P. v. Escobedo

Filed 8/2/06 P. v. Escobedo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Roberta McPeters, Judge. Affirmed.

Elizabeth Corpora, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Appellant and defendant Israel Escobedo (defendant) contends that his conviction for sale of methamphetamine and sale of marijuana must be reversed because he was denied a jury trial on his prior convictions. He contends that the United States Supreme Court has indicated its intention to overrule existing precedent which holds that there is no federal constitutional right to a jury trial on prior convictions alleged solely for purposes of sentence enhancement. He argues that the trial court's failure to submit the prior conviction allegations to the jury mandates reversal of his conviction on the substantive offenses. In the alternative, he contends that the true findings on the prior conviction allegations must be reversed because he was denied his statutory right to a jury trial.

We will affirm the judgment.

BACKGROUND^[1]

Defendant was charged with one count of sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and one count of sale of marijuana (Health & Saf. Code, § 11360, subd. (a)). The information alleged that defendant had suffered one strike prior and had served three prior prison terms, within the meaning of Penal Code sections 667, subdivisions (b) through (i), 667.5, subdivision (b) and 1170.12, subdivisions (a) through (d). (All further statutory citations refer to the Penal Code unless another code is specified.)

Defendant requested a jury trial on the prior conviction allegations and requested that the trial be bifurcated. Bifurcation was granted, but he was informed that if he testified, he would be impeached with the prior convictions. Nevertheless, he testified and admitted that he had suffered three prior convictions.^[2]

There was no discussion, either before or after defendant testified, concerning his previously granted request for a bifurcated trial. Before the jury returned its verdicts, the prosecutor submitted a document entitled â€