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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           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.



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                                      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.


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       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.”


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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




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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.


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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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