Filed 2/25/14 P. v. Martin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E057982
v. (Super.Ct.No. INF1200817)
CHRISTOPHER LEAVIEL MARTIN, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Bert L. Swift, Judge.
(Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lise S. Jacobson and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant was charged with assault with a deadly weapon. (Pen. Code1, § 245,
subd. (a)(1).) The information also alleged that he had been convicted of a prior strike
(§§ 667, subd. (c)-(e), 1170.12, subd. (c)(1)), which also constituted a prior serious felony
(§ 667, subd. (a)), and he had suffered three prior prison terms. (§ 667.5, subd. (b).)
Prior to the commencement of a jury trial, the trial court granted defendant’s
motion in limine to bifurcate the prior offense allegations. During the course of trial, the
trial court asked defense counsel whether she wished the jury or the court to make the
determination on the priors. Defense counsel responded that “we will just present to the
Court on that.”
The jury returned a guilty verdict as to the substantive offense. A bench trial
ensued on the prior offense allegations and these were found true as alleged.2
DISCUSSION
Defendant challenges the true findings regarding the prior offense allegations on
the ground he did not personally waive the right to a jury trial on these allegations, and
the record does not indicate that his attorney ever informed him of his right to a jury trial
on them.
1 All further statutory references are to the Penal code unless otherwise indicated.
2The facts of the underlying offense are not summarized since the sole issue
defendant raises pertains to the lack of a jury trial on the prior offense allegations.
2
The People counter that defendant forfeited this claim by failing to object when
the jury was excused. In any case, any potential error was not prejudicial. We agree with
both prongs of the People’s argument and affirm defendant’s conviction, including the
true findings.
We begin our analysis with a consideration of the Supreme Court’s decision in
People v. Vera (1997) 15 Cal.4th 269 (Vera). In that case, the defendant did not
personally waive his statutory right to a jury trial on a prior prison term enhancement;
nevertheless, the trial court discharged the jury and proceeded to conduct a court trial on
the allegations. (Id. at pp. 271-272.) The Supreme Court held the defendant’s claim of
error on this ground was precluded on appeal since the defendant had failed to object or
otherwise assert his right to have the jury make the requisite determination. (Id. at
p. 281.) In rejecting the argument that it was necessary for defendant to personally and
expressly waive the statutory right to a jury trial, the court observed that the right to a
jury determination on prior offense allegations is a statutory right under section 1025,
subdivision (b).3 The court then went on to hold that, “the requirement of an express,
personal jury trial waiver relates solely to the jury trial right guaranteed by the
Constitution” and not to situations in which the right to trial is merely statutory. (Vera, at
pp. 277-278.) The court explained that since “the deprivation of the statutory right to
3 This subdivision reads: “Except as provided in subdivision (c), the question of
whether or not the defendant has suffered the prior conviction shall be tried by the jury
that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo
contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.”
3
jury trial on the prior prison term allegations does not implicate the state or federal
constitutional right to jury trial,” defendant’s claim of ineffectual waiver of the jury trial
was precluded on appeal “[a]bsent an objection to the discharge of the jury or
commencement of court trial, . . .” (Id. at p. 278.)
Defendant concedes that the Vera decision appears on its face to preclude him
from asserting his claim, but he contends that Vera is distinguishable because the record
in that case contained a clear statement that defendant’s trial counsel had advised him of
his right to jury trial on the prior offense allegations and that defendant wished to waive
this right. The record here is silent on these matters. The attempt to distinguish Vera
must ultimately fail when we consider that the Supreme Court in that case specifically
relied on its prior decision in People v. Saunders (1993) 5 Cal.4th 580, where there had
been no such advisal. In Saunders, the jury was discharged after it found him guilty of
the substantive offense, but before it determined the truth of the prior conviction
allegations. Defendant waived his right to a jury trial on these allegations. The next day,
defense counsel stated the waiver occurred before she had informed the defendant of his
right to trial on these allegations. She claimed she would not have advised her client to
waive a jury trial on the allegations had she known that the jury had already been
discharged. The trial court permitted the defendant to withdraw his waiver, and a new
jury was impaneled, which found true the each of the prior conviction allegations. While
the trial court’s discharge of the first jury before that jury had determined the truth of the
4
prior conviction allegation constituted a violation of sections 1025 and 1164,4 Saunders
concluded that the defendant could not complain of the error because he failed to bring
the matter to the trial court’s attention prior to the discharge of the first jury. The
important point for us to consider is that the defendant in Saunders was not aware of his
statutory rights prior to the discharge of the first jury. So there too, it was irrelevant to
the forfeiture issue whether or not petitioner had been informed of his right to jury trial
on the prior offense allegations.
Furthermore, even assuming an error with respect to defendant’s limited right to a
jury trial of the prior conviction allegation, the error is subject to the harmless error
analysis under the Watson5standard. (People v. Epps (2001) 25 Cal.4th 19, 29.) The
Supreme Court explained in Epps that where the right to jury trial is created by statute,
and not the Constitution, the erroneous denial of a jury trial is subject to the Watson test
of harmless error. Here, defendant never contested that someone had been convicted of
the prior offense, and his identity as that person was established by certified copies of his
section 969b prison packet. Indeed, defendant concedes in his reply brief that the error
was harmless if the Watson standard applies—which it does. Given the record before us,
4 Section 1164, subdivision (b), states: “No jury shall be discharged until the
court has verified on the record that the jury has either reached a verdict or has formally
declared its inability to reach a verdict on all issues before it, including, but not limited
to, the degree of the crime or crimes charged, and the truth of any alleged prior
conviction whether in the same proceeding or in a bifurcated proceeding.”
5 People v. Watson (1956) 46 Cal.2d 818, 836.
5
it is not reasonably probable that a different result would have resulted had the prior
conviction allegations been tried before a jury.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.
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