P. v. Ortiz

Filed 5/31/07 P. v. Ortiz CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE COURT:

It is ordered that the opinion filed in this case on May 2, 2007, be modified in the following particulars:

1. On page 9, on lines 1 and 2, delete the first paragraph and substitute the following paragraph:

The People concede that the trial court did not make any findings on the prior felony conviction allegations, but assert that the proper remedy is to remand for further proceedings to determine the truth of those allegations.

2. On page 9, line 16--after (Italics added.) and before the next sentence that starts, The hearing on June 17, 2005,-- add the following sentence:

At the Peoples request, certified copies of defendants prior convictions, along with a 969(b) package, were marked for identification as Peoples Exhibits 19, 20, and 21, for use in proving the prior prison term enhancement allegations in the event that defendant was convicted of the underlying offense.

3. On page 9, lines 21--after the fourth paragraph under subheading A, a paragraph that ends with sentencing.--add the following sentences:

The court then turned to the issue of the prior prison term allegations. However, it was unable to locate Peoples Exhibits 19, 20, and 21 and, thus, deferred ruling on the allegations until the sentencing hearing.

4. On page 10, lines 11 through 15, delete the sentence and citations that state: Failure to make an oral finding as to the truth of the prior conviction has the same effect as a finding of not true. (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439-1440, citing People v. Eppinger (1895) 109 Cal. 294; People v. Molina (1977) 74 Cal.App.3d 544, 550.)

5. On page 10, lines 19 and 20-between the paragraph that ends must be vacated.²and the next paragraph that begins Defendant claims that retrial of the enhancement. . . .--add the following paragraphs and subheading B:

Relying on People v. Eppinger (1895) 109 Cal. 294 (hereafter Eppinger) and its progeny, defendant argues that the trial courts failure to make findings on the prior prison term allegations must be treated as a not true finding and that the terms imposed for those allegations must be stricken.

In Eppinger, the jury returned a general verdict finding the defendant guilty as charged, but the jury failed to make a finding on a prior conviction allegation. (Eppinger, supra, 109 Cal. at p. 297.) The California Supreme Court concluded that the verdict had to be treated as a finding . . . in favor of the defendant upon the question of prior conviction and, thus, the Supreme Court remanded the matter to the trial court with directions to resentence the defendant without regard to the prior conviction. (Id. at p. 298.) It was unquestionably error for the jury to have failed to find upon the issue. The error being shown, the injury will be presumed, unless the contrary is clearly made to appear. (Id. at p. 297.) As we will show, Eppinger is inapposite.

Later Supreme Court decisions have explained the rationale of the principle that the failure of a trier of fact to make a finding on a prior conviction allegation constitutes a not true finding. Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. (In re Candelario (1970) 3 Cal.3d 702, 706, italics added; accord, People v. Mesa (1975) 14 Cal.3d 466, 471.)

In Eppinger, it was reasonable to infer that the failure to make a finding on the prior conviction allegation was a conscious act of leniency. Here, in contrast, the trier of fact did not take evidence and then fail to make findings as to whether the prior prison term allegations were true. To the contrary, when the time came for the court to consider those allegations, the Peoples evidence (Exhibits 19, 20, and 21) could not be located, and the court deferred consideration of the allegations until the sentencing hearing. The record does not indicate that the court found and considered those exhibits or any other evidence on this issue. Consequently, there is no basis upon which to infer that the courts failure to make any findings as to the truth of the prior prison term allegations constituted an act of leniency toward defendant.

Accordingly, we shall remand this matter to the trial court for the limited purposes of conducting further proceedings to determine the truth of the prior prison term allegations and for resentencing if they are found to be true. (People v. Morton (1953) 41 Cal.2d 536, 544-545; Cherry v. Superior Court, supra, 86 Cal.App.4th at pp. 1303-1305; People v. Franz (2001) 88 Cal.App.4th 1426, 1455-1456.)

B

6. On page 10, delete lines 20 and 21--beginning with Defendant claims . . . .--and substitute the following:

We reject defendants claim that retrial of the prior prison term allegations is barred by double jeopardy. As he acknowledges, both the California

7. On page 11, lines 19 through 25, delete the whole paragraph--beginning Accordingly, we shall remand . . . .

8. On page 12, line 2, delete the first line of the paragraph, and substitute the following:

The judgment and sentences imposed for the three prior

This constitutes a change in the judgment. The petition for rehearing is denied.

FOR THE COURT:

SCOTLAND, P.J.

HULL, J.

BUTZ , J.

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