I dissent. Whether or not defendant had a state constitutional right to a jury trial on the truth of a prior prison term sentence enhancement, he undoubtedly had a statutory right to a jury trial, absent a waiver. (Pen. Code, §§ 969Vá, 1025, 1158.) For the reasons stated in Justice Kennard’s dissenting opinion, it is appropriate to infer that the Legislature meant this waiver of the statutory jury trial right, like waiver of the state constitutional right found in California Constitution, article I, section 16, to be express and personal, or at the very least an affirmative waiver. Thus, the majority inexplicably read the waiver requirement out of the statutes by holding that this statutory jury trial right can be forfeited by default.
People v. Saunders (1993) 5 Cal.4th 580 [20 Cal.Rptr.2d 638, 853 P.2d 1093], on which the majority principally rely, is readily distinguishable. In that case, the court concluded that a defendant’s statutory right under Penal Code section 1025 to have the truth of prior conviction allegations tried to the same jury as found him guilty of the substantive offense could be forfeited by a failure to object to the discharge of that jury. The court’s ruling was based on the common law rule of appellate procedure that “ ‘ “[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . (Saunders, supra, 5 Cal.4th at pp. 589-590.) But the right at issue in Saunders was not accompanied by an explicit waiver provision. Obviously, the rule that a defendant forfeits appellate claims for errors to which he failed to object at trial does not apply to a claim that a right has been violated, when either the Constitution or statute provide that the right can be forfeit only by affirmative waiver. The right to a jury trial on the truth of prior prison term sentence enhancements is such a right, and defendant in this case failed to waive the right.
Like Justice Kennard, I would set aside the prior prison term allegations without engaging in harmless error analysis, since the error is a structural one. (People v. Cahill (1993) 5 Cal.4th 478, 501 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) To engage in such analysis, indeed, would be tantamount to creating a new class of “harmless per se” error, since prejudice could never be shown from having a court, rather than a jury, determine the truth of prior conviction allegations.