Error and/or relief
The Three Strikes sentence is unauthorized because the prior strike allegation was never admitted or found true by the jury or court.
First Holding:
A defendant has a statutory right to a jury trial on the issue of whether he suffered an alleged prior conviction. He may waive that right and submit to a court trial or admit the truth of the prior conviction allegation. Here, there is nothing in the record showing there was any trial on the prior strike. After returning their verdicts on the substantive offenses, the jurors were discharged without considering the strike.
Authority:
PEN 1025(b)
PEN 1158
People v. Epps (2001) 25 Cal.4th 19, 25
Second Holding:
Had the matter been brought to the attention of the court, the court could have convened a new jury to try the prior conviction allegation.
Authority:
People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court improvidently discharged the jurors before they decided prior conviction allegations, and the defense failed to timely object, double jeopardy did not bar trial of the allegations before a new jury]
Third Holding:
There are cases in which the reviewing court has determined the trial court impliedly found true an enhancement allegation by imposing the enhancement at sentencing. But in such cases, the trial court was at least presented evidence supporting the allegation.
The same is not true here. While the prosecutor at one point represented that he had the certified 969b packet for the prior, there is no indication he presented those documents, or any other evidence, to the court.
And although the minute order of sentencing reflects a true finding by the court on the prior strike, we cannot rely on those entries because there is no oral record of the court making those findings.
Authority:
People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17
People v. Chambers (2002) 104 Cal.App.4th 1047
People v. Zackery (2007) 147 Cal.App.4th 380, 385–386
Fourth Holding:
There is no constitutional or procedural bar precluding the prosecution from retrying a prior strike allegation following appellate reversal for insufficient evidence.
Authority:
People v. Barragan (2004) 32 Cal.4th 236, 239 [constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions do not bar retrial of prior strike allegation]
People v. Monge (1997) 16 Cal.4th 826, 829 [state and federal prohibitions against double jeopardy do not bar retrial of a prior conviction allegation in a noncapital case]
Monge v. California (1998) 524 U.S. 721
