People v. Ward, No. E008949

• Decision Date: 17 February 1993
• Docket Number: No. E008949
• Citation: 13 Cal.App.4th 630,16 Cal.Rptr.2d 864
• Parties: Previously published at 13 Cal.App.4th 630, 18 Cal.App.4th 1339 13 Cal.App.4th 630, 18 Cal.App.4th 1339 PEOPLE of the State of California, Plaintiff and Respondent, v. Ignatious Kermit WARD, et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 864

16 Cal.Rptr.2d 864

Previously published at 13 Cal.App.4th 630, 18 Cal.App.4th 1339

13 Cal.App.4th 630, 18 Cal.App.4th 1339

PEOPLE of the State of California, Plaintiff and Respondent, v. Ignatious Kermit WARD, et al., Defendants and Appellants.

No. E008949.

Court of Appeal, Fourth District, Division 2, California.

Feb. 17, 1993.

Review Granted May 13, 1993.

[18 Cal.App.4th 1343] Janice Wellborn, San Francisco, and Janyce Keiko Imata Blair, El Sugundo, under appointments by the Court of Appeal, and Lynda Romero, San Diego, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Garrett Beaumont, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

DABNEY, Associate Justice.

Defendants appeal from the judgments entered against them claiming that the trial court failed to obtain a valid waiver by defendants of their right to a jury trial on the prior conviction allegations set forth in the information and further claiming that the trial court applied the wrong legal standard in ruling on their motions for a new trial. ¹ We find merit in both contentions and we reverse.

FACTS

By amended information filed in July 1990, defendants were charged with one count of robbery in violation of Penal Code section 211. ² Defendant Ward was further charged, in count II, with falsely representing his identity to a police officer in violation of Penal Code section 148.9, subdivision (a).

The information alleged as a prior offense punishable by a five-year sentence enhancement under Penal Code section 667 that defendant Ward had been convicted in 1986 of burglary in the first degree (Pen.Code, § 459) for which he was convicted and served a term in state prison. As a second prior offense, punishable by a one-year consecutive enhancement under Penal Code section 667.5, subdivision (b), the information alleged that Ward had committed a further offense within five years of the conclusion of the term served for the 1986 burglary.

As a third prior offense the information alleged that in August 1989 Ward had been convicted of, and had served a prison term for, possession of a controlled substance in violation of Health and Safety Code section 11350, and that under Penal Code section 667.5, subdivision (b), Ward was subject to a one-year enhancement because he had committed additional offenses within five years of the end of that prison term.

As a fourth prior offense alleged against defendant Rogers the information stated that in December 1983 ³ Rogers was convicted of petty theft with a prior, a felony, in violation of Penal Code section 666, and was subject to a one-year enhancement under Penal Code section 667.5, subdivision (b), as described above.

The fifth and final prior offense in the information alleged that in December 1983 defendant Rogers had been convicted of possession of a controlled substance, a felony, in violation of Health and Safety Code section 11377, that he committed another felony during the subsequent five years, and that he was subject to a one-year enhancement under Penal Code section 667.5, subdivision (b).

As a preliminary matter the court bifurcated trial on the prior conviction issues leaving those issues to be tried, if necessary, at the conclusion of the case. At the end of the trial but before the jury verdict was announced the trial court asked whether defendants wished to have a jury trial on the prior convictions. The reporter's transcript reveals the following exchange:

"THE COURT: Do the defendants wish to have jury trial, assuming, or if they are convicted, that is the only time that the priors would have an effect on these matters, as I understand it.

"Is there any request by the defendants with regard to whether they want to have the jury hear that issue, if it does apply, or would they waive jury trial?

"[Counsel for defendant Ward]: Your Honor, I've talked to Mr. Ward. Should the jury come back to a conviction, it would be his wish to waive this jury deciding the priors and allow the Court to make the decision on the priors, Your Honor.

"[Counsel for defendant Rogers]: Your Honor, I discussed the matter with Mr. Rogers and at this time, if it is necessary to go into the priors, we would also be waiving jury on those issues.

"THE COURT: Court would accept those waivers...."

The jury found both defendants guilty of robbery in the second degree charged under count I; found that the victim was over the age of 60; and found defendant Ward guilty under count II of giving false information to a peace officer. The jury was then discharged.

At a court trial held the same day on the prior offenses the trial court found the allegations as the to the first, second and third prior offenses relating to Ward to be true and found the allegations as to the fourth and fifth prior offenses relating to defendant Rogers also to be true.

At a subsequent sentencing hearing counsel for defendant Ward, joined by counsel for Rogers, renewed a motion for a new trial or reduction in the penalty. In denying the motion the trial court made the following statement:

"THE COURT: I have--as I indicated, I've read the motion, also having heard the trial, I thought that the evidence with regard to the robbery was a little on the weak side. However, I think [the prosecutor] did make a strong point with regard to what the intent was when the wallet was taken from ... the victim in this case. And also, I think there was sufficient evidence that the jury could conclude that the keys were taken, it was circumstantial, but that the keys were taken, and I think that the jury could have found and apparently did find that the intent with which the keys were taken from the vehicle or from [the victim] for the vehicle was to permanently deprive him of the keys and/or the vehicle.

"On that basis, the court will deny the motion for new trial and also the motion for the reduction in the term. I do admit, however, I think it was a very close case with regard to the question of whether it was robbery or attempt[ed] robbery, but I feel there was sufficient evidence for the jury to conclude that it was a robbery, and I do not feel that under the factors of this case and the law that has been cited that it would be appropriate for me to interpose my opinion over and above that of the jurors who did hear the evidence. They heard the instructions. They had the instructions with them in the jury room, and after their due deliberation, returned a verdict of guilty of robbery in the second degree."

Defendant Ward was sentenced to the midterm of three years on the robbery conviction; a two-year enhancement under Penal Code section 667.9 for a victim over the age of 65; ⁴ a five-year enhancement under Penal Code section 667 for the prior offense; and a one-year enhancement under Penal Code section 667.5, subdivision (b), for a felony committed within five years of completing a prison term. In total, a sentence of 11 years was imposed on Ward.

Defendant Rogers was sentenced to the upper term of five years on the second degree robbery. Because the prosecution had not been timely in asking to amend the date on the fourth prior offense set forth in the information, the prosecution sought, and the court imposed, only a single one-year enhancement as to defendant Rogers. The total term imposed on Rogers on the matters arising out of the allegations in the information in this case was six years. ⁵

Both defendants have appealed.

DISCUSSION

On appeal defendants claim that we must reverse the prior-felony-conviction findings because the trial court failed to obtain a valid waiver by defendants of their right to a jury trial on the prior-conviction allegations in the information. ⁶ They further claim that the trial court applied the wrong legal standard in ruling on the motion for a new trial.

I Waiver of Jury Trial on Prior-Conviction Allegations

Article I, section 16 of the California Constitution states, in relevant part, that "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel." The California Supreme Court has applied this requirement literally to mean that waiver by counsel, even in the presence of defendant, is not sufficient. (People v. Holmes (1960) 54 Cal.2d 442, 444, 5 Cal.Rptr. 871, 353 P.2d 583.)

In Holmes, the defendant was asked whether he understood that he had a right to have a jury determine his guilt or innocence of the charged offense and also whether he understood that he had a right to have a jury determine the truth of an alleged prior felony conviction. Defendant answered, "Yes." Counsel for defendant then stated "I join in the waiver." (Holmes, supra, 54 Cal.2d at p. 443, 5 Cal.Rptr. 871, 353 P.2d 583.) At no time, however, was the defendant asked whether he waived his right to a jury trial. The Supreme Court reversed the conviction, stating: "Defendant did not express in words a waiver of his right to a jury trial, and it has been uniformly held that the waiver must be so expressed and will not be implied from a defendant's conduct. [Citations.]" (Id., at pp. 443-444, 5 Cal.Rptr. 871, 353 P.2d 583.)

The right to a jury trial includes the right to have a jury decide whether defendant has suffered a previous conviction charged in a criminal information. (People v. Ford (1964) 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892.) As with a charged offense, waiver of a jury trial on the issue of a prior conviction will not be implied. In addition, under Penal Code section 1025 the question whether defendant has suffered the previous conviction must be tried by the same jury which hears the substantive offense. ⁷

In the case before us neither defendant expressed in words a waiver of the right to a jury trial on the prior convictions alleged in the information....