People v. Harris

• Decision Date: 02 October 1992
• Docket Number: No. AO55917,AO55917
• Citation: 12 Cal.Rptr.2d 505,15 Cal.App.4th 1091
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 15 Cal.App.4th 1091, 9 Cal.App.4th 1735 15 Cal.App.4th 1091, 9 Cal.App.4th 1735 PEOPLE of the State of California, Plaintiff and Respondent, v. Glenn HARRIS, Defendant and Appellant.

Page 505

12 Cal.Rptr.2d 505

Previously published at 15 Cal.App.4th 1091, 9 Cal.App.4th 1735

15 Cal.App.4th 1091, 9 Cal.App.4th 1735

PEOPLE of the State of California, Plaintiff and Respondent, v. Glenn HARRIS, Defendant and Appellant.

No. AO55917.

Court of Appeal, First District, Division 1, California.

Oct. 2, 1992.

As Modified Oct. 30, 1992.

Review Granted Jan. 14, 1993.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Senior Asst. Atty. Gen., Lawrence K. Sullivan, and Ronald S. Matthias, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Richard J. Krech, Krech & Cole, Oakland, for defendant and appellant.

NEWSOM, Associate Justice.

Appellant was charged with residential burglary (Pen.Code, § 459) ¹ and eight prior convictions (§§ 667, 667.5, subd. (b)). At the trial setting conference, appellant's counsel announced that appellant had agreed "to have a court trial on the priors...." The court then granted appellant's motion to bifurcate the proceedings, with jury trial on the underlying burglary charge severed from court trial on the alleged prior convictions.

Appellant was found guilty of burglary following a jury trial, and the jurors were discharged without objection by defense counsel. ² Appellant was then asked if he was willing to admit the allegations of prior convictions. Defense counsel stated, "The priors are admitted," but indicated that one of the alleged prior convictions was "a one-year prior as opposed to a five-year prior." With that amendment, the prior convictions were admitted by defense counsel. The trial court subsequently advised appellant that admission of the prior convictions "is a form of self-incrimination in that you are admitting something on which I then can base enhancements of any sentence imposed upon you." Appellant replied, "I don't fully understand that, sir," whereupon the trial court stated: "All right. Let's do this then. Why don't we just prove them."

A court trial on the prior convictions ensued. Six of the charged prior convictions were "found to be true," two were "not found." Appellant was subsequently sentenced to a total of 27 years in state prison, 25 of which are attributable to the prior convictions.

Appellant contends that his waiver of a jury trial on the allegations of prior convictions was defective and requires that we not only strike the enhancement findings but also "order those allegations dismissed with prejudice." He claims that the jury trial waiver by his counsel was invalid, necessitating reversal of the findings on the prior convictions. He further argues that retrial of the enhancement allegations is prevented by the constitutional prohibition against double jeopardy and section 1025.

The Attorney General acknowledges that appellant's jury trial waiver was not properly entered. Appellant was neither advised of nor personally waived his right to a jury trial on the enhancement allegations. Waiver of the right to a jury trial may not be entered by counsel or inferred from the defendant's conduct; the record must show an express, personal and unequivocal waiver by the defendant. (People v. Guzman (1988) 45 Cal.3d 915, 935, 248 Cal.Rptr. 467, 755 P.2d 917; People v. Holmes (1960) 54 Cal.2d 442, 443-444, 5 Cal.Rptr. 871, 353 P.2d 583; People v. Kemick (1971) 17 Cal.App.3d 419, 424, 94 Cal.Rptr. 835.) Without any express personal statement by appellant, we are compelled to find the waiver invalid. (People v. Holmes, supra, 54 Cal.2d at p. 444, 5 Cal.Rptr. 871, 353 P.2d 583; People v. Kemick, supra, 17 Cal.App.3d at p. 424, 94 Cal.Rptr. 835; People v. Walker (1959) 170 Cal.App.2d 159, 166, 338 P.2d 536; People v. Benjamin (1956) 140 Cal.App.2d 703, 704, 295 P.2d 477.)

We further conclude that the invalid jury trial waiver compels reversal of that part of the judgment finding the prior convictions proved. Under the test of reversible error recently announced in People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, a defective articulation and waiver of constitutional rights shall require the waiver to be set aside only if, under the "federal test," the record fails to show "that it is voluntary and intelligent under the totality of circumstances." (Id. at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) Thus, we must now "consider whether the record in this case affirmatively shows" that appellant made a "knowing and voluntary waiver of his constitutional rights." (Id. at p. 1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) Based upon the record before us, we cannot find a knowing and voluntary waiver by appellant of his right to a jury trial. The evidence fails to demonstrate that appellant was ever advised of his right to a jury trial before the waiver was entered. (Cf. People v. Howard, supra, 1 Cal.4th at p. 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315; People v. Martin 9180) 111 Cal.App.3d 973, 982, 169 Cal.Rptr. 52.) Appellant's right to a jury trial on the allegations of prior convictions was waived unilaterally by defense counsel without any express concurrence or even participation by appellant. This is not a case of mere lack of an explicit admonition of constitutional rights, where the record otherwise demonstrates the defendant's knowledge of such rights. (Cf. People v. Howard, supra, 1 Cal.4th at p. 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) We have not been presented with any basis upon which to find that appellant's waiver was voluntary and intelligent, and so reversal is an appropriate and necessary disposition under the Howard test.

The remaining and more difficult issue is whether, following the invalid jury trial waiver and subsequent discharge of the jury, retrial of appellant on the penalty enhancement allegations is barred by the constitutional prohibition against double jeopardy or by section 1025. ³ The issue has generated considerable conflict and discussion in the appellate courts, and is presently before the California Supreme Court. ⁴

The essential principles embodying the proscription against double jeopardy are well established. " 'The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.' " (Stone v. Superior Court (1982) 31 Cal.3d 503, 515, 183 Cal.Rptr. 647, 646 P.2d 809; People v. Costa (1991) 1 Cal.App.4th 1201, 1208, 2 Cal.Rptr.2d 720.) "Principally, double jeopardy 'prohibits retrial after a conviction has been reversed because of insufficiency of the evidence. [Citations.]' " (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72, 2 Cal.Rptr.2d 389, 820 P.2d 613.) "This rule of constitutional law applies 'in the context of a trial of a prior conviction when insufficient evidence is introduced to sustain the allegation.' [Citation.]" (People v. Goodner (1990) 226 Cal.App.3d 609, 613, 276 Cal.Rptr. 542.) ⁵ Section 1025 embodies the principles of the double jeopardy rule by specifically providing that the same jury which decides the issue of guilt on the main offense must hear and decide the question of the alleged prior conviction. ⁶ (People v. Hockersmith (1990) 217 Cal.App.3d 968, 976, 266 Cal.Rptr. 380; People v. Wojahn (1984) 150 Cal.App.3d 1024, 1034, 198 Cal.Rptr. 277.)

The primary objective underlying the double jeopardy rule "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199; People v. Burgess (1988) 206 Cal.App.3d 762, 767, 253 Cal.Rptr. 828.) " 'The theory of double jeopardy is that a person need run the gantlet only once. The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct....' " (People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332, 1341, 266 Cal.Rptr. 563; quoting from North Carolina v. Pearce (1969) 395 U.S. 711, 727, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656 (conc. opn. of Douglas, J.).)

There is no dispute that jeopardy attached to the proceedings below. Jeopardy attaches in criminal cases when a jury is impaneled and sworn to try a case. (Crist v. Bretz (1978) 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24; Serfass v. United States (1975) 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265; Jackson v. Superior Court (1937) 10 Cal.2d 350, 352, 74 P.2d 243; People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231, 6 Cal.Rptr.2d 242.) "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. [Citations.]" (People v. Hockersmith, supra, 217 Cal.App.3d 968, 972-973, 266 Cal.Rptr. 380; see also People v. Dee (1990) 222 Cal.App.3d 760, 765, 272 Cal.Rptr. 208.) The procedures associated with adjudication of a prior conviction are criminal in nature, the penalties involved are punitive; hence, the unalterable conclusion is that appellant was placed in jeopardy in the trial court. (Ibid; see also People v. West (1990) 224 Cal.App.3d 1283, 1287, 274 Cal.Rptr. 524.)

Our inquiry is not ended, however, with the finding that jeopardy attached to the adjudication of appellant's guilt on the underlying burglary offense and prior convictions. The double jeopardy rule "states a fundamental principle limiting the state's right repeatedly to prosecute a defendant. It is not an...