People v. Dee, A046986

• Decision Date: 30 July 1990
• Docket Number: No. A046986,A046986
• Citation: 222 Cal.App.3d 760,272 Cal.Rptr. 208
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ricky Lamar DEE, Defendant and Appellant.

Page 208

272 Cal.Rptr. 208

222 Cal.App.3d 760

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ricky Lamar DEE, Defendant and Appellant.

No. A046986.

Court of Appeal, First District, Division 5, California.

July 30, 1990.

As Modified Aug. 16, 1990.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., and Christopher W. Grove, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Marylou Hillberg, Santa Rosa, for defendant and appellant.

KING, Associate Justice.

In this case we are compelled to strike a prior conviction sentence enhancement because of trial counsel's error in waiving a jury trial on the enhancement allegation after the judge prematurely discharged the jury.

An information charged Ricky Lamar Dee with possession of cocaine (Health & Saf.Code, § 11350). It also alleged a prior conviction and prison term (Pen.Code, § 667.5, subd. (b)). Trial of the charged offense and the prior conviction allegation was bifurcated. A jury convicted Dee of the charged offense.

Once the verdict was read and the jury was polled, the court discharged the jurors and advised them, "You are free to talk about this case with whomever you want to talk about it now. The admonition is off." After thanking the jurors for their service, the court concluded, "So I will excuse you, and you are free to leave at this time."

Thereafter, the reporter's transcript states that the proceedings occurred "without jury." The court began to refer the matter to the probation department, but then said, "Oh, guess what. Better get them back here. We have some priors that you have a right to have a jury decide. [p] ... I forgot that there were some priors." Defense counsel, however, waived a jury trial and stated that Dee was willing to admit the prior conviction allegation. Dee then did so.

The court sentenced Dee to the middle term of two years for possession of cocaine and a one-year enhancement for the prior conviction.

Appellate counsel requested independent review under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. We determined that an arguable issue was presented, and directed further briefing as to (1) whether the doctrine of double jeopardy precluded a jury trial on the prior conviction allegation after the jury was discharged, and (2) if so, whether trial counsel erred in waiving a jury trial on the prior conviction allegation.

In People v. Wojahn (1984) 150 Cal.App.3d 1024, 1032-1035, 198 Cal.Rptr. 277, Division Three of the First Appellate District held that once a jury is sworn, jeopardy attaches to the issue of the truth of a prior conviction enhancement allegation, and thus the enhancement may not be imposed if the jury is mistakenly discharged before the enhancement allegation is tried.

A troika of decisions addressed Wojahn between April 1989 and January 1990. The first was People v. Laury (since depublished), in which Division Four of this court disagreed with Wojahn; the panel held that jeopardy does not attach to the prior conviction allegation, and thus a newly impaneled jury may determine the truth of the allegation. The next case was People v. Casillas (also depublished), in which Division Three reexamined its decision in Wojahn; the majority opinion followed Wojahn, but separate opinions by two of the justices stated their disagreement with Wojahn and expressed approval of the jeopardy analysis in Laury. ¹ Finally, in People v. Hockersmith (1990) 217 Cal.App.3d 968, 972-977, 266 Cal.Rptr. 380, Division Three of the Fourth Appellate District agreed with Wojahn, disagreed with Laury, and held that jeopardy attaches and bars retrial of a prior conviction alleged as a basis for probation ineligibility.

The Supreme Court denied a petition for review in Laury on July 20, 1989. There was no petition for review in Casillas, which therefore became final on January 16, 1990. A petition for review in Hockersmith was filed on March 6, 1990. Then, at one fell swoop on April 26, 1990, the Supreme Court denied review in Hockersmith and depublished both Casillas and Laury, which had long since become final and were not even before the court. This leaves Hockersmith as the only published post-Wojahn opinion.

The message from the Supreme Court is obvious: Hockersmith and Wojahn were correct, and Laury and the plurality in Casillas were wrong. There is no other fathomable reason for the Supreme Court's action.

It has been suggested that although a denial of review is not an expression on the merits (see Advisory Com. Comment, Cal.Rules of Court, rule 28), it is not "without significance" as to the Supreme Court's views. (In re Eli F. (1989) 212 Cal.App.3d 228, 234-235, 260 Cal.Rptr. 453, quoting DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865.) Additionally, it is generally accepted that most depublication occurs because the court considers the opinion to be wrong in some significant way, usually in reasoning and sometimes in result as well. When, as here, the Supreme Court uses both devices to deal with conflicting opinions, letting one remain published and depublishing the others, it is at least "fairly clear" that the court approves of the opinion that remains published and disagrees with the others. (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal.L.Rev. 514, 515, 521-522.) In the present context that conclusion is inescapable.

It is hardly unprecedented for the Courts of Appeal to seek implicit guidance from denial of review and depublication; we have just not been very candid about doing so. With the Supreme Court's greatly increased reliance on these procedures as tools for shaping the decisional law, perhaps the time has come for a bit more candor.

We take our cue from In re Eli F., supra, 212 Cal.App.3d at pages 234-235, 260 Cal.Rptr. 453. The court in Eli followed In re T.M. (1988) 206 Cal.App.3d 314, 316, 253 Cal.Rptr. 535, which held that legislation precluding appeals from orders authorizing the filing of a petition to terminate parental rights (Welf. & Inst.Code, § 366.25, subd. (j)) applied retroactively and terminated appeals that were pending when the legislation became effective. Eli found great significance in the fact that the Supreme Court denied review in In re T.M., and then a week later dismissed review in several other cases that presented the same issue. "Given the wholesale disposition of these cases in the face of an appellate interpretation of the new statute, we believe the Supreme Court has made its unspoken views clear." (In re Eli F., supra, 212 Cal.App.3d at p. 235, 260 Cal.Rptr. 453.) Similarly, on the present issue the Supreme Court has made its views clear by depublishing Laury and Casillas and leaving Hockersmith as the only published decision addressing the propriety of Wojahn.

We recognize, of course, that having been depublished, the opinions in Laury and Casillas may not be "cited or relied on." (Cal.Rules of Court, rule 977(a).) We therefore give no citations to these two cases. We need not do so in any event, for they are described in the Hockersmith opinion. (217 Cal.App.3d at pp. 974-975, 266 Cal.Rptr. 380.) Nor do we rely on them as precedent. Rather, we rely on the Supreme Court's orders of April 26, 1990, denying review in Hockersmith and depublishing Laury and Casillas, as indicating the Supreme Court's views on the correctness of Hockersmith and Wojahn.

We also recognize that, effective July 1, 1990, new rule 979(e) of the California Rules of Court provides that a depublication order "shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion." Because the depublication orders in Laury and Casillas predate rule 979(c), we conclude the new rule does not apply to those orders. We note, however, that given the manner in which the Supreme Court has dealt with the three post-Wojahn cases, to insist that those depublication orders are without significance would be to perpetuate a myth.

Turning to Hockersmith, we find its analysis persuasive in its own right, even without reference to the Supreme Court's action. "In determining whether jeopardy attaches to a particular determination, the court focuses on two factors: 1) whether the procedures involved in adjudicating the issue are those traditionally associated with criminal trials, and; 2) whether the sanction imposed as a consequence of the determination is punitive in nature." (People v. Hockersmith, supra, 217 Cal.App.3d at pp. 972-973, 266 Cal.Rptr. 380, citations omitted.) The procedures involved in the adjudication of a prior conviction allegation include the alleging of the prior in the accusatory pleading, arraignment and plea on the allegation, the right to jury trial at which the prosecution has the burden of proving the elements of the prior beyond a reasonable doubt, and the requirement of separate findings on more than one allegation. These procedures "are clearly those traditionally associated with the trial of criminal cases." (Id., at p. 973, 266 Cal.Rptr. 380.) The penalty involved in Hockersmith--mandatory incarceration--was held punitive in nature, and so must the penalty of sentence enhancement involved here. "The purpose of imposing sanctions for prior convictions is to punish and deter recidivist behavior." (Ibid.,...