Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F1576
BUTZ, J.Defendant James Henry Smidt was convicted by a jury of assault with a deadly weapon with a great bodily injury finding. (Pen. Code, §§ 245, subd. (a)(1), 12022.7.) In a trial by court, the court found that he had two prior convictions for which he had served separate prison terms. (§ 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code.
Defendant was acquitted of attempted premeditated murder, which carried a life sentence.
Sentenced to nine years in state prison, defendant appeals, contending the trial court lacked jurisdiction to permit amendment of the information to add a prior conviction allegation after the jury had been discharged. We reject the contention and shall affirm the judgment.
PROCEDURAL BACKGROUND
As originally filed, the information charged defendant with having served two separate prison terms (§ 667.5, subd. (b)), one for making criminal threats (§ 422) and the other for failing to register as a sex offender (§ 290). The section 422 prior was also alleged as a strike (§ 1170.12). Prior to trial, the prosecutor informed the court that he had “neglected” to move to dismiss the prior strike allegation because he had discovered that the section 422 conviction was a misdemeanor. The court dismissed the strike allegation.
Following the jury’s verdict that defendant was guilty of the assault charge, and out of the jury’s presence, defendant waived his right to a jury trial on the prior convictions. The court then discharged the jury and addressed the prior convictions. The court recalled that the section 422 conviction had been determined to be a misdemeanor. The prosecutor agreed, but stated that a felony vandalism charge (§ 594) had arisen out of the “same case” and should have replaced the section 422 violation. The prosecutor then moved to amend the information by substituting the section 594 felony conviction for that of the section 422 misdemeanor conviction.
The court inquired of defense counsel whether he had “seen the evidence” regarding the priors. Counsel replied that he had, but he was objecting “to the amendment of the Information at this late stage.” Counsel then stated he would submit the matter on the People’s exhibits. The court permitted the amendment and found both priors true.
DISCUSSION
Relying on People v. Tindall (2000) 24 Cal.4th 767 (Tindall), defendant argues that once the jury was discharged, the trial court lacked jurisdiction to permit the amendment of the vandalism charge. For reasons to follow, we conclude that Tindall is inapposite and that the outcome of the instant case is controlled by People v. Epps (2001) 25 Cal.4th 19 (Epps), which held that the prejudice caused by a trial court’s violation of a defendant’s right to a jury trial on a prior conviction is subject to the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, at page 837, to wit: whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error.
In relevant part, section 1025, subdivision (b) provides: “Except as provided in subdivision (c), 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, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.”
In Tindall, whose holding was limited to the circumstances therein (Tindall, supra, 24 Cal.4th at pp. 770, 776), the defendant was charged with various drug offenses as well as two prior convictions, which were bifurcated for trial. (Id. at p. 770.) After a jury convicted him of the substantive offenses, the defendant waived a jury trial on the priors and the matter was continued for a court trial on the priors, preparation of a probation report, and sentencing. (Ibid.)
The probation officer’s report revealed that defendant had three additional prior federal convictions for bank robbery, for which he was currently on parole. (Tindall, supra,24 Cal.4th at p. 770.) The People successfully moved to amend the information to add the three prior felony bank robbery convictions as strikes. (Ibid.) The trial court also granted the defendant’s motion for a jury trial on the newly alleged priors, permitted the defendant to withdraw his previous jury trial waiver and, over defendant’s continuing objection, impaneled another jury. (Id. at pp. 770-771.) The jury found true the three alleged prior bank robbery convictions and defendant was sentenced to 25 years to life. (Id. at pp. 770-771.)
The Supreme Court found that “[u]nder 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.” (Tindall, supra,24 Cal.4that p. 776.)
The circumstances of the present case are a far cry from those of Tindall. Here, the defendant was charged with service of two prior prison terms based upon two convictions, one of which, section 422, was also charged as a strike. Before trial, the prosecutor discovered that the section 422 conviction was a misdemeanor and requested that it be dismissed. However, the prosecutor neglected to substitute an available felony conviction for vandalism (§ 594) in place of the section 422 misdemeanor conviction as the basis for the prior prison term enhancement and the misdemeanor remained on the accusatory pleading.
Immediately after defendant’s convictions on the drug offenses, the court obtained defendant’s waiver of his right to a jury trial on the prior convictions and discharged the jury. It was only at that time that the court discovered the prosecutor’s inadvertence in neglecting to substitute the felony vandalism conviction, a conviction which had arisen out of the same circumstances as the misdemeanor section 422 conviction. Indeed, defense counsel expressly admitted that he knew the vandalism had arisen out of the same case because of the discovery given to him. Thus, instead of charging previously unknown prior convictions, as did the prosecutor in Tindall, the prosecutor here sought only to add a prior conviction that was known to the defendant, but which had been inadvertently omitted from the information. Consequently, the instant case does not present the same circumstances as those in Tindall.
In Epps, supra, 25 Cal.4th 19,along with several felony offenses, the defendant was charged with a prior strike conviction and four convictions for service of a prior prison term. (Id. at p. 22.) Following the defendant’s convictions of the substantive offenses, the court discharged the jury over his objection, held a bench trial on the priors, and found the allegations true. (Ibid.)
On the defendant’s challenge to the denial of his right to a jury trial on the priors, the California Supreme Court held that because any right to a jury trial on a prior conviction allegation derives from neither the state nor the federal Constitution, but is statutory in origin, a trial court’s erroneous denial of that statutory right is subject to the harmless error analysis set forth in People v. Watson, supra, 46 Cal.2d at page 836. (Epps, supra,25 Cal.4th at pp. 21, 23, 28-29.) Since the only factual question for the jury to decide on a prior conviction allegation is whether the prior had occurred, and defendant did not question the fact that he had been so convicted, it was not reasonably probable that if the question had been determined by a jury rather than the court that the defendant would have obtained a more favorable result. (Id. at pp. 29-30.) Hence, the error was harmless.
Under the Watson harmless error test, the burden is on the defendant to establish that it is reasonably probable that a result more favorable to him would obtain in the absence of the court’s error. (People v. Burch (2007) 148 Cal.App.4th 862, 873.) Here, the truth of the priors was submitted by the parties on the People’s exhibit No. 7, described as “an 11-page State document provision of adult parole operations” which was “both embossed and stamped as an official government document.” Defendant makes no claim that this document does not constitute sufficient evidence to establish the occurrence of the priors. Instead, he simply argues that this case is controlled by Tindall rather than Epps. However, for reasons stated, we conclude that Tindall is distinguishable on its facts and that it is Epps which controls.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.