Filed 5/8/13 P. v. Daniels CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

 THE PEOPLE,                                                         B232949

           Plaintiff and Respondent,                                 (Los Angeles County
                                                                     Super. Ct. No. MA049018)
           v.

 TREYVON LAMAR DANIELS,

           Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. John
Murphy, Judge. Affirmed and remanded.


         Joseph R. Escobosa, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Treyvon Lamar Daniels (defendant) appeals from the
judgment entered after he was convicted of second degree robbery and second degree
commercial burglary. He contends that his sentence must be reversed because he did not
expressly waive his right to a jury trial on the allegation he sustained a prior juvenile
adjudication. Defendant also contends that the trial court was not authorized to impose a
five-year sentence enhancement due to the prior juvenile adjudication. We conclude that
defendant forfeited his right to challenge the denial of a jury trial, but was not harmed by
the denial in any event as we agree the five-year enhancement should not have been
imposed. Therefore we strike the enhancement and remand the matter to the trial court
for the opportunity to resentence defendant. We otherwise affirm the judgment.
                                     BACKGROUND
       Defendant stole a bottle of vodka from a drugstore liquor department. As he fled
the store, a knife fell from his pocket. The assistant manager pursued defendant, but
allowed defendant to continue his escape after it appeared to the assistant manager that
defendant might cause him harm. As a result, defendant was charged with second degree
robbery in violation of Penal Code section 2111 (count 1) and second degree commercial
burglary in violation of section 459 (count 2). The amended information also alleged that
defendant had committed a felony as a juvenile, and that the juvenile adjudication
qualified as a “strike” within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)). A prior juvenile adjudication was also alleged for purposes
of the five-year sentence enhancement of section 667, subdivision (a)(1).2
       Defendant pled not guilty and denied the prior juvenile adjudications. The trial
court suspended the proceedings pursuant to section 1368, and reinstated them after
finding defendant competent to stand trial, which went forward on November 9, 2010.

1      All further statutory references are to the Penal Code, unless otherwise indicated.

2      Respondent concedes that the five-year sentence enhancement of section 667,
subdivision (a)(1), may not be imposed due to a prior juvenile adjudication. (See People
v. West (1984) 154 Cal.App.3d 100, 108-110.)

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On November 19, 2010, after the jury found defendant guilty of both counts as charged,
the trial court excused the jury without it ever addressing the issue of the prior juvenile
adjudications. The record discloses no request to bifurcate the proceedings and no
admission or jury trial waiver of the juvenile adjudications. After the jurors left the
courtroom, the trial court scheduled sentencing and a court trial on the prior convictions
for December 14, 2010. Defendant then filed a Romero motion,3 requesting the court
dismiss his prior strike conviction.
       On December 14, 2010, the parties appeared, but the hearing was not reported.
The trial court’s minutes reflect that defendant entered a time waiver and the court
continued the following matters: the hearing on the Romero motion; sentencing; and a
court trial of the prior juvenile adjudications. On April 20, 2011, the trial court expressed
its (mistaken) belief that defendant had waived his right to a jury trial on the issue of
prior juvenile adjudications and that they were found true after a bench trial. The trial
court denied the Romero motion and sentenced defendant to prison for a total term of
nine years, comprised of the low term of two years on count 1, doubled as a second
strike, plus five years pursuant to section 667, subdivision (a)(1). As to count 2, the trial
court imposed the low term of two years in state prison, doubled as a second strike but
stayed pursuant to section 654. The court imposed mandatory fines and fees, and
awarded 406 days of presentence custody credit.
       On April 28, 2011, defendant filed a notice of appeal. The trial court then
discovered its error, recalled defendant to court, and on June 29, 2011, conducted a court
trial on the issue of defendant’s prior juvenile adjudications. After hearing the evidence,
the court found true one of the allegations of sustained juvenile adjudication, and
imposed the same sentence, using the juvenile prior conviction as both a strike and to
imposed the five-year prison enhancement.




3      See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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                                       DISCUSSION
       Defendant seeks reversal on the ground that he never expressly waived his right to
a jury trial on the truth of the allegations of prior juvenile adjudications. Respondent
contends that defendant’s failure to object to a court trial, despite several opportunities,
resulted in forfeiture of the right.
       In their original briefs, neither party mentioned the timing of the trial on the prior
juvenile adjudications, conducted after the notice of appeal was filed. The general rule is
that “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate
court until determination of the appeal and issuance of the remittitur. [Citations.]”
(People v. Perez (1979) 23 Cal.3d 545, 554.) Matters that do not affect the judgment of
conviction and that are not embraced by the pending appeal may be tried after the filing
of the notice of appeal. (People v. Schulz (1992) 5 Cal.App.4th 563, 570-571.) That is
not the case here, as defendant’s only contentions on appeal relate to the sentence.
       The trial court conducted the hearing on the juvenile adjudications after recalling
defendant’s sentence under section 1170, subdivision (d)(1), which gives the trial court
120 days within which to recall a sentence and resentence the defendant to a term no
greater than the original sentence. Since we found no published opinion in which a
sentence was recalled under section 1170, subdivision (d), for the purpose of conducting
a trial on prior convictions, prior adjudications, or sentence enhancements which were the
subject of a pending appeal, we invited further briefing on whether the trial court retained
jurisdiction over the matter.
       Neither party has submitted authority directly addressing this issue. In his
supplemental brief, defendant invokes the general rule and contends that the trial court
lost subject matter jurisdiction upon the filing of the notice of appeal. (See People v.
Perez, supra, 23 Cal.3d at p. 554.) Respondent contends that the trial court properly
exercised its power, as section 1170, subdivision (d)(1), created “an exception to the
common law rule that the court loses resentencing jurisdiction once execution of sentence
has begun. [Citations.]” (Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix).)


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       Defendant points out that the trial court did not simply resentence him after the
notice of appeal was filed, but held a trial, which is not generally permitted after the
notice of appeal and prior to the issuance of the remittitur. (See People v. Saunoa (2006)
139 Cal.App.4th 870, 871-873.) We agree that section 1170, subdivision (d) does not
permit recall of sentence to conduct a new trial on the issue of guilt while an appeal is
pending. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1475-1476 (Alanis).)
However, as respondent notes, the authority cited by defendant did not involve section
1170, subdivision (d), and the trial court did not conduct a new trial on the issue of guilt
in this case. In addition, the California Supreme Court has held that so long as the trial
court acts within the statute’s 120-day time limit, it retains the power to “recall a sentence
on its own motion for any reason rationally related to lawful sentencing.” (Dix, supra,
53 Cal.3d at p. 456, italics added.) Respondent argues that determining the truth of a
prior juvenile adjudication for the purpose of sentencing under the Three Strikes law is
rationally related to sentencing.
       We find that respondent has the better argument. While Dix did not address the
precise issue presented here, the Supreme Court made clear that once a sentence is
recalled, the trial court may consider factors and circumstances that arose after the
original sentencing, so long as the defendant is afforded “‘all the normal rights and
procedures available at his original sentencing [citations]’ . . . .” (Dix, supra, 53 Cal.3d
at pp. 460, 463.) It follows that the trial court may hear evidence to determine how or
whether to modify the original sentence. We conclude that the trial court acted properly
in recalling defendant’s sentence to conduct a trial on the existence of the prior juvenile
adjudications, and we turn to defendant’s contention that the court was required to afford
him a jury trial.
       First, defendant argues that his right to a jury trial on the truth of his prior juvenile
adjudications was guaranteed by the state and federal constitutions as well as statute, and
that because he did not expressly waive his right to a jury trial, the trial court’s true
findings are void and his sentence must be stricken. The right to a jury trial on a prior
conviction used to aggravate a sentence is statutory. (§ 1025; see § 1158.) It is not

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guaranteed by the California Constitution (People v. Vera (1997) 15 Cal.4th 269, 277) or
the United States Constitution. (People v. Black (2007) 41 Cal.4th 799, 818-819; see
Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 496 (Apprendi); Almendarez-Torres v.
United States (1998) 523 U.S. 224, 239-244 (Almendarez-Torres).)4 Nor do either the
state or the federal constitution require a jury trial as to the fact of a prior juvenile
adjudication when used to aggravate an adult sentence. (People v. Nguyen (2009) 46
Cal.4th 1007, 1024, 1026-1027.)
       A defendant may forfeit his right to challenge the denial of a jury trial by failing to
object to the court trial. (See People v. French (2008) 43 Cal.4th 36, 46.) Here, after the
jury was excused, the trial court proposed scheduling a court trial for the following week,
and stated that defendant had “waived his right to a jury on the other issue.” Defense
counsel responded, “Sure.” The court then opted to wait for a probation report and
scheduled the sentencing for a later time. At the first sentencing hearing, when the court
erroneously indicated that defendant had waived a jury trial on the prior juvenile
adjudication and that the trial court had found it true after a bench trial, defense counsel
made no comment. The trial court then gave counsel the opportunity to argue
defendant’s Romero motion. Both sides submitted the issue without argument and the
court denied the motion after explaining that it “decline[d] to strike [defendant’s]
sustained petition for the 211 robbery.” Defense counsel then said, “I’m sorry. As to the
Romero motion, your Honor, my understanding is that he actually -- his sustained petition
is [section] 245(a)(1). I don’t think it was 211.” The prosecutor responded she had proof
of defendant’s sustained juvenile petition based upon section 211, and that she had given
the proof to defense counsel. The trial court agreed and added, “We had a court trial.

4       Defendant acknowledges the California Supreme Court has held that no jury trial
is required to prove a prior conviction used to aggravate a sentence, but in order to
preserve the argument for review, defendant urges a rejection of that holding. He points
out the California court relied on dictum in Apprendi and Almendarez-Torres and
contends that the United States Supreme Court is likely to reject the dictum once the
issue is squarely before the court. (See People v. Black, supra, 41 Cal.4th at pp. 818-819
& fn. 8.) As that eventuality has not come to pass, we are bound by the decision of our
high court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
                                                6
Remember?” “A petition was sustained on the robbery, the 211. That was the whole
point of having a trial on that issue.” Counsel did not object or correct the court’s
observation.
       We conclude that defendant’s failure to object in the trial court, despite several
opportunities to do so, resulted in a forfeiture of the issue on appeal. (See People v.
French, supra, 43 Cal.4th at p. 46; People v. Vera, supra, 15 Cal.4th at p. 277; People v.
Saunders (1993) 5 Cal.4th 580, 589-590.) Respondent contends that even if the issue had
not been forfeited, any error would be harmless. We agree. The erroneous denial of a
right to a jury trial on prior conviction allegations is reviewed for harmless error under
the standard of People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is
reasonably probable that a result more favorable to defendant would have been reached
absent the error. (People v. Epps (2001) 25 Cal.4th 19, 29 (Epps).)
       As in Epps, the error could not possibly have affected the result, as official
government documents presumptively established the prior juvenile adjudication and
defendant did not claim otherwise. (See Epps, supra, 25 Cal.4th at pp. 29-30; Evid.
Code, § 664.) The prosecution presented certified records in compliance with section
969b consisting of a juvenile petition alleging robbery and two counts of assault, a
minute order showing that the petition was sustained based on evidence of robbery, a
fingerprint card with defendant’s date of birth, and a booking photograph. The trial court
found the photograph to depict defendant, and a fingerprint expert testified that he took
an impression of defendant’s thumb prints, compared them to the prints in the juvenile
record, and found them to match. Defense counsel asked no questions of the prosecution
witnesses, and did not object to the admission of the section 969b materials.5
       Thus a reversal of the entire sentence is not required. As the five-year sentence
enhancement of section 667, subdivision (a)(1) may not be imposed based on a prior
juvenile adjudication, we strike that enhancement. (See People v. West (1984) 154
Cal.App.3d 100, 108-110; People v. Blankenship (1985) 167 Cal.App.3d 840, 852.) We

5      Counsel merely argued that because defendant believed he had admitted one count
of assault in the juvenile court, not robbery, the prior should be deemed invalid.
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remand the matter only to give the trial court the opportunity to reconsider the entire
sentence so long as the total term is not greater than the original total sentence. (See
People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615.)
                                      DISPOSITION
       The five-year sentence enhancement imposed pursuant to section 667, subdivision
(a)(1), is stricken, and the matter is remanded to the trial court for resentencing. In all
other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ___________________________, J.
                                                   CHAVEZ

We concur:



____________________________, P. J.
BOREN



____________________________, J.
ASHMANN-GERST




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