Opinion
A146250
04-18-2017
THE PEOPLE, Plaintiff and Respondent, v. FREDRICK GEROD BRYSON JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR307312)
Defendant Fredrick Gerod Bryson Jr. appeals from a judgment of conviction of driving under the influence (Veh. Code, § 23152, subd. (a)) and driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). He contends the trial court, by failing to obtain his personal waiver of jury trial, erroneously tried alleged enhancements for prior convictions, a prison prior, and refusal to submit to a chemical test. He also asks us to review the sealed transcript of a Pitchess hearing to determine whether the trial court erred in finding no discoverable information. While we conclude there were errors in connection with both issues, we conclude the one jury trial error was harmless. As to the Pitchess hearing, the trial court failed to place the custodian of records under oath at the in camera hearing and failed to make a sufficiently clear record to permit appellate review. We therefore conditionally reverse the judgment and remand for a new hearing.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
This appeal is amenable to disposition by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Waiver of Right to Jury Trial on Enhancement Allegations
Defendant was charged by information with one count of driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)—count 1) and two counts of driving on a suspended license (Veh. Code, § 14601.2, subd. (a)—counts 2 & 3). As to the DUI count, the information also alleged five prior DUI convictions (Veh. Code, § 23152, subds. (a) & (b)), one conviction for a "serious" or "violent" felony conviction for robbery under Penal Code section 211 ("strike prior"), one "prison prior" (Pen. Code, § 667.5, subd. (b)), and one allegation of refusing to submit to or complete a chemical test (Veh. Code, § 23577).
Before trial, the court bifurcated the proceedings and ordered the enhancements to be tried separately from the DUI and suspended license charges.
Following the jury's verdict convicting defendant of the DUI and suspended license charges, the court asked if defendant wished to proceed with a jury trial on the enhancements. Defense counsel said "no" and indicated his client was "prepared to waive the jury and proceed with a [c]ourt trial on those issues." The court did not ask defendant, himself, if he waived the right to a jury trial. The court then dismissed the jury and proceeded to conduct a bench trial on the enhancements. Defendant did not object to the dismissal of the jury or the commencement of the court trial. The court found true the allegations of five prior DUI convictions and a strike prior. The court also found true the allegation defendant failed to submit to a chemical test. The court found not true allegations of a prison prior and a prior conviction for driving on a suspended license.
Defendant was sentenced to six years in state prison. The court selected the upper, three-year term on the felony DUI conviction, and doubled the term to six years because of the strike prior.
Under the Sixth Amendment, applied to the states by the Fourteenth Amendment, a criminal defendant has a right to trial by jury. (Duncan v. Louisiana (1968) 391 U.S. 145, 149.) A criminal defendant also has a right to trial by jury under the California Constitution. (Cal. Const., art. I, § 16; see Pen. Code, §§ 689, 1042.) In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (See Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely) [under Apprendi, trial court may not impose sentence beyond maximum term defendant would receive based on facts reflected in jury verdict or admitted by defendant].) This rule applies both to facts that increase the statutory maximum sentence and those that increase the mandatory minimum sentence for a crime. (Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct. 2151, 2160], citing Apprendi, supra, 530 U.S. at p. 490.)
Defendant acknowledges the enhancement for his five prior DUI convictions fell within Apprendi's "fact of a prior conviction" exception. He also implicitly concedes his prior strike conviction falls within this exception, as he does not advance any claim of error in this regard. Rather, defendant claims error only in connection with the prison prior and refusal to submit to a chemical test enhancements.
No Constitutional Right to Jury Trial on Prison Prior
The information alleged defendant served a prison term in connection with a 2010 DUI conviction. If true, defendant was subject to an additional one-year prison term. (Pen. Code, § 667.5, subd. (b).) Defendant claims that under Descamps v. United States (2013) 570 U.S. ___ (Descamps), he was entitled to a jury trial on this enhancement. We disagree.
California courts consistently have held sentencing enhancement allegations for prison priors are subject only to a statutory, not a federal or state constitutional, right to jury trial. (People v. Towne (2008) 44 Cal.4th 63, 79 (Towne); People v. Thomas (2001) 91 Cal.App.4th 212, 215, 223 (Thomas); People v. Vera (1997) 15 Cal.4th 269, 278, abrogated on other grounds by Apprendi, supra, 530 U.S. 466.) For example, in Thomas, defense counsel, but not the defendant personally, waived jury trial on two prison prior allegations. (Thomas, at p. 214.) On appeal, the defendant urged a narrow reading of Apprendi's exception for "the fact of a prior conviction," asserting a Penal Code section 667.5 enhancement "requires more than a mere conviction" because it also requires proof of service of a prison term. (Thomas, at p. 216.) The Court of Appeal rejected defendant's proffered interpretation, concluding Apprendi's exception refers "broadly to recidivism enhancements which include [Penal Code] section 667.5 prior prison term allegations." (Thomas, at p. 223.) Further observing that the evidence defendant had served two prior prison terms was sufficiently reliable to "meet any pertinent due process concerns," the court concluded "[n]o federal constitutional violation occurred because defense counsel waived defendant's state statutory right to a jury trial." (Id. at pp. 222-223.)
The court specifically referenced abstracts of judgment, fingerprint records, and Department of Corrections documents as written evidence with the "constitutional requisite level of reliability" to satisfy due process. (Thomas, supra, 91 Cal.App.4th at p. 223.)
Seven years later, in Towne, the California Supreme Court also rejected "a narrow or literal application of the [United States Supreme Court]'s reference to 'the fact of a prior conviction' " and "agree[d] with the majority of state and federal decisions holding that the federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant . . . has served a prior prison term." (Towne, supra, 44 Cal.4th at p. 79.)
Defendant contends these cases have been overruled by Descamps and several more recent California cases which have effectively narrowed the type of judicial fact-finding originally permissible under Apprendi. In Descamps, the United States Supreme Court considered whether a sentencing court could rely on a plea colloquy in a prior case to determine whether the defendant had sustained a prior conviction for purposes of the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924, subd. (e)). (Descamps, supra, 133 S.Ct. at pp. 2281-2282.) Because he allegedly had three prior convictions, including a prior "strike" conviction for burglary in California, the defendant faced an enhanced mandatory minimum sentence under the ACCA of 15 years. However, the definition of burglary under California law was broader than that under the ACCA. Thus, to determine whether that prior state conviction could serve as a predicate offense under the ACCA, the sentencing court looked to facts stated in the transcript of the defendant's guilty plea. (Descamps, at p. 2282.) The Supreme Court held such judicial fact-finding violated the Sixth Amendment right to jury trial because the court was " 'mak[ing] a disputed' determination 'about what the defendant and state judge must have understood as the factual basis of the prior plea.' " (Descamps, at p. 2288, quoting Shepard v. United States (2005) 544 U.S. 13, 25.)
A number of California appellate courts have applied Descamps in concluding a sentencing court could not make findings of fact about a defendant's prior conduct in determining whether a prior conviction qualified as a strike. (See, e.g., People v. Wilson (2013) 219 Cal.App.4th 500, 510-516; People v. Saez (2015) 237 Cal.App.4th 1177, 1207-1208; People v. Marin (2015) 240 Cal.App.4th 1344, 1362-1263; People v. Denard (2015) 242 Cal.App.4th 1012, 1030-1034; People v. McCaw (2016) 1 Cal.App.5th 471, 477-484, review granted October 19, 2016, S236618.)
The California Supreme Court has granted review in People v. Gallardo (review granted Feb. 17, 2016, S231260) and several other recent cases, including People v. McCaw, supra, 1 Cal.App.5th 471, to decide the following issue: "Was the trial court's decision that defendant's prior conviction constituted a strike incompatible with Descamps because the trial court relied on judicial fact-finding beyond the elements of the actual prior conviction?"
However, neither Descamps nor its progeny addressed, let alone concluded, that prior prison term enhancements implicate similar constitutional concerns. We are therefore bound by the California Supreme Court's decision in Towne that prison prior enhancements fall within Apprendi's "fact of a prior conviction" exception and do not implicate either the state or federal constitutional right to jury trial. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude no constitutional error occurred in connection with the jury waiver as to the prison prior enhancement.
No Prejudicial Error as to Chemical Test Refusal
Vehicle Code section 23577 provides enhanced penalties for willful refusal to submit to or complete a chemical test at the time of an arrest leading to a DUI conviction under Vehicle Code section 23152. As relevant here, Vehicle Code section 23577, subdivision (a)(5), provides an enhanced mandatory 18-day minimum term in county jail for a fourth DUI conviction. The Attorney General concedes defendant had a federal and state constitutional right to a jury trial on the refusal enhancement and further concedes he did not waive or forfeit that right. This does not, however, end our inquiry. While defendant asserts the constitutional error is "structural" and requires automatic reversal, the Attorney General maintains prejudicial error must be shown under Chapman v. California (1967) 386 U.S. 18, 22 (Chapman).
The United States Supreme Court has recognized "the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, ' "most constitutional errors can be harmless." ' " (Washington v. Recuenco (2006) 548 U.S. 212, 218 (Recuenco).) Moreover, the high court has so held in the context of sentencing errors. (Id. at p. 222; see People v. Sengpadychith, supra, 26 Cal.4th at p. 327 [failure to instruct jury on element of charged gang enhancement was Apprendi error subject to harmless error review under the Chapman standard].)
Defendant's reliance on People v. Ernst (1994) 8 Cal.4th 441 (Ernst), is misplaced as that case did not involve Apprendi error, but failure to obtain a personal jury waiver by the defendant on all the charges against him. (Id. at p. 444, 449; see People v. Vera, supra, 15 Cal.4th at p. 277 ["Where the whole cause—substantive offenses and sentencing allegations—is tried in a unitary proceeding, a constitutionally effective waiver of jury trial is required."].) Indeed, California courts have repeatedly held Apprendi error is subject to harmless error review. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 327; People v. Sandoval (2007) 41 Cal.4th 825, 838-839.)
In People v. French (2008) 43 Cal.4th 36 (French), the California Supreme Court expressly rejected the assertion Ernst mandates automatic reversal in all cases involving denial of the federal constitutional right to jury trial. (Id. at p. 52, fn. 8; see People v. Gonzalez (2012) 54 Cal.4th 643, 663 ["erroneous instruction that omits an element of an offense is subject to harmless error analysis under Chapman"]; People v. Flood (1998) 18 Cal.4th 470, 489-490, 502-503 [instructional error that removed element of crime from jury's consideration must be reviewed for state constitutional purposes under harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836-837, and for federal constitutional purposes under Chapman].)
Defendant alternatively contends that even if harmless error applies, the jury error here was not harmless because the only test he clearly refused was the preliminary alcohol screening test (PAS), not the blood or breath test required by Vehicle Code section 23612. Though we are inclined to agree the evidence is not sufficiently strong to demonstrate beyond a reasonable doubt that defendant refused a chemical test, the error was nevertheless harmless because the true finding on the enhancement did not increase defendant's sentence.
The PAS test is a separate test from the chemical test(s) specified by Vehicle Code section 23612. Defendant had a statutory right to refuse the PAS test. (Veh. Code, § 23612, subd. (i); People v. Jackson (2010) 189 Cal.App.4th 1461, 1467.)
Officer Alexander Aldredge testified he read defendant the standard admonition stating the potential penalties for refusal, but he did not testify he asked defendant to submit to a chemical test. Aldredge also testified he wrote down defendant's responses to his questions on the DS-367 form (chemical test admonishment), but on the form there is no response indicated for a request to submit to a breath test. Finally, though the form indicates defendant said "I ain't doing that shit" in refusing to submit to any test, Aldredge testified at trial that that statement was made in response to the request to submit to the PAS, not to the blood or breath test required by Vehicle Code section 23612.
Under California's determinate sentencing law, given his prior convictions, defendant was eligible for a base term of 16 months, two years or three years on the DUI conviction. (Veh. Code, § 23550, subd. (a) [fourth DUI conviction within 10 years requires imprisonment under Pen. Code, § 1170, subd. (h) or 180 days to one year in county jail]; Pen. Code, § 1770, subd. (h) [providing base term of 16 months, two or three years where underlying statute does not specify term].) The court sentenced defendant to the upper term of three years, doubled for the strike prior. (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) The court did not impose the additional 18-day county jail enhancement for refusal to submit to a chemical test.
The only arguable application of the refusal enhancement was support for the trial court's choice of the upper term on the DUI charge, a matter within the trial court's discretion. (Pen. Code, § 1170, subd. (b); People v. Wilson (2008) 164 Cal.App.4th 988, 992 [amended version of California's determinate sentencing law grants court broad discretion in selecting base term without violating defendant's federal constitutional rights under Apprendi].) In setting forth the reasons for its sentence, the trial court mentioned defendant's refusal to submit to a chemical test only in passing, stating "Now, this is a single accident, Highway 12, a refusal, you know, not wanting to give a sample . . . ." The court then observed defendant had a prior felony for which he went to prison for three years, multiple DUIs after he was released from prison resulting in his return to prison, and after he got out of prison a second time, another felony DUI. The court, thus, pointed out defendant was now on his sixth DUI. In short, the record does not remotely suggest the trial court would have exercised its discretion differently had defendant not refused to submit to chemical testing. Accordingly, the jury trial error on the refusal enhancement was not prejudicial under Chapman.
While Penal Code section 1170, subdivision (b) prohibits a court from using the fact of any enhancement upon which sentence is imposed in selecting the upper term, the court here did not, as we have stated, impose any sentence on the refusal enhancement.
Defendant also contends the error was prejudicial because the jury could have concluded he was too inebriated to understand what he was hearing or refusing. However, his voluntary intoxication is not a valid defense in refusing to submit to a chemical test. (Veh. Code, § 23612, subd. (a)(5) [person unconscious or in a condition rendering him or her incapable of refusal is deemed not to have withdrawn implied consent to chemical test]; see Bush v. Bright (1968) 264 Cal.App.2d 788, 792-793 [automobile driver accountable for refusing test due to voluntary intoxication, regardless of his or her lack of understanding resulting therefrom].)
Statutory Right to Jury Trial
As discussed above, defendant had a state statutory right to a jury trial on the priors, strike prior, and prison prior enhancements. (Pen. Code, §§ 1025, 1158; People v. Epps (2001) 25 Cal.4th 19, 23 [recognizing state statutory right to jury trial on prior conviction allegations]; People v. Vera, supra, 15 Cal.4th at p. 272 [criminal defendant has statutory right to jury trial on prior conviction and prison term allegations].) The state statutory right to jury trial, however, does not require an express, personal waiver by defendant. (People v. Vera, at pp. 277-278; People v. French, supra, 43 Cal.4th at p. 46.) Thus, having obtained a waiver from defense counsel, there was no violation of defendant's statutory right to jury trial.
Furthermore, if a defendant fails to object to the dismissal of the jury or the commencement of a court trial where only the statutory right to jury trial applies, he forfeits the right to raise the error on appeal. (People v. Vera, supra, 15 Cal.4th at pp. 275-278 ["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"]; People v. Saunders, supra, 5 Cal.4th at pp. 589-590; People v. Grimes (2016) 1 Cal.5th 698, 737-738 [defendant forfeited statutory right to jury trial on prior convictions and prior prison terms by failing to object in trial court].) Here, there was no objection by defendant to the court trying the enhancement allegations.
Finally, even assuming statutory error and preservation of such error for appeal, any error was plainly harmless under People v. Watson, supra, 46 Cal.2d 818, 836, as defendant has not shown that it is reasonably probable a more favorable result would have been reached had these enhancements been tried by a jury. As to the enhancements for the prior DUI convictions and the strike prior, the court found the facts true from certified court records. Accordingly, it is not reasonably likely that any other trier of fact would have reached a different conclusion. (See People v. Epps, supra, 25 Cal.4th at pp. 29-30 [fact of prior convictions was presumptively established from official government documents clearly describing alleged convictions].) As to the prison prior, the court found that enhancement allegation not true, so there could have been no more favorable result.
Indeed, defendant does not make a claim of prejudicial error, but, instead, contends automatic reversal is required under People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn) and Ernst, supra, 8 Cal.4th 441. Neither case is on point as they dealt with the wholesale denial of the right to jury trial. (Blackburn, at pp. 1132-1133 [denial of right to jury trial "on the entire cause in a civil commitment proceeding" is a " 'miscarriage of justice' " and requires reversal without inquiry into the strength of the evidence (italics added)]; Ernst, at p. 444 [failure to obtain personal waiver from defendant as to both guilt and sanity phases of criminal trial].) The instant case, in contrast, involves only the right to jury trial on enhancement allegations.
Blackburn is also distinguishable because it involved waiver of the right to a jury trial in a civil commitment proceedings under Penal Code section 2972, a statute not at issue here and which the California Supreme Court construed to require a defendant's personal waiver of the right to jury trial. (Blackburn, supra, 61 Cal.4th at pp. 1124-1125.)
In sum, there was no error as to defendant's statutory right to jury trial, and even if there was, he waived the issue, and any error was, in any event, harmless. Pitchess Hearing
Before trial, defendant filed a Pitchess motion, seeking disclosure of any police personnel records involving complaints or investigations relating to the conduct of the arresting officers. Defendant maintained the records were relevant to his intended defense of "false arrest, falsifying police reports, and fabrication of charges and/or evidence." The court granted the motion, concluding defendant made a sufficient showing for in camera review. Following such review, the court found no discoverable matters. On appeal, defendant asks that we conduct an independent review of the sealed transcript to determine if any police personnel records were improperly withheld. The Attorney General does not oppose the request but asks for an opportunity to brief whether information should have been turned over to the defense if a remand is ordered.
Defendant filed a motion to augment the record on appeal to include all exhibits or documents reviewed in camera by the trial court after granting defendant's Pitchess motion. The Attorney General opposed the motion. After reviewing the transcript of the hearing, we denied the motion.
As discussed below, because conditional reversal is required for procedural errors, we make no determination whether any information should have been turned over to the defense. Accordingly, there is no need to provide an opportunity for further briefing at this time.
Under well-established Pitchess procedure, a criminal defendant may bring a motion to discover law enforcement personnel records relevant to defendant's defense. (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) If the court finds the defendant has shown good cause for the discovery, the court must conduct an in camera hearing to determine if any relevant records must be produced. (Id. at p. 1226.) At the hearing, the custodian of records must bring to court all documents " 'potentially relevant' " to the defendant's motion. (Id. at pp. 1228-1229.) The custodian of records is not required to bring an officer's entire personnel file, but if there is any doubt as to whether a document is relevant, he or she must present it to the court. (Id. at pp. 1229-1230.) The custodian also "should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (Id. at p. 1229.) The trial court must make a record of the documents it examined in ruling on the motion sufficient to permit appellate review. (Ibid.) The court may photocopy the documents and place them in a confidential file, prepare a list of the documents it considered, "or simply state for the record what documents it examined." (Ibid.) To protect privacy concerns, the hearing transcript and any documents copied for the record must be sealed. (Ibid.)
In addition to these procedural requirements, the custodian of records must give sworn testimony regarding his or her search for responsive documents. (People v. White (2011) 191 Cal.App.4th 1333, 1340-1341.) Placing the custodian under oath "is necessary to establish the accuracy and veracity of the custodians' representations regarding the completeness of the record submitted for the court's review." (Id. at p. 1340.) This procedural protection ensures " 'the locus of decisionmaking' at the hearing 'is to be the trial court, not the prosecution or the custodian of records.' " (Ibid., quoting Mooc, supra, 26 Cal.4th at p. 1229.)
The sealed reporter's transcript of the in camera Pitchess hearing, unfortunately, includes no swearing of the custodian of records by the trial court. Because the custodian of records was not placed under oath before testifying, the matter must be remanded. (People v. White, supra, 191 Cal.App.4th at pp. 1340-1341.) As the White court observed, unsworn testimony is not " 'evidence' " within the meaning of the Evidence Code and is insufficient to support a Pitchess ruling denying discovery. (Id. at p. 1340.) Unless the custodian of records is testifying under oath, her representations regarding her search for and discovery of responsive documents fail to establish the accuracy and veracity of the information submitted to the court.
Further, the hearing transcript is not sufficiently clear to allow for review of the trial court's decision. The custodian of records did not testify as to her familiarity with the records and which specific files she reviewed as to each officer. Though it appears she may have prepared a summary of complaints and internal affairs investigations, the summaries and their results with respect to each officer were not described or provided. Finally, while the court noted the general subject matter of the complaints as to each officer, it is not clear whether the court reviewed the actual complaints, the custodian's summary, or both. From the limited transcript, we cannot tell whether the custodian of records brought all potentially responsive documents, and whether the trial court reviewed the potentially responsive documents itself. As a result, we are unable to determine whether the trial court properly exercised its discretion in denying discovery.
We must therefore conditionally reverse the judgment and remand the matter for a new hearing at which the custodian of records is placed under oath and the trial court makes a sufficiently clear record of the documents it considered to permit meaningful appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229-1232; People v. White, supra, 191 Cal.App.4th at p. 1341.)
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court to hold a new Pitchess hearing at which the custodian of records is placed under oath and the documents reviewed are sufficiently described. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as necessary. If the court finds there are no discoverable records, or that there are discoverable records but there was no prejudice from the denial of discovery, the judgment shall be reinstated as of that date. (See, e.g., People v. White, supra, 191 Cal.App.4th at pp. 1341-1342.)
If the judgment is reinstated on remand, the abstract of judgment shall be corrected to indicate defendant was sentenced to three years on the upper term for the DUI count (count 1) and the sentence was doubled by an enhancement for the strike prior. The superior court is also directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The abstract of judgment incorrectly states defendant was sentenced to six years as the upper term on the DUI count and fails to list the enhancement for the strike prior. --------
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.