Filed 9/18/17 P. v Gray CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.

Trenton C. Packer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Ronald Jakob and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Tony Leon Gray contends that this case must be remanded for resentencing because the trial court imposed an unauthorized sentence. The People agree with defendant. For the reasons set forth below, we remand this case to the trial court.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On December 29, 2015, an information charged defendant with assault with a deadly weapon under Penal Code[1] section 245, subdivision (a) (count 1); felony graffiti under Penal Code section 594, subdivision (b) (count 2); and misdemeanor throwing a rock at a vehicle and occupant on the roadway under Vehicle Code section 23110, subdivision (a) (count 3). The information also alleged defendant served prior prison terms within the meaning of Penal Code section 667.61, subdivision (b), and suffered a prior serous/violent felony within the meaning of the “Three Strikes” law. Defendant pled not guilty and denied the special allegations.

On February 22, 2016, the trial court granted defendant’s request to bifurcate the prior conviction allegations from the jury trial. On February 23, 2016, jury trial on the substantive charges commenced. On February 26, 2016, the jury found defendant guilty of all charges. On April 8, 2016, the trial court imposed a sentence of three years in state prison on count 1, which doubled to six years based on a purported finding that defendant suffered a prior strike conviction. The court imposed and stayed a sentence of eight months on count 2, and imposed a sentence of 180 days on count 2, to run concurrent to defendant’s prison sentence. The court also imposed a consecutive term of one year for each of defendant’s prior prison commitments. The total sentence was eight years in state prison.

On April 11, 2016, defendant filed at timely notice of appeal.

B. FACTUAL HISTORY[2]

William Session testified that on November 29, 2015, he was driving his car in Moreno Valley. He saw defendant, who was standing at the side of the roadway, throw a large rock at Session’s car. The rock struck the car’s passenger side. Session stopped his car and called for police assistance.

Riverside County Sheriff’s Detective John Negrete was dispatched to contact Session about the incident. On his way, Negrete saw defendant, who matched the description of the person throwing the rock, walking along the road. Negrete offered defendant a ride; defendant accepted. Negrete drove defendant to Session’s location. Session identified defendant as the person who threw the rock at his car.

The cost to repair Session’s car was $1,358.76.

On January 21, 2016, Riverside County Sheriff’s Deputy Eric Harryman was on duty in court when he heard defendant, who was in the courtroom, blurt out that he threw a rock at a car.

DISCUSSION

Defendant contends, and the People agree, that this case must be remanded because the trial court did not conduct a bifurcated hearing on the special allegations and defendant did not personally admit the allegations.

A. ADDITIONAL FACTS

Prior to the commencement of trial, defendant requested that a bifurcated court trial be conducted to determine the truth of the three prior conviction allegations; the trial court granted defendant’s request. On February 26, 2016, after the jury rendered its guilty verdicts on the substantive charges, defendant’s case was set for a hearing on April 8, 2016, on the prior conviction allegations. On April 8, 2016, however, the scheduled hearing was vacated. Thereafter, counsel for both parties and the trial court affirmed to one another that defendant had admitted the truth of the prior conviction allegations. Defendant was then sentenced to eight years based on the three prior conviction allegations being found to be true.

B. LEGAL BACKGROUND

To establish the defendant suffered a prior conviction, a prosecutor must prove the defendant was convicted and the conviction was an offense within the definition of the particular statute invoked. (People v. Henley (1999) 72 Cal.App.4th 555, 562.) The state has the burden to prove beyond a reasonable doubt those alleged prior convictions challenged by a defendant. (People v. Jones (1995) 37 Cal.App.4th 1312, 1315.)

“[B]efore accepting a criminal defendant’s admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. (People v. Mosby (2004) 33 Cal.4th 353, 356.) “Proper advisement and waivers of these rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction.” (Id. at p. 356.)

A defendant denying an alleged prior conviction “‘is entitled to a bifurcated proceeding wherein the jury is not informed of his prior convictions, either through allegations in the charge or by the introduction of evidence, until it has found the defendant guilty.’” (People v. Calderon (1994) 9 Cal.4th 69, 74.) The trial court, therefore, through the exercise of its general powers under section 1044, may order that the determination of the truth of a prior conviction allegation be determined in a separate proceeding after the jury has returned a verdict of guilty of the charged offense, before the same jury. (Calderon, at p. 75.)

C. ANALYSIS

In this case, the trial court granted defendant’s request that his prior conviction allegations be proven in a bifurcated, non-jury trial. There is nothing in the record to show that the trial court conducted a bifurcated trial on the prior conviction allegations. The trial court, however, sentenced defendant based on the prior conviction allegations as being found true. Under these circumstances, both defendant and the People agree that defendant’s sentence was unauthorized and must be reversed.

Notwithstanding the reversal of defendant’s sentence, the double jeopardy provisions of the state and federal Constitutions do not apply to the trial of a prior conviction allegation in a noncapital case. (People v. Barragan (2004) 32 Cal.4th 236, 239; Monge v. California (1998) 524 U.S. 721, 734.) Additionally, the California Supreme Court held that retrial is permissible after an appellate court reverses a prior strike finding for insufficient evidence. (Barragan, at pp. 239, 259, fn. 9.) The court noted that because retrial of a prior conviction allegation in noncapital cases does not violate the double jeopardy protections, retrial likewise does not violate the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions. (Id. at pp. 239, 241, 243-259.) The court observed that, unlike reversal of a substantive offense conviction for insufficient evidence, reversal of a sentencing enhancement conviction was not akin to an acquittal because a defendant cannot be “acquitted” of his prior conviction status “‘“any more than he can be ‘acquitted’ of being a certain age or sex or any other inherent fact.”’” (Id. at p. 245.) The Barragan court also reasoned that allowing a retrial of a prior conviction allegation furthers the important public policy of imposing more severe punishment on recidivists. (Id. at pp. 252, 256.)

Therefore, the reversal of defendant’s sentence, because of the trial court’s error in failing to conduct a bifurcated court trial on defendant’s prior conviction allegations, does not bar a court trial on the prior conviction allegations on remand. Moreover, the trial court is not barred from resentencing defendant according to the proven prior conviction allegations.

DISPOSITION

Defendant’s sentence is vacated. The case is remanded to the trial court to conduct a trial on defendant’ prior conviction allegations, and to resentence defendant based on the finding of the allegations. Following resentencing, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.