Opinion
F074474
11-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ELIJAH MATHEW EVANS, Defendant and Appellant.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. VCF335926, VCF274860)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Elijah Mathew Evans's appeal relates to two separate criminal cases filed against him in the Tulare County Superior Court: Case Nos. VCF274860 and VCF335926. In VCF335926, Evans appeals (1) his conviction for felon in possession of a firearm; (2) the true finding on a prior conviction allegation attached to that conviction; and (3) his sentence on the felon in possession conviction. We affirm his conviction for felon in possession of a firearm and the sentence for that conviction. However, we strike the true finding on the prior conviction allegation attached to the felon in possession conviction and remand the matter for resentencing on that count. In all other respects, the judgment is affirmed. Regarding VCF274860, that case is relevant to this appeal only because the court found a probation violation there, based on the felon in possession conviction in VCF335926. Since we have affirmed the felon in possession conviction in VCF335926, the judgment in VCF274860 is also affirmed.
PROCEDURAL HISTORY
A. VCF274860
In VCF274860, the earlier case, Evans was charged with, and pleaded guilty to, attempted burglary. (Pen. Code, §§ 459, 664.) He was sentenced to the middle term of three years in prison, but the court suspended execution of sentence and placed Evans on probation for three years, subject to various conditions.
Subsequent statutory references are to the Penal Code unless otherwise specified.
While Evans was on probation in VCF274860, he was convicted in VCF335926, the later case, of a firearms possession charge (a conviction he now appeals). At Evans's sentencing in the later case, the trial court found that the firearms possession conviction constituted a violation of probation in the earlier case. The court therefore terminated Evans's probation in the earlier case and imposed a sentence of eight months in prison on account of the probation violation.
B. VCF335926
In VCF335926, the later case, Evans was charged with possession of a firearm by a felon and a misdemeanor count of possession of burglar's tools (an altered key). (§§ 29800, subd. (a)(1), 466.) The information further alleged that Evans had a prior strike conviction or juvenile adjudication for burglary, dated October 26, 2012.
A jury convicted Evans of the felon in possession charge as well as the misdemeanor charge of possession of burglar tools. Since Evans had waived jury trial on the truth of the prior strike allegation, the trial court held a bifurcated trial on the truth of the prior burglary conviction dated October 26, 2012, as alleged in the information. At the bifurcated trial, the court noted that it was "learning for the first time that [the prior conviction/juvenile adjudication alleged in the information should have been] an attempted first degree residential burglary person present." (Italics added.) The record further demonstrates that the October 26, 2012 date of conviction specified in the information was incorrect; Evans had a prior attempted burglary conviction dated May 10, 2013. The court nonetheless found the prior strike allegation to be true.
The trial court sentenced Evans to the middle term of two years on the felon in possession charge. The sentence was doubled to four years on account of the strike prior. No time was imposed for the misdemeanor conviction for possession of burglar tools.
FACTS
The facts are based on the evidence adduced at the preliminary hearing.
On October 24, 2012, at 2:35 a.m., police found Evans at a house where an alarm was sounding. Evans emerged from the side of the house with a bicycle; he was wearing a hoodie and carried a backpack. He pedaled away from the police but was soon apprehended. A glass sliding door at the back of the house was ajar. The resident of the house stated she had locked the sliding door when she went to bed earlier that night. However, she could not determine whether any property was taken.
B. VCF335926 (Later Case)
On May 27, 2016, at approximately 1:30 a.m., Evans went to the Visalia home of Angela Santa Cruz and Emma Morales. Evans told Santa Cruz he wanted to retrieve a car parked at the house; the car belonged to a Willie Watters, who was incarcerated. Santa Cruz was looking after the car for Watters. Evans told Santa Cruz that Watters was his cousin, but Santa Cruz declined to release the car to him since she could not confirm his identity and connection to Watters. Evans left without incident.
Evans came back at 6:00 a.m. Santa Cruz again declined to hand the car over. This time, Evans stood by the car and refused to leave, prompting Santa Cruz to call 911. Evans remained by the car even when told the police were on their way. Santa Cruz testified that Evans did not threaten her in any way or break into the car or her house. Nor did Santa Cruz see Evans with a firearm or connect him with any firearm. Santa Cruz denied telling the police she was afraid of Evans. Rather, Santa Cruz explained she was on edge because of an unrelated shooting at her house the previous week.
Emma Morales, the other resident of the house, came up on the incident upon returning home from an early morning trip to the store, where she had gone to buy milk. Morales was holding a metal bat she had randomly found on her way back from the store. Morales and Evans had a heated discussion about the car. Evans rummaged through his backpack and said something to the effect of, "'I'll shoot a bitch. I ain't scared to shoot a bitch.'" However, Evans only pulled out a cell phone from the backpack. Although Evans did not mention a gun, nor did Morales see a gun, she later saw Evans make a tossing motion with his hand and heard something "hard fall in the bushes[,] like heavy." Morales also testified that someone had shot at the house the previous week.
The police subsequently found a gun in the bushes by the house; the gun was unloaded. Photographs of the gun showed it was dusty and had leaves and debris adhering to it. No finger prints were found on the gun. A patdown search of Evans's person yielded a set of keys. One of the keys appeared to be "altered" for the purpose of picking locks.
DISCUSSION
I. Conviction for Felon in Possession of a Firearm
At trial, Evans and the prosecution agreed to stipulate that Evans had a prior felony conviction, one of the elements of the offense of felon in possession of a firearm. Evans challenges his conviction for this offense on grounds of insufficiency of evidence, based on the court's handling of the parties' agreement to stipulate to the fact of Evans's prior felony conviction. Essentially, rather than informing the jury that the parties had stipulated that Evans had a prior felony conviction (as specified in the elements of the offense), the court told the jury the parties had stipulated that Evans was a person who was prohibited from possessing a firearm. In addition, the court modified an element of the felon in possession offense; specifically, the court changed an element requiring the jury to find the defendant had a prior felony conviction to instead require the jury to find the defendant was prohibited from possessing a firearm.
We conclude the court erred in not squarely placing the stipulated fact of the prior conviction before the jury. However, the stipulation, as phrased by the court, subsumed the reason for Evans's status as a prohibited person, i.e., his prior felony conviction, and the stipulation as presented was therefore sufficient to sustain a conviction. Furthermore, because the error was premised on the parties' agreement to stipulate to the fact of the prior conviction and the parties acquiescence to the court's phrasing of the stipulation, Evans may not now challenge the sufficiency of the evidence as to the element at issue, i.e., that the defendant had a prior felony conviction. Finally, to the extent the court erred in instructing the jury on the elements of the felon in possession offense, Evans, by agreeing to the modified instructions, forfeited that error. We therefore affirm.
A. Background
On the morning of the first day of trial, the parties and the court discussed the issue of presentation of evidence regarding Evans's prior felony conviction:
"THE COURT: All right. Let's go through some issues. First thing I want to know is whether or not [Evans is] going to admit the prior felony for purposes of a felon being in possession of a firearm.
"[DEFENSE COUNSEL]: We want to stipulate to that, yes.
"THE COURT: All right. How I do these, [prosecutor], and you're not going to be happy, but I am going to just instruct the jury that [Evans] is a person that is not allowed legally to carry a firearm. [¶] Now if he testifies, well, then you can impeach him with his felonies. But if he doesn't testify, that's the way I intend to present it to the jury.
"[PROSECUTOR]: That's fine."
At the jury instruction conference, the court indicated it would instruct the jury on the felon in possession of a firearm charge pursuant to CALCRIM No. 2511, the applicable pattern instruction. CALCRIM No. 2511, "Possession of Firearm by Person Prohibited Due to Conviction - Stipulation to Conviction," provides:
"To prove that the defendant is guilty of [a crime under section 29800], the People must prove that:
1. The defendant (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/possessed) the firearm;
[AND]
3. The defendant had previously been convicted of (a/two) (felony/misdemeanor[s]). (Italics added.)
The court further explained:
"THE COURT: "So what I intend to do on [CALCRIM No.] 2511 is just go forward with, one, the defendant possessed a firearm and two, that the defendant knew he possessed a firearm. Everybody on board with that? So I won't give the third element because it's been stipulated to and admitted.
"[PROSECUTOR]: Are you going to read that to the [jury]—I mean we know during voir dire we said that a prohibited person cannot, but I don't know that it's ever been told to them that he was such a prohibited person and was not allowed to possess a firearm.
"THE COURT: Here's what I'll do. So what this [instruction] will read[:] Defendant is charged in count one with unlawfully possessing a firearm. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant possessed a firearm, two, the defendant knew that he possessed a firearm, and, three, the defendant is prohibited from possessing a firearm." (Italics added.)
"[DEFENSE COUNSEL]: That's agreeable.
"[PROSECUTOR]: And you're [going] to tell the jury that that has been stipulated; is that correct?
"THE COURT: Right. And on lines 24 to 25 the defendant and the People have agreed that the defendant is prohibited from possessing a firearm. All right. So that's how I intend to do that.
"Anybody want to take a look at this before I give it? It will not have any reference to a felon on there."
Thereafter, the court instructed the jury:
"The defendant is charged in count one with unlawfully possessing a firearm. To prove that the defendant is guilty of this crime, the People must prove three things. One, the defendant possessed a firearm; two, the defendant knew that he possessed a firearm; and three, the defendant is prohibited from possessing a firearm .... [¶] ... [¶] The defendant and the People have stipulated or agreed that the defendant is prohibited from possessing a firearm. This stipulation means you must accept this fact as proved." (Italics added.)
During deliberations, the jury sent out a note, stating: "'Need to explain criteria to find a conviction. Can the judge explain?'" In response, the judge told the foreman: "To the gun thing, there's three elements; essentially possession, he knew he had the gun, and he's not a person who's supposed to have a gun. The third one has already been met. They've stipulated he's a person."
B. Analysis
The offense of felon in possession of a firearm is defined in section 29800 (formerly § 12021). Section 29800, subdivision (a)(1) provides:
Section 12021 was repealed and recodified without substantial change as section 29800. (Stats. 2010, ch. 711, § 6, operative Jan. 1, 2012.)
"Any person who has been convicted of, or has an outstanding warrant for, a felony under the laws of the United States, the State of California, or any other state, government, or country ... or who is addicted to the use of any narcotic drug, and who owns purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." (See § 29800, subd. (a)(2) [any person with two or more misdemeanor convictions and who owns or possesses any firearm is guilty of a felony].)
The specific offense of felon in possession of a firearm requires proof of two elements: "conviction of a felony" and knowing possession, custody, or control of a firearm. (People v. Snyder (1982) 32 Cal.3d 590, 597-598 [addressing elements of § 12021, subd. (a)(1), the predecessor statute to § 29800, subd. (a)(1)].) "While no specific criminal intent is required, a general intent to commit the proscribed act is necessary." (Ibid.)
Since Evans is challenging the sufficiency of the proof of the prior-felony-conviction element of the offense of conviction, it is instructive to consider the state law requirements for proving prior felony convictions in criminal cases. California law has historically treated differently, in terms of proof requirements, a prior conviction that serves to increase punishment and a prior conviction that is an element of an offense. One court has summarized the jurisprudence as follows:
"A long line of cases distinguished between the admissibility of a prior conviction when the prior is a sentencing factor as opposed to an element of the current charged offense. In cases where prior convictions were alleged which were wholly unrelated to the current crime charged, if the defendant admitted the prior felony conviction, the jury could not learn of it (except through impeachment if he testified). On the other hand, if the former conviction was an element of the charged offense, as in a prosecution under
[the felon in possession of a firearm statute], the prior conviction, as well as the possession of the firearm, had to be proved [to] and determined by the court or jury. The latter defendant could not, by admitting the felony conviction out of the presence of the jury, avoid proof of the fact as evidence for consideration by the jury." (People v. Wade (1996) 48 Cal.App.4th 460, 466.)
Similarly, People v. Gallinger (1963) 212 Cal.App.2d 851, explained that, in a crime such as burglary with a prior conviction of burglary, the prior burglary conviction is not related to the present burglary and the jury must not be permitted to learn of it if the defendant admits it; in contrast "whenever the fact of a felony conviction is an element of the offense," as in the offense of felon in possession of a firearm, "the defendant could never be convicted without evidence before the trier of fact that the conviction had been suffered." (Id. at pp. 854-855; see People v. Davenport (1962) 210 Cal.App.2d 335, 340-341 [when prior felony conviction is element of offense, it "must be proved independently of any attempted admission"].)
People v. Hudgins (1943) 59 Cal.App.2d 175 also explained that where the prior felony conviction is an element of the charged offense, as in a prosecution for felon in possession of a firearm, it "is not only a necessary element in constituting a violation of the particular crime, but is an issue which must be presented to the jury to complete the crime charged." (Id. at pp. 180-181.) In other words, if proof of the prior felony conviction was withheld from the jury, "'it would be impossible ever to convict the defendant on this charge.'" (Id. at p. 180; see People v. Faulkner (1972) 28 Cal.App.3d 384, 392-393 [in cases in which a prior felony conviction is alleged as a sentencing factor, a defendant may admit to the conviction and remove it from the jury's consideration; however, in cases in which the prior felony conviction is an element of the offense, as when the offense of felon in possession of a firearm is charged, both the prior felony conviction as well as the possession of a firearm must be proved to and determined by the jury]; People v. Schunke (1941) 47 Cal.App.2d 542, 543-545 [the offense of felon in possession of dangerous weapon contains "two essential elements, the previous conviction of a felony and the possession of a dangerous weapon"; hence, "[i]t was necessary for the prosecution to establish both of these elements and it was also necessary for the jury to be informed of the issues which they were obligated to pass upon"].)
In 1980, the California Supreme Court, in People v. Hall (1980) 28 Cal.3d 143 (Hall), collapsed the distinction between a prior conviction as a sentencing factor and a prior conviction as an element of the offense, overruling the state's established jurisprudence. The defendant in Hall was charged with being an ex-felon in possession of a concealed firearm under former section 12021, and our Supreme Court held that when a defendant who is so charged offers to stipulate that he has a prior felony conviction, the jury may not learn of either the fact or nature of the prior conviction. (Hall, supra, at pp. 153-154 & fn. 7.) In other words, Hall held that, just as in cases in which a prior felony conviction was alleged as a sentencing factor, "where a defendant offered to stipulate to the truth of a prior conviction that was an element of the charged crime, the court [similarly] could not allow the prosecutor to present the prior conviction to the jury." (People v. Hucks (1990) 217 Cal.App.3d 260, 265 (Hucks) (italics added), citing Hall, supra, 28 Cal.3d 143.)
In response to Hall, in 1982, the electorate added article I, section 28, subdivision (f) to the California Constitution, which states in relevant part: "'When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court." (Article I, § 28, subd. (f)(4).) People v. Valentine (1986) 42 Cal.3d 170, 173 (Valentine) subsequently clarified that article I, section 28, subdivision (f) abrogated the new, if short-lived, rule announced in Hall: "The voters have decreed that henceforth the California Constitution not only permits, but requires, proof 'in open court' of ex- felon status when that status is a substantive element of a current charge. This clear, recent, and specific command supersedes any previous inconsistent interpretations of our state charter's due process guarantees." (Valentine, supra, at p. 181.) Valentine clarified that, under article I, section 28, subdivision (f), the status of the defendant as an ex-felon must be presented to the jury, regardless of any stipulation between the prosecutor and the defense; however, if the defendant stipulates to his status as a felon, the actual nature of the conviction and the number of convictions are properly withheld from the jury. (Valentine, supra, at pp. 173, 177; see Hucks, supra, 217 Cal.App.3d at p. 265 [Valentine held that under art. I, § 28, subd. (f), "regardless of whether the defendant enters into a stipulation, the jury must be advised that a defendant is an ex-felon when that is an element of the current charge; however, if the defendant stipulates to his ex-felon status, evidence of the nature of his prior convictions should be withheld from the jury"].)
Article I, section 28, subdivision (f) was enacted by Proposition 8 in 1982 "as part of the so-called Victims' Bill of Rights." (People v. Castro (1985) 38 Cal.3d 301, 305.)
People v. Bouzas (1991) 53 Cal.3d 467, page 472, footnote 4 and page 474, footnote 5 (Bouzas) also noted that article I, section 28, subdivision (f) of the California Constitution "abrogated" Hall and revived the pre-Hall line of cases "after a few years of slumber." Bouzas clarified that, under this constitutional amendment, "'if the former conviction is an element of the offense for which the defendant is being tried, as in a prosecution under [the felon in possession of a firearm statute], which makes it a felony for an ex-convict to be in possession of a firearm, the prior conviction, as well as the possession of the firearm, must be proved and determined by the court or jury.'" (Bouzas, supra, at p. 472.) Thus, "a defendant may not stipulate to a prior felony conviction when that conviction is an element of a later felony charge," and thereby remove that fact, and the related element, from the jury's consideration. (Bouzas, supra, at p. 472, fn. 4.) Indeed, "the defendant could never be convicted without evidence before the trier of fact that the conviction had been suffered." (Bouzas, supra, at p. 472; see People v. Webb (1992) 7 Cal.App.4th 575, 578-579 [Bouzas clarifies that where the prior conviction is an element of the charge, the jury necessarily learns of it; where it relates solely to increased punishment, the jury does not]; see also People v. Profitt (2017) 8 Cal.App.5th 1255, 1269, fn. 13 ["A defendant's tactical decision not to contest an essential element of the offense does not relieve the prosecution of its burden of proving every element."].)
Finally, in People v. Sapp (2003) 31 Cal.4th 240 (Sapp), our Supreme Court reiterated that Valentine "allows the trial court only two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court 'sanitizes' the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed." (Sapp, supra, at p. 262, italics added.) In sum, when a prior felony conviction is an element of an offense, article I, section 28, subdivision (f) requires a jury finding on the element based on evidence presented to the jury.
Here, Evans challenges the sufficiency of the evidence as to one element of the felon in possession offense, i.e., the element requiring that the defendant has suffered a prior felony conviction. Evans acknowledges he offered to stipulate that he had a prior felony conviction but points out that the prosecution nonetheless retained the burden of proving this element by presenting evidence of the prior felony conviction, in the form of the stipulation or otherwise, to the jury, in accordance with the state law proof requirements delineated above. Evans notes the trial court only told the jury that he "was prohibited from possessing a firearm" but never informed the jury of the requisite prior felony conviction. Evans argues that because the trial court failed to advise the jury that he had a prior felony conviction (as the parties had agreed to stipulate), the evidence was ultimately insufficient with respect to the prior-felony-conviction element of the offense.
Under Valentine, Bouzas, and Sapp, the trial court clearly erred in keeping the fact of Evans's prior felony conviction from the jury. However, the court's characterization of Evans's status as a person prohibited from possessing a firearm subsumed the fact of his prior felony conviction; the stipulation as presented was therefore sufficient to sustain the conviction. In addition, the court acted on the basis of the parties' agreement to stipulate to the prior felony conviction, with neither party objecting to the court's eventual formulation of the stipulation. Thus, to the extent the court erred in wording the stipulation, Evans forfeited any challenge to the court's characterization thereof as well as to the sufficiency of the evidence supporting the corresponding element of the offense. (People v. Pijal (1973) 33 Cal.App.3d 682, 697 ["It is, of course, well established that the defendant is bound by the stipulation or open admission of his counsel and cannot mislead the court and jury by seeming to take a position on issues and then disputing or repudiating the same on appeal."]; In re Francis W. (1974) 42 Cal.App.3d 892, 903 [a party may not stipulate to or admit an essential fact or element in open court and then claim that the evidence on that point is insufficient].)
Evans relies, in part, on Vance v. Montgomery (C.D.Cal. Feb. 10, 2015, No. ED CV 14-1745 MMM) 2015 U.S. Dist. LEXIS 92237 (Vance), which reversed the defendant's conviction for felon in possession of a firearm on grounds of insufficiency of evidence. In Vance, the defendant agreed to stipulate to the fact that he had a prior felony conviction. The court did not inform the jury of the stipulation and, in addition, in instructing the jury on the elements of the offense, entirely omitted the prior-felony-conviction element. (Id. at pp. 3-4.) Vance held that the court's failure to present proof of the prior felony conviction, in the form of the stipulation, to the jury was both state law error under Sapp, as well as federal constitutional error under Jackson v. Virginia (1979) 443 U.S. 307, 319, which requires proof from which a rational jury can properly find each element of the offense beyond a reasonable doubt. (See Fiore v. White (2001) 531 U.S. 225, 229 [the prosecution's failure to prove "a basic element of the crime" charged "fails to satisfy the Federal Constitution's demands" under the Fourteenth Amendment].) (Vance, supra, at p. 7.) Vance also found problematic the fact that "[t]he trial court simply made up a new offense"—in effect, possession of a firearm—"that did not contain all of the statutory elements of the crime for which [the defendant] was ultimately convicted and sentenced." (Id. at p. 20.) Vance concluded that a criminal court may not "rewrite a statute or manage the order proofs in this manner," and that, consequently, the evidence was insufficient to sustain a conviction for the offense of felon in possession of a firearm. (Ibid.)
Vance is, however, distinguishable, from the instant scenario. Here, the court informed the jury of the parties' stipulation, although it phrased it as a stipulation as to the fact that Evans was prohibited from possessing a firearm. The court also adapted the instruction on the elements of the offense to require the jury to find that (1) Evans knowingly possessed a firearm, and (2) he was a person who was prohibited from possessing a firearm. Here, although the court undoubtedly erred, the stipulation and instruction on the elements, as presented by the court, covered or subsumed the reason for Evans's prohibited status, i.e., his prior felony conviction. Furthermore, because the error was premised on the parties' agreement to stipulate to Evans's prior felony conviction and the parties acquiesced to the court's phrasing of the stipulation, Evans forfeited any challenge to the sufficiency of the evidence as to the fact or element addressed by the stipulation. Finally, any instructional error was forfeited for purposes of appeal because Evans affirmatively agreed to the modified instructions given to the jury. Accordingly, reversal is not required. II. Prior Conviction/Juvenile Adjudication Allegation
Evans argues the trial court improperly permitted, after discharge of the jury in VCF335926, an amendment to the operative information, to add a new prior conviction allegation in connection with the substantive charge of felon in possession of a firearm. Originally, the information had alleged a prior burglary conviction/juvenile adjudication under section 459, dated October 26, 2012, as a prior strike, in connection with the felon in possession charge. Evans waived jury trial on the truth of that particular prior conviction/juvenile adjudication. However, after the jury rendered its verdict on the substantive charges and was discharged, it was discovered that Evans had a 2013 attempted burglary conviction that qualified as a strike, but did not have a 2012 burglary conviction/juvenile adjudication as specified in the information. The trial court nonetheless found the prior conviction alleged in the information to be true, and in turn determined that the prior strike allegation was true as well.
Evans's basic contention is that because the information alleged that he had suffered a prior 2012 completed burglary conviction/juvenile adjudication but the proof submitted by the prosecution concerned a 2013 attempted burglary conviction, absent an amendment to the information to conform it to the proof submitted by the prosecution, there was insufficient evidence to sustain a true finding on the prior conviction allegation. Stated differently, Evans contends that the trial court necessarily, if impliedly, amended the information to add a prior conviction allegation as to the 2013 attempted burglary conviction. Evans argues that such a postdischarge amendment is prohibited by section 1025, subdivision (b) and People v. Tindall (2000) 24 Cal.4th 767, 771 (Tindall) and, therefore, the true finding on the prior conviction allegation must be struck.
The People respond that the trial court could properly find the prior conviction allegation in the information true based on the proof of the 2013 attempted burglary conviction, without amendment of the information, because attempted burglary is a lesser included offense of burglary. However, the People fail to cite any authority for the proposition that the lesser included offense doctrine applies to prior conviction allegations. Indeed, since the trier of fact in a trial on the truth of a prior conviction simply makes either a "true" or "not true" finding on the specific prior conviction at issue, the lesser included offense doctrine logically has no application in that context. In sum, we are not persuaded by the People's argument.
We therefore strike the true finding on the prior conviction allegation.
A. Background
The information in VCF335926 alleged, in connection with the felon in possession charge, that Evans had an October 26, 2012 prior strike conviction/juvenile adjudication for a completed burglary (§ 459). On the first day of trial, the judge and Evans had the following exchange regarding the prior strike allegation:
"THE COURT: You have a right that ... if this jury convicts you, you have a right then to have that jury determine whether or not you had suffered the strike or not. You understand you have that right?
"THE DEFENDANT: Yes, sir.
"THE COURT: Your lawyer tells me that if this jury returns a guilty verdict, you're willing to waive the jury on that issue and allow me, the Court, to make a determination as to whether or not you have that strike. Is that right?
"THE DEFENDANT: Yes, sir.
After the jury in the case rendered its verdict, the trial court discharged the jury and proceeded with a bench trial on the strike allegation. In reviewing the documentary proof submitted by the People, the court noted: "I'm learning for the first time that this is an attempted first degree residential burglary person present." (Italics added.) Although the court clearly recognized there was a problematic discrepancy between the prior conviction alleged in the information and the proof submitted by the People, the court ultimately found the prior conviction allegation to be true.
B. Analysis
Section 969a provides:
"Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall
be necessary. Defendant shall promptly be rearraigned on such information or indictment as amended and be required to plead thereto."
Section 1025, subdivision (b) provides:
"[T]he 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, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived."
Our Supreme Court harmonized these two statutory provisions in Tindall, supra, 24 Cal.4th 767. The high court recognized that section 969a is the avenue for amending the information to charge "any prior felonies of which the defendant has been convicted," including "prior felony convictions that were previously known, newly discovered, or omitted through clerical error." (Tindall, supra, at p. 776-777; see People v. Valladoli (1996) 13 Cal.4th 590, 605-606 [§ 969a is the mechanism to fix various deficiencies in the information regarding prior conviction allegations, including omissions resulting from clerical error].) However, as the People acknowledge in their brief, Tindall held that section 969a is limited by section 1025 after discharge of the jury. Tindall clarified that under section 1025, subdivision (b), the same jury must decide the issue of guilt as to the substantive charges as well as the truth of any prior conviction alleged as an enhancement, a requirement that necessarily precludes amendments, under section 969a, to add new prior conviction allegations after discharge of the jury. (Tindall, supra, at p. 782.) The Tindall court characterized the "same jury" limitation in section 1025 as a "'procedural requirement'" that is binding on the trial court, such that a violation thereof constitutes an act in excess of the court's jurisdiction. (Tindall, supra, at p. 776.) Tindall further noted: "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 trial, to discover and charge the prior convictions." (Tindall, supra, at p. 781.)
In Tindall, after the defendant waived jury trial on the prior conviction allegations contained in the information and the jury was discharged, the prosecutor moved to amend the information to add three new prior convictions. (Tindall, supra, 24 Cal.4th at p. 770.) Our Supreme Court held that section 1025 prohibited doing so because, "[u]nder Penal Code section 1025, subdivision (b), a defendant has the statutory right to have the same jury decide both the issue of guilt and the truth of any prior conviction allegations." (Id. at p. 770, italics added.) "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." (Id. at p. 782.) Tindall clarified that, in permitting a postdischarge amendment in the absence of an applicable waiver from the defendant, the trial court in that case had "acted in excess of its jurisdiction." (Id. at p. 770.)
In sum, "although the prosecution may amend an information to add alleged prior convictions on the trial court's order until sentencing [citations], the court may not permit such an amendment if the jury has been discharged, unless the defendant waives or forfeits the right to have the same jury try both guilt and the priors [at issue]." (Tindall, supra, 24 Cal.4th at p. 776.) If the prosecution adds a prior conviction allegation after an initial waiver, the defendant retains his statutory rights under section 1025, unless he specifically waives them with respect to the new allegation. (People v. Gutierrez (2001) 93 Cal.App.4th 15, 24.)
Here, the information alleged as a prior strike, an October 26, 2012 "felony [conviction] or juvenile adjudication" for burglary (§ 459). At the trial on the prior strike allegation, the People presented proof of an attempted burglary conviction dated May 10, 2013. The trial court found the prior conviction was true and in turn that the enhancement allegation was true. Evans argues, with respect to the trial court's determination, that "[t]he salient fact is that the information was amended to replace a non-existent conviction with a different one"; in other words, "the information was amended to add a 'previously unalleged prior conviction.'" (See Tindall, supra, 24 Cal.4th at p. 776.) Evans contends the trial court's implicit amendment of the information to add an allegation regarding the 2013 attempted burglary conviction was prohibited by section 1025 and Tindall, and, consequently, the court acted in excess of its jurisdiction. The People respond with only the unpersuasive argument that there was no implicit amendment of the information because the trial court could properly rely on the doctrine of necessarily included offenses to find the 2013 attempted burglary conviction true. The People provide no authority for the novel proposition that the doctrine of necessarily included offenses applies to the determination of the truth of a prior conviction. We therefore reject this contention.
We conclude that, in finding the prior strike enhancement to be true, the trial court implicitly approved an amendment to the information to allege a prior strike conviction for attempted burglary dated May 10, 2013. The amendment necessarily occurred after discharge of the jury, bringing it within Tindall's purview. (See Tindall, supra, 24 Cal.4th at pp. 771, 776-777 [prohibiting postdischarge amendments to the information so as to charge prior felony convictions that were "previously known, newly discovered, or omitted through clerical error"].) Under Tindall, the trial court was precluded from amending the information after discharge of the jury in the absence of a specific waiver from the defendant of his right, pursuant to section 1025, subdivision (b), to have the same jury try both guilt and prior convictions. Here, the trial court did not elicit from Evans, a section 1025 waiver in connection with adding the 2013 prior conviction for attempted burglary to the information. Thus, in implicitly amending the information to add the prior conviction for attempted burglary, the trial court acted in excess of its jurisdiction. (See Tindall, supra, 24 Cal.4th at p. 770.) The implicit amendment was therefore improper. Absent the amendment, the evidence was insufficient to support a true finding on the prior conviction originally alleged in the information. In turn, the court's true finding on the prior strike allegation must be stricken.
The People argue that Evans has forfeited any challenge to the court's implicit amendment to the information because defense counsel did not make a timely objection under section 1025, subdivision (b). (See Tindall, supra, 24 Cal.4th 776 [the "court may not permit" postdischarge amendments to an information "to add alleged prior convictions" unless "the defendant waives or forfeits the right to have the same jury try both guilt and priors"]; People v. Leonard (2014) 228 Cal.App.4th 465, 482-483.) However, as stated above, here the court itself recognized that the discrepancy between the prior conviction alleged in the information (a 2102 burglary) and the proof adduced by the People (a 2013 attempted burglary) was problematic. The court nonetheless found the prior conviction allegation to be true, thereby implicitly approving an amendment to the information to add the 2013 attempted burglary conviction. Given these circumstances, an objection by defense counsel would likely have been futile and, in any event, even if the issue was forfeited, in this instance we will address it. (See People v. Smith (2003) 31 Cal.4th 1207, 1215 ["an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party"]; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Accordingly, under Tindall, we strike the true finding on the prior conviction allegation. (See Tindall, supra, 24 Cal.4th at pp. 771, 776-777.) III. Sentencing Claim
In light of our resolution of this issue, we need not address Evans's claim that counsel was ineffective in failing to invoke Evans's section 1025, subdivision (b) rights and/or objecting to the trial court's implicit amendment to the information.
Evans contends his sentence on the felon in possession of a firearm conviction must be vacated and the matter remanded for resentencing because the trial court abused its discretion in imposing the sentence. The trial court denied probation and imposed the middle term of two years in prison for Evans's conviction for this offense. Relying on In re Lewallen (1979) 23 Cal.3d 274 (Lewallen), Evans contends that in denying probation and sentencing him to the middle term for this conviction, the trial court improperly considered the fact that he exercised his constitutional right to a jury trial. Evans points to the trial court's own words. In sentencing Evans, the court noted that Evans was "defiant" in "demanding his trial within 60 days." The court further commented: "I attempted to resolve this case. He insisted upon his trial. He got his trial." Evans's sentencing counsel, who was standing in for Evans's trial counsel, protested that Evans had a constitutional and statutory right to a speedy trial within 60 days. At that point, the trial court stated it was not counting Evans's demand for a speedy trial as an aggravating factor but was simply addressing Evans's attitude in court (a point to which substitute counsel could not speak as he was not present at trial). The court's explanation is arguably in conflict with an earlier interaction between the court and Evans's trial counsel. Specifically, during the bifurcated trial on the prior conviction allegation included in the information, counsel had noted that Evans had been "extremely, extremely, extremely respectful of the Court [and] the proceedings," a point with which the court had expressly agreed. Evans contends that the record as whole shows that the court penalized him in imposing sentence because he insisted on getting, and "got[,] his trial."
In a separate argument, Evans challenges the trial court's denial of his Romero motion, which he made in connection with the prior strike sentence enhancement attached to the felon in possession charge. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In the Romero motion, Evans asked the court to strike his prior strike conviction but the court denied the motion. Evans challenges the court's denial of his Romero motion under Lewallen, supra, 23 Cal.3d 274, based on specific comments the court made prior to trial, indicating it would rule differently on a potential Romero motion were Evans to go to trial rather than pleading to the charges. We need not address Evans's argument with respect to the court's denial of his Romero motion because our conclusion, above, that we must strike, under Tindall, the court's true finding on the prior strike allegation, renders the Romero motion argument under Lewallen moot. --------
The right to jury trial in a criminal prosecution is a fundamental right under both the state and federal Constitutions. (People v. Collins (2001) 26 Cal.4th 297, 304.) The sentencing court "may not ... impose a sentence that conflicts with a defendant's exercise of his constitutional right to a jury trial," (Lewallen, supra, 23 Cal.3d at p. 281), and "[i]t may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right." (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276 (italics added); Lewallen, supra, at pp. 278-279.) However, there is not an "absolute ban on [the] imposition of a sentence higher than that which might have been proposed before the defendant asserted his constitutional ... right" (People v. Angus (1980) 114 Cal.App.3d 973, 989), and the defendant must present evidence to this court that suggests "the higher sentence was imposed as punishment for exercise of the right." (Id. at pp. 989-990; see People v. Szeto (1981) 29 Cal.3d 20, 35 (Szeto) [a defendant must show that the trial court made some comment or statement that could "reasonably [give] rise to the inference that [the court] was penalizing [the] defendant for exercising his right to jury trial"]; Lewallen, supra, at p. 277 [the defendant has the burden of proving the trial court imposed a harsher sentence as a punishment for his election to go to trial].)
In Lewallen, the court held the sentence was improper because the sentencing court had specifically stated, "'if a defendant wants a jury trial and he's convicted, he's not going to be penalized with that, but on the other hand he's not going to have the consideration he would have had if there was a plea.'" (Lewallen, supra, 23 Cal.3d at p. 277, italics added.) With respect to these statements, Lewallen noted, "there [could] be no rational interpretation other than that [the court] was basing [the defendant's] sentence at least in part on the fact that he declined the prosecution's plea bargain and demanded a trial by jury." (Id. at p. 280.)
Here, the court's statements did concern Evans's insistence on going to trial. At the same time, the court also cited valid reasons for imposing the sentence it did. For example, the court noted that Evans's "prior convictions as an adult are numerous and [of] increasing [seriousness]," Evans "was on probation when this crime was committed," and Evans had multiple violations of probation in previous matters. (See Cal. Rules of Court, rule 4.421.) Considering the totality of the court's comments at sentencing, we cannot say the challenged comments "reasonably [give] rise to the inference that [the court] was penalizing [the] defendant for exercising his right to jury trial." (Szeto, supra, 29 Cal.3d at p. 35.)
DISPOSITION
The true finding on the prior strike allegation in case No. VCF335926 is stricken and Evans's sentence in the case vacated. The matter is remanded for resentencing consistent with this opinion. In all other respects, the judgments in case Nos. VCF274860 and VCF335926 are affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
FRANSON, J.