Opinion
Previously published at 9 Cal.App.4th 1735
As Modified Oct. 30, 1992.
Review Granted Jan. 14, 1993.
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COUNSEL
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Senior Asst. Atty. Gen., Lawrence K. Sullivan, and Ronald S. Matthias, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Richard J. Krech, Krech & Cole, Oakland, for defendant and appellant.
OPINION
NEWSOM, Associate Justice.
Appellant was charged with residential burglary (Pen.Code, § 459) and eight prior convictions (§§ 667, 667.5, subd. (b)). At the trial setting conference, appellant's counsel announced that appellant had agreed "to have a court trial on the priors...." The court then granted appellant's motion to bifurcate the proceedings, with jury trial on the underlying burglary charge severed from court trial on the alleged prior convictions.
Unless otherwise indicated, all further statutory references are to the Penal Code.
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Appellant was found guilty of burglary following a jury trial, and the jurors were discharged without objection by defense counsel. Appellant was then asked if he was willing to admit the allegations of prior convictions. Defense counsel stated, "The priors are admitted," but indicated that one of the alleged prior convictions was "a one-year prior as opposed to a five-year prior." With that amendment, the prior convictions were admitted by defense counsel. The trial court subsequently advised appellant that admission of the prior convictions "is a form of self-incrimination in that you are admitting something on which I then can base enhancements of any sentence imposed upon you." Appellant replied, "I don't fully understand that, sir," whereupon the trial court stated: "All right. Let's do this then. Why don't we just prove them."
The issues raised on appeal do not relate to the burglary charge, and, consequently, we will not discuss the facts pertaining to that offense.
A court trial on the prior convictions ensued. Six of the charged prior convictions were "found to be true," two were "not found." Appellant was subsequently sentenced to a total of 27 years in state prison, 25 of which are attributable to the prior convictions.
Appellant contends that his waiver of a jury trial on the allegations of prior convictions was defective and requires that we not only strike the enhancement findings but also "order those allegations dismissed with prejudice." He claims that the jury trial waiver by his counsel was invalid, necessitating reversal of the findings on the prior convictions. He further argues that retrial of the enhancement allegations is prevented by the constitutional prohibition against double jeopardy and section 1025.
The Attorney General acknowledges that appellant's jury trial waiver was not properly entered. Appellant was neither advised of nor personally waived his right to a jury trial on the enhancement allegations. Waiver of the right to a jury trial may not be entered by counsel or inferred from the defendant's conduct; the record must show an express, personal and unequivocal waiver by the defendant. (People v. Guzman (1988) 45 Cal.3d 915, 935, 248 Cal.Rptr. 467, ; People v. Holmes (1960) 54 Cal.2d 442, 443-444, 5 Cal.Rptr. 871, ; People v. Kemick (1971) 17 Cal.App.3d 419, 424, 94 Cal.Rptr. 835.) Without any express personal statement by appellant, we are compelled to find the waiver invalid. (People v. Holmes, supra, 54 Cal.2d at p. 444, 5 Cal.Rptr. 871, ; People v. Kemick, supra, 17 Cal.App.3d at p. 424, 94 Cal.Rptr. 835; People v. Walker (1959) 170 Cal.App.2d 159, 166, ; People v. Benjamin (1956) 140 Cal.App.2d 703, 704, .)
We further conclude that the invalid jury trial waiver compels reversal of that part of the judgment finding the prior convictions proved. Under
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the test of reversible error recently announced in People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, , a defective articulation and waiver of constitutional rights shall require the waiver to be set aside only if, under the "federal test," the record fails to show "that it is voluntary and intelligent under the totality of circumstances." (Id. at p. 1175, 5 Cal.Rptr.2d 268, .) Thus, we must now "consider whether the record in this case affirmatively shows" that appellant made a "knowing and voluntary waiver of his constitutional rights." (Id. at p. 1179, 5 Cal.Rptr.2d 268, .) Based upon the record before us, we cannot find a knowing and voluntary waiver by appellant of his right to a jury trial. The evidence fails to demonstrate that appellant was ever advised of his right to a jury trial before the waiver was entered. (Cf. People v. Howard, supra, 1 Cal.4th at p. 1180, 5 Cal.Rptr.2d 268, ; People v. Martin 9180) 111 Cal.App.3d 973, 982, 169 Cal.Rptr. 52.) Appellant's right to a jury trial on the allegations of prior convictions was waived unilaterally by defense counsel without any express concurrence or even participation by appellant. This is not a case of mere lack of an explicit admonition of constitutional rights, where the record otherwise demonstrates the defendant's knowledge of such rights. (Cf. People v. Howard, supra, 1 Cal.4th at p. 1180, 5 Cal.Rptr.2d 268, .) We have not been presented with any basis upon which to find that appellant's waiver was voluntary and intelligent, and so reversal is an appropriate and necessary disposition under the Howard test.
The remaining and more difficult issue is whether, following the invalid jury trial waiver and subsequent discharge of the jury, retrial of appellant on the penalty enhancement allegations is barred by the constitutional prohibition against double jeopardy or by section 1025. The issue has generated considerable conflict and discussion in the appellate courts, and is presently before the California Supreme Court.
The double jeopardy clause of the Fifth Amendment to the United States Constitution declares, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The federal guaranty is applicable to the states through the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707.) Article I, section 15 of the California Constitution provides that "Persons may not twice be put in jeopardy for the same offense...."
See People v. Saunders (1991) 3 Cal.App.4th 1082, 285 Cal.Rptr. 485 review granted 1 Cal.Rptr.2d 391, ; In re Ware (1991) 4 Cal.App.4th 1771, 285 Cal.Rptr. 179 review granted 2 Cal.Rptr.2d 1, ; People v. Ryan (1991) 6 Cal.App.4th 197, 285 Cal.Rptr. 712 review granted 2 Cal.Rptr.2d 489, .
The essential principles embodying the proscription against double jeopardy are well established. " 'The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.' " (Stone
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v. Superior Court (1982) 31 Cal.3d 503, 515, 183 Cal.Rptr. 647, ; People v. Costa (1991) 1 Cal.App.4th 1201, 1208, 2 Cal.Rptr.2d 720.) "Principally, double jeopardy 'prohibits retrial after a conviction has been reversed because of insufficiency of the evidence. [Citations.]' " (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72, 2 Cal.Rptr.2d 389, .) "This rule of constitutional law applies 'in the context of a trial of a prior conviction when insufficient evidence is introduced to sustain the allegation.' [Citation.]" (People v. Goodner (1990) 226 Cal.App.3d 609, 613, 276 Cal.Rptr. 542.) Section 1025 embodies the principles of the double jeopardy rule by specifically providing that the same jury which decides the issue of guilt on the main offense must hear and decide the question of the alleged prior conviction. (People v. Hockersmith (1990) 217 Cal.App.3d 968, 976, 266 Cal.Rptr. 380; People v. Wojahn (1984) 150 Cal.App.3d 1024, 1034, 198 Cal.Rptr. 277.)
Thus, as to the allegations of prior convictions which the trial court expressly found not true for lack of sufficient evidence--that is, "the third and fourth alleged prior convictions"--retrial is foreclosed. (People v. Superior Court (Marks), supra, 1 Cal.4th 56, 78, fn. 22, 2 Cal.Rptr.2d 389, ; People v. Pettaway (1988) 206 Cal.App.3d 1312, 1331-1332, 254 Cal.Rptr. 436, overruled on other grounds in Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041, 1047-1048.)
Section 1025 provides in pertinent part that when the defendant denies the allegation of previous 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, or in the case of a plea of guilty, by a jury impaneled for that purpose, or by the court if a jury is waived."
The primary objective underlying the double jeopardy rule "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199; People v. Burgess (1988) 206 Cal.App.3d 762, 767, 253 Cal.Rptr. 828.) " 'The theory of double jeopardy is that a person need run the gantlet only once. The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct....' " (People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332, 1341, 266 Cal.Rptr. 563; quoting from North Carolina v. Pearce (1969) 395 U.S. 711, 727, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656 (conc. opn. of Douglas, J.).)
There is no dispute that jeopardy attached to the proceedings below. Jeopardy attaches in criminal cases when a jury is impaneled and sworn to try a case. (Crist v. Bretz (1978) 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24; Serfass v. United States (1975) 420 U.S. 377, 388,
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95 S.Ct. 1055, 1062, 43 L.Ed.2d 265; Jackson v. Superior Court (1937) 10 Cal.2d 350, 352, ; People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231, 6 Cal.Rptr.2d 242.) "In determining whether jeopardy attaches to a particular determination, the court focuses on two factors: 1) whether the procedures involved in adjudicating the issue are those traditionally associated with criminal trials, and; 2) whether the sanction imposed as a consequence of the determination is punitive in nature. [Citations.]" (People v. Hockersmith, supra, 217 Cal.App.3d 968, 972-973, 266 Cal.Rptr. 380; see also People v. Dee (1990) 222 Cal.App.3d 760, 765, 272 Cal.Rptr. 208.) The procedures associated with adjudication of a prior conviction are criminal in nature, the penalties involved are punitive; hence, the unalterable conclusion is that appellant was placed in jeopardy in the trial court. (Ibid; see also People v. West (1990) 224 Cal.App.3d 1283, 1287, 274 Cal.Rptr. 524.)
Our inquiry is not ended, however, with the finding that jeopardy attached to the adjudication of appellant's guilt on the underlying burglary offense and prior convictions. The double jeopardy rule "states a fundamental principle limiting the state's right repeatedly to prosecute a defendant. It is not an absolute prohibition, for although jeopardy may have attached, legal necessity or the real or implied consent of the defendant permits a retrial. [Citation.]" (People v. Henderson (1963) 60 Cal.2d 482, 495, 35 Cal.Rptr. 77, ; People v. Pettaway, supra, 206 Cal.App.3d 1312, 1331, 254 Cal.Rptr. 436.) It is established that "the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence." (Oregon v. Kennedy (1982) 456 U.S. 667, 676, fn. 6, 102 S.Ct. 2083, 2090, fn. 6, 72 L.Ed.2d 416; In re Martin (1987) 44 Cal.3d 1, 53, 241 Cal.Rptr. 263, .) A failure of proof bars retrial of charges or special allegations, but procedural errors of law do not. (People v. Shirley (1982) 31 Cal.3d 18, 71, 181 Cal.Rptr. 243, ; People v. Franc (1990) 218 Cal.App.3d 588, 592, 267 Cal.Rptr. 109; People v. Reynolds (1989) 211 Cal.App.3d 382, 390, 259 Cal.Rptr. 352.)
With the exception of the "third and fourth alleged prior convictions," we have not been presented with a case of failure of proof. The findings on the remaining prior conviction allegations are subject to reversal because of a procedural error by the trial court rather than insufficiency of
The principle of collateral estoppel is included in the guarantee against double jeopardy and clearly precludes retrial on the prior conviction allegations which were found not true by the trier of fact. (Pettaway v. Plummer, supra, 943 F.2d at pp. 1046-1047.)
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the evidence. Following his invalid jury trial waiver, appellant did not admit the prior convictions as did the defendants in the remaining published appellate court decisions in which the double jeopardy clause was found to foreclose retrial of the enhancement allegations. (Cf. People v. West, supra, 224 Cal.App.3d 1283, 274 Cal.Rptr. 524; People v. Dee, supra, 222 Cal.App.3d 760, 272 Cal.Rptr. 208; People v. Hockersmith, supra, 217 Cal.App.3d 968, 266 Cal.Rptr. 380; People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.) Here, following the jury trial waiver by defense counsel--which apparently induced the improvident discharge of the jury following the verdict on the underlying burglary charge--trial on the enhancement allegations proceeded before the court and sufficient evidence was introduced by the prosecution to prove six of the eight charged prior convictions. Retrial of appellant on those six prior convictions will not provide the prosecution with an opportunity to supply evidence which it failed to muster in the first proceedings in contravention of the rule against double jeopardy. (Cf. People v. Hockersmith, supra, 217 Cal.App.3d at p. 977, 266 Cal.Rptr. 380.)
For example, in Hockersmith, supra, at page 972, 266 Cal.Rptr. 380, the court stated: "where a defendant is charged, as here, with a prior felony conviction; the jury is impaneled and sworn; defendant does not waive jury trial on the issue; and no evidence is offered to prove the prior conviction; double jeopardy attaches and bars any retrial of the prior felony conviction."
Nor, in our view, would retrial of appellant on the prior conviction allegations violate section 1025's command that the same jury must try both the primary offense and the truth of any charged prior convictions. Section 1025 protects the defendant's " ' "valued right to have his trial completed by a particular tribunal," ' " as an aspect of the double jeopardy doctrine. ( Stone v. Superior Court, supra, 31 Cal.3d 503, 516, fn. 7, 183 Cal.Rptr. 647, ; People v. Wojahn, supra, 150 Cal.App.3d at p. 1035, 198 Cal.Rptr. 277.) The statute is also intended to benefit the public as an economy measure. (See People v. Owens (1980) 112 Cal.App.3d 441, 447, 169 Cal.Rptr. 359.) Where, as here, the defense waived a jury trial, prompting discharge of the jury, and then obtained reversal of prior convictions on the procedural grounds of defective waiver, the purposes of section 1025 would not be advanced by denying retrial before a new and different jury. Appellant has already been afforded the right to have a chosen jury determine both the truth of the prior convictions and his guilt on the underlying burglary offense--a right he waived, albeit invalidly. Six of the alleged prior convictions were proved, and have not been reversed for insufficiency of the evidence. Our view is that nothing in the prohibition against double jeopardy embodied in section 1025 rationally forecloses retrial of appellant on the reversed findings. (Montana v. Hall (1987) 481 U.S. 400, 403, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354.)
While section 1025 guarantees a defendant the same jury at the initial trial to hear and decide both the issues of guilt on the main offense and the truth
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of any alleged prior conviction, nothing in its language or intent suggests that it should bar retrial of appellant by a different jury following an appellate reversal of prior convictions which was based upon constitutional infirmities in the waiver procedure. We discern no possible prejudice to appellant in remanding for the limited purpose of retrial of the truth of the prior convictions by a jury different from that which tried the issue of guilt on the primary offense. (People v. Morton (1953) 41 Cal.2d 536, 543, .) We also believe justice and the public interest dictate that appellant should not be the recipient of the windfall of dismissal for procedural errors precipitated by his own counsel.
The findings on the alleged prior convictions are accordingly reversed. The third and fourth alleged prior convictions, which were found not true by the trial court, are dismissed. As to the remaining charged prior convictions, the case is remanded to the trial court for further proceedings not inconsistent with the views expressed herein.
STRANKMAN, P.J., and DOSSEE, J., concur.