People v. Thomas

• Decision Date: 01 August 2001
• Docket Number: No. B144240.,B144240.
• Citation: 110 Cal.Rptr.2d 571,91 Cal.App.4th 212
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Lenvell THOMAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

110 Cal.Rptr.2d 571

91 Cal.App.4th 212

The PEOPLE, Plaintiff and Respondent, v. Michael Lenvell THOMAS, Defendant and Appellant.

No. B144240.

Court of Appeal, Second District, Division 5.

August 1, 2001.

Certified for Partial Publication.^*

As Modified Aug. 8, 2001.

Review Denied Oct. 31, 2001.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Michelle M. Paffile, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

Defendant, Michael Lenvell Thomas, appeals from his conviction for evading an officer with willful disregard for the safety of persons or property. (Veh.Code, § 2800.2, subd. (a).) Defendant was also found to have served two prior prison terms. (Pen.Code,¹ § 667.5, subd. (b).) Defense counsel waived defendant's right to a jury trial on the prior prison term allegations. Defendant was not asked to nor did he waive his right to a jury trial on prior prison term allegations. After the court trial on the prior prison term allegations, the United States Supreme Court issued its opinion in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, which held that, other than the fact of prior conviction, sentencing enhancements must be determined by a jury. In the published portion of this opinion, we discuss whether the Fourteenth Amendment Due Process Clause guarantees an accused the right to a jury trial on section 667.5 prior prison term allegations.

II. FACTUAL BACKGROUND^**

III. DISCUSSION

A.-C.^**

D. Jury Trial Regarding Prior Prison Terms

Defendant argues that he was denied a right to a jury trial regarding the two prior prison term allegations. He reaches this conclusion because the trial court failed to obtain his express personal waiver of his jury trial right. Through defense counsel, defendant agreed to bifurcate the trial on his prior convictions. Prior to the commencement of trial, the following occurred: "The Court: We also have the priors that are alleged, and it's my understanding that it's the defendant's desire to bifurcate the priors; is that correct? [¶] [Defense Counsel]: Can I have one moment, Your Honor. [¶] The Court: Yes [¶] (Sotto voce conference between [defense counsel] and the defendant.) [¶] [Defense Counsel]: Yes, Your Honor. That is his wish." (Italics added.) The jury was excused after it rendered its guilty verdict on the evading an officer charge. Thereafter, the trial court noted, "With reference to the proof of the priors, I believe in chambers we had indicated that there was going to be a jury waiver as far as their proof was concerned." Defense counsel answered, "Yes."

Defendant argues that he has been denied his right to a jury trial because he never personally agreed to allow the trial judge to decide the issue of validity of the two prior prison term allegations. The first question is whether there has been a state constitutional violation. That issue is controlled by the decision of the California Supreme Court in People v. Vera (1997) 15 Cal.4th 269, 277, 62 Cal.Rptr.2d 754, 934 P.2d 1279. In Vera the Supreme Court held: "When the defendant seeks to bifurcate the determination of the truth of the prior conviction allegation from determination of the defendant's guilt of the charged crimes, however, only the statutory right to jury trial is implicated in the trial of the sentencing allegations. Since there is no constitutional right to have the jury determine the truth of a prior conviction allegation [citation], it follows that the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate." (Ibid.) In People v. Epps (2001) 25 Cal.4th 19, 23, 104 Cal.Rptr.2d 572, 18 P.3d 2, the California Supreme Court held: "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 [supra,] 530 U.S. [at p.] 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; [People v.] Wiley [(1995)] 9 Cal.4th [580,] 585 [38 Cal.Rptr.2d 347, 889 P.2d 541].)" No state constitutional violation has occurred because defendant failed to personally waive his statutory jury trial right on the prior prison term allegations.

The second question is whether the failure to secure a personal agreement on defendant's part to have the trial judge determine the truth of the two prior prison term allegations was violative of the Sixth and Fourteenth Amendments jury trial right. Defendant's argument that the failure to have secured a personal waiver of his jury trial right was federal constitutional error is premised upon language in Apprendi v. New Jersey, supra, 530 U.S. at page 490, 120 S.Ct. 2348. Defendant relies upon the following language in Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Ibid., italics added.) A year prior to Apprendi, the Supreme Court held that as to "any fact (other than prior conviction)" that increased the maximum penalty for the crime charged, the Fifth Amendment Due Process Clause required a jury trial and proof beyond a reasonable doubt. (Jones v. United States (1999) 526 U.S. 227, 243, fn. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311.) Defendant accepts that if the two section 667.5 enhancements involved merely "prior convictions," there would be no federal jury trial right and no corresponding duty to secure a personal waiver of that privilege. Recognizing the controlling nature of Apprendi, defendant reasons that a prior prison term allegation involves more elements than the mere "fact of a prior conviction." Defendant correctly notes that a section 667.5 enhancement requires more than a mere conviction. The accused must have served a prison term as defined in the statute. (People v. Lopez (1985) 163 Cal.App.3d 946, 951, 210 Cal.Rptr. 56; 3 Witkin and Epstein, Cal.Criminal Law (3d ed. 2000) Punishment, § 335, p. 432.) Therefore, defendant contends that all of the other elements of a prior prison term enhancement beyond the mere fact of the conviction are subject to a jury trial right under the Due Process Clause of the Fourteenth Amendment. As a corollary of that argument, defendant argues that since he never personally waived his jury trial right, he is entitled to a new trial on the two prior prison term enhancement allegations. For the following reasons, we respectfully disagree.

Defendant's narrow reading of the words "fact of a prior conviction" in Apprendi is without merit because his analysis takes that language out of its context. In Almendarez-Torres v. United States (1998) 523 U.S. 224, 226, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350, a decision which preceded Apprendi the United States Supreme Court examined the due process ramifications of a sentence enhanced in part by reason of a prior conviction. In Almendarez-Torres, the accused was alleged to be an alien who had illegally returned to the United States after having previously been deported following conviction of an "aggravated felony." Accordingly, the accused was subject to an enhanced sentence of up to 20 years in federal prison pursuant to title 8 Unit ed States Code section 1326(b)(2)².

Speaking for the majority, Associate Justice Stephen Breyer framed the question to be decided in Almendarez-Torres as follows: "The question before us is whether this latter provision defines a separate crime or simply authorizes an enhanced penalty. If the former, i.e., if it constitutes a separate crime, then the Government must write an indictment that mentions the additional element, namely, a prior aggravated felony conviction. If the latter, i.e., if the provision simply authorizes an enhanced sentence when an offender also has an earlier conviction, then the indictment need not mention that fact, for the fact of an earlier conviction is not an element of the present crime. We conclude that the subsection is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment." (Id. at pp. 226-227, 118 S.Ct. 1219.)

In Almendarez-Torres, the Supreme Court rejected the defendant's argument that the prior conviction constituted an element of the crime which the Fifth Amendment Due Process Clause required to be alleged in the indictment. Justice Breyer stated: "[T]he sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. See, e.g., Parke v. Raley, 506 U.S. 20, 26 [113 S.Ct. 517, 121 L.Ed.2d 391] (1992) (Recidivism laws `have a long tradition in this country that dates back to colonial times' and currently are in effect in all 50 States); U.S. Dept. of Justice, Office of Justice Programs, Statutes Requiring the Use of Criminal History Record Information 17-11 (June 1991) (50 state survey); USSG §§ 4A1.1, 4A1.2 (Nov. 1997) (requiring sentencing court to consider defendant's prior record in every case). Consistent with this tradition, the Court said long ago that a State need not allege a defendant's prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was `necessary to bring the case within the statute.' Graham v. West Virginia, 224 U.S. 616, 624 [32 S.Ct. 583, 56 L.Ed. 917] (1912). That conclusion followed, the Court said, from `the distinct nature of the issue,' and the fact that...