People v. Ryan, F014171

• Decision Date: 20 September 1991
• Docket Number: No. F014171,F014171
• Citation: 12 Cal.App.4th 917,285 Cal.Rptr. 712
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 234 Cal.App.3d 289, 12 Cal.App.4th 917, 18 Cal.App.4th 178, 6 Cal.App.4th 197 234 Cal.App.3d 289, 12 Cal.App.4th 917, 18 Cal.App.4th 178, 6 Cal.App.4th 197 The PEOPLE, Plaintiff and Respondent, v. Ricky Lynn RYAN, Defendant and Appellant.

Page 712

285 Cal.Rptr. 712

Previously published at 234 Cal.App.3d 289, 12 Cal.App.4th 917, 18 Cal.App.4th 178, 6 Cal.App.4th 197

234 Cal.App.3d 289, 12 Cal.App.4th 917, 18 Cal.App.4th 178,

6 Cal.App.4th 197

The PEOPLE, Plaintiff and Respondent, v. Ricky Lynn RYAN, Defendant and Appellant.

No. F014171.

Court of Appeal, Fifth District, California.

Sept. 20, 1991.

Certified for Partial Publication ^*.

Review Granted Dec. 12, 1991.

[18 Cal.App.4th 179] K. Douglas Cummings, under appointment by the Court of Appeal, Sacramento, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Arnold O. Overoye and Robert R. Anderson, Asst. Attys. Gen., Michael J. Weinberger and Joel Carey, Sacramento, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

BUCKLEY, Associate Justice.

Following a bifurcated trial in which defendant Ricky Lynn Ryan was convicted of selling cocaine (Health & Saf.Code, § 11352) and found to have suffered an enhancement under Penal Code section 667.5, subdivision (b), Ryan appeals. He cites as reversible error insufficiency of the evidence, improper instruction of the jury, prosecutorial misconduct and denial of his right to a jury trial on the enhancement. We will affirm.

In the published portion of this opinion, we hold that to the extent the double jeopardy clause is invoked by the erroneous discharge of a jury in a bifurcated proceeding, the right to assert double jeopardy may be waived by conduct of counsel.

FACTS ^**

IV.

Penal Code Section 667.5, Subdivision (b) Enhancement

After the verdict on the substantive charge was read and the jury polled, the trial judge told the jurors, "you were admonished earlier that you could not discuss the case. You are now relieved of that admonishment." The court thanked the jurors and told them to report back for jury service next week. The jury was never apprised of the existence of the prior conviction.

The trial judge then stated:

"THE COURT: The record should reflect that I let them go; but, you know, on your representation, Mr. Petilla, I haven't got a jury waiver. I should have waited until I got that. But on your representation that it was going to be a court trial I let them go. Do you think I should hold them until I get the waiver?

"MR. PETILLA: I talked to my Defendant, your Honor. He wants a court trial."

Immediately thereafter the trial judge conducted voir dire of Ryan to ensure Ryan's understanding of his right to a jury trial. He then took a personal waiver of jury trial from Ryan.

Ryan contends that the imposition of sentence on the enhancement must be vacated because the trial court dismissed the jury prior to the waiver of jury trial, in derogation of his statutory right to have the same jury try the enhancement that tried the underlying case and in derogation of his right against double jeopardy. The People counter by arguing that Ryan waived his right to a jury trial by his counsel's representation to the trial court, prior to the discharge of the jury, that a jury was going to be waived.

Upon the facts presented, we conclude there was a waiver by the representations of defense counsel; however, the waiver effected was not of a jury trial, but of the statutory right under Penal Code section 1025 and the constitutional right against double jeopardy.

Penal Code section 1025 establishes the right of each person who is charged in an accusatory pleading with having suffered a previous conviction to have the issue of the previous conviction tried by the same jury which tried the issue upon the plea of not guilty. ²

It has long been held that rights guaranteed only by statute can be waived by counsel alone or by implication. (See, e.g., Townsend v. Superior Court (1975) 15 Cal.3d 774, 780, 126 Cal.Rptr. 251, 543 P.2d 619; People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008.)

Therefore, if Penal Code section 1025 were merely a statute bereft of constitutional support, our discussion would end here. However, section 1025 does have fundamental constitutional underpinnings. It has been declared to be an embodiment of double jeopardy principles. (People v. Hockersmith (1990) 217 Cal.App.3d 968, 976, 266 Cal.Rptr. 380.)

In People v. Bracamonte (1981) 119 Cal.App.3d 644, 651, 174 Cal.Rptr. 191, it was held that the defendant has the right to a two-stage or bifurcated proceeding which requires the trial of the underlying charge first and, if guilt is found, trial of the prior convictions.

In People v. Wojahn (1984) 150 Cal.App.3d 1024, 1033-1035, 198 Cal.Rptr. 277, it was held that, in addition to statutory provision under Penal Code section 1025 requiring the same jury to try both issues, double jeopardy principles compelled the same result. The court stated, "... when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction. Consequently jeopardy attached to both issues." (Id. at p. 1035, 198 Cal.Rptr. 277.)

While we may question the basis for the conclusion reached by Wojahn (see, e.g., People v. Saunders (1991) 232 Cal.App.3d 1574, 1585, 285 Cal.Rptr. 485 discussing Wojahn ), with the exception of Saunders, there are no cases extant which hold otherwise.

As noted by Justice King in People v. Dee (1990) 222 Cal.App.3d 760, 763, 272 Cal.Rptr. 208, wherein he charted the survival of those cases following Wojahn and the demise by depublication of those cases in disagreement, "The message from the Supreme Court is obvious: ... Wojahn [is] correct."

In this case, however, we do not have a simple inadvertence of the trial court in discharging a jury prematurely; we have a discharge ordered in reliance upon the representation of defense counsel that Ryan wanted a court trial.

Ryan correctly notes that in order for an effective waiver of a jury trial to be made, the defendant personally must do so. (See Cal. Const., art. I, § 16; In re Tahl (1969) 1 Cal.3d 122, 131, 81 Cal.Rptr. 577, 460 P.2d 449.) However, he misinterprets what transpired in the trial court. After the jury was discharged, the judge took a personal waiver of jury trial from Ryan which complied in all respects with Tahl. Therefore, we are not presented with an issue of whether counsel could validly waive the right to a jury trial for Ryan. There was a valid personal waiver. We are instead presented with the issue of whether counsel can effectively waive his client's right against double jeopardy. Under the circumstances presented, that is precisely what occurred.

In Boykin v. Alabama (1969) 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, the United States Supreme Court held that certain specific rights must be waived in order to plead guilty; the privilege against self-incrimination, the right to jury trial and the right to confront one's accusers. In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, held that those same three "important federal rights" cannot be presumed from a silent record. (Id. at p. 130, 81 Cal.Rptr. 577, 460 P.2d 449.) There must be an express waiver of those rights prior to acceptance of his guilty plea. (Id. at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

It cannot be disputed that as a specific right guaranteed under the Fifth Amendment, the double jeopardy clause is an "important federal right." Nevertheless, while the "important federal rights" of jury trial, right against self-incrimination and the right of confrontation require a personal waiver, courts have held that the right against double jeopardy can be waived by counsel or by implication. (People v. Ramirez (1972) 27 Cal.App.3d 660, 671, 104 Cal.Rptr. 102; People v. Moore (1983) 140 Cal.App.3d 508, 513, 514, 189 Cal.Rptr. 487.)

Absent legal necessity or the inability of the jury to reach a verdict, the defendant must consent to a mistrial. (Curry v. Superior Court (1970) 2 Cal.3d 707, 713-714, 87 Cal.Rptr. 361, 470 P.2d 345.) A formal motion for a mistrial made by defendant through counsel is construed as consent to a mistrial on the defendant's part. (Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 692, 21 Cal.Rptr. 753.)

In Curry v. Superior Court, supra, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345, our Supreme Court granted a writ of prohibition sought by the defendant, finding that the trial judge's actions in ordering a mistrial, without either express or implied consent of the defendant, invoked double jeopardy principles. However, in concluding that the judge's order was sua sponte, the Supreme Court recognized that affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent. (Id. at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345.)

In People v. Terry (1970) 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961, the Supreme Court, in response to the Attorney General's argument that the trial judge could not have granted a mistrial, so as to grant a severance, without invoking the double jeopardy clause, stated:

"This assertion is unsound. Before trial began and before [People v.] Aranda [ (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265] was decided, a motion to sever had been made and the judge said it was denied by the court. The defendants never indicated in any way thereafter that they no longer desired a severance. Therefore, if, when the Aranda question later arose, the judge had granted a mistrial on his own motion, defendants would be deemed to have consented to the mistrial, since it was granted to achieve their original objective of severance. Of course, if defendants consent to a mistrial they cannot successfully later urge former jeopardy." (23 Cal.3d at p. 386, 85 Cal.Rptr. 409, 466 P.2d 961, fn. omitted.)

In United States v. Dinitz (1976) 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, defendant had retained as counsel, Jeffrey Meldon. Five days prior to trial, defendant also retained as cocounsel, Maurice Wagner....