Opinion
D082874 D082881
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. BRIAN CHRISTOPHER JENNINGS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCD288216, SCD292414, Robert O. Amador, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
CASTILLO, J.
A jury convicted Brian Christopher Jennings of two counts of first-degree burglary (Pen. Code, § 459) and one count of failure to appear (§ 1320(b)) in a consolidated trial of two separate criminal cases. Jennings waived his right to a jury trial on certain allegations, including a strike prior (§ 667(b)-(i)), which the trial court found true in a bench trial. At sentencing, the court doubled the prison term for each count due to the strike prior.
In these consolidated appeals, Jennings contends the trial court's failure to advise him of the penal consequences of a strike prior rendered waiver of his right to trial by jury on the allegation not knowing, intelligent, and voluntary, making his sentence reversible per se.
We conclude Jennings forfeited his claim-which implicates a statutory, not a constitutional, right-by failing to raise the issue below. Given the evidence supporting the true finding, he further fails to show any error was prejudicial. We thus affirm.
I.
On two separate occasions in 2020 and 2021, Jennings burgled a hostel. He also failed to appear for a hearing in 2021 while out on bail. A jury found Jennings guilty of these offenses.
Before trial, Jennings waived his right to a jury trial on various allegations, including the strike prior. He acknowledged he understood he still had the right to a speedy trial, to remain silent, and to present his own evidence. He also said he understood that in a jury trial twelve people would have to decide unanimously that the allegation was true, but in a bench trial only the judge would decide. Jennings' counsel joined in the waiver.
After the jury reached its verdict, the court conducted a trial on the allegations. Without objection, a District Attorney's Office fingerprint examiner testified the fingerprints from the instant criminal bookings matched those of the booking for Jennings' strike prior case. The court also admitted without objection certified records from the strike prior case. Because this evidence showed Jennings admitted via a signed change of plea form that he committed the strike prior offense, the court found the allegation true beyond a reasonable doubt. Before concluding the bench trial, the court asked, "Any comment by either side?" Defense counsel responded, "No," and agreed to set a sentencing hearing.
II.
Jennings contends (1) his right to trial by jury as to his strike prior is constitutional in nature; (2) his waiver of that right was not knowing, intelligent, and voluntary, as the court did not advise him of the penal consequences of a true finding on the strike prior; and (3) this purported structural error is reversible per se. The People counter (1) the right to a jury trial on a strike prior allegation is statutory and does not implicate Jennings' constitutional rights; (2) Jennings forfeited his claim by failing to object on this basis below; and (3) any error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). We agree with the People. A.
First, we agree with the People that Jennings' right to a jury trial is statutory rather than constitutional.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a jury determination of the defendant's guilt beyond a reasonable doubt as to every element of every charged crime. (Apprendi v. New Jersey (2000) 530 U.S. 466, 477 (Apprendi).) A valid waiver of that fundamental right must be knowing, intelligent, voluntary, and exercised expressly and personally in open court. (People v. Collins (2001) 26 Cal.4th 297, 308.) Violation of the constitutional right to trial by jury is a structural defect requiring reversal of the judgment. (Id. at pp. 312-313.)
Contrary to Jennings' claim, however, the right to trial by jury as to the fact of a strike prior conviction is not constitutional in origin. In Apprendi, the United States Supreme Court unequivocally held the Sixth Amendment applies to "any fact that increases the penalty for a crime beyond the prescribed statutory maximum," "[o]ther than the fact of a prior conviction." (Apprendi, 530 U.S. at p. 490.) In excepting prior convictions from the general rule, the court relied partly on "the certainty that procedural safeguards attach[ ] to any 'fact' of prior conviction." (Id. at p. 488.)
After Apprendi, the California Supreme Court stated in similarly definitive terms that "[t]he right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps (2001) 25 Cal.4th 19, 23 (Epps).) Section 1025 specifies that "the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury," or the court if waived. (§ 1025(b).)
Jennings nonetheless urges his strike prior "must be treated as an element of an offense with all the associated constitutional protections." He argues (1) Justice Scalia's dissent in Monge v. California (1998) 524 U.S. 721; (2) Apprendi, particularly Justice Thomas' concurrence; and (3) a footnote in Cunningham v. California (2007) 549 U.S. 270, 291, fn. 14 (Cunningham)), responding to Justice Kennedy's dissent, "cast[ ] serious doubt about the viability of the 'prior conviction' exception in Almendarez-Torres v. United States" (1998) 523 U.S. 224 (Almendarez) such that the "exception should not be recognized." He also claims the reasoning of Almendarez was flawed and the United States Supreme Court continues to expand the reach of the Sixth Amendment.
We decline Jennings' invitation to reexamine the soundness of the prior conviction exception. It is true Almendarez in part supported its conclusion that "sentencing-related circumstances of recidivism are not part of the definition of the offense" with citations to now-overruled case law. (Almendarez, 523 U.S. at p. 247; see Ring v. Arizona (2002) 536 U.S. 584, 609 [overruling a prior opinion cited in Almendarez "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty"].) It is also true Apprendi acknowledged "it is arguable that Almendarez[ ] was incorrectly decided." (Apprendi, 530 U.S. at p. 489.) But, neither Apprendi nor any subsequent Supreme Court opinion has overruled Almendarez's holding that the fact of a prior conviction is not an element of the offense. Rather, Apprendi expressly reaffirmed that such facts need not be submitted to a jury. (Apprendi, at p. 489.) And just this year, our high court affirmed a state statute as "consistent with Apprendi, which recognizes an exception to the jury trial right for prior convictions." (People v. Lynch (Aug. 1, 2024, S274942) Cal.5th [2024 Cal. LEXIS 4157 at pp. *14, fn. 5].)
Ultimately, Almendarez, Apprendi, and Epps are binding on this court, while the authorities Jennings cites-including a concurrence, a dissent, and dicta-are not. (See People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.) We thus conclude Jennings' right to a jury trial on the fact of his strike prior conviction is statutory and not guaranteed by the Sixth Amendment.
B.
Given the foregoing, we agree with the People that Jennings forfeited his challenge by failing to raise this issue below.
Because the right to jury trial as to prior convictions is statutory rather than constitutional, the California Supreme Court has held a claim of denial of that right is forfeited by the defendant's failure to timely object to the validity (or even absence) of the defendant's waiver of the right. In People v. Vera (1997) 15 Cal.4th 269 (Vera), defense counsel told the court his client had "'indicate[d]'" he would waive his right to trial by jury on prior conviction allegations, and the court responded they would "'take that issue up later.'" (Id. at p. 273.) But they did not. Instead, the court discharged the jury, scheduled a bench trial on the prior convictions, and found them true. (Ibid.) The defendant appealed, contending the trial court's true findings "must be stricken because he did not waive his right to jury trial." (Ibid.)
Our high court concluded the trial court's failure to obtain an express and personal waiver of the defendant's statutory right to trial by jury on the prior convictions did not require reversal of the court's true findings on those allegations. (Vera, 15 Cal.4th at pp. 272-273.) It held: "Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior prison term allegations." (Id. at p. 278.) And, "the substitution of a fair court trial for jury trial on a sentence enhancement allegation does not constitute a violation of federal due process." (Id. at p. 281.) Thus, the defendant was "obligated to bring the alleged error to the attention of the trial court in order to preserve his claim." (Ibid.) Having not done so, the court found his claim forfeited. (Ibid.)
More recently, in People v. Grimes (2016) 1 Cal.5th 698 (Grimes), a defendant sentenced to death claimed his waiver of a jury trial on noncapital prior conviction allegations was involuntary, and thus invalid, because the court and his counsel allegedly told him that waiver was required to avoid introducing evidence of his criminal history during the guilt phase of trial. (Id. at pp. 703, 737-738.) Citing Vera, our high court found the claim forfeited by the defendant's failure to object below. (Id. at p. 738.)
Jennings claims Grimes is distinguishable because there the defendant's claim "that it was unfair to compel him to admit the allegations in order to avoid the jury learning about them" "was an objection that could have been made at trial." However, the trial court's failure to advise Jennings of the penal consequences of waiver also could have been raised below; to the extent Jennings vaguely suggests the taking of his waiver prior to the start of the jury trial on the charges somehow made objection prior to the bench trial on the allegations impractical or impossible, we are unpersuaded. Moreover, Jennings fails to address Vera, which found a challenge to the complete lack, not just the insufficiency, of a waiver forfeited by failure to object. Instead, Jennings contends allowing forfeiture wrongly "prevents the defendant from passively submitting to the discharge of the jury without making an objection and then claiming he was deprived of his right to a jury trial for the allegations that are the subject of the waiver." But that is the point of the forfeiture doctrine: to encourage timely objection to give the People and the trial court the opportunity to cure any alleged defect and to promote the finality of judgments. (People v. Saunders (1993) 5 Cal.4th 580, 589-591.)
We conclude Jennings forfeited his claim by failing to object to the validity of his waiver. We thus need not reach the merits of his claim that a valid waiver of the statutory right to a jury trial requires "an explanation in at least general terms of how a true finding could impact the sentence."
C.
Finally, we agree with the People that, even absent forfeiture, Jennings is not entitled to appellate relief because any error was harmless.
"When a state need not provide a jury trial at all, it follows that the erroneous denial of that right does not implicate the federal Constitution." (Epps, 25 Cal.4th at p. 29.) Accordingly, "because the error is purely one of state law, the Watson harmless error test applies." (Ibid.) The relevant inquiry is whether it is "reasonably probable that a result more favorable to defendant would have been reached if the jury, instead of the court, had determined that defendant suffered the prior convictions." (Ibid. [cleaned up], citing Watson, 46 Cal.2d at p. 836; § 1025.)
The Supreme Court's holding in Epps is controlling on this court. And because Jennings wrongly argues the alleged error is constitutional and therefore reversible per se, he does not explain how he was prejudiced by the alleged deprivation of his right to a jury trial. Nonetheless, we find persuasive the People's argument that a different result was not reasonably probable had a jury decided the allegation.
The People proved the strike prior with a fingerprint examiner's testimony and certified government records of the strike prior conviction, rendering the fact of the strike prior "presumptively established." (Epps, 25 Cal.4th at p. 30, citing Evid. Code, § 664.) On this evidence, it is reasonably probable the jury also would have found the strike prior allegation true beyond a reasonable doubt, and the potential consequences of the true finding were the same regardless of who made the finding. Accordingly, Jennings fails to meet his burden of showing prejudice.
III.
We affirm.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.