Filed 8/19/16 P. v. Roe CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C076048

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F03646)

         v.

JOEL EDWARD ROE,

                   Defendant and Appellant.




         A jury found defendant Joel Edward Roe guilty of three of five theft-related
charges, two convictions of which were felonies and one was a misdemeanor. The trial
court sentenced him to an aggregate prison term of five years and six months in county
jail. The court imposed the four-year upper terms for both felonies, based on an elevated
triad due to defendant’s prior conviction (Pen. Code § 666.5, subd. (a)),1 and, as to one, a


1        Undesignated statutory references are to the Penal Code.

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consecutive one-year term for his prior prison term (§ 667.5, subd. (b)). One of the
felony sentences was stayed pursuant to section 654.
       On appeal, defendant contends the imposition of the upper term and use of the
elevated triad for the prior conviction, as well as the additional one-year term for the prior
prison term violated his right to due process under the federal Constitution because he
admitted neither the prior conviction nor the prior prison term, nor did the trial court hear
evidence or make findings as to those special allegations. He further contends that, while
double jeopardy does not bar retrial of the prior conviction allegation, it does bar retrial
of the prior prison term allegation because he did not waive his right to a jury trial and the
jury was discharged.
       The People concede the trial court’s error as to both special allegations, but argue
retrial is appropriate in both instances because defendant waived his right to a jury trial
on both.
       We reverse and remand for further proceedings and resentencing, if necessary, as
to the two special allegations. In all other respects, we affirm the judgment.
                                PROCEDURAL HISTORY2
       Defendant was charged by amended complaint, deemed the information, with
unlawfully driving a vehicle with intent to deprive the owner of its title and possession
(Veh. Code § 10851, subd. (a)—count one), receiving a stolen vehicle (§ 496d, subd.
(a)—count two), two other counts of receiving stolen property (§ 496, subd. (a)—counts
three and four), and theft of personal property (§ 484—count five). The amended
complaint alleged, as to counts one and two, defendant had a prior conviction for




2      Given the limited nature of defendant’s claims, a detailed recitation of the
substantive facts underlying his convictions is unnecessary. Relevant facts will be
discussed where necessary in the discussion.

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violating Vehicle Code section 10851, subdivision (a) (§ 666.5, subd. (a)), for which he
served a prior prison term within the meaning of section 667.5, subdivision (b).
       The trial court granted defendant’s motion in limine to bifurcate the special
allegations.
       Following a trial, the jury found defendant guilty of counts one, two, and five, but
was unable to reach a verdict on counts three and four. The trial court declared a mistrial
as to those counts.
       The trial court denied probation and sentenced defendant to an aggregate prison
term of five years and six months in county jail as follows: As to count one, the court
imposed the upper term of four years, plus one year for the prior prison term; as to count
two, the court imposed the upper term of four years, stayed pursuant to section 654; and
as to count five, the court imposed a consecutive term of 180 days.
       Defendant timely appealed.
                                      DISCUSSION
       Defendant contends, and the People concede, that the trial court erred in imposing
sentence enhancements for the prior conviction allegation (§ 666.5, subd. (a)) and the
prior prison term allegation (§ 667.5, subd. (b)), neither of which was admitted by
defendant or found true by the trier of fact, nor was evidence presented to support those
allegations. We agree.
       Defendant and the People also agree, as do we, that remand for retrial is
appropriate to determine if there is sufficient evidence of a qualifying prior conviction for
purposes of imposing the upper term of the elevated triad as to counts one and two
pursuant to section 666.5.3



3      As relevant here, section 666.5, subdivision (a), provides that a defendant who,
having been previously convicted of a felony violation of Vehicle Code section 10851 or
a felony violation of Penal Code section 496d, regardless of whether he or she actually

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       Defendant contends retrial of the prior prison term allegation is not appropriate for
purposes of enhancing a sentence pursuant to section 667.5, subdivision (b).
       It is well-settled that retrial of a prior conviction allegation “offends neither the
state nor federal former jeopardy provision. (U.S. Const., 14th Amend. and Cal. Const.,
art. I, § 15; People v. Monge (1997) 16 Cal. 4th 826, 845 [(Monge)]; Monge v. California
(1998) 524 U.S. 721 [141 L.Ed.2d 615]; Almendarez-Torres v. U.S. (1998) 523 U.S. 224
[140 L.Ed.2d 350]; Jones v. United States (1999) 526 U.S. 227, 248 [143 L.Ed.2d 311];
and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] [(Apprendi)].)”
(Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1306 (conc. opn. of Epstein, J.).)
       Defendant argues that because a prior prison term requires proof of facts beyond
mere conviction, such as actual imprisonment, completion of the term of imprisonment,
and failure to remain free of custody and new offenses for five years, Apprendi
supersedes Monge and establishes a due process right to a jury trial on those additional
facts. He is wrong. “[A] plain reading of Apprendi refutes [the defendant’s] conclusion
that Apprendi ‘superseded’ the Monge decisions and therefore the bar of double jeopardy
precludes retrial of a prior serious felony allegation.” (Cherry v. Superior Court, supra,
86 Cal.App.4th at p. 1303 (maj. opn. of Curry, J.); see id. at p. 1306 (conc. opn. of
Epstein, J.).)




served a prior prison term for those offenses, is subsequently convicted of any of these
offenses “shall be punished by imprisonment pursuant to subdivision (h) of Section 1170
for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine
and the imprisonment.” (§ 666.5, subd. (a).) Without a prior, the sentence is one year in
the county jail. (§ 10851, subd. (a).) Subdivision (c) of section 666.5 provides: “The
existence of any fact which would bring a person under subdivision (a) shall be alleged in
the information or indictment and either admitted by the defendant in open court, or
found to be true by the jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the court sitting without a
jury.”

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       In any event, defendant, through his counsel, waived his right to a jury trial on
both of the special allegations. The trial court granted defendant’s motion to bifurcate the
prison prior allegation on December 19, 2013. On January 7, 2014, as the jury began its
deliberations, the following colloquy took place:
       “[THE PROSECUTION]: Did we want to address if there’s guilty verdicts, a
waiver on the priors?
       “[DEFENSE COUNSEL]: Yeah. We talked about that. Can I have just one
moment?
       “[THE COURT]: Certainly.”
       “(Discussion off the record.)
       “[DEFENSE COUNSEL]: Yes.
       “[THE COURT]: Madam Clerk, if you would note that in the file, a waiver on the
prior trial should it become necessary. Thank you.
       “[DEFENSE COUNSEL]: Thank you.”
       The right against double jeopardy does not require the defendant’s personal waiver
in the context of this case. The right can be waived by the defendant’s personal consent
to the discharge of a sworn jury, or by counsel consenting to discharge on the defendant’s
behalf. “[T]he practical effect of counsel informing a trial judge that a defendant wants a
court trial on the issue of the validity of a prior conviction which results in a jury's
discharge is a waiver of the right of that defendant to later claim jeopardy attached.”
(People v. Esquibel (1992) 3 Cal.App.4th 850, 856.) Here, the court discharged the jury
in reliance on defense counsel’s representation that, in the event a trial on the priors
became necessary, a jury trial would be waived. Thus, double jeopardy does not bar the
trial court from conducting further proceedings as to proof of the special allegations.
       Similarly, the right to a jury trial on special allegations does not require the
defendant’s personal waiver. “The requirement of an express waiver applies to the
constitutional right to a jury trial, but not to jury trial rights that are established only by

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statute. ([People v.] Vera [(1997)] 15 Cal.4th [269,] 278 [(Vera)]; [People v.] Saunders
[(1993)] 5 Cal.4th [580,] 589, fn. 5.) In Vera, after the defendant was found guilty of the
charged offenses, the trial court, under the belief that the defendant wished to waive his
right to a jury trial on allegations that he had served prior prison terms, dismissed the jury
and decided those allegations at the subsequent sentencing hearing. We held that the
defendant forfeited his right to a jury trial on those allegations when he failed to object to
the trial court's dismissal of the jury. We explained that ‘[t]he right to have a jury
determine the truth of a prior conviction allegation does not flow from the jury trial
provision of article I, section 16 of the California Constitution or the Sixth Amendment
of the United States Constitution. It is derived from statute.’ (Vera, supra, 15 Cal.4th at
p. 277.) Therefore, the failure to obtain an express waiver of the right to a jury trial did
not violate the state constitutional mandate that the waiver of the right to jury trial be
made ‘by the consent of both parties expressed in open court by the defendant and the
defendant's counsel.’ (Cal. Const., art. I, § 16.)” (People v. French (2008) 43 Cal.4th 36,
46-47.)
                                       DISPOSITION
       Defendant’s convictions on counts one, two, and five are affirmed. The trial
court’s true findings on the prior conviction and prior prison term allegations are reversed
and the sentence as to those allegations is vacated. The matter is remanded for further




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proceedings on the prior conviction and prior prison term allegations, and for
resentencing, if necessary. In all other respects, the judgment is affirmed.



                                                        NICHOLSON              , J.



We concur:



      BLEASE                , Acting P. J.




      MURRAY                , J.




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