People v. Epps

• Decision Date: 05 March 2001
• Docket Number: No. S082110.,S082110.
• Citation: 18 P.3d 2,104 Cal.Rptr.2d 572,25 Cal.4th 19
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dennis Lee EPPS, Defendant and Appellant.

104 Cal.Rptr.2d 572

25 Cal.4th 19

18 P.3d 2

The PEOPLE, Plaintiff and Respondent, v. Dennis Lee EPPS, Defendant and Appellant.

No. S082110.

Supreme Court of California.

March 5, 2001.

Rehearing Denied May 16, 2001.

Marilyn Drath, San Rafael, under appointment by the Supreme Court, for Defendant and Appellant.

Michael P. Judge, Public Defender (Los Angeles), Albert J. Menaster and Alex Ricciardulli, Deputy Public Defenders, as Amici Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, William T. Harter, Jeffrey Kahan, John R. Gorey and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

In this case, we decide whether the 1997 amendment to Penal Code section 1025, which added subdivision (c), effectively eliminated the right to a jury trial of prior conviction allegations, and if not, whether the erroneous denial of a jury trial in this context is subject to harmless error analysis on appeal. Consistent with our opinions in People v. Wiley (1995) 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541 (Wiley ) and People v. Kelii (1999) 21 Cal.4th 452, 87 Cal.Rptr.2d 674, 981 P.2d 518 (Kelii ), we conclude the amendment did not completely eliminate the right to a jury trial, but it considerably narrowed the issues that the jury must decide. We also conclude denial of this very limited right to a jury trial is subject to harmless error analysis.

Factual and procedural background

On October 17, 1997, plainclothes police, conducting a surveillance, parked in front of a residence in Los Angeles. Defendant approached the police car and removed a chrome handgun from his coat pocket. He pointed the gun at the officers and said, "Do you want some of this?" The officers left, returned with uniformed backup, and arrested defendant. They found in his possession a suitcase containing a loaded .32-caliber chrome revolver, plastic bags containing marijuana and heroin, and a scale.

The District Attorney of Los Angeles County charged defendant by information with two counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)),¹ and one count each of felon in possession of a firearm (id., § 12021, subd. (a)(1)), sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), possession of marijuana for sale (id, § 11359), and possession of a controlled substance for sale (id., § 11351). The information also alleged firearm enhancements (Pen.Code, §§ 12022.5, subds.(a), (d) [use of a firearm re assault counts], 12022, subd. (a)(1) [armed with firearm re marijuana-related counts] ). Finally, the information alleged a prior serious felony conviction (kidnapping in violation of Pen.Code, § 209) for purposes of both the five-year enhancement (id., § 667, subd. (a)(1)) and the three strikes law (id, § 667, subds. (b)-(i)), as well as four prior prison terms for purposes of the one-year enhancement (id., § 667.5, subd. (b)).

The trial court bifurcated the trial of the prior conviction allegations from the trial of the substantive offenses. The jury found defendant guilty on all counts and found the firearm allegations true. The trial court then dismissed the jury, despite defendant's objection, and held a bench trial on the prior conviction allegations, finding those allegations true. The court sentenced defendant to 34 years, 8 months in state prison. Defendant appealed, arguing among other things that section 1025 entitled him to a jury trial of the prior conviction allegations. The Court of Appeal agreed, reversed the sentence, and remanded. The court concluded that denial of the jury trial warranted reversal irrespective of prejudice. We granted the Attorney General's petition for review in order to decide what, if anything, remains of a defendant's right under section 1025 to a jury trial of prior conviction allegations and whether denial of a jury trial in this context automatically requires reversal.

Discussion

I. Did the 1997 Amendment to Section 1025 Eliminate the Right to a Jury Trial of Prior Conviction Allegations?

The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466, 487-490, 496, 120 S.Ct. 2348, 2361-2363, 2366 (Apprendi)

; Wiley, supra, 9 Cal.4th at p. 585,

38 Cal.Rptr.2d 347,

889 P.2d 541.) Prior to the 1997 amendment, section 1025 provided in relevant part: "When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction.... If he answers that he has not, ... the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty...." (Stats.1951, ch. 1674, § 88, pp. 3844-3845.) Similarly, section 1158 provides in relevant part: "Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury ... must ... find whether or not he has suffered such previous conviction."

We construed these sections in Wiley, supra, 9 Cal.4th at pages 583 and 592, 38 Cal.Rptr.2d 347, 889 P.2d 541, holding that the question whether multiple prior serious felony convictions were "`brought and tried separately'" should be decided by the court rather than the jury. We noted that sections 1025 and 1158 "are limited in nature." (Wiley, at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.) "By their terms, [these sections] grant a defendant the right to have the jury determine only whether he or she `suffered' the alleged prior conviction...." (Ibid.) We also noted the question, whether prior convictions were "`brought and tried separately,'" was "largely legal," though it might have some factual content. (Id. at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.) We said the relevant factual issues "generally are readily ascertainable upon an examination of court documents," and "[t]his is the type of inquiry traditionally performed by judges as part of the sentencing function." (Ibid.)

In Kelii supra, 21 Cal.4th at pages 454 and 457, 87 Cal.Rptr.2d 674, 981 P.2d 518, we reaffirmed our reasoning in Wiley, holding that the question whether a prior conviction is a serious felony for purposes of the three strikes law was also for the court, not the jury. Again, we said the statutory right to a jury trial is restricted "to hav[ing] a jury decide whether the defendant `has suffered' ... the prior conviction." (Kelii at p. 457, 87 Cal.Rptr.2d 674, 981 P.2d 518.) Again, we noted the question on which the defendant was seeking a jury trial was largely legal, though it might have some "limited" factual content. (Id. at p. 456, 87 Cal.Rptr.2d 674, 981 P.2d 518.) Again, we held "[a] factual inquiry, limited to examining court documents, is ... `the type of inquiry traditionally performed by judges as part of the sentencing function.'" (Id at p. 457, 87 Cal.Rptr.2d 674, 981 P.2d 518, quoting Wiley, supra, 9 Cal.4th at p. 590, 38 Cal. Rptr.2d 347, 889 P.2d 541.)

While Kelii was on appeal, Senate Bill No. 1146 (1997-1998 Reg. Sess.) (Senate Bill 1146) was signed into law and took effect. As originally introduced, Senate Bill 1146 unambiguously eliminated the right to a jury trial of prior conviction allegations.² The bill would have amended section 1025 to say: "[T]he question whether or not [the defendant] has suffered the previous conviction shall be tried by the court." (Sen. Bill 1146, as introduced Feb. 28, 1997, p. 2.) During a hearing before the Senate Committee on Public Safety, supporters of Senate Bill 1146 asserted the only issue at a prior conviction trial is whether the present defendant is the same person described in the records of the prior conviction—that is, the question of identity. The evidence on this point, they argued, was generally conclusive, and the trial court could expeditiously try the issue without a jury. They also argued jury trials of this issue were burdensome and expensive for the court system, as well as aggravating for jurors.

The bill's opponents countered that identity was not the only issue that might arise in a prior conviction trial—a defendant, they asserted, also had a right to a jury trial of whether the prior conviction is a serious felony for purposes of the three strikes law. Of course, our decision in Kelii ultimately negated this argument, but at the time of the Senate committee hearing, we had not yet decided Kelii and the question was still open.

The proponents of Senate Bill 1146 continued to maintain that identity was the only jury issue, but to obviate the concerns of the bill's detractors, they amended the bill so that it eliminated the right to a jury trial only with respect to the issue of identity. As amended, Senate Bill 1146 would have left section 1025 largely intact, but added the following exception: "If the question of whether or not the defendant has suffered the prior conviction is solely an issue of identity, the question ... shall be tried to the court." (Sen. Bill 1146, as amended May 21, 1997, p. 2.) The Assembly felt this wording was too vague. It made some clarifying amendments, and Senate Bill 1146 was then adopted into law. (Sen. Bill 1146, as amended June 19, 1997.) The final version of Senate Bill 1146 divided section 1025 into subdivisions. Subdivisions (b) and (c) of section 1025 now provide in relevant part: "(b) Except as provided in subdivision (c), the 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 .... [H] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the...