*1 Aug. S070960. [No. 1999.] PEOPLE,
THE Plaintiff and Respondent, KELII,
LESTER Defendant and Appellant.
Counsel Court, Mandinach, and Sylvia M. under Gary appointment Supreme for Defendant under Court Koryn, Appeal, appointment Appellant. General,
Daniel Williamson, E. and Bill Lungren Lockyer, Attorneys George General, Pollack, Chief Assistant Attorney Carol Wendelin Assistant Attor- General, Hamanaka, C. ney Tate, Pamela T. Sanjay Kumar and Alan D. General, Deputy for Plaintiff Attorneys Respondent.
Opinion *3 CHIN, J. People (1995) v. Wiley Cal.Rptr.2d In court, 889 P.2d (Wiley), we held that the rather than the deter jury, 541] mines whether serious convictions were and tried felony brought case, In this we an separately. address issue we left in v. open (1998) Woodell 17 Cal.4th 460-461 Cal.Rptr.2d 85]: whether the or the determines if a prior felony qualifies as a Code, “serious for felony” (Pen. “Three purposes Strikes” law. (d)(1), (b)(1).)1 subd. §§ subd. Both and this case turn on an primarily of sections 1025 and interpretation 1158. We conclude that court, not the jury, determines whether a conviction serious. A jury convicted defendant of counts each two of second degree burglary theft, committed in grand 1995. It found January defendant subsequently had suffered three and one previously burglary burglary convic- attempted tions. The trial court later found that were of prior convictions first first degree and hence attempted degree burglary were residential and qualified as serious felonies. It sentenced defendant to state for 25 prison court, years life. On defendant that appeal, not the should argued jury, have determined whether his convictions serious felonies. qualified The Court of It for a disagreed. remanded matter reason not Appeal relevant to the issue before us and otherwise affirmed the judgment. We granted review.2
“Various statutes in California sentencing longer for sen prison tences if the defendant has one or more convictions of specified A is the Strikes’ types. highly publicized example ‘Three law which is involved in this case. In adopted general, this [Citation.] for ‘legislation longer sentences certain serious or violent provides ’ Woodell, felonies denoted “strikes” popularly (People [Citation.]” case, 452.) 17 In that this determined 1A11further references are to the Penal Code. 2Originally, granted petition we both who review decides serious, Attorney whether a conviction was petition General’s review unrelated Later, sentencing (Cal. to the petition. issues. we limited the issues one raised in defendant’s Court, 29.2(b).) Rules of rule convictions, determined that they but the court suffered the law. Defendant of the Three Strikes felonies for purposes as serious qualified made both determinations. should have that argues that Cal.4th 580. In Wiley, supra, We addressed a similar question (a)(1) (not of section we considered requirement must have convictions law), the Three Strikes part court to enhance- separate and tried for a impose been “brought separately” court, this determina- not the makes jury, ments each. We held that First, concluded tion. 9 Cal.4th (Wiley, supra, pp. determine factual to have “no constitutional right defendants have of sentence enhance- for purposes issues convictions relating alleged 589; federal Consti- (Id. [discussing see also id. at 585-586 ment.” at p. pp. tution], Constitution].) state [discussing 586-589 noted Wiley
This did We dispose question. conclusion not itself that, statute, has one states minority granted that “California is *4 a the truth of such defendants the to have determine right jury prior 589.) Cal.4th at When allegations.” (Wiley, supra, p. conviction 9 occurred, this case sentencing decided and the crimes and of Wiley when allega- section if a defendant denies conviction that provided “ tion, or not he has suffered such conviction ‘the whether question previous of must be tried tries the issue not by upon plea guilty stated, states, defend- . . . and still that when a Similarly, also a ant is found and the convic- guilty, accusatory alleges prior pleading “ waived, tion, . find ‘the or the if trial is must. . whether judge jury, ” not he (Wiley,supra, or has suffered such conviction.’ 589.) (Ibid.) these “are limited in nature . . . .” their “By But statutes terms, defendant the to have the grant right sections 1025 and 1158 conviction, and alleged determine whether he or she ‘suffered’ the only and tried.” brought whether convictions were multiple prior separately (Ibid.) and
This does not whether convictions were brought case involve the Three tried but as strikes under Strikes they whether separately, qualify this are if only convictions of case strikes law. Specifically, 1192.7, (d)(1), (§ (c)(18); residential. subd. see subd. they were §§ 1170.12, (b)(1).) Wiley subd. and rationale of apply equally But holding to determine whether to this case. Sections 1025 and require here make “has convictions. The did suffered” determination, that such as that determination. states an additional “a and tried is matter brought separately, whether the convictions were court, As is that is nature. demonstrated largely legal because numerous decisions that considered the have application proper that the be requirement prior charges and tried ‘brought separately,’ resolu- tion of this issue frequently depends upon interpretation complex detailed of California criminal provisions procedure. Although [Citations.] are, course, there some ‘facts’ that underlying are relevant to the deter- mination as to charges have been and tried ‘brought separately,’ such as the either in a filing charges single complaint multiple such complaints, facts are generally readily ascertainable an examina- upon tion of court documents. This is the type inquiry traditionally performed as judges function.” part sentencing (Wiley, 9 Cal.4th at
Determining whether as a strike qualifies under the Three Strikes also the law is that inquiry type judges traditionally perform part sentencing function. Often this is determination legal, purely with no as, factual content Three whatever. The Strikes defines a law strike among other defined things, “any offense subdivision Section (§§ n 1170.12, 1192.7 as a serious in this state.” felony (d)(1), subd. subd. (b)(1).) (c), Section lists some felonies are se per felonies, murder, arson, such as mayhem, rape, robbery, kidnapping, carjacking. If defendant’s conviction falls into this and the group, elements conviction, of the offense have not since changed the time then the whether that conviction as a serious qualifies entirely legal. content,
Sometimes the determination
have a
does
factual
as the
just
*5
question whether convictions were
and tried
brought
has a factual
separately
Woodell,
content. As
we
“Sometimes the definition
explained
of the
conviction is not
qualifying prior
with the definition of
congruent
completely
the crime of
the
defendant has been convicted. For
example,
(1988)
688,
v.
[People Guerrero
But these factual are limited In questions determining whether a scope. serious, conviction is “the trier of fact look to the entire record of prior may 343, the conviction” “no 44 (1988) but v. Guerrero Cal.3d (People further.” 688, Thus, 1150], italics.) 355 748 no P.2d witnesses original Cal.Rptr. fact considers only The trier of the crimes. testify about facts the trier of fact must draw true that sometimes court documents. It is the conviction other testimony parts from inferences transcripts 217, (1996) Cal.Rptr.2d 13 Cal.4th (See, Reed e.g., People record. examining But factual 184].) the inquiry, limited documents, one we considered in different from the is not significantly an examination ascertainable upon facts are Wiley. generally readily “[S]uch traditionally by This is the type inquiry performed of court documents. 590.) (Wiley, as the function.” judges sentencing part the defendant the to have a decide whether Accordingly, statutory right include the (§§ 1158) the conviction does not “has suffered” as a strike. whether the conviction qualifies inquiry his argues Defendant recent amendment section supports section 1025 is divided into subdivi- January Effective position. ones, “(b) (b) (c), as relevant: sions. Subdivisions pertinent (c), or not the of whether as subdivision provided question Except has conviction shall be tried by . Notwithstanding tries the issue of not . . . guilty upon plea [f] the defendant is the (b), of subdivision provisions has be tried the court who suffered the conviction shall person (Stats. without a ch. jury.” § from the
Defendant that the has removed argues but, his who suffered identity person We dis has left all other factual determinations for implication, jury. first that the the crimes and agree. sentencing We note amendment postdated the amend of this so does not here. But more fundamentally, it apply The ment does not new subdivi position. support (b), sion identical the relevant substantially portion (c) is new. That subdivision version of section 1025. Only narrows, It does not overrule rather than role. expands, jury’s clearly beyond role Wiley's jury’s section 1025 or interpretation expand conviction. The whether the defendant “has suffered” determining after narrowing narrowly interpreted of this soon legislation passage *6 our This same statute strongly suggests legislative approval interpretation. inaction, which at most weak legislative is not case of merely provides (1992) 3 (see v. Escobar Cal.4th legislative inference of approval 586, 1100]), 837 but a case of a legislative 750-751 P.2d Cal.Rpt.2d [12 does legislative which imply reenactment a statute just interpreted, “ decision, by judicial ‘Where a statute has been construed approval. be it must legislation, and that construction is not altered by subsequent and is aware of the construction Legislature judicial the presumed 458 ” of it.’
approves (Wilkoff v. (1985) Court 38 Cal.3d 353 Superior 134]; see Cal.Rptr. (1991) also 53 Cal.3d People Bouzas 1076].) 807 P.2d Cal.Rptr.
The legislative of the amendment to section is history incon but, if clusive our view of its anything, supports As introduced significance. 28, 1997, on February (1997-1998 Senate Sess.) Bill No. 1146 Reg. would have amended to that “the whether or not [the has the conviction be defendant] shall tried the court.” A bill analysis for the Senate on Committee Public prepared Safety states that the bill’s primary “is save the purpose courts cash-strapped trial millions of dollars in needless year trials of per jury (Sen. enhancements.” Com. on Public Statement on Bill Safety, Sen. No. (1997-1998 Sess.) Reg. Several of the May legislative documents the bill cite analyzing Wiley, supra, 9 with apparent the approval, Legislature was aware indicating indeed of its existence. does, Eventually, bill was amended to have section 1025 read as it now for the role preserves jury. in the Nothing legislative suggests the desired to history Legislature expand the role in jury questions of convictions or to overrule Wiley. To the the bill’s contrary, was to reduce express purpose significantly number of on jury trials prior conviction The final allegations. statutory to have been a language appears reach to compromise, limiting bill’s eliminate trials on the only issue identity leave law issues, otherwise The seemed to unchanged. Legislature want leave other case, Thus, such as those of Wileyand this judicial decision. if the former version section 1025 did not grant jury trial on these issues—and we it did conclude not—the current also version does not.
This leaves the final what role the exactly does under play section 1025. because the final enactment Perhaps was a compro- mise, with but not reducing, entirely eliminating, jury’s role, the answer is not The readily choose to apparent. might first determine whether defendant is the who suffered the convic- person tion. A determination that defendant is not that end would person clearly however, If, the matter. as would be usually court finds the would then make a determina- person, apparently tion like the one it made in this case—that defendant suffered however, would, convictions. The court burglary attempted effect instruct to the that the defendant is name whose person on the documents admitted to appears establish the conviction. This proce- dure would to leave the little to do determine appear except *7 so, and, are to establish that the if sufficient those are authentic documents ones Whether this suffered are indeed the alleged. convictions the defendant a to for us to If wants say. role makes sense is not defined, to eliminate role for the chooses jury, or more precisely greater, done, do so. In the may have it still as states altogether many jury meantime, as we find amendment to section 1025 must interpret role. eliminating but it—narrowing entirely jury’s of of the Court We affirm judgment Appeal. J., Baxter, Brown, J., J. and concurred. C.
George, J., I concurin the WERDEGAR, majority and Concurring Dissenting. affirms the Court of upholding as Appeal insofar it opinion judgment (1997) 15 People defendant’s sentence. I do so under v. Vera compulsion (Vera), a in which majority Cal.4th 269 Cal.Rptr.2d 1279] a a to statutory right jury of this court held that violation of defendant’s and, an not a structural error conviction enhancement is alleged prior hence, in the trial court. By is waived a defendant’s failure to object to harmless error right subject a violation of the parity reasoning, Here, because he defendant moved analysis. although essentially objected on court did not strike the the trial ground permit convictions under the “Three to decide whether convictions were “serious” jury law, the a instructed could have Strikes” facts show undisputed properly reached no other than convictions burglary conclusion and, hence, the error in were residential as serious. qualified Accordingly, from the must be deemed harmless. removing dissent, however, I from the determination that defendant had majority’s as serious right no trial as to whether his convictions qualified (1995) Cal.4th 580 Cal.Rptr.2d felonies. As here, too, this court 889 P.2d (Wiley), majority misapprehends 541] Penal sections thereby depriv- Code1 meaning import California, with ing charged having criminal defendants convictions, the most basic them granted procedural protection truth those our determination Legislature: right .of error, this case also disregards its charges. Compounding majority clear of a amendment section 1025. As statutory import post-Wiley result, suffer a term without ever 25-year-to-life will prison his convictions in fact had a determine whether having Three felonies his sentence under our Strikes mandating qualified law.
1A11 are to the Penal Code. references *8 As the a majority recognizes, entitlement to jury determina- tion of the truth of his is alleged felony convictions based on neither the state nor the federal 585-586; Constitution. at (Wiley,supra, 9 Cal.4th pp. Vera, (dis. Rather, 15 Cal.4th at supra, J.).) of p. opn. the Werdegar, matter is governed by two provisions: sections 1025 and 1158. 1025, crime, Section the at time of defendant’s in provided pertinent part “[wjhen that a defendant who is in the charged accusatory with pleading having suffered a either or not previous pleads guilty guilty him, offense charged he must be asked against whether he has suffered such . previous not, conviction. . . If he that answers he has his answer must be court, entered in the minutes the and the whether or not he has such conviction must be tried previous by the tries the suffered issue upon or case of a plea guilty, a plea guilty, by jury 1951, for that or impaneled purpose, (Stats. if a is by jury waived.” 3844, added.)2 turn, ch. italics Section § that provides “[wjhenever the of a fact conviction of previous another offense is charged in an and the defendant is accusatory pleading, found the offense guilty with waived, which he is charged, jury, or if a trial is judge must . . . or whether not he (Italics has such conviction.” find added.) statutes, these
By has decreed that criminal defendants are entitled to determine have a jury whether or not have suffered an they for a alleged prior conviction The felony. ignores the majority plain of these statutes to meaning conclude defendant’s limited to is right having a jury determine “has defendant suffered” the not whether prior, 1192.7, the prior was for a “serious as defined felony” by section subdivision conclusion, (c).3 To reach this erroneous in the majority engages same flawed that led reasoning astray majority this court in Wiley, supra, Thus, 580. the issue majority asserts is more for the appropriate “ ” ante, trial it court because is in nature’ at ‘largely legal 455) (maj. opn., (id. and is an issue 456-457). resolved “traditionally” by judges pp. Neither reason withstands scrutiny. same, essentially 2The current of section exception version 1025 is with the (c), (See post. language appearing addition of new in subdivision discussed Stats. ch. 1.)§ instances, is, 3In most will be one and the same. That finds a 1192.7, defendant has suffered conviction for one of the offenses listed in section will, definition, he have found committed a that is “serious.” With however, respect burglary, finding, to residential is more A mere complicated. matter here, burglary of the crime previously was convicted insufficient (here, finding determine requires his was “serious.” That determination made further court) dwelling that the was “of an inhabited house ... or the inhabited building” (§ (c)(18)). portion any other subd. Wiley, page in my dissenting opinion
As I explained the actual ignores language provi- “the construction majority’s admit defendant must Under sections 1025 and sions relied on. *9 denied, ‘such the defendant suffered the must prove if deny, in section 1025 is the previ- The antecedent of ‘such’ conviction.’ of a charge prior The in the ‘charged accusatory pleading.’ ous conviction conviction, of 667 and the sections meaning serious within felony of the enhancement. all of factual elements necessary the impliedly alleges alleged of a conviction a defendant’s denial Consequently, [Citations.] i.e., enhancement, the all facts necessary in the information at issue puts J., (Dis. of Werdegar, of charge. opn. each factual element the [Citation.]” on words, a trial other sections 1025 and 1158 omitted.) require fn. In under the Three enhancement alleged all the elements particular law, the whether the defendant merely general question Strikes Hence, the to deter- a conviction. these sections require specified prior mine, mere the alleged in those circumstances where the specification not, an does in fact for offense whether the conviction was as a “serious” felony. qualifies Wiley the in this case. Cal.4th does not result
Wiley, supra, compel felony the serious only proven prior held determination whether a for legal had been and tried was “brought question convictions separately” to the determination (Id. Wiley the court. at In extending apply “seri a such as would qualify whether were alleged priors ous,” the court’s distinction in between this majority impliedly rejects determination defendant had suffered two prior the factual whether the felonies, the and the for question jury, legal question convictions of a matter for the had been and tried brought separately, whether two priors thus the error made in that (Ibid.) the court. The majority perpetuates that— to the considered refusing weight Legislature’s judgment give defendants obligation—criminal the absence a constitutional despite be determinations of their status by requir should from erroneous protected Strikes this Enactment of Three to resolve ing jury important question. law, for imposition convictions can be trigger which prior felony sentence, all makes such caution the more important. life view, Wiley, is that since we decided my Of significance, particular acted, 1025 by amending has Legislature supra, (c): “Notwithstanding provisions in subdivision adding language trial of (b) by jury], alleged priors [providing has suffered the the defendant is the who person It thus Legislature, be tried the court without jury.” appears shall determined and give from Wiley, remove cognizant presumably to the trial court one determination—the aspect offender’s The obvious identity. of subdivision is that implication by excepting the offender’ s from the identity general requirement—a court requirement this acknowledged Wiley, pages 589-590—the assumed Legislature the remainder of the determination would be for the as in fact it in was where made jury, Wiley, determination the defendant “had suffered two convictions of serious (id. 667(a)” 590). felonies under section Had believed otherwise, it would have had no reason to amend the law to specifically give to the trial determination of identity.
The majority amendment to section misinterprets reasoning *10 new ante, narrows the language role rather than it. jury’s expands (Maj. opn., at 458.) Certainly subdivision p. narrows role for jury’s questions however, it identity; eliminates that role. The clear is that for the implication, balance of the component of the is the parts inquiry trier of jury proper fact. To conclude the amendment to section 1025 intact the leaves role jury’s in of the determining remaining components prior felony determination is it is to leave for the “expand” anything; merely jury had, i.e., that which it has to decide always duty “whether or not [an has suffered such (§§ 1158), conviction” previous in this accused] case, a conviction for a serious felony.4
The evidence being that defendant’s convictions were in undisputed serious, fact as defined by (c), section the error in this case must be deemed harmless under the of this court’s in reasoning opinion Vera, 15 Cal.4th I in the 269. concur court’s on judgment today that agree majority legislative history 4I with the of the “[t]he amendment section 1025 ante,' (Maj. 458.) opn., Although is inconclusive.” p. majority legislative reads the history position, contrary to support its there is evidence. an example, Assembly report For Judge “2) *11 denied 1999. was rehearing September petition
Respondent’s notes following: Since This Bill that the States Determines Who Suffered the Conviction, Jury’s Concerning Prior Is the prosecutor What Role that Conviction? When the alleges complaint in a particular criminal or information that the defendant conviction, potential (although there are several it issues is rare for a defendant to raise more them): than one or two of Was convicted? someone What was the offense? What is the [H] date person In what person conviction? court was the convicted? Is the defendant the cases, who suffered the conviction? In there are questions, some additional such as was prison the defendant long sentenced based on that conviction? How has the defendant been law, custody out of he or she since suffered the conviction? current Under fl[] questions (Assem. Safety, Analysis determines all Com. on these Public of Sen. Bill 19, (1997-1998 Sess.) Reg. underscoring No. 1146 original, as amended June in added.) italics significant Legislature, amending The historical record thus contains evidence that in court, identity that the should 1025 to offender’s be decided believed felony the balance decision whether accused suffered a made jury. conviction would be however, Wiley extends Because, opinion the majority’s basis alone. them, has granted the of that which defendants criminal deprive of the seriousness to a determination namely, right them, from the opinion. I dissent convictions alleged against KENNARD, J. dissent. I dissenting concurring Werdegar’s stated in Justice For the reasons in dissenting opinion in her expressed this and previously opinion P.2d Cal.Rptr.2d 595-605 (1995) 9 v. People the issue of trial on to a right defendant has 541], I joined, Thus, in felonies. precluding for serious convictions were his prior issue, Unlike Justice court here erred. the trial determining from I be harmless. As however, the error to consider I do not Werdegar, (1997) 15 Cal.4th Vera dissenting opinion my explained Kennard, J.)), (dis. opn. 1279] 282-286 Cal.Rptr.2d harmless, no be error that can never denial of trial is a structural “[t]he (Id. at of guilt.” matter how the evidence strong Mosk, J., concurred.