People v. Roe CA3

Filed 8/19/16 P. v. Roe CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C076048

Plaintiff and Respondent, (Super. Ct. No. 12F03646)

v.

JOEL EDWARD ROE,

Defendant and Appellant.

A jury found defendant Joel Edward Roe guilty of three of five theft-related charges, two convictions of which were felonies and one was a misdemeanor. The trial court sentenced him to an aggregate prison term of five years and six months in county jail. The court imposed the four-year upper terms for both felonies, based on an elevated triad due to defendant’s prior conviction (Pen. Code § 666.5, subd. (a)),1 and, as to one, a

1 Undesignated statutory references are to the Penal Code.

1

consecutive one-year term for his prior prison term (§ 667.5, subd. (b)). One of the felony sentences was stayed pursuant to section 654. On appeal, defendant contends the imposition of the upper term and use of the elevated triad for the prior conviction, as well as the additional one-year term for the prior prison term violated his right to due process under the federal Constitution because he admitted neither the prior conviction nor the prior prison term, nor did the trial court hear evidence or make findings as to those special allegations. He further contends that, while double jeopardy does not bar retrial of the prior conviction allegation, it does bar retrial of the prior prison term allegation because he did not waive his right to a jury trial and the jury was discharged. The People concede the trial court’s error as to both special allegations, but argue retrial is appropriate in both instances because defendant waived his right to a jury trial on both. We reverse and remand for further proceedings and resentencing, if necessary, as to the two special allegations. In all other respects, we affirm the judgment. PROCEDURAL HISTORY2 Defendant was charged by amended complaint, deemed the information, with unlawfully driving a vehicle with intent to deprive the owner of its title and possession (Veh. Code § 10851, subd. (a)—count one), receiving a stolen vehicle (§ 496d, subd. (a)—count two), two other counts of receiving stolen property (§ 496, subd. (a)—counts three and four), and theft of personal property (§ 484—count five). The amended complaint alleged, as to counts one and two, defendant had a prior conviction for