Filed 10/20/21 P. v. Lee CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

HYUNG JU LEE,

Defendant and Appellant.

B306634

(Los Angeles County

Super. Ct. No. BA480420-01)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Craig T. Mitchell, Judge. Affirmed in part and 

remanded with directions.

Micah Reyner, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Paul M. Roadarmel, 

Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________
2

Appellant Hyung Ju Lee hit pedestrian Tae Jong Myoung 

with his car around midnight at an intersection in downtown Los 

Angeles. Myoung, who was seriously injured, had almost no 

memory of the incident. A jury convicted appellant of one count 

of driving under the influence of a drug causing injury (Veh. 

Code, § 23153, subd. (f)), based largely on the testimony of expert 

witnesses.

1 The jury found true the allegation that appellant 

personally inflicted great bodily injury on Myoung. (Pen. Code, 

§ 12022.7, subd. (a).) The trial court sentenced appellant to eight 

years in prison; the sentence included a five-year enhancement 

for a prior serious felony conviction. (Pen. Code, § 667, 

subd. (a)(1).)

Appellant appeals from the judgment of conviction, 

contending the trial court abused its discretion in permitting Los 

Angeles Police Department (LAPD) Officer Johanes Gering to 

opine that (1) appellant was too impaired to drive at the time of 

the collision; (2) appellant should have been able to see the victim 

in the crosswalk and to slow down or yield to him; (3) appellant’s 

impairment caused the collision; and (4) appellant failed to stop 

for the victim who was in an unmarked crosswalk in violation of 

section 21950, subdivision (a). Appellant further contends the 

trial court erred in imposing a five-year enhancement term 

because the jury did not consider or find true the allegation that 

he had suffered a prior serious felony conviction. Respondent 

agrees the allegation was not considered or found true by the jury

or the court. We agree as well, strike the five-year enhancement 

term, and remand to permit the People to determine whether to 

1 Further undesignated statutory references are to the 

Vehicle Code.
3

try the allegation or have the court resentence appellant without 

it. We affirm the judgment of conviction in all other respects.

BACKGROUND

Around midnight on April 21, 2019, Myoung left a bar at 

the intersection of 5th Street and Pico Boulevard and smoked a 

cigarette outside. Myoung was a regular customer at the bar. 

Although Myoung believed he had only a couple of beers at the 

bar, a subsequent blood test showed that his blood alcohol level 

was .243, which would be three times the legal limit for driving.

Un Pyo Lee (Un Pyo) owned and ran the bar. She went 

outside the bar at the same time as Myoung, who was a regular 

customer. Un Pyo told investigating officers that Myoung was 

drunk, so she took his key and tried to call a taxi for him. They 

walked outside because she had another customer waiting for a 

taxi. They all stood outside smoking. At trial, Un Pyo testified 

she left the bar to see off another customer in a taxi and Myoung 

“coincidentally” came out of the bar at the same time to have a 

cigarette.

According to Un Pyo, at some point, Myoung began to cross 

the street to go to his car. He left the corner and started to walk 

directly across the street but he was hit by appellant’s car when 

he reached the center lane. Un Pyo did not see appellant’s car 

before it hit Myoung because the car was going “so fast.”

The impact sent Myoung flying a considerable distance 

through the air. Erik Calderon, who witnessed the collision, 

called 911. He told the operator: “A car ran into a man and sent 

him flying” and “He honestly ran over him real bad.” Myoung 

was transported to a hospital. He subsequently underwent 

multiple surgeries over the course of a three-month hospital stay. 

He then underwent six months of physical therapy. At the time 
4

of trial he required full-time care from family members. He had 

almost no memory of the night of the collision.

Officer Johanes Gering arrived at the scene about two 

hours after the collision. He was a Collision Investigator with 

specialized training in driving under the influence investigations. 

Officer Gering was more familiar with alcohol-induced 

impairment than narcotics-induced impairment, although he had 

some training and experience with narcotics. He requested the 

assistance of a drug recognition expert, but none were available.

Officer Gering asked appellant, who was sitting on a curb, 

if he was under the influence of any substance, including 

medication. Appellant replied, “just my Alprazolam,” which had 

been prescribed for him. Appellant said he took 2 milligrams 

twice a day and had last taken the medicine at 6 or 7 p.m. 

Officer Gering asked him how long it took for the medication to 

“wear off.” Appellant replied, “Three to four hours.”

Officer Gering found appellant’s speech slow, which was 

consistent with being under the influence of alcohol or drugs.

The officer conducted a series of field sobriety tests on appellant 

and concluded appellant was under the influence of drugs or 

alcohol. He thought it was more likely drugs because there was 

no odor of alcohol on appellant, and appellant’s pupils were much 

more constricted than typical for a person under the influence of 

alcohol.

Officer Gering placed appellant under arrest for being 

under the influence of a narcotic. The officer explained to 

appellant: “The testing that I asked you to do, you weren’t able 

to demonstrate them as—, I asked you to demonstrate the test.” 

He added: “[Y]ou were swaying back and forth when I was 

having you count to yourself. . . . you couldn’t walk the line 
5

correctly [when] I asked you to keep your heel to toe. You had to 

use your hands to keep balance. . . . So those things are cues that 

tell me that you’re possibly under the influence of, uh, a 

substance.”

Two LAPD officers transported appellant to the 

Metropolitan Detention Center for a blood test, but the test was 

not possible. They then took him to the Van Nuys jail for a blood 

test, but again a blood test was not possible. Instead, the officers 

obtained a urine sample from appellant.

Urinalysis and testing revealed the presence of 

amphetamine and benzodiazepines, including diazepam (Valium) 

and alprazolam (Xanax). Benzodiazepines are central nervous 

system depressants, as is alcohol. Any of these substances can 

impair the ability of a person to drive safely.

At trial, Officer Gering opined that appellant “was too 

impaired to drive at midnight on April 21st;” it was “because of 

[appellant’s] impairment that he struck Mr. Myoung with his 

car”; appellant committed a traffic violation when “he failed to 

stop for [a] pedestrian in an unmarked crosswalk,” specifically he 

violated section 21950, subdivision (a); appellant should “have 

been able to see Mr. Myoung crossing the street in the 

crosswalk”; and appellant should “have been able to slow down or 

yield to Mr. Myoung walking across the street.”

LAPD Traffic Collision Investigator Nicholas Sewell 

conducted an investigation and reconstruction of the collision. 

He determined that Myoung was struck while in the number 1 

(center) lane of Pico just before Fifth Street, thus establishing 

that Myoung was hit in the unmarked crosswalk. (All 

intersections have cross-walks; some are marked by paint lines 

and some are not.) Officer Sewell agreed that “if you’re driving 
6

east on Pico Boulevard approaching the intersection of 5th [you 

are] supposed to yield to pedestrians who are crossing from the 

. . . southwest corner to the northwest corner of Pico Boulevard.” 

The “failure to yield to pedestrian[s] would be in violation of the 

law” specifically “21958 [sic] V.C.” which is the law concerning 

“failure to yield to a pedestrian in a marked or unmarked 

crosswalk.”

Michael Takacs, a certified drug recognition expert, 

reviewed the bodycam footage of Officer Gering’s tests, Officer 

Gering’s notes, toxicology reports, and other information about 

the collision. He also listened to Officer Gering’s trial testimony. 

Takacs concluded appellant appeared to be impaired by drugs 

and specifically under the influence of a central nervous system 

depressant. Takacs further opined appellant was under the 

influence of alprazalom two hours earlier, at midnight, and so 

would have been “impaired” while driving. This opinion was 

based in part on appellant’s statement that he had taken what 

Takacs considered a large dose of alprazalom at 6 or 7 p.m. His 

opinion was confirmed by the toxicology report. Takacs 

acknowledged that a test to determine if an individual is under 

the influence of drugs typically involves more steps than the field 

sobriety tests administered by Officer Gering, but Takacs stated 

that under the circumstances of this case the omission of those 

tests did not affect his opinion that appellant was impaired.

Takacs explained that the “physical and mental symptoms 

[of alprazolam] that are shown are similar [to alcohol] because 

they do belong in the same class of drugs.” Specifically, 

benzodiazapines such as alprazolam can produce slow reaction 

times, sluggish movement, slow or slurred speech, poor 

coordination, difficulty walking or turning, and sweating. 
7

A driver under the influence of a benzodiazepine, “might have 

braking problems, problems maintaining [his] lane, problems 

navigating a turn, . . . drowsiness, inability to pay attention, 

[and] vigilance issues.” It would be common to have slow reaction 

and response times, as well as to be less aware of one’s 

surroundings.

In his defense, appellant called LAPD Officer Manuel 

Mendieta. The officer had responded to the scene of the accident 

after the 911 call. He spoke with appellant, who was cooperative. 

The officer testified that he had some “near misses” with cars 

while he was at the scene. He never had to get out of the way of 

a car, however.

Appellant also testified in his own behalf. He admitted 

that he had used amphetamines and Valium three days before 

the collision and took between .5 and 2 milligrams of Xanax at 

about 6:00 or 7:00 p.m. the evening of the collision. He had taken 

Xanax twice daily for about 10 years for an anxiety disorder. 

Xanax did not “knock [him] out.” It made him “feel normal” for 

about four to six hours.

Appellant testified that as he was driving on the night of 

the collision, he saw a man “on a bicycle out [of] the left 

peripheral vision of [his] eye” and then hit the man. Appellant 

slammed on the brakes, got out of the car and saw a man on the 

ground about 10 yards in front of him. Someone told him not to 

touch the man. Appellant called 911 and stayed at the scene.

When police arrived, appellant cooperated. He felt the 

drugs in his system did not affect this driving and believed he 

passed the field sobriety tests with flying colors.
8

DISCUSSION

A. If Some of Officer Gering’s Opinion Testimony Was 

Improperly Admitted, Any Error Was Harmless.

Appellant contends the trial court abused its discretion in 

permitting Officer Gering to give the following expert opinions: 

(1) appellant “was too impaired to drive at midnight on April 

21st;” (2) it was “because of [appellant’s] impairment that he 

struck Mr. Myoung with his car”; (3) appellant committed a 

traffic violation when “he failed to stop for [a]pedestrian in an 

unmarked crosswalk,” specifically violating section 21950, 

subdivision (a); (4) appellant should “have been able to see Mr. 

Myoung crossing the street in the crosswalk” and should “have 

been able to slow down or yield to Mr. Myoung walking across the 

street.” Appellant objected to each opinion on the ground that it 

lacked foundation.

“A person is qualified to testify as an expert if he has 

special knowledge, skill, experience training or education 

sufficient to qualify him as an expert on the subject to which his 

testimony relates.” (Evid. Code, § 720, subd. (a).) “The trial 

court’s determination of whether a witness qualifies as an expert 

is a matter of discretion and will not be disturbed absent a 

showing of manifest abuse. [Citation.] ‘ “Where a witness has 

disclosed sufficient knowledge of the subject to entitle his opinion 

to go to the jury, the question of the degree of his knowledge goes 

more to the weight of the evidence than its admissibility.” ’ ” 

(People v. Bolin (1998) 18 Cal.4th 297, 321–322.) “Testimony in 

the form of an opinion that is otherwise admissible is not 

objectionable because it embraces the ultimate issue to be 

decided by the trier of fact.” (Evid. Code, § 805.)
9

Officer Gering’s opinion testimony was offered to show 

appellant violated section 23153. A conviction for violating that 

section requires proof that the defendant, while under the 

influence of a drug, drove a vehicle and concurrently committed 

an act forbidden by law or neglected a duty imposed by law in 

driving a vehicle and that act or neglect proximately caused 

bodily injury to another person. (See § 23153, subd. (f); see also 

People v. Oyaas (1985) 173 Cal.App.3d 663, 667.) Here, the trial 

court instructed the jury that it must find that appellant 

committed an illegal act, and that the People “allege that the 

defendant committed the following illegal act: the defendant 

failed to yield the right-of-way to a pedestrian crossing the 

roadway within an unmarked crosswalk at an intersection.” 

Although such conduct is a violation of section 29150, subdivision 

(a), the trial court did not refer to that section in the instruction.

1. Opinion about impairment at the time of the 

accident

Appellant contends that since Officer Gering was not a 

certified drug expert and acknowledged that he had no 

knowledge concerning whether or when “the effect [of] the

narcotic could be rising or lowering,” the officer was not qualified 

to testify that appellant was impaired as the result of drug usage

at the time of the collision, which occurred two hours before the 

officer conducted his field sobriety tests on appellant. Assuming 

for the sake of argument that Officer Gering was not qualified to 

opine on this subject, there is no reasonable probability that 

appellant would have obtained a more favorable outcome in the 

absence of the error. The prosecution also offered the testimony 

of a certified drug expert, Takacs, who formed the same opinion 

after listening to Officer Gering’s trial testimony and reviewing 
10

the bodycam footage of Officer Gering’s tests, his notes, toxicology 

reports, and other information about the collision.

2

2. Opinion about the causal connection between 

the impairment and the accident

Appellant contends that since Officer Gering was not 

qualified to opine that appellant was impaired when the accident 

occurred, the officer was necessarily unqualified to opine that the 

impairment caused the collision. Again, assuming admission of 

the testimony was erroneous, there is no reasonable probability 

that appellant would have received a more favorable outcome in

the absence of the error.

Takacs explained that alprazolam was a benzodiazepine 

which was a “central nervous depressant and that’s basically the 

class that alcohol also belongs to.” He further testified that the 

“physical and mental symptoms [of alprazolam] that are shown 

are similar [to alcohol] because they do belong in the same class 

of drugs.”

As Officer Gering explained, appellant’s symptoms were 

consistent with being under the influence of alcohol. Even if 

Officer Gering were not an expert on whether narcotics could 

have caused appellant’s symptoms, he was an expert on the 

symptoms themselves, as those symptoms were consistent with 

alcohol impairment. Thus, Officer Gering was qualified to opine 

2 Although appellant complains that Takacs was not at the 

scene and did not evaluate him personally, he has offered no legal 

authority that such personal interaction is required for an expert 

to form an opinion. Nor has he explained why it would be 

required under the facts of this case, which include a videotape of 

Officer Gering’s interactions with appellant. Accordingly, this 

claim is forfeited.
11

on whether the symptoms of impairment displayed by appellant 

caused the accident. Put differently, since Officer Gering was 

qualified to testify that alcohol-induced symptoms caused a 

collision, he was qualified to testify that identical but alprazalominduced symptoms caused a collision. Generally, expert 

testimony is admissible to show that drug use impaired a 

defendant’s driving. (See, e.g., People v. Bui (2001) 

86 Cal.App.4th 1187, 1194–1197.)

3. Opinion testimony about the Vehicle Code 

violation

Appellant contends Officer Gering’s opinion that he 

violated section 21950, subdivision (a) was outside the scope of 

the officer’s knowledge and an improper legal conclusion. Officer 

Gering testified that appellant “failed to stop for [a]pedestrian in 

an unmarked crosswalk,” and this conduct violated “[section] 

21950(a) VC.” Appellant complains that Officer Gering never 

testified to having knowledge of “where Myoung was standing 

when he was hit, how far he flew, or whether he acted recklessly 

in walking into traffic.”3 Appellant does not clearly describe 

Myoung’s alleged reckless behavior, nor identify any evidence in 

the record which shows reckless behavior. Appellant appears to 

rely on the trial court’s post-trial statement that the victim 

“stepped out into the street, most likely without even looking, 

and was struck.”

3 Appellant does not explain the relevance of how far 

Myoung flew and we do not consider this contention further.
12

a. Facts showing the location of the initial impact

Officer Sewell, an expert collision investigator, had 

previously testified that Myoung was struck while in the 

number 1 (center) lane of Pico Boulevard just before Fifth Street, 

thus establishing that Myoung was hit in the crosswalk. Thus, 

the record contained evidence of where Myoung was standing 

when he was hit, specifically that he was hit in an unmarked 

crosswalk when appellant failed to stop his car. Officer Gering’s 

opinion that appellant failed to stop for a pedestrian in an 

unmarked crosswalk added nothing to Officer Sewell’s testimony.

Thus, even assuming that the trial court abused its discretion in 

admitting Officer Gering’s testimony, there is no reasonable 

probability appellant would have received a more favorable 

outcome if the testimony had been excluded.

b. Testimony involving a legal conclusion

Officer Sewell also testified, without objection, that the 

failure to yield to a pedestrian in an unmarked crosswalk would 

be a violation of the Vehicle Code.4 Opining as to what the law is 

constitutes a legal conclusion. Opining that the defendant 

violated the law, as Officer Gering did, is a factual conclusion. 

(See Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 

1582, 1599 [“Whether a fiduciary duty exists is generally a 

question of law. [Citation.] Whether the defendant breached 

that duty towards the plaintiff is a question of fact.”].) Officer 

Gering’s testimony was premised on the belief that failing to stop 

for a pedestrian was a violation of section 21950, but his focus 

4 The transcript shows that Sewell stated the conduct would 

violate section 21958, but this appears to be a misstatement, as 

the conduct described would be a violation of section 21950.
13

was on whether the conduct occurred, not whether such conduct, 

if it occurred, violated section 21950. (See People v. Lowe (2012) 

211 Cal.App.4th 678, 685 [People’s experts may use statutory 

language to frame their opinions].)

Even if we assume it was error to permit Officer Gering to 

opine that a specific Vehicle Code section was violated, there is 

no reasonable probability appellant would have received a more 

favorable outcome if the testimony had been excluded. As 

discussed above, the jury instruction given by the trial court did 

not refer to a specific Vehicle Code section. Since the instruction 

did not tell the jury it was required to determine whether 

appellant’s conduct violated section 29150, Gering’s opinion on 

whether such a violation occurred was superfluous.

c. Evidence of the victim’s behavior

Appellant’s claim that Officer Gering’s opinion was 

improper because he did not know whether Myoung acted 

recklessly by walking into traffic is premised on the belief that 

Myoung’s recklessness would somehow be a defense to 

section 21950.

Subdivision (b) of section 21950 does provide: “This section

does not relieve a pedestrian from the duty of using due care for 

his or her safety. No pedestrian may suddenly leave a curb or 

other place of safety and walk or run into the path of a vehicle

that is so close as to constitute an immediate hazard.”5

5 We note that the wording of the subdivision “indicates the 

statute was intended to apply to those situations where a 

pedestrian unexpectedly asserts his right-of-way in an 

intersection at a time when the vehicle is so close that it is 

virtually impossible to avoid an accident. Typical situations 

include when a pedestrian steps, jumps, walks or runs directly in 
14

Section 21950 does not end with subdivision (b), however. 

Subdivision (d) of section 21950 provides: “Subdivision (b) does

not relieve a driver of a vehicle from the duty of exercising due 

care for the safety of any pedestrian within any marked 

crosswalk or within any unmarked crosswalk at an intersection.”6

Section 21950 as a whole is thus consistent with the wellestablished rule that “a crime victim’s contributory negligence is 

not a defense.” (People v. Marlin (2004) 124 Cal.App.4th 559, 569

(Marlin).) Officer Gering did not need any knowledge of Myoung’s 

exercise of due care before the crash to be able to properly opine 

that appellant violated section 21950, subdivision (a).

While a criminal defendant’s conduct must be the legal and 

proximate cause of the victim’s injuries, appellant did not and 

could not have argued a lack of causation in this case. Further, 

once such causation has been shown “the actions or failings of the 

victims or third parties are of no consequence.” (Marlin, supra,

124 Cal.App.4th at p. 569.) Thus, even if concurrent causation is 

shown, the criminal defendant remains criminally responsible.

(Id. at p. 570 [if defendant’s conduct was a cause of injury or 

death to another person, “ ’then it is no defense that the conduct 

front of a vehicle travelling in lanes which are adjacent to the 

curb or other place of safety occupied by the pedestrian. Under 

such circumstances, the vehicle would most certainly constitute 

an immediate hazard to the pedestrian.” (Spann v. Ballesty

(1969) 276 Cal.App.2d 754, 761.) That was not the situation 

here.

6 The court instructed the jury on the substance of section 

21950, subdivisions (b) and (d) without using statutory 

references.
15

of some other person[, even the [injured][deceased] person,] 

contributed to the [injury or death]’ ”.)

The facts of Marlin are instructive. The victim in that case 

was allegedly speeding and inattentive and experienced “brake 

fade.” The Marlin court explained that even if the victim had 

been driving negligently, “the accident would not have occurred 

but for defendant’s losing control of his car due to his intoxication 

and thereafter driving into [the victim’s] lane of traffic. Had he 

not done so, there would have been no collision. And, there can 

be no doubt those same actions were a substantial factor that 

contributed to the accident.” (Marlin, supra, 124 Cal.App.4th at 

p. 570.) The situation here is substantially similar. Even if 

Myoung initially stepped from the safety of the curb into the 

number 2 lane without looking, he did not step directly in front of 

appellant. The accident in the number 1 lane would not have 

occurred but for appellant’s impaired driving in that lane. 

Appellant’s own testimony showed that he was focused on the left 

side of Pico Boulevard, toward the imaginary bicyclist, and not 

toward the number 2 lane to his right where Myoung first 

entered traffic lanes and was progressing across the street.

4. Evidence of appellant’s abilities

Appellant contends Officer Gering did not testify to having 

any specific knowledge of how the accident occurred and so 

should have not been permitted to testify that appellant should 

“have been able to see Mr. Myoung crossing the street in the 

crosswalk”; and appellant should “have been able to slow down or 

yield to Mr. Myoung walking across the street.”

Officer Gering testified he was a “collision investigator.”

He was trained for and had specialized in driving under the 

influence investigations. As his testimony showed, his 
16

investigations to determine whether an individual was 

intoxicated considered the totality of the circumstances, including

the circumstances of the collision. Thus, he was qualified to 

opine on the above issues. (See Hart v. Wielt (1970) 4 Cal.App.3d 

224, 229 [“It is generally established that traffic officers whose 

duties include investigation of automobile accidents are qualified 

experts that may properly testify concerning their opinions as to 

the various factors involved in such accidents, based upon their 

own observations.”].)

Officer Gering’s own observations of the collision scene 

provided sufficient facts for him to opine that appellant should 

have been able to see and stop for Myoung. Gering testified that 

the collision occurred in a “semi well-lit intersection or streets” 

and “you can look down a couple [of] blocks in either direction.” 

He also testified that when he arrived at the scene he noticed 

that appellant’s vehicle was “blocking the [number] 1 lane 

partially in [the number] 2 lane,” but “mostly in the [number] 1 

lane.” Thus, the facts known to Officer Gering showed that 

Myoung was in the number 2 lane in a crosswalk in a well-lit 

intersection before the collision, and that there was nothing to 

obstruct a driver’s vision. This is a more than sufficient factual 

basis for Officer Gering to opine that appellant should have been 

able to see Myoung, and, having seen him, should have been able 

to stop. (See Spann v. Ballesty, supra, 276 Cal.App.2d at pp. 754, 

761–762 [when pedestrian steps from place of safety directly in 

front of vehicle it is virtually impossible to avoid an accident, but 

not when pedestrian crosses lanes of traffic before stepping in 

front of vehicle].)
17

B. The Enhancement Term Based On A Prior Conviction 

Allegation Which Was Neither Admitted Nor Found True 

Must Be Stricken But May Be Tried By A Jury On Remand.

Appellant and respondent agree the five-year enhancement 

term for his prior serious felony conviction (Pen Code, § 667, 

subd. (a)(1)) is an unauthorized sentence because appellant did 

not knowingly admit the conviction and neither the jury nor the 

trial court found the allegation true. We agree as well. 

Appellant and respondent disagree about whether the matter can 

be remanded and the allegation tried before a different jury. We 

agree with respondent that such a trial is permissible.

1. Trial court proceedings

At some point before or during trial, appellant requested 

bifurcation of the allegation that he had suffered a prior strike 

conviction. During trial, the court explained to appellant that he 

had the right to have the same jurors who determined guilt on 

the charged offense determine the truth of the allegation. In the 

alternative appellant could agree to have the court try the 

allegation or he could admit the allegation.

During his trial testimony, appellant admitted that he had 

suffered a prior conviction for robbery. However, the trial court 

did not advise appellant, as required, of the full penal 

consequences of the admission. (People v. Cross (2015) 61 Cal.4th 

164, 170–171.) Respondent concedes appellant did not knowingly 

admit the prior serious felony conviction.

After the jury convicted appellant, the trial court excused 

the jury without objection from either side. After the jurors had 

left the courtroom, the trial court asked the parties to “confer 

with one another for any pre-sentencing motions and sentencing, 

as well as the bifurcated portion of this case.” Appellant’s counsel 
18

stated: “May 6, Your Honor?” The court approved the date, then 

told appellant: “You have the right to be sentenced and to have 

the second portion of these proceedings conducted within the 

statutory period. Your attorney is asking that you return May 6. 

Is that acceptable to you?” Appellant replied: “Yes.”

The parties eventually appeared for sentencing on July 9, 

2020. The prosecutor noted that part of the basis for her 

requested sentence was “the admission of the prior strike would 

be six years, the additional 667(a)(1) five year . . . .” Appellant’s 

counsel asked the court to “consider striking the strike on an oral 

Romero.

7” Although no court trial was held on the prior 

conviction allegations, later in the hearing the trial court granted 

the Romero motion but imposed an “additional five years . . . with 

respect to the 667(a)(1) prior.” Appellant did not object.

2. Forfeiture of right to same jury

Penal Code section 1025, subdivision (b) provides that “if a 

defendant pleads not guilty to the underlying offense, and a jury 

decides the issue of guilt, that same jury shall decide whether the 

defendant ‘suffered the prior conviction’ unless the defendant 

waives jury trial.” (People v. Tindall (2000) 24 Cal.4th 767, 772.) 

Penal Code section 1025, subdivision (b), is a procedural 

requirement. (Tindall, at p. 776.)

Where the information contains a prior conviction 

allegation, bifurcation of the allegation has been ordered, the jury 

returns a guilty verdict on the substantive charge and then is 

discharged without objection by the defendant, before the truth of 

the allegation has been determined, “further proceedings to 

determine the truth of the prior conviction allegations are not 

7 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
19

prohibited either by statute or by the double jeopardy clauses of 

the federal and state Constitutions.” (People v. Saunders (1993) 

5 Cal.4th 580, 585 (Saunders).) Further a defendant forfeits his 

section 1025 right to have the allegation decided by the same jury 

that determined guilt when he fails “to object in a timely fashion 

when the jury was discharged. (Saunders, at p. 591.) Here 

appellant did not object and so he forfeited his right to have the 

prior conviction allegation decided by the same jury that decided 

his guilt.

Appellant contends the rule of Saunders should not apply 

in this case because this case is more similar to the procedural 

posture before the California Supreme Court in People v. 

Hendricks (1987) 43 Cal.3d 584 (Hendricks). Appellant claims 

that Hendricks “found a second trial following an incomplete 

verdict to be an unauthorized nullity.” Appellant appears to 

believe the Court barred another trial by a different jury. He has 

misunderstood Hendricks.

In Hendricks, “the jury found defendant guilty as charged 

and found all the special circumstance allegations to be true. At 

the penalty phase, they fixed the penalty at death and were 

subsequently discharged. [¶] On the day set for sentencing, the 

parties reminded the court that a sanity hearing had not been 

conducted immediately after the guilt phase, as required 

by Penal Code section 190.1, subdivision (c). Over defendant’s 

objection that the same jury must determine all the issues in a 

capital trial, the court empaneled a new jury to decide the issue 

of sanity alone. After deliberations that spanned 11 days the 

jurors reported they were hopelessly deadlocked, and a mistrial 

was declared.” (Hendricks, supra, 43 Cal.3d at p. 589.) The trial 

judge then “committed the utterly incomprehensible act of 
20

recalling the original jurors—more than five months after their 

discharge and return to the community—to consider the question 

of sanity. This action was wholly beyond the jurisdiction of the 

court.” (Id. at p. 588.) The Supreme Court vacated the sanity 

verdict by the recalled jury. (Id. at p. 599.) As Division 7 of this 

District Court of Appeal explained, the California Supreme Court 

then “remanded the matter to the superior court.” (People v.

Hendricks (1992) 11 Cal.App.4th 126, 129.) “The instant sanity 

retrial began in 1990. On September 11, 1990, the jury found 

appellant sane at the time of the commission of all four offenses.” 

(Ibid.) Division 7 found no errors in the sanity trial and affirmed 

the judgment of conviction. (Id. at p. 133.) The Supreme Court 

denied appellant’s petition for review.

3. Preservation of double jeopardy claim

“For purposes of preserving this issue for another forum,” 

appellant maintains that a post-remand trial on the prior 

conviction allegation would improperly place him twice in 

jeopardy in violation of both the federal and state constitutions. 

(U.S. Const. 5th Amend.; Cal. Const., art 1, § 15.) As appellant 

recognizes, People v. Monge (1997) 16 Cal.4th 826, affd. sub nom. 

Monge v. California (1998) 524 U.S. 721 and Almendarez-Torres 

v. United States (1998) 523 U.S, 224 currently foreclose such a 

claim.
21

DISPOSITION

The five-year enhancement term pursuant to Penal Code 

section 667, subdivision (a)(1) is ordered stricken. The matter is 

remanded to permit the prosecutor to decide whether to try the 

enhancement allegation. If the prosecutor does not elect a trial, 

the trial court shall resentence appellant without the 

enhancement. The judgment of conviction is affirmed in all other 

respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting, P. J.

WILEY, J.