People v. Vera

KENNARD, J.

I dissent.

As the majority concedes, defendant Jose Basilio Vera was statutorily entitled to a jury trial on the truth of the prior prison term sentence *283enhancement allegation. As the majority also concedes, defendant did not receive a jury trial on that allegation. Holding that defendant is entitled to no relief, the majority concludes that the issue of whether defendant validly waived his right to jury trial on the enhancement allegation is not preserved for appellate review because defendant failed to object in superior court. In so concluding, the majority discards the existing system of procedure, familiar to all practitioners of criminal law, under which a defendant must receive a jury trial on sentence enhancement allegations absent a valid waiver of the right of jury trial. In its place, the majority erects a new system of procedure, under which sentence enhancement allegations may be tried to and determined by the court, without a jury, unless the defendant protests. This transformation of criminal procedure cannot be reconciled with the California Constitution, the relevant provisions of the Penal Code, or the prior decisions of this state’s courts.

The California Constitution

Our state Constitution provides: “Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. 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. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Cal. Const., art. I, § 16, 1st par.)

By means of this provision, the Constitution has granted the Legislature authority to determine the manner in which parties to civil proceedings may waive the right of jury trial. The Legislature has exercised this authority by enacting statutory provisions prescribing the manner of waiving jury trial in civil cases. (See, e.g., Code Civ. Proc., § 631.) But the Constitution grants the Legislature no authority to determine the manner in which parties to criminal proceedings may waive jury trial, nor has the Legislature ever claimed to possess such authority. One searches the Penal Code in vain for a provision prescribing the manner of waiving jury trial in a criminal case.

Rather than delegating to the Legislature the power to determine the manner of waiving jury trial in criminal cases, the Constitution itself specifies the only manner in which jury trial may validly be waived in a criminal case—that is, “by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. I, § 16, 1st par.)

By holding that the denial of jury trial on a sentence enhancement allegation is not reviewable on appeal absent an objection by the defendant *284in the trial court, the majority has decided that a right to jury trial in a criminal case may be waived by silence. This conclusion is irreconcilable with the constitutional text quoted above, which establishes that the only method by which a defendant in a criminal case may waive a right of jury trial is by expressly consenting in open court, with the concurrence of the defendant’s counsel, to a trial by the court rather than a jury.

The majority recognizes the difficulty presented by the constitutional text. To overcome this difficulty, the majority reasons that because the right to jury trial on sentence enhancement allegations derives merely from statute and not from the state or federal Constitution (see People v. Wiley (1995) 9 Cal.4th 580, 589 [38 Cal.Rptr.2d 347, 889 P.2d 541]; but see also People v. Wims (1995) 10 Cal.4th 293, 317 [41 Cal.Rptr.2d 241, 895 P.2d 77] (conc. and dis. opn. of Kennard, J.)), the constitutional provision cited above is irrelevant and may be ignored. (Maj. opn., ante, at p. 278.)

The flaw in this reasoning is that it is not faithful to the constitutional text, which provides a single clear procedure for waiver of any jury trial right in any criminal proceeding, drawing no distinction between statutory and constitutional jury trial rights.

The Penal Code

In the Penal Code, the Legislature has expressly provided that a prior conviction sentence enhancement allegation “must be tried by a jury impanelled for that purpose, unless a jury is waived, in which case it may be tried by the court.” (Pen. Code, § 969½, italics added; see also id., §§ 1025, 1158.) The majority’s decision cannot be reconciled with this statutory language. By holding that an objection is necessary to preserve for appeal a claim of denial of jury trial, the majority permits prior conviction sentence enhancement allegations to be tried to the court unless the defendant protests, rather than, as the Legislature has provided, to a jury unless a jury is waived.

As previously noted, the Legislature has not enacted, in the Penal Code or elsewhere, a provision specifying the manner of waiving a jury in a criminal case. From the absence of such a provision, it is reasonable to infer that the Legislature intended to incorporate the constitutional waiver standards for criminal cases—that is, the requirement that a waiver of jury trial be “by the consent of both parties expressed in open court by the defendant and the defendant’s counsel” (Cal. Const., art. I, § 16, 1st par)—as the standard for *285jury waivers under Penal Code section 969½. The majority’s decision in this case is contrary to this apparent legislative intent. By holding that an objection is necessary to preserve for appeal a claim of denial of jury trial, the majority authorizes a jury waiver by mere silence.

Prior Decisions of California Courts

This court has held, consistent with the constitutional text quoted above, that the right of jury trial in a criminal case may not be waived by implication. (People v. Ernst (1994) 8 Cal.4th 441, 445 [34 Cal.Rptr.2d 238, 881 P.2d 298]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [5 Cal.Rptr. 871, 353 P.2d 583].) “Since a waiver cannot be predicated on an implied consent, it is obvious that no valid waiver occurs where defendant merely fails to object to the trial of his case without a jury.” (People v. Walker (1959) 170 Cal.App.2d 159, 166 [338 P.2d 536]; see also People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5 [20 Cal.Rptr.2d 638, 853 P.2d 1093] [“Defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.”].)

This rule is not limited to the trial of substantive offenses. The courts of this state have consistently held that the right of jury trial on prior conviction allegations must be waived expressly and may not be waived by mere silence. (People v. Luick (1972) 24 Cal.App.3d 555, 558 [101 Cal.Rptr. 252]; People v. Guaracha (1969) 272 Cal.App.2d 839, 843 [77 Cal.Rptr. 695]; People v. Ray (1965) 238 Cal.App.2d 734, 735 [48 Cal.Rptr. 167] (per Kaus, J.).) The majority impliedly overrules this line of settled authority.

Conclusion

Defendant was entitled to have a jury determine the truth of the prior prison term sentence enhancement allegations. (Pen. Code, §§ 969Vz, 1025, 1158.) Defendant did not personally and expressly waive jury trial on the truth of those allegations. Accordingly, determination of the truth of those allegations by the trial court, rather than by a jury, violated defendant’s right of jury trial.

Defendant was not required to object in the trial court to preserve for appeal the claim that he was denied his right to jury trial. To impose such a requirement effectively permits waiver by silence, a result that is fundamentally incompatible with the constitutional command that jury trial waivers in criminal cases be personal and express.

*286The denial of jury trial is a structural error that can never be harmless, no matter how strong the evidence of guilt. (People v. Ernst, supra, 8 Cal.4th 441, 449; People v. Cahill (1993) 5 Cal.4th 478, 501 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) Accordingly, the findings on the prior prison term allegations should be set aside. I would do so.