Wojahn

Appellant was charged with attempted murder (Pen. Code, §§ 187, 664), burglary (Pen. Code, § 459), assault with a deadly weapon (Pen. Code, § 245, subd. (a)), robbery (Pen. Code, § 211), forced oral copulation (Pen. Code, § 288a, subd. (c)), and rape (Pen. Code, § 261, subd. (2)); there were allegations as to the use of a deadly weapon (a knife) in the commission of the burglary and robbery (Pen. Code, § 12022). In addition, a prior conviction, forced oral copulation (Pen. Code, § 288a), was alleged. Appellant pleaded not guilty, denied the prior conviction and moved for a bifurcated trial on the issue of the prior conviction. The motion was granted.

Appellant was tried before a jury and convicted on all substantive charges. However, as we shall discuss in more detail below, the jury was discharged without having had the issue of the prior conviction put before it. Subsequently, that issue was tried, over appellant’s objection. After appellant’s objection was overruled, he waived jury. The court then tried the issue of the prior conviction and found it to be true.

Appellant was sentenced to the upper term of nine years for attempted murder, and consecutive sentences of…