes, about their [sic] case.
"A. Yeah, I have talked to him.
"Q. In custody?
"A. In custody?
"Q. Yes.
"A. Yes.
"Q. When was that?
"A. You know, we talk all the time.
"Q. Are you in the same hold?
"[Defense counsel]: Objection.
"THE COURT: Sustained. [] Counsel, would you approach with the reporter. (Italics added.)
"The trial court refused to strike the answer and erroneously stated the witness had only been asked if the conversation (with appellant) was in custody, not whether Mr. Lytle was in custody. The trial court did not want to focus the jurys attention on the improper in custody question and gave no admonition to the jury.
"We find the in custody and Are you in the same hold? questions by the prosecutor constituted misconduct. The misconduct was not cured or ameliorated by the trial court. It may well have tilted the credibility balance against Mr. Lytle and in favor of [a prosecution witness]." (31 Cal.App.4th at pp. 503-504.)
Bradford, more recent and a Supreme Court opinion, controls. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, Robinson is distinguishable on its facts. First, the trial court did not offer to admonish the jury whereas here, the trial court did but defense counsel declined. Further, the witness here volunteered that defendant was in the same tank when the question only asked if Quiroga spoke with defendant in the jail. Finally, the inquiry was appropriate, indeed, necessary to establish facts by which the jury could ascertain the high potential for collusion between Quiroga and defendant and assess fully Quirogas assertion he forced defendant to commit the robbery.
II
During closing argument, the prosecutor stated:
"[Prosecutor]: This is a planned operation. [] . . . [] These guys went in there if not penniless, as close as you can get to it. Right? While hes parading around, its come in, get the attention, give me some cigarettes. Clerk turns away. Second suspect comes in. Theres a sweep through the store to make sure nobody else is in there; gives him a chance to pull out that gun. Its very slick. I mean, its a very slick, well done, well planned, probably well rehearsed operation. This is not the first time this happened like this. It just isnt. You watch that (snaps fingers) --
"[Defense counsel]: I want to object, Your Honor. He is suggesting to the jury there are other crimes that have been committed. I dont know anything about them. Theres nothing else that meant to imply. This is not the first time this has happened. Its wrong.
"THE COURT: Yeah. [] Correct your argument in that respect.
"[Prosecutor]: Thank you, Your Honor. [] Ladies and gentlemen, Im not attempting to tell you that I have inside information because of my position as a D.A. that I know these two defendants have done this in other places at other times. What Im suggesting to you is that the way it is shown on the tape certainly implies that it has been planned, and that it works in an efficient and very effective manner to take the store clerk by surprise and to suddenly, without any warning to that clerk, overwhelm the clerk and gain the advantage on that. Whatever it might be."
Defendant contends the prosecutors statement to the jury that this was not the first robbery that defendant had committed was so prejudicial that no correction or admonition would have cured the harm; thus, his rights to due process, a fair trial, and fundamental fairness were violated.
During closing argument, a prosecutor is given wide latitude and may comment on the evidence and reasonable inferences that may be drawn therefrom. (People v. Frye (1998) 18 Cal.4th 894, 972; Hill, supra, 17 Cal.4th at p. 819.) Referring to facts not in evidence is clearly misconduct. (Id. at pp. 827-828.)
"What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant. [Citation.] When . . . the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by [such] a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable. [Citation.]" (People v. Ashmus (1991) 54 Cal.3d 932, 976; see also People v. Sanders (1995) 11 Cal.4th 475, 526; People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Here, when the comment, "This is not the first time this happened like this," is viewed alone, out of context, it simply does not comment on defendants past offenses. In context, and as the prosecutor had just stated, he was simply referring to the "very slick, well done, well planned, probably well rehearsed" robbery and snapped his fingers stating "You watch that," referring to the videotape of the robbery, which shows the sophisticated manner in which the robbery occurred. The prosecutor committed no misconduct - he was simply arguing that the jury draw an inference from the evidence adduced at trial. Moreover, the jury could not have been misled since the prosecutor clarified his remark and specifically stated that he was not telling the jury that he had information about defendant and Quiroga committing other robberies.
III
Defendants claim that the cumulative effect of the instances of prosecutorial misconduct was prejudicial and requires reversal is rejected.
We have rejected defendants claim that there were instances of prosecutorial misconduct. Even assuming otherwise, the two instances do not reflect extreme instances of prosecutorial misconduct. (Compare Hill, supra, 17 Cal.4th at pp. 823-839; Herring, supra, 20 Cal.App.4th at pp. 1073-1077; People v. Bain (1971) 5 Cal.3d 839, 845-846.)
Moreover, it is not reasonably probable that a result more favorable to defendant would have occurred absent the prosecutorial misconduct. (People v. Haskett (1982) 30 Cal.3d 841, 866; People v. Watson (1956) 46 Cal.2d 818, 836.) The videotape of the robbery as well as the victims testimony overwhelmingly establish defendants guilt.
IV
Defendant contends the trial court prejudicially erred in allowing the prosecutor to amend the information to allege a Nevada state robbery conviction as a strike prior ( 667, subds. (b)-(i), 1170.12) and as a five-year enhancement ( 667, subd. (a)) after the jury had been discharged. Defendant contends the Nevada conviction must be stricken in its entirety. Defendant relies on the recent decision by the California Supreme Court, People v. Tindall (2000) 24 Cal.4th 767. We conclude Tindall is applicable here.
A detailed recitation of the procedural history of this case is necessary.
On February 17, 1999, a felony complaint was filed charging defendant with second degree robbery and false imprisonment and alleging personal use of a firearm, a principal armed with a firearm, a 1984 California robbery as a strike prior as well as a five-year enhancement and five prior prison terms, all served on California convictions.
On February 27, 1999, an information was filed charging defendant with the same substantive offenses and alleged arming, a 1983 California robbery as a strike prior as well as a five-year enhancement and three prior prison terms, all served on California convictions.
On June 23, 1999, after jury selection but prior to presentation of evidence, defendant waived his right to a jury trial on the prior allegations.
On July 1, 1999, a jury convicted defendant of robbery and false imprisonment, found he was armed and was thereafter discharged. In bifurcated proceedings the same day, the court found the California prior allegations to be true as well as three prior prison term allegations.
On August 17, 1999, the prosecutor filed a motion to amend the information to allege two 1982 Nevada state robbery convictions as five-year enhancements ( 667, subd. (a)) and as strike priors ( 667, subds. (b)-(i), 1170.12). The prosecution explained it had been unaware of defendants prior Nevada robbery convictions - they had not appeared on defendants California, Nevada or FBI rap sheets. Defendant had a fairly common last name, used numerous aliases and had once provided officers with a false name. The Nevada conviction had a different spelling than any used before and a fingerprint match confirmed it was defendant who had committed the Nevada prior. The prosecutor confirmed the conviction through fingerprints on August 13, 1999.
With respect to the effect of the failure to allege upon defendants decisions during plea bargaining, the prosecutor stated, "There is no evidence that the defendant would or could have resolved the case more favorably to himself if the Nevada priors would have been alleged previously. Every offer that the People extended, most of them joint offers with Quiroga to resolve this, were rejected." The prosecutor stated that "if the People would have known [that defendant] had that other strike or strikes out of the State of Nevada, there would not have been a 15 year offer. There would not ever have been a determinate offer. The exposure is 41 with the additional strike allegation because of the 667a."
Defense counsel objected to the amendment.
In granting the motion, the court considered the factors set forth in People v. Tindall, previously at 72 Cal.App.4th 188, which was subsequently reversed on December 28, 2000, in People v. Tindall, supra, 24 Cal.4th 767. The court commented, "I think [the prosecution] did a very -- I would say more than adequate search. They were diligently pursuing what appeared to be a closed area" and "The Peoples conduct during July and August I think has been excellent, the conduct insofar as searching this out."
On August 20, 1999, the amended information was filed.
On September 9, 1999, a new jury was convened. The prosecutor informed the court that there was only one 1982 Nevada state robbery conviction, not two. The jury found the Nevada state robbery conviction to be true.
On October 5, 1999, the court struck the Nevada state robbery conviction only for purposes as a strike prior and sentenced defendant to state prison for an aggregate term of 18 years, using the Nevada conviction to add a five-year enhancement ( 667, subd. (a)).
In Tindall, supra, 24 Cal.4th 767, an information charged the defendant with possession of rock cocaine and alleged, for purposes of probation ineligibility, two prior narcotics convictions. It was further alleged he had served a prior prison term for one of the convictions. The priors were bifurcated. A jury convicted the defendant on the underlying offense and he then waived his right to a jury trial on the priors. The jury was discharged. Prior to sentencing, a probation report revealed, among other convictions, three prior felony bank robbery convictions. The prosecutor moved to amend the information to add the three convictions as strike priors and as three prior prison terms and to add another prior prison term for a narcotics conviction. Over the defendants objection, the trial court granted the prosecutions motion to amend. The defendant asserted his right to a jury trial on the strike priors. A jury found the three strike priors to be true. The court sentenced the defendant to state prison for 25 years to life. Based on section 1025, subdivision (b), Tindall concluded that the trial court, in permitting the postdischarge amendment to the information, acted in excess of jurisdiction and reversed the Court of Appeals judgment affirming the trial courts order. (24 Cal.4th at pp. 770-771.)
Section 1025, subdivision (b) provides, in relevant part as follows: "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, . . ." Tindall considered the conflict with section 969a which provides that priors may be added "[w]henever it shall be discovered that a pending indictment or information does not charge all prior felonies . . . ." (Tindall, supra, 24 Cal.4th at p. 772.) After discussing the advantages of having the same jury decide the guilt issue on the underlying offense and the truth issue on the priors, Tindall concluded that section 969a could not be interpreted to deny a defendants right under section 1025, subdivision (b). (Tindall, supra, at pp. 773-781.)
Tindall specifically rejected the Attorney Generals argument that prohibiting postdischarge amendments would give defendants "an incentive to waive their jury trial right quickly to prevent their being correctly sentenced. [Citation.]" (24 Cal.4th at p. 779.) "In other words, those defendants who know the prosecution has not alleged all of their prior convictions will waive a jury trial on the priors, causing the guilt phase jury to be discharged. If the prosecution seeks to amend the information to add the prior conviction allegations, the defendants will assert that they waived a jury without full knowledge of the alleged prior convictions, and they will seek to withdraw the waiver and impanel another jury. Consequently, they will not have the same jury, as required under section 1025, subdivision (b). Under defendants interpretation of this provision the prosecution may not be permitted to add previously unalleged prior convictions. [] Though not entirely without merit, the Attorney Generals argument loses force when we consider the realities of this incentive. To take unfair advantage of section 1025, subdivision (b), a defendant must plead not guilty, undergo the trial of the alleged underlying offenses, and be found guilty. During this entire time, the prosecution must fail to allege all of the defendants prior convictions. Only then does a defendants incentive to waive jury trial on the priors arguably become manifest." (Ibid.) "Although prohibiting postdischarge amendments will prevent the prosecution in certain cases from charging defendants with all their prior convictions ( 969), we do 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 [of] trial, to discover and charge the prior convictions." (Id. at p. 781.)
Tindall held that "in the absence of a defendants forfeiture or waiver, section 1025, subdivision (b) requires that the same jury that decided the issue of a defendants 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." (24 Cal.4th at p. 782.)
We requested supplemental briefing on whether Tindall, supra, 24 Cal.4th 767 applies here. Defendant responds that Tindall held that "in any case where the defendant has waived jury trial on then-alleged priors and a jury decides the issue of guilt, the prosecution has until the conclusion of the guilt phase trial, to discover and charge the [previously unalleged] prior convictions." (Underscoring in original, quoting, in part, from Tindall, supra, 24 Cal.4th at p. 781.)
Defendant claims he waived his right to the same jury only on the alleged priors, and not on the post-jury-verdict added prior. Thus, he asserts, "as a matter of law, it was impossible vis--vis the unalleged prior for [him] ever to have waived his section 1025, subdivision (b) right to have the same jury decide guilt and the truth of that prior." Basically, he claims the waiver was not voluntary and knowingly entered as to the unalleged prior.
Defendant argues that Tindall made no "distinction or exception" to the rule barring amendment "based upon when the defendant waived his right to a jury trial on the alleged priors." Defendant essentially argues that priors cannot be added after discharge of the jury and that a waiver as to alleged priors has no effect with respect to newly discovered unalleged priors.
The Attorney General argues Tindall is distinguishable. The Attorney General argues because defendant waived his right to jury trial on the priors prior to presentation of evidence, amendment to add a prior was not barred. The Attorney General claims the "timing of the waiver makes all the difference" and quotes from Tindall, "[D]epending on a defendants plea or waiver of a jury, the prosecution may or may not be able to add prior conviction allegations after a jury is discharged." (Tindall, supra, 24 Cal.4th at p. 779.)
We agree with defendants interpretation and conclude Tindall applies here. After the jury convicted defendant of robbery and false imprisonment and found he was armed, it was discharged. In bifurcated proceedings, the trial court found California prior allegations to be true. Prior to sentencing and over the defendants objection, the prosecutors motion to amend to add a Nevada state robbery conviction as a strike prior and as a five-year enhancement was granted. A new jury found the Nevada prior to be true. At sentencing, the trial court struck the Nevada state robbery conviction as a strike prior but imposed such conviction as a five-year enhancement.
Defendant was denied his statutory right to have the same jury decide the guilt issue on the underlying offenses and the truth issue on the Nevada state robbery conviction allegations. Defendant only waived his statutory right to have the same jury decide the guilt issue on the underlying offenses and the truth issue on the California prior allegations. Defendant did not object to the discharge of the jury because the Nevada state robbery conviction had not yet been alleged. Thus, defendants failure to object to the discharge of the jury does not constitute waiver. Defendant did object when the prosecutor moved to amend the information to add the Nevada state robbery conviction allegations.
The trial court acted in excess of jurisdiction in allowing the prosecution to file a late, amended information alleging the Nevada state robbery conviction as a strike prior and as a five-year enhancement. We will modify the judgment accordingly and affirm as modified. ( 1260.)
DISPOSITION
The findings that defendant sustained a prior serious felony conviction for the Nevada state robbery conviction for purposes of a strike prior ( 667, subds. (b)-(i), 1170.12) and a five-year enhancement ( 667, subd. (a)) are reversed and the allegations are stricken. The sentence is modified to strike the five-year enhancement imposed for the Nevada prior. Because the trial court struck the Nevada prior as a strike prior, no further modification is required. With a reduction of five years, defendants sentence is now 13 years. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.
We concur: NICHOLSON, Acting P.J., MORRISON, J.
ORDER FOR PARTIAL PUBLICATION
THE COURT:
The opinion in the above entitled matter filed on September 25, 2001, was not certified for publication in the Official Reports.
For good cause it now appears the opinion should be published and accordingly, it is ordered that the opinion be published with the exception of parts I, II, and III, pursuant to California Rules of Court, rules 976(b) and 976.1.
FOR THE COURT: NICHOLSON, Acting P.J.,MORRISON, J.,CALLAHAN, J.