Opinion
A fеlony is “serious” if the defendant personally inflicts great bodily injury on any person other than an accomplice. When the prior conviction of such a felony is alleged for purposes of the three strikes law, must the prosecution prove that the injured party was not an accomplice? We will answer this question in the affirmative. Because the trial court placed the burden of proof on the defendant, and becаuse substantial evidence does not support the court’s finding that the prior felony was serious, we will reverse.
Factual and Procedural Background
The underlying facts are not disputed and not at issue here. Appellant Darrell Anthony Henley sold heroin on February 28, 1996, and on April 11, 1996. In two cases, which were consolidated, he pleaded no contest to two counts of selling heroin (Health & Saf.- Code, § 11352, subd. (a).) The informations further alleged that on or about May 11, 1992, appellant suffered a prior felony conviction for violating Vehicle Code section 2800.3, evading a peace officer causing injury or death. The prior felony was alleged to be “serious” within the meaning of the three strikes law. 1 Appellant admitted the 1992 prior, reserving court trial on the issue of whether that conviction qualified as a strike. The parties stipulated that appellant would be sentenced to a prison term of five years four mоnths in the event the strike was not sustained, eight years eight months in the event it was.
After taking the contested issue under submission, the court found the prior conviction qualified as a strike for purposes of the three strikes law. The court stated that appellant had the burden of proving that the party injured in commission of the prior felony was an accomplice. The record *559 presented included a transcript of the change of pleа proceeding in the earlier case. Because it was silent on the injured party’s status, the court found that person was not an accomplice. Further finding evidence of great bodily injury, the court concluded that the prior conviction was of a serious felony and sentenced appellant to a total term in state prison of eight years and eight months.
The trial court issued a certificate of probable cause pursuant to section 1237.5. Appellant contends the court below erred in placing the burden of proof on him. He also argues there is insufficient evidence to support the court’s findings that the injured party in the prior case was not an accomplice and suffered great bodily injury.
Discussion
1. The trial court’s finding that the person injured in appellant’s prior felony was not an accomplice is not supported by substantial evidence.
Aрpellant admitted that on or about May 11, 1992, he was convicted of violating Vehicle Code section 2800.3. That statute provides, in pertinent part at all times relevant here: “Whenever willful flight or attempt to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 proximately causes death or serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison . . . , by imprisonment in the county jail . . . , or by a fine . . . .”
For purposes of the three strikes law, a serious felony is any felony listed in section 1192.7, subdivision (c). That statute specifies a number of felonies, and, in subdivision (c)(8) provides: “ ‘[S]erious felony’ means . . . HD . . . HD . . . [a]ny felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . .” Section 1192.8 provides: “(a) For purposes of subdivision (c) of Sectiоn 1192.7, ‘serious felony’ also means any violation of . . . Section 2800.3 ... of the Vehicle Code, when any of these offenses involve the personal infliction of great bodily injury on any person other than an accomplice . . . .”
It is thus apparent that a violation of Vehicle Code section 2800.3 is not a serious felony unless (1) the defendant personally inflicted great bodily injury, and (2) the injured person was not an accomplice.
A. Evidence of the injured party’s status was inconclusive.
Generally, the prosecutor proves a prior conviction by introducing certified copies of the abstract of judgment and records of the Department of
*560
Corrections showing imprisonment. (§ 969b;
People
v.
Hoerler
(1962)
Once the prosecutor presents prima facie evidence оf conviction, the trial court is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony.
{People
v.
Crockett
(1990)
The transcript of appellant’s plea to a violation of section 2800.3 of the Vehicle Code was considered by the trial court. At the time of the plea, the following exchange took place between the court and appellant:
“The Court: [W]hat is your plea, sir, to a violation of Vehicle Code Section 2800.3, evading a peace office, causing injury, where it’s alleged that on or about April 11th of 1992 you did willfully, unlawfully and feloniously evade and attempt to evade a pursuing peace officer, proximately causing serious bodily injury to another? fl[] Is your plea guilty or no contest, sir?
“[Appellant]: No contest.”
The factual basis for the plea was explained by the prosecutor as follows: “[A]n officer observed [appellant] driving a motorcycle at high speed. After attempting to pull the [appellant] over, he activated his lights and siren. *561 [Appellant] failed to yield. A high-speed chase in excess of 70 miles an hour ensued on surface streets. [Appellant] eluded him and eventually ran a stop sign and ran into another vehicle and injured the passenger on the back of his motorcycle in which he[ 3 ] received a back injury and broken ankle.” Appellant’s counsel agreed to this description of the crime.
In its analysis of whether appellant’s prior conviction constituted a “serious” felony for purposes of the three strikes law, the trial court stated, in pertinent part: “On its face, the transcript supports the finding that [appellant] personally caused the injury (ran into another vehicle and injured the passenger on the back of his motorcycle) and that the injury was great bodily injury (broken ankle). Since the burden of proving a person is an accomplice is on the [appellant] (CALJIC 3.19), this Court concludes that the silent record does not establish this and the Court finds that the pаssenger was not an accomplice. Accordingly, the factual basis and the plea set forth in the transcript is [sz'c] adequate to support the conclusion that this particular Vehicle Code Section 2800.3 conviction is a prior serious felony under Penal Code Section 667(d) . . . .”
The question then is whether the transcript of appellant’s plea in the previous conviction or the criminal complaint filed in the case, as interpreted by the trial court, is substantial evidence that the injured individual was not an accomplice.
The definition of substantial evidence in a criminal case is a familiar one. It is “evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
{People
v.
Johnson
(1980)
A trier of fact is entitled to draw reasonable inferences from certified recоrds offered to prove a defendant suffered a prior conviction and served a prison term.
{People
v.
Haney
(1994)
Whether the injured person was or was not an accomplice was not an issue at the time appellant was convicted of violating Vehicle Cоde section 2800.3. Therefore, neither the plea transcript nor the complaint mentions the injured party’s status. The prosecution did not present any additional evidence to prove that she was not an accomplice.
*562
We note that neither the complaint nor the Felony Docket form from the 1992 case lists any codefendant. Thus, the possibility exists that the injured person was not an accomplice. (See
People
v.
Moore
(1992)
Unless the trial court was correct in placing the burden of proof on appellant, the record does not support the conclusion that appellant personally inflicted great bodily injury on a person other than an accomplicе.
B. The court erred placing the burden of proof on appellant.
Normally, to establish a prior conviction allegation, the prosecutor must prove beyond a reasonable doubt all the elements of the allegation, i.e., the defendant was convicted and the conviction was of an offense within the definition of the particular statute invoked, and any other element required by the statute alleged.
{People
v.
Tenner
(1993)
In placing the burden on appellant to prove the injured party was an accomplice, the trial court cited CALJIC No. 3.19. That instruction, however, deals only with situations in which a defendant claims that a witness against him is an accomplice. (See
People
v.
Tewksbury
(1976)
Respondent argues that the trial court properly placed the burden on appellant, but does not rely on CALJIC No. 3.19. Instead, respondent cites a *563 line of cases holding that a defendant in a criminal case has the burden of proving an affirmative defense.
(5) The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
(In re Winship
(1970)
Case law is not crystal clear on how one determines whether an exception or a proviso in a criminal statute is an element to be proved by the prosecution or an affirmative defense to be proved by the defendant. Some cases hold that “ ‘where a statute first defines an offense in unconditional terms and then specifies an exception to its operаtion, the exception is an affirmative defense to be raised and proved by the defendant. [Citations.]’ ”
(People
v.
Fuentes, supra,
Other cases finding a criminal statute’s exception is an affirmative defense rely on thе “rule of convenience.” As explained by this court: “The rule of convenience ‘emerged from a long line of decisions which operate to impose on a defendant the burden of proving an exonerating fact if its existence is “peculiarly” within his personal knowledge and proof of its nonexistence, by the prosecution, would be relatively difficult or inconvenient.
(People
v.
Boo Doo Hong
(1898)
Respondent relies on the grammatical rule of
People
v.
Fuentes, supra,
Appellant contends that the cases relied on by respondent are inapplicable here as they deal with whether the defendant had permission or authorization to engage in certain conduct or possess what would otherwise bе contraband. (See, e.g.,
People
v.
George
(1994)
We will not labor over the question of whether the “other than an accomplice” proviso in section 1192.7, subdivision (c) is a definitional element of “serious felony” or a matter of affirmative defense. Even if it can be properly construed as stating a matter of affirmative defense, application of the rules concerning proof of a prior conviction worked to deprive appellant of a fair opportunity to carry the burden put upon him. We will thus conclude appellant was denied due process.
The California Supreme Court has held that a defendant’s statutory right to a jury trial on prior conviction allegations (§ 1025) has been expanded to include various procedural guaranties: the prosecution must prove the prior conviction allegation beyond a reasonable doubt, the defendant enjoys the privilege against self-incrimination and the right to confront and cross-examine witnesses against him, and the rules of evidence apply.
(People
v.
Monge
(1997)
In determining the truth of a prior conviction allegation the trier of fact may look to the entire record of that conviction, but no further.
(People
v.
Guerrero
(1988)
Also, it appears appellant would not have had any meaningful opportunity to submit proof on the issue in the 1992 case.
People
v.
Gonzales
(1994)
The reasoning of the Gonzales court applies here as well. There was no justiciable issue, in appellant’s 1992 case, concerning the serious felony elements of sections 667 and 1192.7. He thus had no right or opportunity to litigate the question at that time.
Placing the burden of proof on appellant while restricting his proof to the record of a proceeding in which he had no opportunity to litigate the issue
*566
can aptly be described as a “Catch 22.”
6
As a result, appellant never had a meaningful opportunity to defend against the prior serious felony conviction allegation. (See
Chambers
v.
Mississippi
(1973)
C. Retrial of the serious felony allegation is not barred.
The question arises whether retrial of the serious felony allegation is barred by double jeopardy principles on remand. We conclude it is not.
Monge
v.
California
(1998)
2. Substantial evidence supports the personal infliction of great bodily injury finding *
Disposition
The judgment is reversed to the extent it is based on a finding that appellant suffered a prior serious felony conviction. The district attorney *567 shall have 30 days after the remittitur is filed in which to give notice of his intent to seek retrial of the prior conviction allegation. If the district attorney gives such notice, the court shall conduct further proceedings in accordance with this opinion. If the district attorney fails to give such notice, the court shall resentence apрellant to the lower stipulated prison term of five years four months, less appropriate time credits.
Dibiaso, Acting P. J., and Levy, J. concurred.
Notes
Penal Code section 667, subdivisions (b)-(i), inclusive, and section 1170.12. Further statutory references are to the Penal Code unless otherwise indicated.
ln re Tahl
(1969)
Other references in the record indicate that the injured party was female.
Appellant offered to testify but the trial court denied his request. One of the reasons given by the court was that it could only consider the record from the prior case.
The issue in
Gonzales
did not involve the burden of proof. Apparently the prosecution did not contend the burden lay with the defendant, for the trial court instructed the jury that the “ ‘People have to prove the following elements: One, that the defendant personally inflicted, two, great bodily injury on a person, three, who was not an accomplice to the crime charged.’ ” (
Heller, Catch 22 (1961). Appellant uses another literary reference, “Kafkaesque,” to describe the predicament he faced because of the lower court’s ruling.
Appellant contends the parties stipulated, when he entered his plea, that an appellate court' ruling would be conclusive on whether his prior conviction was a strike and that Monge does not govern. Respondent denies there was any such stipulation. We have considered that portion of the transcript referred to by appellant and find no support for his contention. Thus, we apply Monge.
See footnote, ante, page 555.