THE PEOPLE, Plaintiff and Respondent, v. ROMERO WILEY, Defendant and Appellant.
No. S034307
Supreme Court of California
Mar. 2, 1995
Rehearing Denied May 17, 1995
9 Cal. 4th 580
Michael Satris, under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman and Violet M. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GEORGE, J.—
I
By an amended information filed June 24, 1991, defendant Romero Wiley was charged with attempted murder (
Prior to trial, the superior court granted defendant‘s motion to bifurcate the determination of the truth of the
Before the court instructed the jury regarding the prior conviction allegations, defense counsel requested that these instructions direct the jury to determine whether the two prior burglary charges had been “brought and tried separately” within the meaning of
The jury found true the prior conviction allegations. The trial court subsequently sentenced defendant to a term of twenty-two years, eight months, in prison, including enhancements of five years each for the two prior serious felony convictions alleged under
On appeal, the Court of Appeal agreed with the trial court that the issue whether prior convictions alleged pursuant to
II
As noted above,
It is clear that the federal Constitution does not confer a right to have a jury determine this (or any other) aspect of a sentence enhancement imposed upon a defendant for previously having been convicted of a serious felony set forth in
Neither does the California Constitution grant a right to have a jury determine the truth of prior conviction allegations that relate to sentencing. The pertinent provision of the
Thus, the ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned. From the earliest days of statehood, trial courts in California have made factual determinations relating to the nature of the crime and the defendant‘s background in arriving at discretionary decisions in the sentencing process, for example, with regard to the grant or denial of probation. (See, e.g.,
Currently, under the provisions of the Determinate Sentencing Act, trial courts are assigned the task of deciding whether to impose an upper or lower term of imprisonment based upon their determination whether “there are circumstances in aggravation or mitigation of the crime,” a determination that invariably requires numerous factual findings. (
In People v. Najera (1972) 8 Cal.3d 504, however, this court cited the California Constitution in holding that
The issue in Najera was whether, in a jury trial, the enhancement provided in
Although there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement, California is one of a minority of states that, by statute, has granted defendants the right to have a jury determine the truth of such prior conviction allegations. (People v. Calderon, supra, 9 Cal.4th 69, 76-77, fn. 3.) The applicable statutes, however, are limited in nature and do not confer a right to have a jury determine whether charges were brought and tried separately within the meaning of
In the present case, the information alleged, and the jury found true, that defendant had suffered two prior convictions of serious felonies under
None of the authorities cited by defendant supports his argument that the jury must determine whether charges leading to multiple prior convictions
Defendant also cites People v. Jackson (1985) 37 Cal.3d 826, 835, footnote 12, for the proposition that “[t]he court could not impose an enhanced term for a subsequent serious felony without proof of each fact required for that enhancement . . . .” But Jackson did not purport to address the question whether the court or the jury is to determine whether multiple prior convictions were separately brought and tried. Accordingly, Jackson does not support defendant‘s argument.
Defendant next cites People v. Smith, supra, 7 Cal.App.4th 1184, 1189-1190, for the proposition that, in order to obtain multiple enhancements under
Defendant additionally relies upon two Court of Appeal decisions construing an earlier habitual criminal statute, former
The other Court of Appeal decision relied upon by defendant in support of his interpretation of former
In light of the foregoing authority, we hold that the issue whether multiple prior convictions alleged under
III
We now turn to the question whether the evidence before the trial court in the present case was sufficient to support its implied finding7 that the alleged prior convictions arose from charges “brought and tried separately.”
As noted above, we held in In re Harris, supra, 49 Cal.3d 131, 136, that prior convictions arising from a single complaint were not brought separately within the meaning of
It is apparent that the prosecution need not always produce the complaints filed in municipal court in order to prove that charges were brought separately within the meaning of
We conclude, however, that because the separate informations from which the alleged prior convictions arose bear case numbers that differ significantly (Nos. 27767 and 27902), the trial court reasonably could infer that the charges had been initiated in separate complaints. Had the charges been filed in a single complaint, followed by a single preliminary hearing, but thereafter been prosecuted in superior court under separate informations, as in Harris, we would expect those informations to bear case numbers that are successive, or nearly so. (See People v. Wagner, supra, 21 Cal.App.4th 729, 732 [cases numbered consecutively in superior court following a single plea proceeding in municipal court].) The circumstance that the informations in the present case bear case numbers that differ significantly is sufficient, in the absence of contrary evidence, to support a reasonable inference that the charges were filed in separate complaints and, therefore, were separately brought within the meaning of
Our decision in Harris does not stand for the proposition that the prosecution must produce the complaints filed in municipal court in order to establish that charges were separately brought within the meaning of
Although we hold that the evidence before the trial court in the present case was sufficient to support its implied conclusion that the prior convictions in the present case arose from charges separately brought, because, as our decision in Harris demonstrates, this is a matter that can be revisited on habeas corpus, we have determined that it is appropriate to obtain portions of the municipal court records pertaining to the alleged prior convictions. We provided copies of these records to the parties and permitted them to submit further briefs regarding whether we should take judicial notice of these documents and, if so, the effect this evidence would have upon the present proceedings. Defendant objects that taking judicial notice of these documents would deprive him of his right to a jury determination of whether the charges were separately brought within the meaning of
We reverse that portion of the judgment of the Court of Appeal that modified defendant‘s sentence by striking one of the two 5-year enhancements imposed by the trial court pursuant to
Lucas, C. J., Arabian, J., and Baxter, J., concurred.
WERDEGAR, J.—I respectfully dissent. The majority inexplicably ignores statutory language and case law precedent to hold some, but not all, elements of a
I.
Under California statutory law, an enhancement for prior conviction of a serious felony (
Thus, if the defendant pleads not guilty to the current charge, the question whether he has committed a serious felony “shall be tried by the court or jury which tries the issue upon the plea of not guilty.” (
Notwithstanding the defendant‘s undisputed right to trial by jury on the first three elements, the majority, without any statutory authority, holds the final two elements alone were intended to be determined by the sentencing judge.
The majority‘s view rests on the erroneous premise a fact necessary to an enhancement must be determined by the jury only if a statute specifically so directs. To the contrary, our substantive penal statutes merely set out the elements of the various offenses and enhancements; the defendant‘s plea of not guilty or denial of an enhancement allegation puts each such element at issue for determination by the trier of fact, without the necessity of any further statutory direction that the particular issue be so determined. (See
Rather, as statutory authority for its assertion the only issue for the trier of fact is the defendant‘s identity as the prior felon, the majority relies on sections 1025 and 1158. Those sections, originally enacted in 1874 and 1872, respectively, do not refer to any particular statute predicating punishment on prior conviction. Section 1025 deals generally with the procedural relationship between, on the one hand, a defendant‘s plea and trial on a current offense and, on the other, his plea and trial on any allegation of prior conviction. The section requires a defendant charged with a prior conviction
Seizing on the language just quoted, the majority infers that only the fact of prior conviction is determined by the trier of fact. The inference fails for several reasons. First, we have twice held to the contrary: in People v. Myers, supra, 5 Cal.4th at page 1195, and People v. Guerrero, supra, 44 Cal.3d at page 355, we stated that whether the defendant, in the prior case, committed criminal conduct meeting the definition of a serious felony is to be determined by the “trier of fact.” The Court of Appeal has likewise so held. (People v. Jackson (1992) 7 Cal.App.4th 1367, 1371 [Where the allegation of prior serious felony conviction was based on a prior residential burglary, “the prosecutor had to prove not merely that appellant had been convicted of burglary but that the burglary was ‘of an inhabited dwelling house.’ Absent such proof, the trier of fact was required to find the allegation not true.” (Italics in original.)].)
Second, the majority‘s reading attributes to sections 1025 and 1158 a meaning that could not have been intended at the time of their enactment. At the time these provisions were added to the Penal Code, the current scheme for sentencing serious felony recidivists did not exist. At that time both
The statute from which the “separately brought and tried” requirement derives, former section 644, was not enacted until 1923. Current
Third, the majority‘s construction ignores the actual language of the provisions relied on. Under sections 1025 and 1158, the defendant must admit or deny, and if denied, the People must prove the defendant suffered “such previous conviction.” The antecedent of “such” in section 1025 is the previous conviction “charged in the accusatory pleading.” The charge of a prior serious felony conviction, within the meaning of
Sections 1025 and 1158 have survived almost unchanged for 120 years because their language is flexible enough to accommodate changes in the particular facts the People must prove under our continually evolving system of punishment for recidivism. These provisions do not attempt to delineate the factual issues to be decided by the jury under each particular enhancement statute. They simply outline the procedures to be followed in trying those factual issues, which are established in each case by the particular enhancement charged.
The history of the separateness requirement also suggests the voters intended it as a factual requirement to be proven to the trier of fact. As we noted in In re Harris (1989) 49 Cal.3d 131, 135, the direct legislative history of
Before the enactment of
In the absence of any indication of the voters’ intent to remove separateness of the prior convictions from the trier of fact, the majority cursorily offers several other insufficient reasons. First, the majority cites People v. Hernandez (1988) 46 Cal.3d 194. In Hernandez, we rejected the People‘s claim
Analogizing the “brought and tried separately” requirement of
Next, the majority opines the issue of separate initiation is “largely legal in nature.” (Maj. opn., ante, at p. 590.) To the contrary, the issue as it arises here is, at least in the ordinary sense of the terms, factual rather than legal. In order for two or more enhancements to be imposed under
Like many other facts, separate initiation can frequently be proven by circumstantial evidence. Where, for example, the prior convictions were obtained in different counties, or at times years apart, one could easily infer they were separately initiated, without the necessity of examining the accusatory pleadings. Here the prosecution introduced evidence the prior cases had different docket numbers in the superior court. The Court of Appeal
Evidently dissatisfied with the circumstantial evidence presented by the prosecutor, the majority sought out direct evidence on the question, obtaining the original complaints from the municipal courts involved. (Maj. opn., ante, at p. 593.) This certainly resolved the question of historical fact: there were indeed two separate complaints. It also indisputably demonstrated, however, that the number of prior complaints is an issue of fact, not law. Had it been a legal issue, this court would have resolved it in our usual manner by reference to statutes, decisional precedent and whatever other sources of legal authority bore on the question. We were of course unable to resolve this question of historical fact by legal research and reasoning, and so, properly or improperly, we took additional evidence.
The majority also argues the “brought and tried separately” question must be resolved by a court because it raises “complex and detailed” interpretive problems. (Maj. opn., ante, at p. 590.) I cannot agree with this non sequitur. Questions about the legal effect of a given set of facts are, of course, to be decided by the court as a matter of law, and the jury is to be appropriately instructed. That does not alter the duty of the jury to resolve the disputed issues of fact raised by the pleadings, and to apply the instructions it receives to the historical facts as it finds them. To take but one example of the many possible, the legal difficulty of properly defining the element of asportation in our various kidnapping laws (see People v. Rayford (1994) 9 Cal.4th 1) does not make asportation a legal requirement. However asportation is defined, the jury must ultimately make the factual determination whether it has been proven.
All of the cases cited by the majority on this point concern a single legal issue: whether prior convictions should be considered “tried separately” where the prior cases were not formally consolidated, but the convictions were obtained by guilty pleas on the same day or in a single proceeding. (See People v. Wagner (1994) 21 Cal.App.4th 729, 732-737; People v. Smith (1992) 7 Cal.App.4th 1184, 1189-1193.) The resolution of this question depends not on disputed facts, but on the
It bears repetition that, whatever may be the legal issues surrounding the interpretation of
The majority also suggests the sentencing judge is to determine separateness of the prior convictions because the examination of a defendant‘s criminal record is “the type of inquiry traditionally performed by judges as part of the sentencing function.” (Maj. opn., ante, at p. 590.) Whether the majority intends to hold that any factor traditionally considered by sentencing judges need not be proven to the trier of fact is unclear. Such a rule would be completely inconsistent with our statutes on enhancements. Most determinate sentencing enhancements are related or similar to traditional sentencing factors. Prior convictions, prior prison terms, arming-and weapon use, and infliction of bodily harm, for example, are all traditional sentencing factors—indeed, they are all factors still used under California Rules of Court, rule 421—but they are also the elements of enhancements that, to be imposed, must be pled and proven to the trier of fact under California law. (
Finally, the majority may be understood to hold separateness is a legal issue because its resolution requires “an examination of court documents.” (Maj. opn., ante, at p. 590.) That reasoning is highly anomalous, since juries in many contexts must determine factual questions by examination of the record in prior proceedings. Whether the defendant has in fact suffered a prior conviction under
To summarize, separate initiation and adjudication of the previous charges are factual elements necessary to proof of multiple prior serious felony convictions under
II.
I also dissent from the majority‘s conclusion the evidence presented at trial in this case was sufficient to support a finding of separate initiation. To determine if substantial evidence supports the trier of fact‘s finding on an enhancement allegation, we ask whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the facts necessary to the enhancement beyond a reasonable doubt, viewing the evidence in a light
In this case no direct evidence showed how the charges originated in municipal court, whether in a single or multiple complaints. The evidence showed only that the two prior convictions were obtained in superior court on successive days under separate docket numbers. As we know from In re Harris, supra, 49 Cal.3d at page 134, the existence of separate informations in superior court does not allow one to infer with confidence the charges were initially brought by separate complaints. (See also People v. Williams (1990) 220 Cal.App.3d 1165, 1172 [as in Harris, two charged priors had been brought in single complaint].) In my view, the 135-number difference between the 2 actions, in the absence of evidence as to the rate of new filings in Contra Costa County Superior Court in 1983, did not establish what length of time separated the 2 superior court filings. The number difference was thus insufficient to show beyond a reasonable doubt the charges were separately brought in municipal court.
The majority‘s independent investigation of the facts of the prior proceedings, and their use, in an appellate opinion, of the facts so discovered, is both puzzling and troublesome. It is puzzling because the facts judicially noticed are irrelevant to any issue on appeal. They were not presented to either the jury or the sentencing court below. Even under the majority view on the jury trial issue, therefore, these facts are irrelevant to the question whether the evidence in the lower court was sufficient to support a finding of separate initiation.4
The majority seems to acknowledge the irrelevance of the extra-record documents to show sufficiency of the evidence below, as it does not purport to use the products of its investigation to support its holding on sufficiency.
The use of these extra-record materials in an appellate opinion is troublesome because it suggests, wrongly I believe, that litigants may safely neglect to make their most complete factual case before the trial court, since on appeal they can supplement the trial record with documentary evidence they failed to introduce below. The inefficiency of such procedures, and the increased burden their widespread use would place on the Courts of Appeal, are too obvious to require elaboration. This court recently decided to apply the doctrine of waiver more broadly in the sentencing process, in the hope that increased efforts to articulate and present sentencing issues in the trial court will “reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.” (People v. Scott (1994) 9 Cal.4th 331, 353.) The majority‘s use of judicial notice to supplement an appellate record seems inconsistent with that policy.
For the above reasons, I would affirm the judgment of the Court of Appeal.
Mosk, J., and Kennard, J., concurred.
Appellant‘s petition for a rehearing was denied May 17, 1995, and the opinion was modified to read as printed above. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.