People v. TindallPeople v. Tindall
In this case, we decide the question left open in People v. Valladoli (1996) 13 Cal.4th 590, 608, footnote 4, 54 Cal.Rptr.2d 695, 918 P.2d 999 (Valladoli): whether a postverdict amendment to an information to add prior conviction allegations is permissible before sentencing but after the jury has been discharged. Under the circumstances of this case, we conclude it is not permissible. Under Penal Code section 1025, subdivision (b),1 a defendant has the statutory right to have the same jury decide both the issue of guilt and the truth of any prior conviction allegations. Because the jury in this case was discharged before the prosecution amended the information to add additional priors, defendant did not have the same jury, as required under section 1025, subdivision (b). We conclude the trial court acted in excess of its jurisdiction by permitting the postdischarge amendment to the information. Thus, we reverse the Court of Appeal‘s judgment affirming that order.
Factual and Procedural History
The facts are taken largely from the Court of Appeal‘s opinion.
Police arrested defendant Robert Tindall after they saw him drop a plastic baggie containing what was later determined to be a usable quantity of rock cocaine. The information charged defendant with possession of rock cocaine (
On December 18, 1996, the jury returned a guilty verdict, and defendant waived jury trial on the prior conviction allegations. The trial court then discharged the jury. The matter was continued to January 16, 1997, for preparation of a probation report, a court trial on the priors, and sentencing. The probation report later revealed that, in addition to numerous Missouri misdemeanor and felony convictions, defendant had three 1985 federal convictions for bank robberies committed in California, and was currently on federal parole for those convictions.
At the January 16 hearing, the prosecution moved to amend the information to add the three prior felony bank robbery convictions as “strikes” (
After hearing further argument on the motion to amend the information, the trial court reaffirmed its ruling granting the motion over defendant‘s continuing objection. On March 24, 1997, trial commenced on the strike allegations before a new jury. After the trial court declared a mistrial because the jury was unable to reach a verdict on the truth of the prior convictions, it impaneled a new jury, which found true the three alleged prior bank robbery convictions. Defendant was sentenced to prison for 25 years to life.
On appeal, as relevant here, defendant argued that the amendment adding the priors after the first jury had been discharged violated his constitutional right against double jeopardy, and that under Valladoli, supra, 13 Cal.4th 590, 54 Cal. Rptr.2d 695, 918 P.2d 999, a late amendment under section 969a2 is permissible only until a jury is discharged. (
We granted defendant‘s petition for review to decide one issue—whether a postverdict amendment to an information to add previously unalleged prior convictions is permissible after a jury has been discharged.
Discussion
Section 1025, subdivision (b) provides, in pertinent part: “the question of
In construing section 1025, “we must `ascertain the intent of the Legislature so as to effectuate the purpose of the law.‘” (Valladoli, supra, 13 Cal.4th at p. 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.) We first look at the actual words of the statute, “giving them a plain and commonsense meaning.” (Ibid.) “If there is no ambiguity in the language of the statute, `then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’ [Citation.] `Where the statute is clear, courts will not “interpret away clear language in favor of an ambiguity that does not exist.“‘” (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268, 36 Cal.Rptr.2d 563, 885 P.2d 976.)
Preliminarily, we find that the pertinent language of section 1025 is straightforward and clear: if a defendant pleads not guilty to the underlying offense, and a jury decides the issue of guilt, that same jury shall decide whether the defendant “suffered the prior conviction,” unless the defendant waives jury trial. (
Because section 1025 was enacted over a century ago (Saunders, supra, 5 Cal.4th at p. 587, fn. 2, 20 Cal.Rptr.2d 638, 853 P.2d 1093), our review of its legislative history sheds no light on the purpose behind the same-jury requirement, which existed from the time of the statute‘s 1874 enactment. (Code Amends. 1873-1874 (Pen.Code), ch. 614, § 50, p. 439; Saunders, supra, 5 Cal.4th at pp. 587-588, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) However, we do perceive a possible and obvious reason for the same-jury requirement—judicial economy.
By requiring the same jury to decide both issues of guilt and alleged prior convictions, section 1025, subdivision (b) saves the state courts the additional time and cost of having to impanel two juries in countless criminal trials. (See People v. Owens (1980) 112 Cal.App.3d 441, 447, 169 Cal.Rptr. 359.) The savings in time and cost are no doubt significant compared to the “little, if any, time” saved from having a unitary rather than a bifurcated trial. (People v. Calderon (1994) 9 Cal.4th 69, 77, 36 Cal.Rptr.2d 333, 885 P.2d 83 (Calderon) [in a bifurcated trial, a not guilty verdict obviates the need for later proving the alleged prior conviction].) Indeed, we believe that the aggregate savings from all criminal trials subject to section 1025 must be staggering. Thus, we find the “state‘s legitimate interest in conserving judicial resources” sufficiently explains, and perhaps justifies, the same-jury requirement under section 1025, subdivision (b). (Calderon, supra, 9 Cal.4th at p. 77, 36 Cal.Rptr.2d 333, 885 P.2d 83.)
However, a defendant‘s interests, which obviously are not in saving the state time or money, may not be advanced by having the same jury. Frequently, a defendant would prefer not to have the same jury under section 1025, subdivision (b). “In most instances, a defendant is benefitted by having a new jury determine the truth of alleged prior convictions, because the new jury will not have heard the evidence supporting the defendant‘s conviction of the current charges.” (Saunders, supra, 5 Cal.4th at p. 596, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) Moreover, in a unitary trial, where a jury decides the truth of alleged prior convictions at the same time it decides the issue of guilt, “`there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense.‘” (Calderon, supra, 9 Cal.4th at p. 75, 36 Cal.Rptr.2d 333, 885 P.2d 83.)
Although the same-jury requirement under section 1025, subdivision (b) may not particularly inure to defendant‘s benefit, we cannot conclude thereby that defendant has no right to invoke the statute. (Saunders, supra, 5 Cal.4th at p. 591, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) Nowhere does section 1025 provide that only at the prosecution‘s request, or through the trial court‘s order or exercise of discretion, shall the same jury decide both the issue of guilt and the truth of alleged prior convictions. (Saunders, supra, 5 Cal.4th at pp. 591-592, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) The statute is clear in its
Moreover, as noted, section 1025 has been part of this state‘s framework of criminal procedure for over a century. (See ante, 102 Cal.Rptr.2d at p. 537, 14 P.3d at p. 210.) Even though the Legislature has amended several times (in addition to repealing and reenacting) the statute, it has not eliminated the same-jury requirement. (See Saunders, supra, 5 Cal.4th at p. 587, fn. 2, 20 Cal.Rptr.2d 638, 853 P.2d 1093; see also Kelii, supra, 21 Cal.4th at p. 457, 87 Cal.Rptr.2d 674, 981 P.2d 518.) To the contrary, the Legislature has taken steps to ensure that the court does not prematurely discharge the jury. In 1988, the Legislature amended section 1164 to add subdivision (b), which requires the trial court, before discharging the jury, to first verify that the jury has decided all issues before it. (Stats.1988, ch. 413, § 1, p. 1780.) “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 truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.” (
We are not persuaded by the mandatory-directory distinction the dissent raises. (Dis. opn., post, 102 Cal.Rptr.2d at pp. 545-547, 14 P.3d at pp. 218-220.) We do not perceive a clear legislative intent that section 1025, subdivision (b)‘s requirement that the same jury decide both the issue of guilt and the truth of any priors is directory, particularly in light of other statutes which further ensure compliance with the same-jury requirement (
Likewise, we are not convinced by the dissent‘s reliance on a portion of the legislative history of section 969a, which originally allowed the prosecution to file a supplemental information adding prior conviction allegations after sentencing as long as a defendant‘s sentence had not yet expired. (Valladoli supra, 13 Cal.4th
Under the circumstances of this case, we conclude that in light of section 1025, subdivision (b), the trial court acted in excess of its jurisdiction by permitting the amendment to add previously unalleged prior convictions after discharging the jury. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942.) A court acts in excess of its jurisdiction when “it has no `jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” (Ibid.) Contrary to the Court of Appeal‘s assertion, a defendant‘s right to have the same jury under section 1025, subdivision (b) is not a statutory preference, but a “procedural requirement.” (Saunders, supra, 5 Cal.4th at p. 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) Therefore, although the prosecution may amend an information to add alleged prior convictions on the trial court‘s order until sentencing (Valladoli supra, 13 Cal.4th at pp. 605-606, 54 Cal. Rptr.2d 695, 918 P.2d 999), the court may not permit such an amendment if the jury has been discharged, unless the defendant waives or forfeits the right to have the same jury try both guilt and priors.6 (
In this case, the Court of Appeal disregarded the “procedural requirement” of section 1025 (Saunders, supra, 5 Cal.4th at p. 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093), instead finding nothing in the plain language of section 969a that prohibited the trial court from allowing the information to be amended after the jury was discharged. Relying on Valladoli, the Court of Appeal applied an abuse of discretion standard to determine whether the postdischarge amendment was proper. (Valladoli supra, 13 Cal.4th at pp. 607-608, 54 Cal. Rptr.2d 695, 918 P.2d 999, fn. omitted.) It concluded that “under Saunders and Valladoli that right [under section 1025] is not absolute where there was good cause to empanel a different jury.” Neither Valladoli, supra, 13 Cal.4th 590, 54 Cal.Rptr.2d 695, 918 P.2d 999, nor Saunders, supra, 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093, compels this conclusion.
In contrast to this case, the jury in Valladoli had not been discharged when the prosecution moved after the verdict to add the prior felony conviction enhancements that were inadvertently omitted from the information. After finding section 969a to be controlling, and examining its plain language and legislative history, we concluded in Valladoli that section 969a authorized postverdict, presentencing amendments to charge prior felony convictions that were previously known, newly discovered, or omitted through clerical error. (Valladoli supra, 13 Cal.4th at pp. 605-606, 54 Cal.Rptr.2d 695, 918 P.2d 999.) However, we also recognized a trial court has the discretion to permit or deny such
Citing section 1025, we included among these factors whether the jury had already been discharged. (Valladoli, supra, 13 Cal.4th at pp. 607-608, 54 Cal.Rptr.2d 695, 918 P.2d 999.) Indeed, in rejecting defendant Valladoli‘s due process claim, we observed that “[significantly, at the time of amendment the jury had not yet been discharged.” (Id at p. 608, fn. 4, 54 Cal. Rptr.2d 695, 918 P.2d 999, and see accompanying text.) Contrary to respondent Attorney General‘s contention, we did not suggest jury discharge to be “immaterial” in Valladoli, which was consistent with our declining to express an opinion on whether section 969a amendments are limited by other statutes, such as section 1025. (Valladoli supra, 13 Cal.4th at p. 608, fn. 4, 54 Cal.Rptr.2d 695, 918 P.2d 999.)
Saunders, which did not involve previously unalleged prior convictions, also does not help the Attorney General‘s position. In Saunders, the defendant requested that the trial of the substantive offenses be bifurcated from the prior conviction allegations. After the jury returned a guilty verdict on the burglary charge, the trial court discharged it and continued the case to the next day. (Saunders, supra, 5 Cal.4th at p. 586, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) The defendant, who was represented by substitute counsel at that time, did not object to the jury‘s discharge. The following day, the defendant‘s trial counsel appeared, and the defendant waived jury trial on the prior conviction allegations. After the court found the allegations true, defense counsel learned that the jury had been discharged before the defendant waived jury trial. Defense counsel objected, claiming she would not have advised the defendant to waive jury trial had she known th e jury was discharged after returning its verdict. (Id at pp. 586-587, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) The trial court permitted the defendant to withdraw his waiver, and a newly impaneled jury found the prior conviction allegations true. (Id. at p. 587, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)
We found the trial court violated sections 1025 and 1164, subdivision (b), by discharging the jury before it determined the truth of the prior conviction allegations. (Saunders, supra, 5 Cal.4th at pp. 591-592, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) However, we rejected the defendant‘s claim that he was entitled to relief based on his section 1025 right to have the same jury that decided the guilt issue. (Saunders, supra, 5 Cal.4th at p. 591, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) “He forfeited that right by failing to object in a timely fashion when the jury was discharged.” (Ibid.) We emphasized that “a defendant may not complain on appeal of a departure from this procedural requirement unless the error has been brought to the attention of the trial court by means of a timely and specific objection.” (Id at p. 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) However, we did not suggest that, in the absence of the defendant‘s forfeiture or waiver, his statutory right to have the same jury decide both the guilt issue and the sentencing allegations was ineffectual or unprotected. Defendant here did not fail to object, but lodged a continuing objection to the postdischarge amendment.
The Attorney General, however, emphasizes that section 969a‘s underlying policy allowing permissive amendments—to ensure a defendant will not “`escape the consequences‘” of his or her prior conduct—will be undermined by prohibiting postdischarge amendments. (Valladoli, supra, 13 Cal.4th at p. 603, 54 Cal.Rptr.2d 695, 918 P.2d 999.) He contends section 969a and former section 969 (now § 969.5) 7 should be interpreted similarly Saunders and Vera. (Cf. dis. opn., post, 102 Cal.Rptr.2d at pp. 546-547, 14 P.3d al pp. 218-220.)
For instance, section 969.5, as a parallel provision to section 969a, applies when a defendant pleads guilty or nolo contendere to the underlying offense. (See Valladoli, supra, 13 Cal.4th at pp. 601-602, 54 Cal. Rptr.2d 695, 918 P.2d 999 [interpreting former § 969 1/2 in part].) Section 969.5, subdivision (b) states, in pertinent part: “[T]he question of whether or not the defendant has suffered the prior conviction shall be tried by a jury impaneled for that purpose unless a jury is waived, in which case it may be tried by the court.” In contrast to section 969a, section 969.5 is not limited by section 1025, subdivision (b)‘s requirement that the same jury decide both the issue of guilt and the truth of any prior conviction allegations. The reason for this is simple: when a defendant enters a guilty or nolo contendere plea, there is no jury “that tries the issue upon the plea of not guilty” that could be prematurely discharged before deciding the prior conviction allegations. (
The same result may occur if a defendant waives a jury trial on the charged offense and/or on the alleged prior conviction or admits the latter. (
However, we do not find the foregoing situations constitute anomalies, which may result from the interpretation of section 969a and section 1025, subdivision (b), in this case. As noted, depending on a defendant‘s plea or waiver of a jury, the prosecution may or may not be permitted to add prior conviction allegations after a jury is discharged. These resulting differences, however, are not anomalies based on perceived internal inconsistencies between related statutes that must be construed together and reconciled accordingly. (Valladoli, supra, 13 Cal.4th at pp. 601-602, 54 Cal.Rptr.2d 695, 918 P.2d 999.) Rather, any divergence results from the factual circumstance that a defendant pleads not guilty and does not waive jury trial of alleged prior convictions, which may implicate section 1025, subdivision (b).
We are also not persuaded by the Attorney General‘s contention that prohibiting postdischarge amendments will give defendants “an incentive to waive their jury trial right quickly to prevent their being correctly sentenced.” (See Valladoli supra, 13 Cal.4th at p. 602, 54 Cal.Rptr.2d 695, 918 P.2d 999.) In other words, those defendants who know the prosecution has not alleged all of their prior convictions will waive a jury trial on the priors, causing the guilt phase jury to be discharged. If the prosecution seeks to amend the information to add the prior conviction allegations, the defendants will assert that they waived a jury without full knowledge of the alleged prior convictions, and they will seek to withdraw the waiver and impanel another jury. Consequently, they will not have the same jury, as required under section 1025, subdivision (b). Under defendant‘s interpretation of this provision, the prosecution may not be permitted to add previously unalleged prior convictions.
In contrast, a defendant would have a clear motivation and effective means to prevent being correctly sentenced by quickly pleading guilty, “thereby limiting the amount of time the prosecutor has to investigate, discover, and charge the accused‘s prior felony convictions.” (Valladoli, supra, 13 Cal.4th at p. 602, 54 Cal. Rptr.2d 695, 918 P.2d 999 [interpreting former § 96956].) In that situation, where a defendant‘s incentive is obvious and problematic, section 1025, subdivision (b) does not otherwise limit an amendment before sentencing. (See ante, 102 Cal. Rptr.2d at pp. 540-541, 14 P.3d at pp. 213-215.) However, we do not find a defendant‘s incentive to waive jury trial on prior conviction allegations similarly compelling to justify disregarding section 1025, subdivision (b)‘s limitation. Contrary to the Attorney General‘s suggestion, prohibiting a postdischarge amendment still gives the prosecution a fair opportunity—until the conclusion of the guilt phase trial—to add previously unalleged prior convictions.
Moreover, we agree that although defendants are most familiar with their own criminal records, they are not likely to alert the prosecution that it has failed to allege some prior convictions, which invariably would increase their sentences. (In re Yurko (1974) 10 Cal.3d 857, 862, 112 Cal.Rptr. 513, 519 P.2d 561.) However, a defendant who takes advantage of the prosecution‘s omission by waiving jury trial on the prior conviction allegations will also have to forgo the “various procedural guaranties” that accompany the right to a jury trial under section 1025 (People v. Monge (1997) 16 Cal.4th 826, 833-834, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (plur. opn. of Chin, J.) (Monge), affd. sub nom. Monge v. California, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 [reasonable doubt standard for proving prior conviction allegations, privilege against self-incrimination, application of rules of evidence, confrontation and cross-examination of witnesses] ), which the jury will have heeded with its “full and independent consideration.” (People v. Peters (1982) 128 Cal.App.3d 75, 91, 180 Cal.Rptr. 76 [discussing in part a defendant‘s right to a unanimous verdict].) Thus, we hesitate to characterize a defendant‘s incentive to waive the right to a jury trial as without adverse consequences.
The Attorney General also argues that the reasoning of Monge compels the conclusion that the postdischarge amendment made here is proper. We disagree. In Monge, we considered only state and federal double jeopardy protections and whether they applied to proceedings on prior conviction allegations. (Monge, supra, 16 Cal.4th at pp. 843-845, 66 Cal. Rptr.2d 853, 941 P.2d 1121.) Rejecting defendant Monge‘s constitutional claims, we expressed no view on whether section 1025 or any other applicable section precluded retrial of prior conviction allegations. (Monge, supra, 16 Cal.4th at p. 845, 66 Cal.Rptr.2d 853, 941 P.2d 1121.) Moreover, Monge‘s circumstance of a retrial on prior conviction allegations is a procedural posture arguably distinguishable from this case.8 Thus, we do not find Monge lends
Moreover, we observe that in this case, section 1025‘s limitation on a postdischarge amendment was not accomplished by way of a “procedural trap.” (Saunders, supra, 5 Cal.4th at p. 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) Here, defendant waived jury trial before the prosecution amended the information to add three prior felony convictions. This amendment increased his possible sentence from four years to 25 years to life in prison. As noted, the trial court allowed defendant to withdraw his previous waiver “[o]ut of a sense of fairness.” In contrast, the defendant in Saunders did not face previously unalleged prior convictions. He simply “changed his mind” about waiving jury trial on advice of counsel, and the trial court permitted him to withdraw his waiver. (Id. at p. 591, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)
Although section 969a may allow amendments until sentencing on court order (Valladoli supra, 13 Cal.4th at p. 605, 54 Cal.Rptr.2d 695, 918 P.2d 999), other applicable provisions may limit these amendments. A contrary interpretation would suggest that amendments under section 969a are mandatory until sentencing, which is contradicted by the provision‘s discretionary term “may,” and the requirement that amendments “shall be made upon the order of the court” (
Notwithstanding section 969a‘s intent “that all known prior felony convictions of an accused be pleaded” (Valladoli supra, 13 Cal.4th at p. 602, 54 Cal.Rptr.2d 695, 918 P.2d 999), we decline to adopt any interpretation that would deny a defendant‘s long-established statutory right under section 1025, subdivision (b), which we recently reaffirmed in Vera, supra, 15 Cal.4th at page 276, 62 Cal.Rptr.2d 754, 934 P.2d 1279 (“Section 1025 establishes a defendant‘s right to jury trial of alleged prior convictions by the same jury which determines guilt of the substantive offenses“). Without clear legislative intent to the contrary, we choose not to allocate greater significance to section 969a over section 1025, or vice versa. (See Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298, 285 Cal.Rptr. 86, 814 P.2d 1328 [“statutes should be interpreted in such a way as to make them consistent with each other, rather than obviate one another“].) In this regard, prohibiting postdischarge amendments strikes a fair balance between section 1025 and section 969a. To add previously unalleged prior convictions under section 969a—where a defendant has not waived or forfeited his or her right to a jury trial on the prior conviction allegations—the prosecution has until the conclusion of the guilt phase trial to do so upon court order, consistent with section 1025, subdivision (b).
Whether the Legislature considered the single-jury requirement in subdivision (b) of section 1025 to be of less importance in light of a recent amendment to another subdivision in that section and case law concerning separate, distinct issues (dis. opn., post, 102 Cal.Rptr.2d at p. 547-548, 14 P.3d at p. 220-221), is not apparent. Thus, we must interpret section 1025, subdivision (b) as we find it, requiring the
Indeed, our interpretation of
In light of the foregoing, we conclude that in the absence of a defendant‘s forfeiture or waiver,
Finally, we disagree with defendant‘s suggestion that we adopt a due diligence standard—whether or not the jury has been discharged—that the prosecution must satisfy before it may amend the information.10 As the Attorney General correctly notes, this due diligence standard does not comport with our decision in Valladoli Although we did not decide the
Moreover, because we find the postdischarge amendment was improper under
For reasons set forth above, we conclude the trial court erred by allowing a
GEORGE, C.J., MOSK, J., KENNARD, J., and WERDEGAR, J., concur.
Dissenting Opinion by BROWN, J.
The majority has created a jurisdictional mountain out of a procedural molehill. A statute enacted almost a century ago— most likely, as the majority concedes, for reasons of judicial economy—now categorically forecloses the prosecution from alleging belatedly discovered serious prior convictions simply because the trial court discharged the jury that tried the underlying issues of guilt. The prosecution is thus foreclosed despite the unambiguous statutory authorization to make such allegations]” [w]henever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere. . . .” (
The majority‘s interpretation of
To begin, unlike some codes (see, e.g.,
Contrary to the majority, I find “shall” in this context more reasonably construed as directory rather than mandatory. “[T]he `directory’ or `mandatory’ designation does not refer to whether a particular statutory requirement is `permissive’ or `obligatory,’ but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.” (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606; see generally 1A Sutherland, Statutory Construction (5th ed.1993) pp. 763-769.) Thus, “[a] statutory requirement may impose on the state a duty to act in a particular way, and yet failure to do so may not void the governmental action taken in violation of the duty. [Citations.]” (In re Richard S. (1991) 54 Cal.3d 857, 865, 2 Cal.Rptr.2d 2, 819 P.2d 843.) “If the action is invalidated, the requirement will be termed `mandatory.’ If not, it is `directory’ only.” (California Correctional Peace Officers
Whether the Legislature intended a particular statute to impose a mandatory duty “is a question of interpretation for the courts. [Citations.]” (Nunn v. State of California (1984) 35 Cal.3d 616, 624, 200 Cal.Rptr. 440, 677 P.2d 846.) “In determining whether statutory language is mandatory or directory, `“[i]n the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation][Citations.]” (In re Richard S., supra, 54 Cal.3d at pp. 865-866, 2 Cal.Rptr.2d 2, 819 P.2d 843.) “`It is, of course, difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or imperative, but of all the rules mentioned, the test most satisfactory and conclusive is whether the prescribed mode of action is of the essence of the thing to be accomplished, or, in other words, whether it relates to matters material or immaterial—to matters of convenience or of substance.‘” (Francis v. Superior Court (1935) 3 Cal.2d 19, 28, 43 P.2d 300; see, e.g., id. at pp. 28-29, 43 P.2d 300; see also California Correctional Peace Officers Assn. v. State Personnel Bd, supra, 10 Cal.4th at p. 1145, 43 Cal. Rptr.2d 693, 899 P.2d 79 [identifying a “`variety of tests‘” for making mandatory/directory determination].) Courts also consider “[f]ailure to provide for a consequence or penalty for noncompliance [to] strongly suggest[] that the provision is merely directory. [Citation.]” (Meridian Ocean Systems, Inc. v. State Lands Com. (1990) 222 Cal.App.3d 153, 168, 271 Cal. Rptr. 445; Nunn v. State of California, supra, 35 Cal.3d at p. 625, 200 Cal.Rptr. 440, 677 P.2d 846; see also Ryan v. Byram (1935) 4 Cal.2d 596, 603-604, 51 P.2d 872; see, e.g., Mission Housing Development Co. v. City and County of San Francisco (1997) 59 Cal.App.4th 55, 75, 69 Cal. Rptr.2d 185.)
These principles apply equally to construction of the Penal Code, as sections 1050 and 1382 illustrate.
By any of the foregoing measures,
Moreover, the majority‘s holding conflicts with the legislative history of
With respect to the legislative intent of
Counter to the majority‘s holding, the Legislature, seconded by the voters, has of late made clear its intent “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (
The Legislature has also narrowed the jury‘s function with respect to determining the truth of prior conviction allegations.
The right to jury trial on priors allegations is wholly statutory; it assumes no constitutional dimension. (See People v. Vera, supra, 15 Cal.4th at p. 277, 62 Cal. Rptr.2d 754, 934 P.2d 1279; cf. People v. Wims (1995) 10 Cal.4th 293, 303-309, 41 Cal.Rptr.2d 241, 895 P.2d 77.) Nor does the impaneling of a second jury to determine added prior conviction allegations implicate the prohibition against double jeopardy. (People v. Saunders, supra, 5 Cal.4th at pp. 592-596, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) To the extent particular circumstances may raise due process concerns, the trial court‘s exercise of its discretion to permit or deny belated amendment (
Without analysis, the majority assumes “shall” is mandatory and from that assumption infers the only remedy for noncompliance is to bar consideration of any prior allegations added after discharge of the jury that determined the defendant‘s guilt. These assumptions do not follow from either the statutory language or any decisional authority cited by the majority. Nor is a bar necessary to effectuate legislative intent to confer a statutory right to jury trial for prior convictions. That right may be preserved even if the original jury is discharged prior to amendment. Here, defendant received his jury trial. He offers only speculation and conjecture in support for his assertions of prejudice because the same panel did not determine both guilt and the priors, and logic suggests none.
Accordingly, I would affirm the judgment of the Court of Appeal.
BAXTER, J., concurs.