People v. Dupuis

Opinion

TIMLIN, Acting P. J. Defendant seeks review of his case in this court, by way of this court’s order transferring this case to it from the appellate department of the superior court (appellate department) upon certification of the appellate department. Defendant was convicted in the municipal court of one count of driving a vehicle while under the influence of an alcoholic beverage (Veh. Code, § 23152, subd. (a)) and one count of driving a vehicle while having a blood-alcohol level of 0.10 percent or greater (Veh. Code, § 23152, subd. (b), as worded at the time of the offense), which convictions were attended by the municipal court’s finding that defendant had suffered a prior conviction under section 23152 of the Vehicle Code (the prior).

Notwithstanding defendant’s attempts to secure our review of the entirety of the municipal court proceedings, we shall conclude that only one, limited issue—whether or not the appellate department committed error in remanding to the municipal court for retrial the question of whether defendant was convicted of the alleged prior—is before us for hearing and decision.With respect to that one issue, we shall conclude that the appellate department did err.

Factual and Procedural Background

Following a jury trial in the municipal court, defendant was convicted of the aforementioned “driving under the influence” offenses and the trial court found true the alleged prior. Defendant appealed to the appellate department, raising four distinct issues, including the issue of whether the trial court had committed “Yurko error” in proceeding to determine the truth of the alleged prior without first advising defendant of his right to a jury trial on that question and then obtaining an express waiver by defendant of a jury trial on that matter.1

The appellate department ruled on the matter as follows: “It Is Ordered, Adjudged, and Decreed that the judgment of the Municipal Court of the Corona Judicial District, County of Riverside, in the above entitled cause, is hereby affirmed. The Finding of the prior is reversed. The Matter is remanded to Corona Judicial District for retrial on the prior only.” Defendant thereafter petitioned the appellate department for a rehearing on the matter [699]and, in the alternative, applied for a certification of the case to this court pursuant to California Rules of Court, rules 62 and 63(a).2 The sole ground upon which defendant based his petition/application for rehearing/certification was his contention that the appellate department had committed error in remanding the case to the municipal court for retrial on the question whether defendant had been convicted of the alleged prior because the double jeopardy doctrine precluded a retrial.