Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA060495, Gary J. Ferrari, Judge. Affirmed.
Sally P. Brajevich for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ASHMANN-GERST, J.
In an earlier appeal, Jesse Delgado (defendant) appealed from the judgment. On appeal, the judgment was affirmed, except with respect to defendant’s incomplete admission of having served a separate prison term. (Pen. Code, § 667.5, subd. (b).) We reversed the prison term finding and vacated the one-year prison term imposed for the finding, and remanded the cause to the trial court for further proceedings on the prison term allegations. On remand, the trial court held a court trial on these allegations and made a new true finding on the prison term enhancement. Defendant again appeals from the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, he contends that on remand, after his initial appeal, he was entitled to have a jury trial on the truth of the allegations of having served two separate prison terms for a felony. As the trial court refused to afford him a jury trial on the grounds that he had already waived that right in the prior proceedings, he claims that he is entitled to a reversal and a new trial with a jury as fact finder on the truth of the prison term enhancement.
We affirm the judgment.
FACTS
Originally, defendant was charged in an information with carrying a loaded firearm (§ 12031, subd. (a)(1)) and being a felon in unlawful possession of a firearm (§ 12021, subd. (a)(1)). The information contained additional allegations that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that he had three prior convictions of a serious felony that qualified him for sentencing pursuant to the “Three Strikes” law (§§ 667, subds. (b) – (i), 1170.12), and that he had two prior felony convictions for which he had served a separate prison term (§ 667.5, subd. (b)).
During the proceedings, the prosecutor discovered that one allegation of a juvenile adjudication failed to qualify as a strike, and the prosecutor asked that that allegation be dismissed. The trial court dismissed it. Defense counsel then requested that the trial court strike the one further prior conviction so as to treat defendant as a second-strike offender. The trial court told defendant that it would do so if defendant entered an open plea to all charges and allegations. It would then strike one of the two remaining strike convictions and sentence defendant to an 11-year state prison term, the greatest term that the trial court could impose if defendant was treated as a second-strike offender.
Defendant agreed, and entered an open plea and admitted all alleged enhancements. As part of his plea, defendant was informed of and waived all the requisite constitutional rights, including his right to a jury trial. The trial court then sentenced defendant, as indicated, to an 11-year term, consisting of six years (a doubled upper term of three years) for carrying a loaded firearm, of four years for the gang enhancement, and of one year for having served a separate prison term for a felony.
He filed an appeal from the judgment. (People v. Delgado (Mar. 6, 2006, B181955) [nonpub. opn.] (Delgado).)
During defendant’s initial appeal, one of the issues defendant raised was the validity of the admission of the separate prison term allegations. In examining the record, this court discovered that during the admission procedure, the prosecutor took defendant’s admission of those allegations by merely asking defendant whether he admitted the two prior convictions. The record failed to show that the information had been read to defendant so that he was aware of all the elements of the separate prison term enhancement. During the admission, the prosecutor failed to ask defendant to additionally admit the other element of the enhancement, i.e., that defendant had served a separate prison term for the felony following conviction. No evidence was adduced of the service of a separate prison term for either felony.
On this record, this reviewing court was persuaded by the reasoning in People v. Lopez (1985) 163 Cal.App.3d 946, 951, to reverse the findings of prison term enhancements and to vacate the one-year prison term imposed for the findings. In this court’s written opinion, we said the following: “Accordingly, the findings as to the enhancement allegations must be reversed and the one-year enhancement imposed by the trial court must be vacated. On remand, the People may retry the allegation.” (Delgado, supra, B181955, at p. 5.) In the disposition paragraph of the appeal, we ordered the trial court’s true findings on these enhancements reversed and vacated the one-year term imposed after the findings. The matter was remanded for “further proceedings” on the allegations in the information. (Delgado, supra, B181955, at p. 8.) In all other respects, the judgment was affirmed. (Ibid.)
On remand, defense counsel asked the trial court for a continuance to look into whether defendant was entitled to a jury trial in his circumstances and also demanded a jury trial on the separate prison term allegations. The prosecutor told the trial court that since defendant’s admission was part and parcel of a plea bargain, defendant could not avoid the jury waiver he had previously entered during the original plea. The prosecutor told the trial court that he was ready to proceed with a court trial on the truth of the unresolved allegations.
The trial court agreed and pointed out that the Court of Appeal did not find the jury waiver invalid, nor had it explicitly required a jury trial on remand. Accordingly, the trial court concluded that defendant’s original jury trial waiver was still in effect.
The prosecutor then submitted defendant’s section 969b prison packet to the trial court as evidence of the applicability of the separate prison term allegations. The trial court read the packet. The packet contained proof of defendant’s identity, of the prior convictions, and of the service of a separate prison term. The trial court made a true finding that defendant had served a separate prison term for a felony in case No. NA041471. The trial court imposed a term of one year in prison consecutive to its earlier-imposed aggregate 10-year term for the offenses and the gang enhancement, again making the aggregate term in state prison 11 years.
Defendant filed a timely notice of appeal from this subsequent entry of the judgment.
DISCUSSION
Defendant contends that the trial court erred by refusing to afford him a jury trial on grounds that defendant’s original jury trial waiver remained in effect after the reversal of the sentencing allegation on appeal.
We conclude that the general rule discussed in People v. Solis (1998) 66 Cal.App.4th 62 (Solis) does not apply in the specific factual context in which defendant found himself after the reversal on appeal. Additionally, any error in refusing to afford defendant a jury trial on this prior conviction allegation was harmless.
We considered the decision in Solis, supra, 66 Cal.App.4th 62. In Solis, during the original proceedings, defendant brought a search and seizure motion that was denied. Thereafter, he agreed to a court trial and waived his right to a jury trial. The trial court found that he had committed the offenses beyond a reasonable doubt. On appeal from the judgment, the reviewing court concluded that a reversal was required because of an error that occurred during the search and seizure motion. It reversed the judgment and remanded for further proceedings. On remand, the trial court gave proper consideration to the search and seizure motion, and defense counsel then suggested that guilt be determined by a submission procedure. (People v. Robertson (1989) 48 Cal.3d 18, 39-40; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Without taking a waiver of the defendant’s right to a jury trial, the trial court found defendant guilty after the submission procedure. The prosecutor brought to the trial court’s attention the lack of a jury trial waiver. The trial court concluded that a new waiver was unnecessary as the defendant had already waived his right to a jury trial during his original court trial. Defendant was sentenced. He thereafter appealed from the new judgment. On appeal, he raised the failure to obtain a waiver of his right to a trial before the submission procedure. (Solis, supra, 66 Cal.App.4th at pp. 64-65.)
The decision in People v. Smith (2005) 132 Cal.App.4th 924, 936, is not on point. That court held that as long as the second trial comes about as the result of a mistrial rather than a reversal on appeal, the defendant’s consent to a court trial continues in effect unless the defendant timely moves to withdraw it.
On appeal, the Solis court observed that there were no opinions in California that had reached the issue of whether the original jury trial waiver carries over after a reversal of the judgment on appeal. The court, however, looked to out-of-state authorities, and quoted at length from the decision in United States v. Lee (6th Cir. 1976) 539 F.2d 606, 609. The Lee court said that the “‘general rule’” is that after a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial, a litigant is not bound by his or her prior waiver of a jury trial. (Solis, supra, 66 Cal.App.4th at p. 66, quoting from United States v. Lee, supra, 539 F.2d at p. 608.) The Solis court agreed with the decision in Lee and followed the general rule in most jurisdictions, finding that defendant had been denied his right to a jury trial.
We conclude that the rule in Solis states the proper general rule following a reversal of the judgment on appeal. Furthermore, section 1262 provides in pertinent part, as follows: “If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct.”
Nevertheless, we decline to apply the general rule here. In reversing the finding in our opinion, we were not specific with regard to what the trial court was to do upon remand. There was no plea bargain with the People as the prosecutor asserted, which would have bound defendant to the terms of his plea, unless he wanted to withdraw from the plea bargain. However, here, the defendant had waived all of the requisite constitutional rights to a plea, including his right to a jury trial, in an indicated sentence procedure. The trial court told defendant that if he entered an “open” plea to all offenses in the information and admitted all the allegations of enhancements and of the application of the Three Strikes law, it would strike one prior conviction, treat him as a second-strike offender. Thus, conditional upon his pleas and admissions, the trial court promised to impose the maximum term it was permitted as if defendant were a second-strike offender, that is, to a prison term of 11 years. Upon remand, defendant did not assert that he wanted to be treated as if he was in the position of the status quo ante, that is, in the same procedural posture that he was in before the trial court gave him an indicated sentence. Consequently, it is unfair for defendant to obtain all the benefits of the indicated sentence and also obtain a new jury trial on the truth of the prior conviction on remand after the appeal. In a sense, he is in a similar position to someone who engages in plea bargaining. By continuing to avail himself of the advantages of the indicated sentence on remand after the appeal, defendant cannot complain about having been denied a jury trial on the separate prison term allegations.
Even if we were to find that on remand after the appeal the explicit terms of section 1262 and the general rule from Solis applied, defendant would not obtain a reversal and the order for a jury trial during yet another remand to the trial court. Pursuant to the decisions in People v. McGee (2006) 38 Cal.4th 682, 700-709 (McGee), People v. Epps (2001) 25 Cal.4th 19, and People v. Thomas (2001) 91 Cal.App.4th 212, 221-223, defendant’s right to a jury trial on this prior prison term enhancement was purely statutory. Indeed in McGee, the court acknowledged that in the future, the United States Supreme Court may extend the Apprendi rule to some of the elements necessary to determining recidivism allegations and afford a defendant a federal constitutional right to a jury trial. (Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).) However, until the high court acts, the California Supreme Court has found “a significant difference between the nature of the inquiry and the factfinding involved in the type of sentence enhancements at issue in Apprendi and its progeny as compared to the nature of the inquiry involved in examining the record of a prior conviction to determine whether that conviction constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute.” Consequently, the Supreme Court has concluded that it will not assume, in advance of such a decision, that the federal constitutional right to a jury trial will apply to mere allegations of recidivism. (McGee, supra, 38 Cal.4th at p. 709.)
We are bound by the decision in McGee. Accordingly, we are required to review any denial of defendant’s California statutory right to a jury trial pursuant to the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Epps, supra, 25 Cal.4th at p. 29.) The abstracts of judgment and the prison records that are contained in the section 969b packet are presumably highly reliable evidence of the truth of the allegations. This court examined the contents of the section 969b prison packet. All the proof necessary to find that defendant had one prior felony conviction for which he had served a separate prison term is contained therein. The packet shows that defendant suffered a felony conviction in case No. NA041471 and that he served a separate prison term after this felony conviction. The issue of defendant’s identity as the person suffering the convictions was by statute an issue for the trial court, not for a jury, and the trial court has already determined that defendant is the person who suffered this felony conviction. (§ 1025, subd. (c).) On this record, the evidence is overwhelming that defendant served a prior prison term allegation is true, and it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 837.)
Furthermore, even if we determined that after Apprendi, supra, 530 U.S. at pages 489 to 490, require we find that defendant had a federal constitutional right to a jury trial on the prior conviction allegation, the result would be no different. It is settled that any error in failing to afford a defendant a jury trial on an element of an offense does not constitute structural error. (See Washington v. Recuenco (2006) ___ U.S. ___ 126 S.Ct. 2546, 2553.) Under Chapman v. California (1967) 386 U.S. 18, our analysis of harmless error is the same as our analysis pursuant to Watson. In this case, we find that any error in failing to afford defendant a jury trial based on Apprendi is harmless beyond a reasonable doubt.
The decision in People v. Jenkins (2006) 140 Cal.App.4th 805 only supports our decision. There, the reviewing court addressed an issue of insufficiency of the evidence supporting whether the alleged Utah robbery convictions amounted to serious or violent felonies under California law so as to constitute the predicate convictions necessary to trigger the three strikes sentencing scheme. (Id. at pp. 810, 816.) The reviewing court found the evidence of a California prior conviction insufficient to support a strike. It reversed the finding of a strike. On appeal, the reviewing court did not reach the issue of whether Apprendi applied to afford the defendant a federal constitutional right to a jury trial upon remand. (People v. Jenkins, supra, 140 Cal.App.4th at p. 816.) The court there merely concluded that the reversal of the three strikes allegation required a “retrial.” (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.