“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”
How later courts described this case
- “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”
- permitting review of “certain fundamental, constitutional rights” despite lack of objection
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by People v. French, 73 Cal. Rptr. 3d 605 (2008)
15 Cal.4th 269, 277 , abrogated by French, supra, 43 Cal.4th 36
The opinion
WERDEGAR, J.
I join in the dissenting opinions of Justices Mosk and Kennard; specifically, I agree the Penal Code establishes a procedural scheme in which a criminal defendant is entitled to have a jury determine the truth or falsity of prior prison term enhancement allegations (see Pen. Code, §§ 969½, 1025, 1158) unless the defendant expressly and personally waives that right as prescribed by section 16 of article I of our state Constitution. For the reasons set forth in those separate opinions, I believe the majority errs in holding a criminal defendant forfeits the ability to raise the jury issue on appeal unless he or she specifically objects to proceeding without a jury.
I write separately to emphasize that this procedural scheme is statutory only. (See People v. Wiley (1995) 9 Cal.4th 580, 585-586 [ 38 Cal.Rptr.2d 347 , 889 P.2d 541 ] [neither state nor federal Constitution grants right to jury trial on truth of prior conviction allegations].) Because, however, the right involved is the right to a jury, and no statute, but only a specific provision of our state Constitution, addresses waiver of the right (Cal. Const., art. I, § 16), I see no alternative but to conclude the state constitutional provision governs the waiver of a jury trial on allegations of prior convictions. Moreover, as Justices Mosk and Kennard observe, violation of that state constitutional provision is a structural error that cannot be deemed harmless.
The Legislature, of course, remains free to alter this situation. Because the jury trial right for prior conviction allegations is statutory only, the Legislature could abolish the right by amending or deleting Penal Code section 1025 and related statutes. Having the greater power to abolish the right, I see no impediment to the Legislature exercising a power short of that and enacting a statute providing that the jury trial right may be forfeited by inaction, as the majority holds, or impliedly waived by affirmative conduct by either defendant or his counsel. (Cf. People v. Howard (1991) 1 Cal.4th 1132, 1179-1180 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] [examination of totality of circumstances appropriate to determine whether defendant’s waiver of right to be free of compelled self-incrimination was voluntary and intelligent].)
Finding, however, no existing statutory provision permitting an appellate court to conclude a criminal defendant forfeits his or her jury trial right by *287 failing to object, I agree with Justices Mosk and Kennard article I, section 16 of the California Constitution applies here. I further agree that, lacking any means by which to assess the prejudice flowing from the error, the prior prison term enhancements must be set aside.