People v. Tindall

102 Cal.Rptr.2d 533

24 Cal.4th 767

14 P.3d 207

The PEOPLE, Plaintiff and Respondent, v. Robert TINDALL, Defendant and Appellant.

No. S080078.

Supreme Court of California.

December 28, 2000.

Barry J. Post, San Pedro, and Edward H. Schulman, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Robert F. Katz, Marc J. Nolan, Pamela C. Hamanaka and Mitchell Keiter, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

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 (Health & Saf.Code, § 11350, subd. (a)) and alleged that he was convicted in 1983 for possession for sale of rock cocaine (Health & Saf.Code, § 11378) and in 1992 for possession for sale of rock cocaine (Health & Saf.Code, § 11351.5), each conviction disqualifying him for probation. (Pen.Code, § 1203, subd. (e)(4).) The information also alleged that defendant had served a prior prison term for the 1992 conviction (Pen.Code, § 667.5, subd. (b)), which also disqualified him for probation under Health and Safety Code section 11370, subdivisions (a) and (c). The trial on the prior conviction allegations was bifurcated.

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" (§ 1170.12, subds.(a)-(d)) and to add allegations that defendant had served prior prison terms (§ 667.5, subd. (b)) for those convictions and for the 1983 conviction for possession for sale of rock cocaine. The trial court granted the motion without prejudice to defendant to renew his opposition. It also granted defendant a continuance. Defendant invoked his right to a jury trial on the strike allegations. The trial court allowed defendant to withdraw his previous waiver of jury trial on the prior convictions originally alleged.

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. (§§ 1025, 1164, subd. (b).) The Court of Appeal affirmed the trial court's order allowing the postverdict, postdischarge amendment. Recognizing that we did not decide this issue in Valladoli, the Court of Appeal applied our reasoning in that case to conclude that section 969a permits a postverdict amendment even after a jury has been discharged, and that the trial court did not abuse its discretion by permitting the amendment in this case. The Court of Appeal relied on both Monge v. California (1998) 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615, and Valladoli, supra, 13 Cal.4th at page 609, 54 Cal.Rptr.2d 695, 918 P.2d 999, to dispose of defendant's double jeopardy challenge to the section 969a amendment.

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 whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty. . . ."³ Section 969a, however, states that prior conviction allegations may be added "[w]henever it shall be discovered that a pending indictment or information does not charge all prior felonies. . . ." We interpreted section 969a to permit the prosecution, on order of the court, to amend the information until sentencing so long as the court has not discharged the jury. (Valladoli, supra, 13 Cal.4th at, pp. 605, 608, fn. 4, 54 Cal.Rptr.2d 695,918 P.2d 999; see id. at p. 610, 54 Cal.Rptr.2d 695,918 P.2d 999 (cone. opn. of Chin, J.) ["section 969a authorizes postverdict amendments at least until the trial court discharges the jury"].) Notwithstanding section 969a, defendant argues that section 1025, subdivision (b), prohibits the prosecution from amending the information to allege prior convictions after the jury that decided the guilt issue has been discharged. For reasons that follow, we agree.

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. (§ 1025, subd. (b); see also Kelii, supra, 21 Cal.4th at p. 454, 87 Cal.Rptr.2d 674, 981 P.2d 518 [trial court, not jury, determines whether a prior conviction is serious for purposes of § 1025]; People v. Vera (1997) 15 Cal.4th 269, 276, 62 Cal.Rptr.2d 754, 934 P.2d 1279 (Vera) [defendant may forfeit the right to a jury trial on prior conviction allegations by failing to timely object to discharge of the jury that decided defendant's guilt on the underlying offenses]; People v. Wiley (1995) 9 Cal.4th 580, 592, 38 Cal.Rptr.2d 347, 889 P.2d 541 (Wiley) [trial court, not jury, determines whether allegations of multiple prior convictions were brought and tried separately]; People v. Saunders (1993) 5 Cal.4th 580, 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093 (Saunders ); cf. § 1025, subd. (c) [notwithstanding subd. (b) of § 1025, trial court, not jury, determines whether the defendant is the person who suffered the prior conviction].)⁴ Notwithstanding the seemingly clear language of section 1025, subdivision (b), a conflict arises when this provision and section 969a both apply in a case. In other words, when section 1025, subdivision (b) and section 969a compel different results, which statute controls? Although we have explained that section 969a's purpose is "towards effectuating the Legislature's expressed view 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), section 1025, subdivision (b), requires further elucidation. (See Vera, supra, 15 Cal.4th at p. 276,62 Cal.Rptr.2d 754,934 P.2d 1279 ["`same jury' provision reflects the statute's unitary trial procedure, and does not constitute a statutory entitlement separate from the jury trial right itself'].) That is, what are the reasons for, or benefits of, having the same jury decide both the issue of a defendant's guilt and the truth of alleged prior convictions?

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...