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Name: People v. Gutierrez
Case #: C034224
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/24/2001
Subsequent History: None

The trial court erred when it allowed the prosecutor to amend an information to allege a prior robbery conviction as a strike prior and a five year enhancement pursuant to Penal Code section 667, subd.(a), after the jury had been discharged. In People v. Tindall (2000) 24 Cal. 4th 767, the California Supreme Court held that in the absence of a defendant’s waiver, section 1025, subdivision (b) requires that the same jury that decided the issue of a defendant’s guilt shall determine the truth of the prior convictions. Because a jury cannot determine the truth of prior convictions after it has been discharged, it follows that the information may not be amended to add prior convictions. Therefore the trial court acted in excess of jurisdiction in permitting the late filing, and the judgment was modified accordingly.