People v. ThomasPeople v. Thomas
- Reporters:
- ,
- Before:
- Turner
Opinion
TURNER, P. J.
Defendant, Michael Lenvell Thomas, appeals from his conviction for evading an officer with willful disregard for the safety of persons or property. (
*215 ....... *
Defendant argues that he was denied a right to a jury trial regarding the two prior prison term allegations. He reaches this conclusion because the trial court failed to obtain his express personal waiver of his jury trial right. Through defense counsel, defendant agreed to bifurcate the trial on his prior convictions. Prior to the commencement of trial, the following occurred: “The Court: We also have the priors that are alleged, and it’s my understanding that it’s the defendant’s desire to bifurcate the priors; is that correct? [Defense Counsel]: Can I have one moment, Your Honor. [^¡] The Court: Yes ft[] (Sotto voce conference between [defense counsel] and the defendant.) [Defense Counsel]: Yes, Your Honor. That is his wish.” (Italics added.) The jury was excused after it rendered its guilty verdict on the evading an officer charge. Thereafter, the trial court noted, “With reference to the proof of the priors, I believe in chambers we had indicated that there was going to be a jury waiver as far as their proof was concerned.” Defense counsel answered, “Yes.”
Defendant argues that he has been denied his right to a jury trial because he never personally agreed to allow the trial judge to decide the issue of validity of the two prior prison term allegations. The first question is whether there has been a state constitutional violation. That issue is controlled by the decision of the California Supreme Court in People v. Vera (1997) 15 Cal.4th 269, 277 [62 Cal.Rptr.2d 754, 934 P.2d 1279]. In Vera the Supreme Court held: “When the defendant seeks to bifurcate the determination of the truth of the prior conviction allegation from determination of the defendant’s guilt of the charged crimes, however, only the statutory right to jury trial is implicated in the trial of the sentencing allegations. Since there is no constitutional right to have the jury determine the truth of a prior conviction allegation [citation], it follows that the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate.” (Ibid.) In People v. Epps (2001) 25 Cal.4th 19, 23 [104 Cal.Rptr.2d 572, 18 P.3d 2], the California Supreme Court held: “The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution. (Apprendi v. New Jersey[, supra,] 530 U.S. [at p.] _ . . . ; [People v.] Wiley [(1995)] 9 Cal.4th [580,] 585 [38 Cal.Rptr.2d 347,889 P.2d 541].)” No state constitutional violation has occurred because defendant failed to personally waive his statutory jury trial right on the prior prison term allegations.
The second question is whether the failure to secure a personal agreement on defendant’s part to have the trial judge determine the truth of *216 the two prior prison term allegations was violative of the Sixth and Fourteenth Amendments jury trial right. Defendant’s argument that the failure to have secured a personal waiver of his jury trial right was federal constitutional error is premised upon language in Apprendi v. New Jersey, supra, 530 U.S. at page 490 [120 S.Ct. at pages 2362-2363]. Defendant relies upon the following language in Apprendi: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Ibid., italics .added.) A year prior to Apprendi, the Supreme Court held that as to “any fact (other than prior conviction)” that increased the maximum penalty for the crime charged, the Fifth Amendment due process clause required a jury trial and proof beyond a reasonable doubt. (Jones v. United States (1999) 526 U.S. 227, 243, fn. 6 [119 S.Ct. 1215, 1224, 143 L.Ed.2d 311].) Defendant accepts that if the two section 667.5 enhancements involved merely “prior convictions,” there would be no federal jury trial right and no corresponding duty to secure a personal waiver of that privilege. Recognizing the controlling nature of Apprendi, defendant reasons that a prior prison term allegation involves more elements than the mere “fact of a prior conviction.” Defendant correctly notes that a section 667.5 enhancement requires more than a mere conviction. The accused must have served a prison term as defined in the statute. (People v. Lopez (1985) 163 Cal.App.3d 946, 951 [210 Cal.Rptr. 56]; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 335, p. 432.) Therefore, defendant contends that all of the other elements of a prior prison term enhancement beyond the mere fact of the conviction are subject to a jury trial right under the due process clause of the Fourteenth Amendment. As a corollary of that argument, defendant argues that since he never personally waived his jury trial right, he is entitled to a new trial on the two prior prison term enhancement allegations. For the following reasons, we respectfully disagree.
Defendant’s narrow reading of the words “fact of a prior conviction” in
Apprendi
is without merit because his analysis takes that language out of its context. In
Almendarez-Torres
v.
United States
(1998) 523 U.S. 224, 226, 228 [118 S.Ct. 1219, 1222, 1223, 140 L.Ed.2d 350], a decision which preceded
Apprendi,
the United States Supreme Court examined the due process ramifications of a sentence enhanced in part by reason of a prior conviction. In
Almendarez-Torres,
the accused was alleged to be an alien who had illegally returned to the United States after having previously been deported following conviction of an’ “aggravated felony.” Accordingly, the accused was subject to an enhanced sentence of up to 20 years in federal
*217
prison pursuant to title
In Almendarez-Torres, the Supreme Court rejected the defendant’s argument that the prior conviction constituted an element of the crime which the Fifth Amendment due process clause required to be alleged in the indictment. Justice Breyer stated: “[T]he sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. See, e.g., Parke v. Raley, 506 U.S. 20, 26 [113 S.Ct. 517, 521-522, 121 L.Ed.2d 391] (1992) (Recidivism laws *219 ‘have a long tradition in this country that dates back to colonial times’ and currently are in effect in all 50 States); U.S. Dept, of Justice, Office of Justice Programs, Statutes Requiring the Use of Criminal History Record Information 17-41 (June 1991) (50-state survey); USSG §§ 4A1.1, 4A1.2 (Nov. 1997) (requiring sentencing court to consider defendant’s prior record in every case). Consistent with this tradition, the Court said long ago that a State need not allege a defendant’s prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was ‘necessary to bring the case within the statute.’ Graham v. West Virginia, 224 U.S. 616, 624 [32 S.Ct. 583, 585-586, 56 L.Ed. 917] (1912). That conclusion followed, the Court said, from ‘the distinct nature of the issue,’ and the fact that recidivism ‘does not relate to the commission of the offense, but goes to the punishment only, and therefore . . . may be subsequently decided.’ Id., at 629 [32 S.Ct. at 588] (emphasis added). The Court has not deviated from this view. See Oyler v. Boles, 368 U.S. 448, 452 [82 S.Ct. 501, 503-504, 7 L.Ed.2d 446] (1962) (due process does not require advance notice that trial for substantive offense will be followed by accusation that the defendant is a habitual offender); Parke, supra, at 27 [113 S.Ct. at 522] (‘[A] charge under a recidivism statute does not state a separate offense, but goes to punishment only’). And, as we said before, . . . , Congress, reflecting this tradition, has never, to our knowledge, made a defendant’s recidivism an element of an offense where the conduct proscribed is otherwise unlawful. See United States v. Jackson, 824 F. 2d 21, 25, and n. 6 (CADC 1987) (opinion of R. Ginsburg, J.) (referring to fact that few, if any, federal statutes make ‘prior criminal convictions . . . elements of another criminal offense to be proved before the jury’). Although these precedents do not foreclose petitioner’s claim (because, for example, the state statute at issue in Graham and Oyler provided for a jury determination of disputed prior convictions), to hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’ Graham, supra, at 629 [32 S.Ct. at 587-588].” (Almendarez-Torres v. United States, supra, 523 U.S. at pp. 243-244 [118 S.Ct. at pp. 1230-1231].)
Almendarez-Torres preceded Apprendi. In Apprendi, the court decided whether the due process clause of the Fourteenth Amendment required that the factual determination as to whether the defendant’s mens rea was to intimidate the victim based upon “ ‘race, color, gender, handicapped, religion, sexual orientation or ethnicity’ ” be made utilizing the beyond a reasonable doubt standard by a jury. (Apprendi v. New Jersey, supra, 530 U.S. at p. 469 [120 S.Ct. at p. 2351].) The Apprendi majority held the accused’s mental state, which resulted in an enhanced sentence, in committing the charged crime was an element of the offense that required juror *220 evaluation utilizing the beyond a reasonable doubt standard. (Id. at p. 490 [120 S.Ct. at pp. 2362-2363].) The Apprendi majority distinguished Almendarez-Torres in part as follows: “[A]s Jones [v. United States, supra, 526 U.S. at pages 248-249 [119 S.Ct. at pages 1226-1227]] made crystal clear, . . . , our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was ‘the prior commission of a serious crime.’ 523 U.S., at 230 [118 S.Ct. at 1224]; see also id., at 243 [118 S.Ct. at 1230] (explaining that ‘recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence’); id., at 244 [118 S.Ct. at 1231] (emphasizing ‘the fact that recidivism “does not relate to the commission of the offense . . .’”); Jones, 526 U.S., at 249-250, n. 10 [119 S.Ct. at 1227] (‘The majority and the dissenters in Almendarez-Torres disagreed over the legitimacy of the Court’s decision to restrict its holding to recidivism, but both sides agreed that the Court had done just that’). Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Apprendi v. New Jersey, supra, 530 U.S. at p. 488 [120 S.Ct. at pp. 2361-2362], fn. omitted.)
The Apprendi majority recognized that its holding could be construed as being in conflict with Almendarez-Torres. Nonetheless, the majority emphasize that Almendarez-Torres remained the law of land when it noted: “Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.” (Apprendi v. New Jersey, supra, 530 U.S. at pp. 489-490 [120 S.Ct. at p. 2362], fn. omitted.) It was in this context that the Apprendi majority then, in the very next paragraph, utilized the “[o]ther than the fact of a prior conviction” language which requires that a fact which increases the sentence beyond the statutory maximum for an offense be submitted to a jury for proof beyond a reasonable doubt findings. (Id. at p. 490 [120 S.Ct. at p. 2362].)
Of further consequence is the manner in which United States Supreme Court has described its holding in Almendarez-Torres. In Jones v. United States, supra, 526 U.S. at page 249 [119 S.Ct. at page 2227], a case decided before Apprendi, the United States Supreme Court emphasized that its prior *221 decision in Almendarez-Torres was premised upon the distinctive issue of recidivism as distinguished from an element of an offense and other matters which are entitled to full due process treatment. In Jones, the Supreme Court described Almendarez-Torres as involving “the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in indictment.” (Jones v. United States, supra, 526 U.S. at p. 249 [119 S.Ct. at p. 2227].) In Castillo v. United States (2000) 530 U.S. 120, 126 [120 S.Ct. 2090, 2094, 147 L.Ed.2d 94], decided several weeks before Apprendi, the Supreme Court confronted the question of whether an enhanced sentence for machine gun use during a crime of violence created a separate offense or was merely a sentencing factor. In Castillo, Justice Breyer described the issue before the court like this: “In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (determined by a judge). See Jones v. United States, [supra,] 526 U.S. 227 . . . ; Almendarez-Torres v. United States, [supra,] 523 U.S. 224 . . . .” (Castillo v. United States, supra, 530 U.S. at p. 121 [120 S.Ct. at p. 2091].) Further, in Castillo, Justice Breyer described the Almendarez-Torres opinion as one as involving issues of recidivism and noted, “[R]ecidivism ‘is as typical a sentencing factor as one might imagine.’ ” (Castillo v. United States, supra, 530 U.S. at p. 126 [120 S.Ct. at p. 2094].)
Other courts in evaluating this question have reached several pertinent conclusions. Other courts have uniformly concluded that
Apprendi
did not overrule
Almendarez-Torres. (U.S. v. Skidmore
(7th Cir. 2001) 254 F.3d 635, 642;
U.S.
v.
Moreno-Arredondo
(5th Cir. 2001) 255 F.3d. 198, 203;
U.S. v. Arellano-Rivera
(9th Cir. 2001) 244 F.3d 1119, 1126;
U.S. v. Brough
(7th Cir. 2001) 243 F.3d. 1078, 1081;
U.S.
v.
Chapa-Garza
(5th Cir. 2001) 243 F.3d 921, 928;
US.
v.
Quintana-Torres
(9th Cir. 2000) 235 F.3d 1197, 1200;
U.S. v. Fresnares-Torres
(9th Cir. 2000) 235 F.3d 481, 482;
U.S. v. Gatewood
(6th Cir. 2000) 230 F.3d 186, 192;
U.S. v. Salery
(M.D.Ala. 2000) 119 F.Supp.2d 1268, 1273;
U.S. v. Powell
(E.D.Pa. 2000) 109 F.Supp.2d 381, 383-384;
McGregor
v.
State
(Fla.Dist.Ct.App. 2001) 789 So.2d 976, 978;
State
v.
Cullen
(Mo.Ct.App. 2001) 39 S.W.3d 899, 905;
People v. Dillard
(2001) 319 Ill.App.3d 102 [253 Ill.Dec 411, 745 N.E.2d 185, 191]; see
U.S.
v.
Watts
(7th Cir. 2001) 256 F.3d 630.) Further, other courts have construed
Apprendi
as requiring a jury trial except as to matters relating to “recidivism.” Courts have not described
Apprendi
as requiring jury trials on matters other than the precise “fact” of a prior conviction. Rather, courts have held that no jury trial right exists on matters involving the more broadly framed issue of “recidivism.”
(U.S. v. Skidmore, supra,
254 F.3d at p. 642;
U.S. v. Brough, supra,
243 F.3d at pp. 1079-1081;
U.S. v. Rogers
(11th Cir. 2000) 228 F.3d 1318, 1324;
People v. Childress
(2001) 321 Ill.App.3d
*222
13 [254 Ill.Dec 26, 746 N.E.2d 783, 796];
Wright v. State
(Fla.Dist.Ct.App. 2001) 780 So.2d 216, 216-217;
People
v.
Ramos
(2000) 318 Ill.App.3d 181 [252 Ill.Dec 225, 742 N.E.2d 763, 774]; People v.
Ware
(Ill.App.Ct. 2001) 751 N.E.2d 81, 90.) Appellate courts have held that
Apprendi
does not require full due process treatment to recidivism allegations which involved elements merely beyond the fact of conviction itself.
(U.S.
v.
Palomino-Rivera
(7th Cir. 2001) 258 F.3d 656, 661
[Apprendi
does not apply to prior conviction allegation pursuant to
With the foregoing legal analysis in mind, we reach the following conclusions. In terms of recidivism findings that enhance a sentence and are *223 unrelated to the elements of a crime, Almendarez-Torres is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule AlmendarezTorres. The language relied upon by defendant in Apprendi, “[o]ther than the fact of a prior conviction,” refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations. Notably, the recidivism enhancement in Almendarez-Torres had elements apart from the mere fact of a prior conviction. As noted previously, the prior conviction had to involve an “aggravated felony” which occurred before the alien accused’s removal from this country. (See fn. 2, ante.) As has been noted, the term “aggravated felony” in Almendarez-Torres involved the commission of specific enumerated felonies, not merely the “fact of a prior conviction” as that term was utilized in Apprendi. Also, the same reliability factors identified in Apprendi are applicable here. (Apprendi v. New Jersey, supra, 530 U.S. at p. 488 [120 S.Ct. at pp. 2361-2362].) The evidence in the present case consisted of documents which, without dispute, demonstrated defendant had on two separate occasions been sentenced to and completed prison terms. The written evidence which included abstracts of judgment, fingerprint records, and Department of Corrections documents have the constitutional requisite level of reliability so as to meet any pertinent due process concerns. Therefore, Apprendi does not stand for the proposition that full due process treatment should have been accorded to the two prior prison term enhancement allegations. No federal constitutional violation occurred because defense counsel waived defendant’s state statutory right to a jury trial.
The judgment is affirmed.
Grignon, J., and Willhite, J., * concurred.
On August 8, 2001, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied October 31, 2001.
Notes
A11 further statutory references are to the Penal Code unless otherwise indicated.
See footnote, ante, page 212.
Title
Title
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.