People v. Saunders

• Decision Date: 07 August 1991
• Docket Number: No. B050162,B050162
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 232 Cal.App.3d 1574, 15 Cal.App.4th 518, 3 Cal.App.4th 1082, 9 Cal.App.4th 909 232 Cal.App.3d 1574, 15 Cal.App.4th 518, 3 Cal.App.4th 1082, 9 Cal.App.4th 909 The PEOPLE, Plaintiff and Respondent, v. Dennis Romero SAUNDERS, Defendant and Appellant.

Page 485

285 Cal.Rptr. 485

Previously published at 232 Cal.App.3d 1574, 15 Cal.App.4th 518, 3 Cal.App.4th 1082, 9 Cal.App.4th 909

232 Cal.App.3d 1574, 15 Cal.App.4th 518, 3 Cal.App.4th 1082,

9 Cal.App.4th 909

The PEOPLE, Plaintiff and Respondent, v. Dennis Romero SAUNDERS, Defendant and Appellant.

No. B050162.

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

Aug. 7, 1991.

Review Granted Nov. 14, 1991.

[15 Cal.App.4th 520] Paul M. Posner, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Susan D. Martynec and Pamela C. Hamanaka, Deputy Attys. Gen., for plaintiff and respondent.

VOGEL, Associate Justice.

INTRODUCTION

In 1905, our Legislature declared that when a defendant pleads not guilty to a current offense and denies an allegation that he has suffered a prior felony conviction, the truth of the allegation must be "tried by the jury which tries the issue upon the plea of not guilty" or by the court if a jury is waived. "In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial." (Pen.Code, § 1025; emphasis added.) ¹

For the following 75 years, our courts consistently read section 1025 to mean what it says--that the jury would hear about the prior unless the defendant either admitted the allegation or waived jury on that issue--and with rhythmic regularity rejected the notion of a bifurcated trial, refusing to impose by judicial legislation a two-tiered trial process never contemplated by section 1025 (or a two-jury process expressly prohibited by section 1025). ²

But then along came People v. Bracamonte (1981) 119 Cal.App.3d 644, 650-651, 174 Cal.Rptr. 191, telling us we were all naive in our assumption that the prejudicial effect of evidence of priors could be overcome by instructions to the jury and that the " 'weight of modern authority calls for a mandatory two-stage trial for the trial of the collateral issue of enhanced punishment to avoid prejudice to the defendant in the initial determination of the issue of guilt.' ..." Bifurcation, we were told, "would be at least as economical of court time as the unitary practice" and would " 'not offend any principle of orderly procedure nor tend to delay justice. In fact it might well expedite justice, for if a defendant is acquitted on the substantive charge, there is no occasion to take time to present evidence of prior convictions.' ..." (Id. at p. 653, 174 Cal.Rptr. 191.)

Time and experience have proved Bracamonte wrong. The problem is that Bracamonte did not anticipate the next step--the California rule that if the trial court improvidently discharges the jury after it returns its guilty verdict but before the issue of the prior is tendered to it, double jeopardy considerations prohibit the impaneling of a new jury to try the issue of the prior. (People v. Wojahn (1984) 150 Cal.App.3d 1024, 1035, 198 Cal.Rptr. 277.) Not surprisingly, several courts have recognized the problem thus created and have refused to follow either Bracamonte or Wojahn or both. What is surprising is that each of those decisions has been decertified by our Supreme Court and a petition for review has yet to be granted on this issue. ³

The message is clear, but there is a dark side to it. A defense attorney who represents to the court that jury will be waived on the issue of the prior must renege if the trial court erroneously discharges the jury before taking the jury waiver or be found incompetent. As will appear, that is precisely what happened in this case.

We can no longer go along with the game. For the reasons we explain in more detail below, we part company with Bracamonte and conclude that neither constitutional considerations nor concepts of fundamental fairness require bifurcation when a prior felony conviction is alleged. If a defendant stands on his right to have a jury decide whether in fact he has suffered a prior felony conviction as alleged, that issue should be determined along with all other issues in the case and bifurcation is not required. If there is a bifurcated trial and the defendant is convicted of the new charges, a discharge of the jury does not preclude trial of the priors.

FACTS

By amended information, Dennis Romero Saunders was charged with attempted murder (with a firearm), commercial burglary and assault with a firearm. Among other special allegations, sixteen prior convictions (three prior separate prison terms) were also alleged:

                Date      Crime
                02"01"75  Possession of Stolen Mail
                05"21"80  Residential Burglary
                          Residential Burglary
                          Residential Burglary
                          Robbery
                          Robbery
                          Robbery
                          Robbery
                          Robbery
                          Rape With Force
                          Assault with a Deadly Weapon
                          Rape With Force
                          Oral Copulation
                          Oral Copulation
                          Robbery
                06"16"88  Attempted Robbery
                

Saunders pleaded not guilty, denied all of the special allegations (including the priors) and the case was tried to a jury. Saunders' motion to bifurcate trial on the priors was granted but his motion to preclude impeachment by reference to the priors in the event he testified was denied (although the trial court did limit the prosecutor to three counts of burglary, six counts of robbery, one count of attempted robbery, and the conviction for possessing stolen mail).

Saunders testified on his own behalf. On direct, he admitted his prior convictions for possession of stolen mail (in 1975), three counts of burglary (in 1980) and one count of attempted robbery (in 1988), explaining to the jury that he had pleaded guilty to all of these offenses because "I was guilty of the charges." He also admitted on direct that he was on parole at the time of the offenses charged in this case. On cross-examination, Saunders admitted that his 1980 guilty plea included five counts of robbery in addition to the three counts of burglary; that in 1980 he was convicted of six and not merely five counts of robbery; and clarified that in 1988 he was convicted of attempted robbery, not robbery. Thus, eleven of the sixteen priors were admitted.

On March 15, 1990, the jury acquitted Saunders of the attempted murder and assault charges but convicted him of commercial burglary. Without obtaining a waiver from Saunders of his right to have the jury determine whether the allegations concerning his priors were true, the jury was discharged and the matter was continued to the next day. All of this took place in the absence of Saunders' trial counsel (Deputy Public Defender Janet Aldapa), who could not be present and had another attorney from her office stand in for her.

Ms. Aldapa was back in court on March 16, 1990. In response to the trial court's inquiry, she confirmed that it was Saunders' intent to waive jury on the priors and the trial court then obtained a jury waiver from Saunders, with Ms. Aldapa's concurrence. The Deputy District Attorney joined in the waivers and offered certified copies of Saunders' prior convictions. The documents were received and the trial court indicated it would hear argument at the next hearing date. The matter was continued to March 19, without any inquiry from Ms. Aldapa about the status of the jury.

On March 19, Ms. Aldapa asked the trial court to strike the priors on the ground that the jury was dismissed prior to Saunders' jury waiver. The trial court reminded counsel that she had "indicated to the court that [after she reviewed the paperwork] there would most likely be a stipulation to [the priors]. But at the very most, we would need a court trial in regards to that and for sure there would be a waiver of the jury." The court indicated its intent to reject counsel's jeopardy argument on the ground that the court had been misled by her representations that jury would be waived, but offered to relieve Saunders of his jury waiver and call in a new jury to try the priors.

Without apology, Ms. Aldapa explained that when she returned to court on March 16, she "assumed" the jury had been "excused," not "discharged," and based on that assumption had told her client "there's no issue because a jury has not been discharged, so just waive jury ... it's the best thing to do under the circumstances. He agreed to a jury waiver based on the information I gave to him. [H]ad I been informed that the jury had been discharged, I would never have waived jury."

The trial court stood by its intended decision and a second jury was selected. Pursuant to stipulation, the new jury was informed that Saunders had, in two prior trials (there was an earlier mistrial in the case at bench) admitted several of the charged felonies. This was followed by testimony from a fingerprint classifier that Saunders' prints matched the prints on a certified record obtained from the United States Penitentiary at Lompoc, California, and by the custodian of records for the Department of Corrections of the State of California who authenticated and explained the "proof of priors" package for Saunders' state court convictions. The People rested. Ms. Aldapa's motion to dismiss the prior federal conviction was denied and the defense rested.

Upon completion of the prosecutor's opening argument, Ms. Aldapa waived closing argument. ⁴ The jury was instructed and retired to deliberate at 3:00 p.m. At 4:06 p.m., the jury returned to the courtroom with its verdict, finding true the allegations (1) that Saunders had been convicted of possession of stolen mail (for which he served a prior prison term) prior to his conviction in this case and that he remained free of custody for a period of less than five years; (2) that Saunders had been convicted of two counts of rape, two counts of oral copulation, three counts of burglary, and six counts of robbery...