The opinion
Filed 10/20/21 P. v. Lee CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306634
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480420-01)
v.
HYUNG JU LEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig T. Mitchell, Judge. Affirmed in part and
remanded with directions.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Paul M. Roadarmel,
Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Appellant Hyung Ju Lee hit pedestrian Tae Jong Myoung
with his car around midnight at an intersection in downtown Los
Angeles. Myoung, who was seriously injured, had almost no
memory of the incident. A jury convicted appellant of one count
of driving under the influence of a drug causing injury (Veh.
Code, § 23153, subd. (f)), based largely on the testimony of expert
witnesses.1 The jury found true the allegation that appellant
personally inflicted great bodily injury on Myoung. (Pen. Code,
§ 12022.7, subd. (a).) The trial court sentenced appellant to eight
years in prison; the sentence included a five-year enhancement
for a prior serious felony conviction. (Pen. Code, § 667,
subd. (a)(1).)
Appellant appeals from the judgment of conviction,
contending the trial court abused its discretion in permitting Los
Angeles Police Department (LAPD) Officer Johanes Gering to
opine that (1) appellant was too impaired to drive at the time of
the collision; (2) appellant should have been able to see the victim
in the crosswalk and to slow down or yield to him; (3) appellant’s
impairment caused the collision; and (4) appellant failed to stop
for the victim who was in an unmarked crosswalk in violation of
section 21950, subdivision (a). Appellant further contends the
trial court erred in imposing a five-year enhancement term
because the jury did not consider or find true the allegation that
he had suffered a prior serious felony conviction. Respondent
agrees the allegation was not considered or found true by the jury
or the court. We agree as well, strike the five-year enhancement
term, and remand to permit the People to determine whether to
1 Further undesignated statutory references are to the
Vehicle Code.
2
try the allegation or have the court resentence appellant without
it. We affirm the judgment of conviction in all other respects.
BACKGROUND
Around midnight on April 21, 2019, Myoung left a bar at
the intersection of 5th Street and Pico Boulevard and smoked a
cigarette outside. Myoung was a regular customer at the bar.
Although Myoung believed he had only a couple of beers at the
bar, a subsequent blood test showed that his blood alcohol level
was .243, which would be three times the legal limit for driving.
Un Pyo Lee (Un Pyo) owned and ran the bar. She went
outside the bar at the same time as Myoung, who was a regular
customer. Un Pyo told investigating officers that Myoung was
drunk, so she took his key and tried to call a taxi for him. They
walked outside because she had another customer waiting for a
taxi. They all stood outside smoking. At trial, Un Pyo testified
she left the bar to see off another customer in a taxi and Myoung
“coincidentally” came out of the bar at the same time to have a
cigarette.
According to Un Pyo, at some point, Myoung began to cross
the street to go to his car. He left the corner and started to walk
directly across the street but he was hit by appellant’s car when
he reached the center lane. Un Pyo did not see appellant’s car
before it hit Myoung because the car was going “so fast.”
The impact sent Myoung flying a considerable distance
through the air. Erik Calderon, who witnessed the collision,
called 911. He told the operator: “A car ran into a man and sent
him flying” and “He honestly ran over him real bad.” Myoung
was transported to a hospital. He subsequently underwent
multiple surgeries over the course of a three-month hospital stay.
He then underwent six months of physical therapy. At the time
3
of trial he required full-time care from family members. He had
almost no memory of the night of the collision.
Officer Johanes Gering arrived at the scene about two
hours after the collision. He was a Collision Investigator with
specialized training in driving under the influence investigations.
Officer Gering was more familiar with alcohol-induced
impairment than narcotics-induced impairment, although he had
some training and experience with narcotics. He requested the
assistance of a drug recognition expert, but none were available.
Officer Gering asked appellant, who was sitting on a curb,
if he was under the influence of any substance, including
medication. Appellant replied, “just my Alprazolam,” which had
been prescribed for him. Appellant said he took 2 milligrams
twice a day and had last taken the medicine at 6 or 7 p.m.
Officer Gering asked him how long it took for the medication to
“wear off.” Appellant replied, “Three to four hours.”
Officer Gering found appellant’s speech slow, which was
consistent with being under the influence of alcohol or drugs.
The officer conducted a series of field sobriety tests on appellant
and concluded appellant was under the influence of drugs or
alcohol. He thought it was more likely drugs because there was
no odor of alcohol on appellant, and appellant’s pupils were much
more constricted than typical for a person under the influence of
alcohol.
Officer Gering placed appellant under arrest for being
under the influence of a narcotic. The officer explained to
appellant: “The testing that I asked you to do, you weren’t able
to demonstrate them as—, I asked you to demonstrate the test.”
He added: “[Y]ou were swaying back and forth when I was
having you count to yourself. . . . you couldn’t walk the line
4
correctly [when] I asked you to keep your heel to toe. You had to
use your hands to keep balance. . . . So those things are cues that
tell me that you’re possibly under the influence of, uh, a
substance.”
Two LAPD officers transported appellant to the
Metropolitan Detention Center for a blood test, but the test was
not possible. They then took him to the Van Nuys jail for a blood
test, but again a blood test was not possible. Instead, the officers
obtained a urine sample from appellant.
Urinalysis and testing revealed the presence of
amphetamine and benzodiazepines, including diazepam (Valium)
and alprazolam (Xanax). Benzodiazepines are central nervous
system depressants, as is alcohol. Any of these substances can
impair the ability of a person to drive safely.
At trial, Officer Gering opined that appellant “was too
impaired to drive at midnight on April 21st;” it was “because of
[appellant’s] impairment that he struck Mr. Myoung with his
car”; appellant committed a traffic violation when “he failed to
stop for [a] pedestrian in an unmarked crosswalk,” specifically he
violated section 21950, subdivision (a); appellant should “have
been able to see Mr. Myoung crossing the street in the
crosswalk”; and appellant should “have been able to slow down or
yield to Mr. Myoung walking across the street.”
LAPD Traffic Collision Investigator Nicholas Sewell
conducted an investigation and reconstruction of the collision.
He determined that Myoung was struck while in the number 1
(center) lane of Pico just before Fifth Street, thus establishing
that Myoung was hit in the unmarked crosswalk. (All
intersections have cross-walks; some are marked by paint lines
and some are not.) Officer Sewell agreed that “if you’re driving
5
east on Pico Boulevard approaching the intersection of 5th [you
are] supposed to yield to pedestrians who are crossing from the
. . . southwest corner to the northwest corner of Pico Boulevard.”
The “failure to yield to pedestrian[s] would be in violation of the
law” specifically “21958 [sic] V.C.” which is the law concerning
“failure to yield to a pedestrian in a marked or unmarked
crosswalk.”
Michael Takacs, a certified drug recognition expert,
reviewed the bodycam footage of Officer Gering’s tests, Officer
Gering’s notes, toxicology reports, and other information about
the collision. He also listened to Officer Gering’s trial testimony.
Takacs concluded appellant appeared to be impaired by drugs
and specifically under the influence of a central nervous system
depressant. Takacs further opined appellant was under the
influence of alprazalom two hours earlier, at midnight, and so
would have been “impaired” while driving. This opinion was
based in part on appellant’s statement that he had taken what
Takacs considered a large dose of alprazalom at 6 or 7 p.m. His
opinion was confirmed by the toxicology report. Takacs
acknowledged that a test to determine if an individual is under
the influence of drugs typically involves more steps than the field
sobriety tests administered by Officer Gering, but Takacs stated
that under the circumstances of this case the omission of those
tests did not affect his opinion that appellant was impaired.
Takacs explained that the “physical and mental symptoms
[of alprazolam] that are shown are similar [to alcohol] because
they do belong in the same class of drugs.” Specifically,
benzodiazapines such as alprazolam can produce slow reaction
times, sluggish movement, slow or slurred speech, poor
coordination, difficulty walking or turning, and sweating.
6
A driver under the influence of a benzodiazepine, “might have
braking problems, problems maintaining [his] lane, problems
navigating a turn, . . . drowsiness, inability to pay attention,
[and] vigilance issues.” It would be common to have slow reaction
and response times, as well as to be less aware of one’s
surroundings.
In his defense, appellant called LAPD Officer Manuel
Mendieta. The officer had responded to the scene of the accident
after the 911 call. He spoke with appellant, who was cooperative.
The officer testified that he had some “near misses” with cars
while he was at the scene. He never had to get out of the way of
a car, however.
Appellant also testified in his own behalf. He admitted
that he had used amphetamines and Valium three days before
the collision and took between .5 and 2 milligrams of Xanax at
about 6:00 or 7:00 p.m. the evening of the collision. He had taken
Xanax twice daily for about 10 years for an anxiety disorder.
Xanax did not “knock [him] out.” It made him “feel normal” for
about four to six hours.
Appellant testified that as he was driving on the night of
the collision, he saw a man “on a bicycle out [of] the left
peripheral vision of [his] eye” and then hit the man. Appellant
slammed on the brakes, got out of the car and saw a man on the
ground about 10 yards in front of him. Someone told him not to
touch the man. Appellant called 911 and stayed at the scene.
When police arrived, appellant cooperated. He felt the
drugs in his system did not affect this driving and believed he
passed the field sobriety tests with flying colors.
7
DISCUSSION
A. If Some of Officer Gering’s Opinion Testimony Was
Improperly Admitted, Any Error Was Harmless.
Appellant contends the trial court abused its discretion in
permitting Officer Gering to give the following expert opinions:
(1) appellant “was too impaired to drive at midnight on April
21st;” (2) it was “because of [appellant’s] impairment that he
struck Mr. Myoung with his car”; (3) appellant committed a
traffic violation when “he failed to stop for [a]pedestrian in an
unmarked crosswalk,” specifically violating section 21950,
subdivision (a); (4) appellant should “have been able to see Mr.
Myoung crossing the street in the crosswalk” and should “have
been able to slow down or yield to Mr. Myoung walking across the
street.” Appellant objected to each opinion on the ground that it
lacked foundation.
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience training or education
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).) “The trial
court’s determination of whether a witness qualifies as an expert
is a matter of discretion and will not be disturbed absent a
showing of manifest abuse. [Citation.] ‘ “Where a witness has
disclosed sufficient knowledge of the subject to entitle his opinion
to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than its admissibility.” ’ ”
(People v. Bolin (1998) 18 Cal.4th 297, 321–322.) “Testimony in
the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be
decided by the trier of fact.” (Evid. Code, § 805.)
8
Officer Gering’s opinion testimony was offered to show
appellant violated section 23153. A conviction for violating that
section requires proof that the defendant, while under the
influence of a drug, drove a vehicle and concurrently committed
an act forbidden by law or neglected a duty imposed by law in
driving a vehicle and that act or neglect proximately caused
bodily injury to another person. (See § 23153, subd. (f); see also
People v. Oyaas (1985) 173 Cal.App.3d 663, 667.) Here, the trial
court instructed the jury that it must find that appellant
committed an illegal act, and that the People “allege that the
defendant committed the following illegal act: the defendant
failed to yield the right-of-way to a pedestrian crossing the
roadway within an unmarked crosswalk at an intersection.”
Although such conduct is a violation of section 29150, subdivision
(a), the trial court did not refer to that section in the instruction.
1. Opinion about impairment at the time of the
accident
Appellant contends that since Officer Gering was not a
certified drug expert and acknowledged that he had no
knowledge concerning whether or when “the effect [of] the
narcotic could be rising or lowering,” the officer was not qualified
to testify that appellant was impaired as the result of drug usage
at the time of the collision, which occurred two hours before the
officer conducted his field sobriety tests on appellant. Assuming
for the sake of argument that Officer Gering was not qualified to
opine on this subject, there is no reasonable probability that
appellant would have obtained a more favorable outcome in the
absence of the error. The prosecution also offered the testimony
of a certified drug expert, Takacs, who formed the same opinion
after listening to Officer Gering’s trial testimony and reviewing
9
the bodycam footage of Officer Gering’s tests, his notes, toxicology
reports, and other information about the collision.2
2. Opinion about the causal connection between
the impairment and the accident
Appellant contends that since Officer Gering was not
qualified to opine that appellant was impaired when the accident
occurred, the officer was necessarily unqualified to opine that the
impairment caused the collision. Again, assuming admission of
the testimony was erroneous, there is no reasonable probability
that appellant would have received a more favorable outcome in
the absence of the error.
Takacs explained that alprazolam was a benzodiazepine
which was a “central nervous depressant and that’s basically the
class that alcohol also belongs to.” He further testified that the
“physical and mental symptoms [of alprazolam] that are shown
are similar [to alcohol] because they do belong in the same class
of drugs.”
As Officer Gering explained, appellant’s symptoms were
consistent with being under the influence of alcohol. Even if
Officer Gering were not an expert on whether narcotics could
have caused appellant’s symptoms, he was an expert on the
symptoms themselves, as those symptoms were consistent with
alcohol impairment. Thus, Officer Gering was qualified to opine
2 Although appellant complains that Takacs was not at the
scene and did not evaluate him personally, he has offered no legal
authority that such personal interaction is required for an expert
to form an opinion. Nor has he explained why it would be
required under the facts of this case, which include a videotape of
Officer Gering’s interactions with appellant. Accordingly, this
claim is forfeited.
10
on whether the symptoms of impairment displayed by appellant
caused the accident. Put differently, since Officer Gering was
qualified to testify that alcohol-induced symptoms caused a
collision, he was qualified to testify that identical but alprazalom-
induced symptoms caused a collision. Generally, expert
testimony is admissible to show that drug use impaired a
defendant’s driving. (See, e.g., People v. Bui (2001)
86 Cal.App.4th 1187, 1194–1197.)
3. Opinion testimony about the Vehicle Code
violation
Appellant contends Officer Gering’s opinion that he
violated section 21950, subdivision (a) was outside the scope of
the officer’s knowledge and an improper legal conclusion. Officer
Gering testified that appellant “failed to stop for [a]pedestrian in
an unmarked crosswalk,” and this conduct violated “[section]
21950(a) VC.” Appellant complains that Officer Gering never
testified to having knowledge of “where Myoung was standing
when he was hit, how far he flew, or whether he acted recklessly
in walking into traffic.”3 Appellant does not clearly describe
Myoung’s alleged reckless behavior, nor identify any evidence in
the record which shows reckless behavior. Appellant appears to
rely on the trial court’s post-trial statement that the victim
“stepped out into the street, most likely without even looking,
and was struck.”
3 Appellant does not explain the relevance of how far
Myoung flew and we do not consider this contention further.
11
a. Facts showing the location of the initial impact
Officer Sewell, an expert collision investigator, had
previously testified that Myoung was struck while in the
number 1 (center) lane of Pico Boulevard just before Fifth Street,
thus establishing that Myoung was hit in the crosswalk. Thus,
the record contained evidence of where Myoung was standing
when he was hit, specifically that he was hit in an unmarked
crosswalk when appellant failed to stop his car. Officer Gering’s
opinion that appellant failed to stop for a pedestrian in an
unmarked crosswalk added nothing to Officer Sewell’s testimony.
Thus, even assuming that the trial court abused its discretion in
admitting Officer Gering’s testimony, there is no reasonable
probability appellant would have received a more favorable
outcome if the testimony had been excluded.
b. Testimony involving a legal conclusion
Officer Sewell also testified, without objection, that the
failure to yield to a pedestrian in an unmarked crosswalk would
be a violation of the Vehicle Code.4 Opining as to what the law is
constitutes a legal conclusion. Opining that the defendant
violated the law, as Officer Gering did, is a factual conclusion.
(See Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th
1582, 1599 [“Whether a fiduciary duty exists is generally a
question of law. [Citation.] Whether the defendant breached
that duty towards the plaintiff is a question of fact.”].) Officer
Gering’s testimony was premised on the belief that failing to stop
for a pedestrian was a violation of section 21950, but his focus
4 The transcript shows that Sewell stated the conduct would
violate section 21958, but this appears to be a misstatement, as
the conduct described would be a violation of section 21950.
12
was on whether the conduct occurred, not whether such conduct,
if it occurred, violated section 21950. (See People v. Lowe (2012)
211 Cal.App.4th 678, 685 [People’s experts may use statutory
language to frame their opinions].)
Even if we assume it was error to permit Officer Gering to
opine that a specific Vehicle Code section was violated, there is
no reasonable probability appellant would have received a more
favorable outcome if the testimony had been excluded. As
discussed above, the jury instruction given by the trial court did
not refer to a specific Vehicle Code section. Since the instruction
did not tell the jury it was required to determine whether
appellant’s conduct violated section 29150, Gering’s opinion on
whether such a violation occurred was superfluous.
c. Evidence of the victim’s behavior
Appellant’s claim that Officer Gering’s opinion was
improper because he did not know whether Myoung acted
recklessly by walking into traffic is premised on the belief that
Myoung’s recklessness would somehow be a defense to
section 21950.
Subdivision (b) of section 21950 does provide: “This section
does not relieve a pedestrian from the duty of using due care for
his or her safety. No pedestrian may suddenly leave a curb or
other place of safety and walk or run into the path of a vehicle
that is so close as to constitute an immediate hazard.”5
5 We note that the wording of the subdivision “indicates the
statute was intended to apply to those situations where a
pedestrian unexpectedly asserts his right-of-way in an
intersection at a time when the vehicle is so close that it is
virtually impossible to avoid an accident. Typical situations
include when a pedestrian steps, jumps, walks or runs directly in
13
Section 21950 does not end with subdivision (b), however.
Subdivision (d) of section 21950 provides: “Subdivision (b) does
not relieve a driver of a vehicle from the duty of exercising due
care for the safety of any pedestrian within any marked
crosswalk or within any unmarked crosswalk at an intersection.”6
Section 21950 as a whole is thus consistent with the well-
established rule that “a crime victim’s contributory negligence is
not a defense.” (People v. Marlin (2004) 124 Cal.App.4th 559, 569
(Marlin).) Officer Gering did not need any knowledge of Myoung’s
exercise of due care before the crash to be able to properly opine
that appellant violated section 21950, subdivision (a).
While a criminal defendant’s conduct must be the legal and
proximate cause of the victim’s injuries, appellant did not and
could not have argued a lack of causation in this case. Further,
once such causation has been shown “the actions or failings of the
victims or third parties are of no consequence.” (Marlin, supra,
124 Cal.App.4th at p. 569.) Thus, even if concurrent causation is
shown, the criminal defendant remains criminally responsible.
(Id. at p. 570 [if defendant’s conduct was a cause of injury or
death to another person, “ ’then it is no defense that the conduct
front of a vehicle travelling in lanes which are adjacent to the
curb or other place of safety occupied by the pedestrian. Under
such circumstances, the vehicle would most certainly constitute
an immediate hazard to the pedestrian.” (Spann v. Ballesty
(1969) 276 Cal.App.2d 754, 761.) That was not the situation
here.
6 The court instructed the jury on the substance of section
21950, subdivisions (b) and (d) without using statutory
references.
14
of some other person[, even the [injured][deceased] person,]
contributed to the [injury or death]’ ”.)
The facts of Marlin are instructive. The victim in that case
was allegedly speeding and inattentive and experienced “brake
fade.” The Marlin court explained that even if the victim had
been driving negligently, “the accident would not have occurred
but for defendant’s losing control of his car due to his intoxication
and thereafter driving into [the victim’s] lane of traffic. Had he
not done so, there would have been no collision. And, there can
be no doubt those same actions were a substantial factor that
contributed to the accident.” (Marlin, supra, 124 Cal.App.4th at
p. 570.) The situation here is substantially similar. Even if
Myoung initially stepped from the safety of the curb into the
number 2 lane without looking, he did not step directly in front of
appellant. The accident in the number 1 lane would not have
occurred but for appellant’s impaired driving in that lane.
Appellant’s own testimony showed that he was focused on the left
side of Pico Boulevard, toward the imaginary bicyclist, and not
toward the number 2 lane to his right where Myoung first
entered traffic lanes and was progressing across the street.
4. Evidence of appellant’s abilities
Appellant contends Officer Gering did not testify to having
any specific knowledge of how the accident occurred and so
should have not been permitted to testify that appellant should
“have been able to see Mr. Myoung crossing the street in the
crosswalk”; and appellant should “have been able to slow down or
yield to Mr. Myoung walking across the street.”
Officer Gering testified he was a “collision investigator.”
He was trained for and had specialized in driving under the
influence investigations. As his testimony showed, his
15
investigations to determine whether an individual was
intoxicated considered the totality of the circumstances, including
the circumstances of the collision. Thus, he was qualified to
opine on the above issues. (See Hart v. Wielt (1970) 4 Cal.App.3d
224, 229 [“It is generally established that traffic officers whose
duties include investigation of automobile accidents are qualified
experts that may properly testify concerning their opinions as to
the various factors involved in such accidents, based upon their
own observations.”].)
Officer Gering’s own observations of the collision scene
provided sufficient facts for him to opine that appellant should
have been able to see and stop for Myoung. Gering testified that
the collision occurred in a “semi well-lit intersection or streets”
and “you can look down a couple [of] blocks in either direction.”
He also testified that when he arrived at the scene he noticed
that appellant’s vehicle was “blocking the [number] 1 lane
partially in [the number] 2 lane,” but “mostly in the [number] 1
lane.” Thus, the facts known to Officer Gering showed that
Myoung was in the number 2 lane in a crosswalk in a well-lit
intersection before the collision, and that there was nothing to
obstruct a driver’s vision. This is a more than sufficient factual
basis for Officer Gering to opine that appellant should have been
able to see Myoung, and, having seen him, should have been able
to stop. (See Spann v. Ballesty, supra, 276 Cal.App.2d at pp. 754,
761–762 [when pedestrian steps from place of safety directly in
front of vehicle it is virtually impossible to avoid an accident, but
not when pedestrian crosses lanes of traffic before stepping in
front of vehicle].)
16
B. The Enhancement Term Based On A Prior Conviction
Allegation Which Was Neither Admitted Nor Found True
Must Be Stricken But May Be Tried By A Jury On Remand.
Appellant and respondent agree the five-year enhancement
term for his prior serious felony conviction (Pen Code, § 667,
subd. (a)(1)) is an unauthorized sentence because appellant did
not knowingly admit the conviction and neither the jury nor the
trial court found the allegation true. We agree as well.
Appellant and respondent disagree about whether the matter can
be remanded and the allegation tried before a different jury. We
agree with respondent that such a trial is permissible.
1. Trial court proceedings
At some point before or during trial, appellant requested
bifurcation of the allegation that he had suffered a prior strike
conviction. During trial, the court explained to appellant that he
had the right to have the same jurors who determined guilt on
the charged offense determine the truth of the allegation. In the
alternative appellant could agree to have the court try the
allegation or he could admit the allegation.
During his trial testimony, appellant admitted that he had
suffered a prior conviction for robbery. However, the trial court
did not advise appellant, as required, of the full penal
consequences of the admission. (People v. Cross (2015) 61 Cal.4th
164, 170–171.) Respondent concedes appellant did not knowingly
admit the prior serious felony conviction.
After the jury convicted appellant, the trial court excused
the jury without objection from either side. After the jurors had
left the courtroom, the trial court asked the parties to “confer
with one another for any pre-sentencing motions and sentencing,
as well as the bifurcated portion of this case.” Appellant’s counsel
17
stated: “May 6, Your Honor?” The court approved the date, then
told appellant: “You have the right to be sentenced and to have
the second portion of these proceedings conducted within the
statutory period. Your attorney is asking that you return May 6.
Is that acceptable to you?” Appellant replied: “Yes.”
The parties eventually appeared for sentencing on July 9,
2020. The prosecutor noted that part of the basis for her
requested sentence was “the admission of the prior strike would
be six years, the additional 667(a)(1) five year . . . .” Appellant’s
counsel asked the court to “consider striking the strike on an oral
Romero.7” Although no court trial was held on the prior
conviction allegations, later in the hearing the trial court granted
the Romero motion but imposed an “additional five years . . . with
respect to the 667(a)(1) prior.” Appellant did not object.
2. Forfeiture of right to same jury
Penal Code section 1025, subdivision (b) provides that “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.” (People v. Tindall (2000) 24 Cal.4th 767, 772.)
Penal Code section 1025, subdivision (b), is a procedural
requirement. (Tindall, at p. 776.)
Where the information contains a prior conviction
allegation, bifurcation of the allegation has been ordered, the jury
returns a guilty verdict on the substantive charge and then is
discharged without objection by the defendant, before the truth of
the allegation has been determined, “further proceedings to
determine the truth of the prior conviction allegations are not
7 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
18
prohibited either by statute or by the double jeopardy clauses of
the federal and state Constitutions.” (People v. Saunders (1993)
5 Cal.4th 580, 585 (Saunders).) Further a defendant forfeits his
section 1025 right to have the allegation decided by the same jury
that determined guilt when he fails “to object in a timely fashion
when the jury was discharged. (Saunders, at p. 591.) Here
appellant did not object and so he forfeited his right to have the
prior conviction allegation decided by the same jury that decided
his guilt.
Appellant contends the rule of Saunders should not apply
in this case because this case is more similar to the procedural
posture before the California Supreme Court in People v.
Hendricks (1987) 43 Cal.3d 584 (Hendricks). Appellant claims
that Hendricks “found a second trial following an incomplete
verdict to be an unauthorized nullity.” Appellant appears to
believe the Court barred another trial by a different jury. He has
misunderstood Hendricks.
In Hendricks, “the jury found defendant guilty as charged
and found all the special circumstance allegations to be true. At
the penalty phase, they fixed the penalty at death and were
subsequently discharged. [¶] On the day set for sentencing, the
parties reminded the court that a sanity hearing had not been
conducted immediately after the guilt phase, as required
by Penal Code section 190.1, subdivision (c). Over defendant’s
objection that the same jury must determine all the issues in a
capital trial, the court empaneled a new jury to decide the issue
of sanity alone. After deliberations that spanned 11 days the
jurors reported they were hopelessly deadlocked, and a mistrial
was declared.” (Hendricks, supra, 43 Cal.3d at p. 589.) The trial
judge then “committed the utterly incomprehensible act of
19
recalling the original jurors—more than five months after their
discharge and return to the community—to consider the question
of sanity. This action was wholly beyond the jurisdiction of the
court.” (Id. at p. 588.) The Supreme Court vacated the sanity
verdict by the recalled jury. (Id. at p. 599.) As Division 7 of this
District Court of Appeal explained, the California Supreme Court
then “remanded the matter to the superior court.” (People v.
Hendricks (1992) 11 Cal.App.4th 126, 129.) “The instant sanity
retrial began in 1990. On September 11, 1990, the jury found
appellant sane at the time of the commission of all four offenses.”
(Ibid.) Division 7 found no errors in the sanity trial and affirmed
the judgment of conviction. (Id. at p. 133.) The Supreme Court
denied appellant’s petition for review.
3. Preservation of double jeopardy claim
“For purposes of preserving this issue for another forum,”
appellant maintains that a post-remand trial on the prior
conviction allegation would improperly place him twice in
jeopardy in violation of both the federal and state constitutions.
(U.S. Const. 5th Amend.; Cal. Const., art 1, § 15.) As appellant
recognizes, People v. Monge (1997) 16 Cal.4th 826, affd. sub nom.
Monge v. California (1998) 524 U.S. 721 and Almendarez-Torres
v. United States (1998) 523 U.S, 224 currently foreclose such a
claim.
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DISPOSITION
The five-year enhancement term pursuant to Penal Code
section 667, subdivision (a)(1) is ordered stricken. The matter is
remanded to permit the prosecutor to decide whether to try the
enhancement allegation. If the prosecutor does not elect a trial,
the trial court shall resentence appellant without the
enhancement. The judgment of conviction is affirmed in all other
respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting, P. J.
WILEY, J.
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