People v. Saunders

853 P.2d 1093, 5 Cal. 4th 580, 20 Cal. Rptr. 2d 638, 93 Cal. Daily Op. Serv. 5101, 93 Daily Journal DAR 8578, 1993 Cal. LEXIS 3169

• Court: California Supreme Court
• Decided: July 1, 1993
• Docket: S022903
• Status: Published

Opinions

Opinion

GEORGE, J.

Numerous California penal statutes allow increased punishment to be imposed upon a defendant if the prosecution alleges and proves that the defendant has suffered one or more prior convictions. In People v. Bracamonte (1981) 119 Cal.App.3d 644, 654 [174 Cal.Rptr. 191], the Court of Appeal held that the defendant is entitled to have the determination of the truth of such allegations bifurcated from the jury trial of the currently charged offenses.

In the present case, we consider whether further proceedings to determine the truth of alleged prior convictions are barred if, after such bifurcation has been ordered, the jury returns a verdict of guilty and is discharged, without objection by the defendant, before the truth of the prior conviction allegations has been determined or a jury waiver taken as to those allegations. For the reasons that follow, we conclude that in such circumstances, further proceedings to determine the truth of the prior conviction allegations are not prohibited either by statute or by the double jeopardy clauses of the federal and state Constitutions. Accordingly, we disapprove the contrary holdings in People v. Wojahn (1984) 150 Cal.App.3d 1024 [198 Cal.Rptr. 277] and its progeny.

Facts

Defendant Dennis Romero Saunders was charged with attempted murder (Pen. Code, §§ 664/187, subd. (a)),¹ burglary (§459), and assault with a firearm (§ 245, subd. (a)(2)). Further allegations (pursuant to § 667.5, subd. (b)) included: that he had been convicted (in case No. 75-68(R)) of the felony offense of possession of stolen mail and had served a prior prison term for that offense, had been convicted (in case Nos. A-079140 and A-079878) of the felony offenses of rape (two counts), oral copulation (two counts), assault with a deadly weapon, burglary (three counts), and robbery (six counts) and had served a prior prison term for those offenses, and had been convicted (in case No. A-737687) of the felony offense of attempted robbery and had served a prior prison term for that offense.

Defendant pleaded not guilty and denied each allegation. The court docket reflects that, immediately prior to trial, the “[i]ssue of prior convictions [was] bifurcated.” A jury trial commenced, but ended in a mistrial when the jury was unable to reach a verdict on the current offenses.

Immediately prior to commencement of the second jury trial, the trial court, on defendant’s motion, again bifurcated determination of the truth of the alleged prior convictions from trial of the remaining charges and allegations. The trial court ruled, however, that should defendant testify, his prior convictions relating to credibility could be employed to impeach his testimony.

Defendant did testify, stating he was on parole at the time of the alleged offenses and previously had been convicted of possession of stolen mail, three counts of burglary, six counts of robbery, and one count of attempted robbery.

When the jury returned its verdict on the current offenses, the deputy public defender who represented defendant at trial, Janet Aldapa, was not present, and defendant was represented by Deputy Public Defender Ron Brown. The jury found defendant guilty of burglary, but not guilty of attempted murder or assault with a firearm. The trial court then discharged the jury and continued the case to the following day, when defendant appeared, represented by Ms. Aldapa.

The trial court at that time indicated its understanding, which Ms. Aldapa confirmed, that defendant wished to waive his right to jury trial as to the alleged prior convictions. Defendant then personally waived that right, as did the People. The prosecutor submitted certified records of the prior convictions, which were admitted into evidence without objection; the truth of the allegations was submitted to the court, and proceedings were adjourned to the following court day.

When the case resumed, Ms. Aldapa stated that when she had advised defendant to waive his right to jury trial as to the alleged prior convictions, she was unaware the jury had been discharged. In response, the trial court recalled that Ms. Aldapa had stated, in a discussion held off the record during the course of the second jury trial, that her client would waive his right to jury trial as to the alleged prior convictions. Ms. Aldapa admitted having told the court she would advise her client to waive his right to jury trial but claimed that had she known the jury had been discharged after returning its verdict, she would not have so advised her client. The trial court then permitted defendant to withdraw his waiver of his right to jury trial as to the alleged prior convictions.

Following a brief recess, defendant entered a plea of once in jeopardy and moved to dismiss the allegations of prior convictions. The trial court denied the motion. The truth of the alleged prior convictions was tried to a new jury, which found true each of the above mentioned allegations. Defendant was sentenced to state prison for the high term of three years on the burglary charge, plus one year for each of the three prior prison terms (§ 667.5, subd. (b)), for a total term of six years.

Defendant appealed, raising the contention, among others, that impanel-ling a new jury to determine the truth of the prior conviction allegations violated state statutory law and unconstitutionally placed him twice in jeopardy. After the Court of Appeal affirmed the judgment, we granted defendant’s petition for review to determine whether, after discharge of the jury under the circumstances here present, the trial court was barred from conducting further proceedings to determine the truth of the prior conviction allegations.

Discussion

Statutory Provisions

The procedure established by the Legislature for the proof of allegations of prior convictions has not been altered substantially for nearly a century. Section 1025, enacted originally in 1874,² provides: “When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction. . . . If he answers that he has not, . . . the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty .... In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.”³

At the time section 1025 was enacted, a defendant who was alleged to have suffered a prior conviction had two choices: admit the alleged prior conviction, or have the truth of the allegation determined concurrently— during the trial of the current charges—by the jury entrusted with deciding the defendant’s guilt or innocence of those charges. On numerous occasions, this procedure was upheld against challenges by defendants. (People v. Owens (1980) 112 Cal.App.3d 441, 446-447 [169 Cal.Rptr. 359], and cases cited therein; see also People v. Coleman (1904) 145 Cal. 609, 611-613 [79 P. 283].)

The foregoing procedure reflected the state of the law until 1981, when the Court of Appeal in People v. Bracamonte, supra, 119 Cal.App.3d 644, held that a defendant who denies an alleged prior conviction “is entitled to a bifurcated proceeding wherein the jury is not informed of his prior convictions, either through allegations in the charge or by the introduction of evidence, until it has found the defendant guilty.” (Id. at p. 654.)⁴ The court in Bracamonte observed that a rule requiring a bifurcated trial was not in conflict with section 1025: “While section 1025 does state that ‘the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty’ (italics added), it does not state nor imply that the jury should try both issues simultaneously.” (119 Cal.App.3d at p. 652, italics in original.)

In 1984, the Court of Appeal in People v. Wojahn, supra, 150 Cal.App.3d 1024, addressed what in subsequent years would prove to be a recurring problem. As required by the rule announced in Bracamonte, supra, 119 Cal.App.3d 644, the trial court in Wojahn bifurcated the determination of the truth of the defendant’s alleged prior conviction from the trial of the pending charges. But after the jury returned a verdict of guilty, the court discharged the jury without having submitted to the jury the determination of the truth of the alleged prior conviction. Three weeks later, over the defendant’s objection, the court instituted a new proceeding to determine the truth of the prior conviction allegation; the defendant waived his right to a jury trial, and the court found the allegation to be true.

The Court of Appeal in Wojahn, concluding that the proceeding to determine the truth of the alleged prior conviction placed the defendant twice in jeopardy, directed the trial court to strike the sentence enhancement that was based upon the prior conviction. (People v. Wojahn, supra, 150 Cal.App.3d 1024, 1035.)

In 1988, four years after the decision in Wojahn, the Legislature amended section 1164 to add subdivision (b), which provides: “No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.” One apparent purpose of this amendment was to prevent recurrence of the situation that arose in Wojahn by directing the trial court not to discharge the jurors until the court had confirmed that any alleged prior convictions had been considered by them.

In the present case, the trial court violated sections 1025 and 1164 by discharging the jury before the jury had determined the truth of the alleged prior convictions. But defendant did not call this error to the court’s attention by timely objection. As we shall explain, defendant’s failure to object precludes his obtaining appellate relief on the basis of the statutory error committed by the trial court.⁵

“ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver .... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ ” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261], italics in Doers.) “ ‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had ....’” (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].) “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” (United States v. Olano (1993) _ U.S. _, _ [123 L.Ed.2d 508, 517, 113 S.Ct. 1770].⁶

“The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 [204 P. 33] . . . : ‘ “In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” ’ ” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 784 [174 Cal.Rptr. 348].)

Thus, although sections 1025 and 1164 prohibit a trial court from discharging a jury until it has determined the truth of any alleged prior convictions, a defendant may not complain on appeal of a departure from this procedural requirement unless the error has been brought to the attention of the trial court by means of a timely and specific objection. We do not believe that the Legislature, in enacting sections 1025 and 1164, intended to create a procedural trap that would enable defense counsel to ambush the trial judge and deprive the People of their statutory right to prove one or more alleged prior convictions for the purpose of enhancing the punishment of the repeat offender. Nor should the law place a defense attorney in the untenable position of having to choose between honoring counsel’s commitment to the court (that jury trial on the prior conviction allegation would be waived) and counsel’s duty to his or her client (to offer all available defenses to the charges and allegations contained in the accusatory pleading).⁷

In the present case, the trial court discharged the jury after it returned a guilty verdict, because the court—reasonably, in light of defense counsel’s representations—believed that defendant did not wish to have the issue of the truth of the prior conviction allegations determined by the jury. Defendant did not object to the discharge of the jury and, thereafter, waived his right to a jury trial as to the alleged prior convictions. Defendant, on the advice of counsel, subsequently changed his mind, and the trial court permitted him to withdraw his jury waiver. A new jury was impanelled and determined the truth of the alleged prior convictions.

Defendant was not deprived of his right to a jury trial. Nor can he properly claim on appeal that he was denied his statutory right to a determination of the alleged prior convictions by the same jury that determined his guilt. He forfeited that right by failing to object in a timely fashion when the jury was discharged. Defendant is precluded, therefore, from arguing on appeal that reversal of the judgment is required because the trial court violated sections 1025 and 1164, subdivision (b), by discharging the jurors before they could determine the truth of the prior-conviction allegations.⁸

Defendant’s failure to object does not, however, preclude his arguing on appeal that he was deprived of his constitutional right not to be placed twice in jeopardy. (People v. Superior Court (Marks), supra, 1 Cal.4th 56, 77, fn. 20; Curry v. Superior Court (1970) 2 Cal.3d 707, 713 [87 Cal.Rptr. 361, 470 P.2d 345].) We now consider that issue.

Double Jeopardy

The Fifth Amendment to the United States Constitution provides that “[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This guarantee is applicable to the states through the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794 [23 L.Ed.2d 707, 715-716, 89 S.Ct. 2056], overruling Palko v. Connecticut (1937) 302 U.S. 319 [82 L.Ed.2d 288, 58 S.Ct. 149].) Similarly, article I, section 15, of the California Constitution provides: “Persons may not twice be put in jeopardy for the same offense . . . ."

Defendant contends that impanelling a new jury to determine the truth of the prior conviction allegations placed him once again in jeopardy. We assume, without deciding, that double jeopardy principles apply to allegations of prior convictions (see, e.g., People v. Superior Court (Marks), supra, 1 Cal.4th 56, 78, fn. 22 [double jeopardy principles apply to use-of-a-firearm allegation]; People v. Bonner (1979) 97 Cal.App.3d 573, 575 [158 Cal.Rptr. 821] [double jeopardy principles apply to an enhancement allegation of possession for sale of more than a specified quantity of heroin]; Lockhart v. Nelson (1988) 488 U.S. 33, 37-38, fn. 6 [102 L.Ed.2d 265, 271-272, 109 S.Ct. 285] [assuming, without deciding, that double jeopardy principles apply to noncapital sentencing proceedings]), and that jeopardy attached as to the alleged prior convictions at the time the jury was sworn to determine defendant’s guilt of the current charges. (Cf. Serfass v. United States (1975) 420 U.S. 377, 388 [43 L.Ed.2d 265, 273-274, 95 S.Ct. 1055].) But we conclude, for the reasons that follow, that because the anticipated proceedings relating to the alleged prior convictions had not yet transpired at the time the trial court discharged the jury, jeopardy did not then terminate as to those allegations. Accordingly, the conduct of further trial proceedings as to the alleged prior convictions did not place defendant twice in jeopardy.

“ ‘The constitutional prohibition against “double jeopardy’’ was designed to protect an individual from being subjected to die hazards of trial and possible conviction more than once for an alleged offense. . . .’” (Serfass v. United States, supra, 420 U.S. 377, 387 [43 L.Ed.2d 265, 273, 95 S.Ct. 1055].) Courts “have disparaged ‘rigid, mechanical’ rules in the interpretation of the Double Jeopardy Clause. [Citation.]” (Id. at p. 390 [43 L.Ed.2d at p. 275].) “The exaltation of form over substance is to be avoided.” (United States v. DiFrancesco (1980) 449 U.S. 117, 142 [66 L.Ed.2d 328, 349, 101 S.Ct. 426].) The standards for determining when a double jeopardy violation has occurred are not to be applied mechanically. (Arizona v. Washington (1978) 434 U.S. 497, 506 [54 L.Ed.2d 717, 728-729, 98 S.Ct. 824]; see Illinois v. Somerville (1973) 410 U.S. 458, 469 [35 L.Ed.2d 425, 433-434, 93 S.Ct. 1066].)

In Ohio v. Johnson (1984) 467 U.S. 493 [81 L.Ed.2d 425,104 S.Ct. 2536], the defendant was indicted for murder, involuntary manslaughter, aggravated robbery, and grand theft as a result of the killing of Thomas Hill and the theft of property from Hill’s apartment. At his arraignment, the defendant offered to plead guilty to involuntary manslaughter and grand theft, while pleading not guilty to murder and aggravated robbery. Over the state’s objection, the trial court accepted the guilty pleas, sentenced the defendant, and then dismissed the remaining charges on the ground that further prosecution would place the defendant twice in jeopardy for the same offense. The high court disagreed, noting: “No interest of [the defendant] protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. . . . [The defendant] has not been exposed to conviction on the charges [which were dismissed], nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. . . . There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws. [Citation.]” (Id. at pp. 501-502 [81 L.Ed.2d at p. 435].)

In Swisher v. Brady (1978) 438 U.S. 204 [57 L.Ed.2d 705, 98 S.Ct. 2699], the United States Supreme Court considered a juvenile law procedure that permitted a case to be heard first by a master and then by a judge of the juvenile court. The high court held that the prescribed procedure did not violate the double jeopardy clause, because “an accused juvenile is subjected to a single proceeding which begins with a master’s hearing and culminates with an adjudication by a judge.” (Id. at p. 215 [57 L.Ed.2d at p. 714].) This holding was based upon the high court’s conclusion that the challenged procedure “does not impinge on the purposes of the Double Jeopardy Clause,” because it “does not provide the prosecution that forbidden ‘second crack’ ” at supplying evidence it failed to produce in an earlier hearing, it did not enhance the risk that an innocent person would be convicted “by taking the question of guilt to a series of persons or groups empowered to make binding determinations,” and it did not unfairly subject “the defendant to the embarrassment, expense, and ordeal of a second trial . . . .” (Id. at pp. 215-216 [57 L.Ed.2d at pp. 715-716].)

In the present case, none of the interests of defendant protected by the double jeopardy clause were impaired by the procedure that was followed. Defendant was not at risk, during trial of the current charges, that the jury would find true the prior conviction allegations, because at defendant’s request the truth of those allegations had been bifurcated from the trial of the current charges. At the time the jury was discharged, “ ‘criminal proceedings against [defendant had] not run their full course.’ ” (Justices of Boston Municipal Court v. Lydon (1984) 466 U.S. 294, 308 [80 L.Ed.2d 311, 325, 104 S.Ct. 1805].) The evils against which the double jeopardy clause is directed were absent in the present situation. Moreover, dismissal of the prior conviction allegations would deny the People their right to a full and fair opportunity to prove the truth of the allegations. (Cf. People v. Superior Court (Marks), supra, 1 Cal.4th 56, 75-77.) We conclude that, because at defendant’s request the determination of the truth of the alleged prior convictions had been bifurcated from trial of the current charges, defendant was not placed twice in jeopardy when the trial court, without objection by defendant, discharged the jury following the guilty verdict and, as necessitated by the bifurcation order, conducted further proceedings to determine the truth of the alleged prior convictions.

Defendant cites our decision in Stone v. Superior Court (1982) 31 Cal.3d 503, 516, fn. 7 [18 Cal.Rptr. 647, 646 P.2d 809], in which we referred to “the defendant’s ‘ “valued right to have his trial completed by a particular tribunal.” ’ [Citations.]” But nothing in our opinion in Stone suggests that, in a bifurcated trial, the double jeopardy clause guarantees the defendant the right to have the truth of prior conviction allegations determined by the same jury that considers the current offenses. In Stone, we observed that the United States Supreme Court has employed the above quoted phrase to describe the aspect of double jeopardy protection that provides: “Once jeopardy has attached, discharge of the jury without a verdict is tantamount to an acquittal . . . .” (Id. at p. 516.)

In the present case, the jury that found defendant guilty of the current charged offense of burglary made no findings as to the alleged prior convictions, because those allegations had not been submitted to them. Thus, there can be no implication in the present case that the jury disbelieved the allegations of prior convictions and therefore implicitly found those allegations not true.

If defendant were correct that the double jeopardy clause required that the same jury that determines a defendant’s guilt also must determine the truth of any alleged prior convictions, the various states would be prohibited from requiring that the truth of alleged prior convictions be determined by a new jury following discharge of the jury that returned a guilty verdict on the current charges. (See Swisher v. Brady, supra, 438 U.S. 204, 215-216 [57 L.Ed.2d at pp. 715-716].) But such a system would not contravene any principle embodied in the double jeopardy clause. That guarantee is designed to prevent an accused from being placed at risk more than once on a single charge; it is not concerned with whether, in a bifurcated trial, a single jury or multiple juries are utilized. Certainly, a state would not be prohibited by the double jeopardy clause from providing by statute that, following a guilty verdict, a new jury should be impanelled to determine the truth of alleged prior convictions, or that the truth of such allegations should be determined by the court sitting without a jury. (See McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 [91 L.Ed.2d 67, 80-81, 106 S.Ct. 2411] [“[T]here is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.”]; Spencer v. Texas (1967) 385 U.S. 554, 560 [17 L.Ed.2d 606, 612, 87 S.Ct. 648] [“The states have always been given wide leeway in dividing responsibility between judge and jury in criminal cases.”]; U.S. v. Ruo (11th Cir. 1991) 943 F.2d 1274, 1275 [Prior convictions need not be alleged in indictment or proved at trial for enhanced sentence under federal Armed Career Criminal Act.].)

In most instances, a defendant is benefitted by having a new jury determine the truth of alleged prior convictions, because the new jury will not have heard the evidence supporting the defendant’s conviction of the current charges. In the present case, for instance, defendant, during his testimony at the trial of the current charges, had admitted suffering nearly all of the numerous alleged prior convictions.

Just as a procedure calling for the impanelling of a new jury to determine the truth of alleged prior convictions following the return of a guilty verdict in a bifurcated proceeding would not offend the double jeopardy clause, neither did the procedure employed in the present case. As we have explained, by failing to object, defendant forfeited his statutory right to have the jury that returned the guilty verdict determine the truth of the alleged prior convictions. The impanelling of another jury thus was permitted under California law. For the reasons discussed above, we conclude that this procedure did not place defendant twice in jeopardy.

Our analysis has centered upon the double jeopardy clause of the federal Constitution. Although in some contexts article I, section 15, of the California Constitution may provide a level of protection higher than that afforded by its federal counterpart (see, e.g., People v. Superior Court (Marks), supra, 1 Cal.4th 56, 71, fn. 13; Curry v. Superior Court, supra, 2 Cal.3d 707, 712-713), nothing in the language or history of the state constitutional provision, or in past California decisions, suggests that, in the present context, the double jeopardy clause of the California Constitution should be interpreted differently from the corresponding clause of the federal Constitution. The same considerations, discussed above, that lead us to consider the double jeopardy clause of the federal Constitution inapplicable to the present situation cause us to conclude that the parallel provision in the California Constitution was not violated by the procedure followed by the trial court.

We hold that, because determination of the truth of the alleged prior convictions was bifurcated from the trial of the current charges, the court’s action in conducting further proceedings to determine the truth of those allegations, following discharge of the jury that returned the guilty verdict, did not violate the double jeopardy clause of either the United States Constitution or the California Constitution.⁹

Disposition

The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Panelli, L, Arabian, J., and Baxter, J., concurred.

1 All further statutory references are to the Penal Code, unless otherwise noted.

2 Section 1025 has an unusual history. Enacted in substantially its present form in 1874, it was repealed in 1880 and reenacted in 1901. (Code Amends. 1873-1874, ch. 614, § 50, p. 439; Code Amends. 1880, ch. 47, § 56, p. 19; Stats. 1901, ch. 158, § 237, p. 486.) But this court invalidated the 1901 revision of the Penal Code, of which the reenactment of section 1025 was a part. (Lewis v. Dunne (1901) 134 Cal. 291 [66 P. 478].) In 1905, section 1025 again was reenacted. (Stats. 1905, ch. 574, § 6, p. 773.) Only minor amendments, not relevant here, have been made to the statute subsequent to the latter reenactment.

3 Also in 1874, section 1093 was amended to provide, as it still does today, that at the commencement of a felony trial, the clerk shall read to the jury the accusatory pleading but, in the event the defendant admits having suffered an alleged prior conviction, the clerk “shall omit therefrom all that relates to such previous conviction.” (Code Amends. 1873-1874, ch. 614, § 63, p. 444.) That same year, section 1158 was amended to provide, as it still does today, that in the event the defendant is alleged to have suffered a prior conviction, the jury must, “unless the answer of the defendant admits [such prior conviction], find whether or not he has suffered such previous conviction.” (Code Amends. 1873-1874, ch. 614, § 67, p. 446.)

4 We previously have not addressed, and do not address in the present case, the validity of this “ ‘judicially declared rule] ] of practice.’ ” (Id. at p. 655.)

5 Defendant’s failure to object does not preclude his arguing on appeal that he was placed twice in jeopardy. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 77, fn. 20 [2 Cal.Rptr.2d 389, 820 P.2d 613]). Defendant’s double jeopardy claim is discussed later in this opinion. Defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. (Cal. Const., art. I, § 16; People v. Holmes (I960) 54 Cal.2d 442, 443-444 [5 Cal.Rptr. 871, 353 P.2d 583].) But defendant was not denied his right to a jury trial regarding the truth of the alleged prior convictions. He expressly waived that right and later, after the trial court granted his motion to withdraw his waiver, was afforded a jury trial on that issue. The rule that a waiver of the constitutional right to a jury trial must be express has no application to the statutory right to have the same jury that determined defendant’s guilt of the currently charged offenses determine the truth of alleged prior convictions.

6 In this context, the terms “waiver" and “forfeiture" have long been used interchangeably. The United States Supreme Court recently observed, however: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Citations.]” (United States v. Olano, supra,_U.S._,_[123 L.Ed.2d 508, 519].) Thus, it probably is most accurate to denominate defendant’s failure to object to the discharge of the jury that determined his guilt as a forfeiture, rather than a waiver, of his statutory right to have that jury determine the truth of the alleged prior convictions.

7 In her dissent, Justice Kennard asserts that our conclusion imposes an obligation on the defense to bring to the court’s attention the prosecution’s failure to present its evidence at the appropriate time. (Post, at p. 601.) In advancing this argument, however, the dissent fails to consider that the issue of the prior conviction enhancement had been bifurcated from the issue of guilt at defendant’s request, and that the portion of the proceedings concerning the prior conviction allegations had not yet begun when the jury was dismissed. Thus, our conclusion does not require the defense to remind the prosecution to present its evidence in a timely manner, but merely requires the defense to object to the discharge of the jury in the event it wishes to assert its statutory right to have the same jury that found defendant guilty also determine the truth of the prior conviction allegations.

Justice Kennard’s dissent also asserts that as a general rule, “[a] party forfeits a legal right by silence only when the law allocates to that party the legal duty or obligation to speak.” (Post, at p. 601, fn. omitted.) None of the authorities cited in the dissent announce such a rule. Instead, the dissent apparently gleans this rule from the existence of various claims that may be raised on appeal in the absence of an objection. Although the dissent describes several circumstances, not present here, in which a claim may be raised on appeal in the absence of a timely objection in the court below, these are discrete exceptions to the well-established general rule, stated above, that a failure to object results in a forfeiture of the right sought to be asserted. None of the cases cited in the dissent questions this general rule or purports to limit it in the manner suggested by the dissent.

8 In her dissent, Justice Kennard describes as a “new rule” our holding that, by failing to object, defendant forfeited his statutory rights under section 1025 (to have the same jury determine defendant’s guilt and the truth of the prior conviction allegations), the dissent therefore concluding that this holding “may not be applied retroactively when existing law did not require an objection.” (Post, at p. 606.) Justice Kennard bases her conclusion (that existing law did not require an objection) on the holding of the Court of Appeal in People v. Wojahn, supra, 150 Cal.App.3d 1024, and this court’s pattern of denying review in cases discussing this issue following Wojahn and ordering depublication of cases critical of Wojahn. The dissent’s analysis is flawed.

To begin with, the dissent errs in concluding that by denying review in some cases and ordering depublication of the opinions in others, this court “endorsed” the decision in Wojahn. (Post, at p. 607.) We recently reaffirmed “the well-established rule in this state that a denial of a petition for review is not an expression of opinion of the Supreme Court on the merits of the case. [Citations.]” (Camper v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679, 689, fn. 8 [12 Cal.Rptr.2d 101.) Consistently with the foregoing principles, rule 979(e) of the California Rules of Court, adopted in 1990, declares that “[a]n order of the Supreme Court directing depublication of an opinion in the Official Reports shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion."

In any event, the decision in Wojahn was premised entirely upon double jeopardy principles. The opinion in that case does not address the issue whether the defendant’s failure to object to the discharge of the jury resulted in a forfeiture of his statutory rights under section 1025. Because “an opinion is not authority for a proposition not therein considered” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689]), defendant cannot be deemed to have relied upon Wojahn in failing to assert his rights under section 1025.

No case has held that a claimed violation of section 1025 may be asserted on appeal in the absence of an objection in the trial court. Accordingly, the dissent is mistaken in relying upon the rule stated in People v. Welch (1993) 5 Cal.4th 228, 238 [19 Cal.Rptr.2d 520, 851 P.2d 802], excusing a failure to object “where existing law overwhelmingly said no such objection was required.” (Fn. omitted.) Our holding in the present case, that because defendant failed to object on this ground in the trial court he is precluded from arguing on appeal that he was denied his statutory rights under section 1025, is an application of settled principles and does not announce a new rule of law.

Like the Court of Appeal in Wojahn, however, we conclude that defendant’s failure to object to the discharge of the jury did not waive his double jeopardy claim. We address the merits of that claim below.

9 We disapprove the contrary holdings in People v. Wojahn, supra, 150 Cal.App.3d 1024, 1035; People v. Hockersmith (1990) 217 Cal.App.3d 968, 972 [266 Cal.Rptr. 380]; People v. Dee (1990) 222 Cal.App.3d 760, 765 [272 Cal.Rptr. 208]; and People v. West (1990) 224 Cal.App.3d 1283, 1287 [274 Cal.Rptr. 524],