*1 S123474. May [No. 2006.] PEOPLE,

THE Plaintiff and Respondent, McGEE,

JAMES COREY Defendant and Appellant.

Counsel Court, for Defendant Supreme John Halley, appointment Appellant. General, Medeiros, General, M. State Solicitor Manuel Attorney

Bill Lockyer, General, A. Anderson, Gerald Engler, Attorney R. Chief Assistant Robert Deist, Helfman, General, Schalit, H. Stan John Seth K. Assistant Attorney *4 General, Laurence, Attorneys III and M. Jeffrey Deputy F. Hindall George Plaintiff Respondent.

Opinion who is a defendant

GEORGE, subject California statutes C. J.Numerous if he or she increased of a criminal offense to punishment convicted a determining of another offense. In was convicted previously a convic the basis of to increased on punishment prior defendant is subject tion, record of the earlier proceeding is to examine the necessary it sometimes that conviction of qualifying prior to determine whether it involves type statute. sentencing increased applicable authorizes punishment that must the inquiry nature of view of the unusual and somewhat specialized a limited to strictly that is for this examination be conducted purpose—an record of the are documents that part review interpretation is California law it that under decisions establish criminal proceeding—our court, rather than entrusted with jury, responsibility that is v. (See, e.g., People the determination. and making this undertaking inquiry 347, 580, P.2d 889 Wiley (1995) 541] Cal.4th 586-592 Cal.Rptr.2d [38 674, 452, Kelii Cal.Rptr.2d Cal.4th 455-159 (Wiley); People v. (1999) [87 19, 23-28 (2001) 25 Cal.4th (Kelii); Epps v. [104 P.2d 518] (Epps).) P.3d Cal.Rptr.2d 2] whether, notwithstanding in the case before us

The issue presented law, has a a criminal defendant rule established under foregoing court, under the federal Constitution to have rather than jury, right examine the record of the criminal to determine whether the proceeding earlier to an increased sentence when that subjects conviction does not itself establish on its face whether or not the conviction constitutes conviction for qualifying prior applicable statute. The Court of held that the federal Constitution sentencing Appeal a criminal defendant have a make grants right to such determina- tion, the United States Court’s decision in Apprendi interpreting Supreme New Jersey 530 U.S. 466 L.Ed.2d 120 S.Ct. 2348] (Apprendi) conclusion. the Court of compelling Although Appeal involved a statute for increased recognized providing punish- ment on the basis of a factual circumstance related to the current offense (rather than on the basis of conviction), and further that the decision than Apprendi, forth its setting holding, stated “[o]ther specifically conviction, fact that increases for a crime any penalty fact of maximum be beyond statutory must submitted prescribed (Apprendi, supra, a reasonable doubt” 530 U.S. at proved beyond added), the Court of concluded that the exception is a one and relating narrow does apply circumstances here. We review to consider the conclusion presented granted reached the Court of Appeal.

As we shall we read the United States Court’s decisions explain, Supreme that we cite and discuss as for our conclusion that defendant’s authority federal constitutional trial was not implicated proceed- otherwise, below. and until the ings Unless directs we shall assume from that court and ours a conclusion that precedents support such as those do conducted below not violate a proceedings *5 defendant’s a constitutional to trial. we the right Although recognize that the court extend the of the decision possibility high may scope reluctant, in the manner the Court of we are suggested by Appeal, absence of a more definitive on this the United States ruling by point Court, the to overturn current California and Supreme statutory provisions to the trial that court the role judicial precedent assign examining determine record of a criminal proceeding ensuing conviction a constitutes qualifying prior applicable California Such a a a sentencing statute. function is task for which judge well suited and is different from the of factual particularly quite type of witnesses or the value of inquiry—assessing credibility probative demonstrative entrusted to a Because of these evidence—ordinarily jury. considerations, are not court will we assume prepared to a federal constitutional state interpret right requiring this function to a assign jury. did not case court in the present that the trial we conclude

Accordingly, convictions robbery the record examining defendant’s rights by violate each of concluding and by in Nevada sustained by previously felony” a conviction of “serious offenses constituted these Court of Appeal Although statute. the applicable action violated conclusion, trial court’s that the finding reached a contrary that, concluded trial, court further appellate case, error federal constitutional of the present under the circumstances For a reasonable doubt. beyond had was harmless that it believed occurred reason, the trial by increased sentence imposed the court upheld no we conclude that Because Nevada convictions. on the basis occurred, rendered we affirm judgment federal constitutional error trial court. the sentence imposed Court of Appeal, upholding I here, January follows. On are summarized as

As relevant the facts briefly 11, 2001, in sitting and Ibarra were Matty Aaron Leonardo Kelly, Lopez, window. a knock on the Lopez car in Palo Alto. There was East parked money. gave demanded wielding shotgun Lopez the door. A man opened minute, a shot. and heard $200. Within one Kelly Lopez him approximately car. the robber drive off in a red saw Lopez 22, 2001, front and Serafín Andrade were Lopez’s

On January Lopez car as it the robber’s red when heard a they gunshot. Lopez recognized yard minutes, and the driver the red car close by, drove Within a few stopped by. a shotgun Andrade. was hit by pellet fired Lopez Lopez cut. and Andrade fled. suffered minor Lopez of crimes and with a charged variety Defendant was arrested and ultimately incidents.1 the foregoing sentence enhancements in connection with (1) defendant had been alleged The relevant document further charging 1994, and of selling again in Nevada in robbery convicted were all three prior controlled substance in California murder with attempted charged defendant with two counts An amended information indicated, Code, (a); (a), otherwise (Pen. subd. unless subd. premeditation §§ *6 Code); a firearm of assault with statutory are to the Penal two counts subsequent references 12021, (§ 245, felon (§ (a)(2)); a firearm a convicted possession two counts of of subd. 12316, (b)(1)); (§ one (a)(1)); subd. possession unlawful of ammunition subd. one count of 213, 211, 212.5, robbery (c), (a)(2)); attempted of (§§ subd. two counts robbery count of subd. (§136.1, 213, 212.5, (b)); (c); of witness intimidation (§§211, subd. two counts subd. person vehicle at another (c)(1)); discharging a firearm from a motor and two counts subd. of 12034, enhancements alleged firearm-use (§ (c)). amended information also several subd. The 12022.53, (c)). (§ 12022.5, subd. (former (a)(1)) firearm-discharge enhancements subd. § 688 1203, (§

felonies (e)(4)), (3) subd. each of the Nevada robbery 667, was a (§ (a)) subd. felony and a “strike” under California’s (§ “Three Strikes” law 1170.12), (4) the 1994 Nevada conviction robbery 667.5, (§ resulted in a (b)). term subd. prior prison

Defendant moved to bifurcate trial of the offenses from the trial of charged conviction allegations. A found murder, defendant not of guilty but convicted him attempted of the remaining charges.

Defendant requested trial on the allegations. that the parties agreed elements of under Nevada differed robbery law in two First, from the respects elements of that offense under California law. under law, Nevada robbery requires only general (Litteral criminal intent v. State (1981) 1226, 1227-1229], 97 Nev. 503 P.2d on another [634 disapproved (1986) 764, Talancon v. State point 102 Nev. P.2d 769]), 294 whereas [721 law, under California robbery requires specific criminal intent to perma- another nently deprive (see, of person (2002) v. property e.g., People Avery 49, 403, Second, Cal.4th law, 1]). 38 P.3d under Cal.Rptr.2d [115 Nevada a taking fear of accomplished by to the injury or of person property future anyone company victim at the time qualifies of offense Stat., (Nev. robbery 200.380), Rev. whereas under § California law such a taking (§ 212).2 does not

In view of the foregoing distinctions between the elements of robbery law, under California law and those underNevada it was at least theoretically possible defendant’s Nevada convictions involved conduct that would not constitute robbery California law. Thus parties agreed inquiry into the record of the Nevada convictions was in order to required determine whether each constituted a qualifying felony the relevant 667, (See 667.5, statutes. (a)(1), subd. (c)(9), subd. §§ 1170.12, 1192.7, (b)(2), subd. (c)(19); subd. v. People Avery, supra, 27 Cal.4th 53; 101, 14 Cal.4th Cal.Rptr.2d Hazelton 423].) P.2d

Defendant contended he had a federal constitutional right to have the jury make this determination. The trial court rejected defendant’s reserv- position, ing itself the question legal sufficiency defendant’s Nevada statute, robbery Under the California prosecution when the seeks to establish the “fear” robbery by element of reference to the fear sustained person company who was in the (other victim), the victim at the time the robbery than a relative of the the fear must be “of an immediate and injury person unlawful property” person, or of the other as contrasted with provision encompassing Nevada’s fear of injury to the other or his or her person future (§ added.) property. par. *7 defendant whether that it would determine and ruling convictions

robbery Nevada and whether Nevada cases convicted in the was the person California law. strikes qualified case, various introduced to the Nevada prosecution With regard in that documents, hearing pro- preliminary including transcript victim, D. Delmar testimony This included ceeding. transcript at a Reno Foust, and two friends with his brother waiting that while reflecting defendant, “threatened us and who near he encountered midnight, bus station took, other actions defendant Asked what my money.” he took [defendant] that’s and guy saying he defendant another Foust testified observed “slapping from money him.” Defendant demanded if tells on anybody what will happen Foust, Foust he defendant the money, $2. who him Asked why gave gave testified; he At the at which hearing I was afraid of beat being up.” “Because committed the robbery.3 defendant admitted having entered his plea guilty, case, various introduced With Nevada regard prosecution documents, in that hearing pro- of the including preliminary transcript Baker, victim, Ian T. testimony This included the ceeding. transcript defendant him for Baker offered asking money. who described defendant individual, Defendant, another who was change. accompanied by some “No, refused to further Defendant comply. we want Baker replied, money.” wallet, him, then him fall. Baker then defendant his gave struck causing it, The $120 and defendant took from as well as Baker’s portable tape player. defendant was asked in reflects that open transcript proceedings will, and that he from Baker Baker’s against took personal property form, so; done in a written defendant admitted having plea . . . [having acknowledged “willfully unlawfully personal property taken] or .. his will and means of force by from the of Ian T. Baker . person against violence.” added): (italics following transcript proceedings colloquy of these includes the January you did on or about “The court: ‘The elements of the offense are as follows: [t]hat Nevada, 15, 1988, unlawfully County, willfully personal property, take within Washoe Foust, in Washoe

being money, City Delmar at the Fare Bus transfer area person from the Nevada; will, future you against means of fear or immediate or County, did this his injury person. you charge against you?’ to his Do understand that that is the “Defendant: ‘Yes.’ you “The court: ‘Is that in fact what did?’ “Defendant: ‘Yes.’ give you money?’ you “The court: ‘Did force Mr. Foust “Defendant: ‘Yes.’ you Did injury immediate or future to him? you “The court: ‘Did do that means of fear of give you moneyV happen he did not make him what would if afraid of ” “Defendant: ‘Yes.’ *8 After of examining record the Nevada judicial the trial proceedings, court determined that defendant was convicted in each of the person Nevada cases and that each of the Nevada convictions satisfied the elements of under California law. robbery

The trial court thereafter submitted to the the narrow jury question was, fact, defendant in who had suffered the convictions. The person found the jury conviction true. allegations

The trial court considered the subsequently Nevada convictions as robbery or felonies “strikes” in defendant to a term of sentencing prison to life. years

On reiterated his appeal, contention that he had a federal court, constitutional right have a rather than the trial jury, determine whether each of his Nevada convictions constituted a robbery qualifying serious felony conviction for of California’s Three Strikes law. purposes Defendant did not that the threshold dispute of the comparison foreign law jurisdiction’s with California law is a for the but question judge, when, here, contended that elements of the law differ from the foreign elements of the California law so that the determination whether the foreign conviction constitutes a conviction for of the qualifying relevant purposes statute cannot be made on the basis of the face of the itself, foreign defendant has the constitutional to have a right court, rather than the examine the record of the criminal of proceedings the foreign conviction to determine whether that conviction constitutes a conviction for qualifying California law. People challenged of the issue as one framing involving

finding reach, could be plausibly brought within Apprendi’s of fact instead that the contending this question case is whether the presented by nature conviction is demonstrated an examination conviction, documentary record a task more for a suited appropriately judge. contention,

The Court of with defendant’s Appeal agreed concluding the United States Apprendi supported Court’s decision in defend- Supreme ant’s position to a trial under the federal regarding scope right Constitution. The Court of conclusion reflected a view Apprendi Appeal’s different from that set forth another Court of in the earlier decision Appeal v. Thomas in 222-223 91 Cal.App.4th Cal.Rptr.2d [110 (Thomas) the defendant’s (rejecting argument conferred 571] him the to have a right determine the truth of prior-prison-term allegations, instead to conclude interpreting narrowly defendant has no federal constitutional trial on factual issues recidivism). related to The Court of case further present determined, however, that the constitutional error question subject harmless error Chapman California review under standard set forth 824], that, (1967) 386 U.S. 18 L.Ed.2d 87 S.Ct. light *9 facts reflected in the record of defendant’s Nevada robbery 1988 1984 convictions, the denial of a trial with to such convictions was respect harmless a reasonable doubt. beyond

Both review of the parties sought Court of decision. We Appeal’s granted to consider whether the People’s petition con- appellate properly that, case, cluded under circumstances such as those existing present the federal Constitution California from rather than precludes having judge, a jury, examine the record of a criminal conviction to determine whether that conviction constitutes a conviction that qualifying prior subjects defendant to increased under one of California’s punishment applicable statutes. sentencing

II “To as a serious a conviction from qualify felony, another jurisdiction must involve conduct that would aas serious in California.” qualify felony 49, 53; 667, (People Avery, supra, v. (d)(2), 27 Cal.4th see also subd. §§ 1170.12, (b)(2).) however, subd. As we have previously emphasized, “[b]e- issue, cause the nature of the conviction is at is not allowed to prosecution go outside the record of conviction to circumstances of ‘relitigat[e] crime 448, committed years Woodell (1998) ....’” v. (People ago 17 Cal.4th 241, v. 85], 459 P.2d Guerrero (1988) 950 44 quoting People Cal.Rptr.2d [71 343, Instead, Cal.3d 1150].) 748 P.2d Cal.Rptr. the relevant [243 inquiry whether a deciding as a serious particular prior qualifies for California felony is limited to an examination of the record of the criminal to determine the nature or proceeding basis of the Woodell, crime of which the defendant was convicted. v. (People supra, 454-461; Cal.4th at People Myers v. 5 Cal.4th pp. 1198-1201 Guerrero, 301]; 858 P.2d People Cal.Rptr.2d see also Cal.3d at allow the trier of fact to look to the entire record of [“To conviction is certainly reasonable: it the efficient promotes administration and, furthers the justice specifically, evident intent of the in establish people conduct, an crime. To allow ing enhancement. . . that refers to not a specific the trier conviction—but no to look to the record [of fact] further—is the circum- from relitigating bars the effectively prosecution also fair: it the defendant thereby threatening of a crime committed years ago stances trial.”].)4 and denial of speedy harm akin to double jeopardy with the Court of Appeal properly here is whether question presented to have a a defendant a right concluded the federal Constitution affords court, examine criminal the record of a proceeding rather than the con- felony constitutes a determine whether a conviction qualifying statute. of the relevant California sentencing viction within the meaning court, contend that a criminal In their in this briefing People factual circumstances and trial on has no federal constitutional enhance In support conviction used to punishment. conduct underlying prior the Court of misconstrued their argue position, People assert: “The in Apprendi. court’s decision Specifically, *10 enhancements is between sentence distinction draws Apprendi fundamental offense, as the the current such on facts related to the commission of based case, which a defendant has a at issue in that as to hate-crime enhancement trial, enhancements based and sentence federal constitutional right jury recidivism, in the instant such as those at issue on related to facts case, Echoing as to which a defendant has no such right.” position he has a “Sixth contends in that response Court of defendant Appeal, on whether his Nevada conduct Amendment determination right jury to a serious felony.” amounted first we positions,

In order to better understand parties’ respective and statutory California decisions judicial provisions review the relevant here, and then consider whether and remain pertinent preceded law. governing mandates revision A. Wiley 580, 585, at enhancement

In Cal.4th Wiley,supra, statutory provision term of for each prior an additional five-year imprisonment issue imposed and brought the defendant “on by charges conviction sustained felony 667, the court was (a)(1)), and the before (§ tried subd. question separately” whether, the deter and constitutional statutory provisions, under the relevant had been and “brought mination whether the defendant’s prior In addressing or the court. by was to be made jury tried separately” Guerrero, 343, supra, “not called on to resolve such Cal.3d we were In and therefore declined are admissible . . .” items in the record of conviction questions as what (Id. here; 356, 1.) typically as is presented Nor is that issue the issue. at fn. to address case, conflicting documen robbery convictions does not contain of defendant’s the record tary proof. issue, we turned first relevant statutory sections 1025 provisions, “Section observing: if a provides defendant denies conviction,

having suffered an alleged ‘the or not he question has suffered such conviction must be tried previous which tries the issue of not . . . upon plea guilty section 1158 states that Similarly, if a defendant is found of an offense in an guilty charged accusatory pleading conviction, also that the alleges defendant suffered a ‘the or waived, if a judge trial is must . . . find whether or not he has suffered such terms, conviction.’ their previous By sections 1025 and 1158 grant to have the determine whether he or she only conviction, ‘suffered’ the alleged not whether convic- multiple prior tions were tried.” (Wiley, separately brought Wiley, we went on to conclude that the whether the “question charges leading these two convictions had been ‘brought and tried separately’ within the 667(a)(1) court, of section meaning was a matter for the properly because that question largely are, in nature. legal . . . there Although course, some ‘facts’ that underlying are relevant determination as to whether charges have been and tried ‘brought such as the separately,’ filing either charges or such single complaint multiple complaints, facts are generally readily ascertainable an examination court documents. This is the type inquiry traditionally performed by judges part (Wiley, supra, 9 Cal.4th added.) function.” B. Kelii *11 Kelii,

In supra, 21 Cal.4th 452, we considered whether the court or the jury was the appropriate entity determine whether a prior felony conviction as a qualified “serious felony” 667, of the (§§ Three Strikes law. 1170.12, (d)(1), subd. Kelii (b)(1).) subd. involved defendant who was convicted aby of two counts of second degree and two counts burglary of theft. The grand found that subsequently the defendant had previously suffered three convictions of burglary one of The trial attempted burglary. court determined that the convictions of prior were first or degree attempted first degree and that burglary they therefore were residential and as qualified serious felonies. The court sentenced the defendant to state for 25 prison to life. years On court, appeal, contended that the not the should have determined whether his convictions as serious qualified (Kelii, felonies. supra, 21 454.) Cal.4th at p. Kelii,

In rejecting defendant’s in position we relied our heavily upon 580, decision in Wiley, supra, 9 Cal.4th in as follows: “Determining holding whether a prior conviction qualifies as a strike under the Three Strikes law is also the type inquiry judges traditionally as perform part of of this is with no factual purely legal, Often determination sentencing function. as, other whatever. The Three Strikes law defines a strike among content (c) in of Section 1192.7 as a serious offense defined subdivision things, ‘any 667, 1170.12, (d)(1), (b)(1).) subd. Section (§§ in this state.’ subd. felony felonies, 1192.7, (c), lists that are se serious subdivision some felonies per murder, arson, If robbery, carjacking. such as mayhem, rape, kidnapping, of the conviction falls into this elements group, conviction, of that then the offense have since the time changed question a serious is felony entirely legal. whether conviction qualifies content, as the the determination does have factual just “Sometimes whether were and tried has a factual brought question separately 448], Woodell[, Cal.4th supra, content. As we explained [People v.] conviction is not ‘Sometimes definition qualifying prior completely of crime of which the defendant has been with the definition congruent Guerrero[, For v. Cal.3d 343 [People supra,] convicted. example, 688, 1150]], conviction was for a 748 P.2d the alleged prior Cal.Rptr. “ ” Guerrero, of a v. 44 Cal.3d at residence.’ ‘burglary (People supra, p. 1192.7, Code, (c)(18)].) Pen. subd. use statutory former [quoting § residence,” no because “there is “burglary problem of phrase, posed (Guerrero, defined in the Penal Code.” supra, offense so specifically 346.) A or not have involved a might conviction particular burglary might Woodell, 17 Cal.4th at (People residence.’ v. are limited

“But these factual scope. determining questions serious, is ‘the fact to the entire record of may conviction trier of look Guerrero[, v. Cal.3d (People supra,] p.] conviction’ but ‘no [at further.’ Thus, italics.) no the facts of the testify witnesses about original It true that The trier fact considers court documents. is only crimes. inferences must from transcripts testimony sometimes the trier of fact draw (See, or record. Reed e.g., People other parts 184].) factual 914 P.2d But the Cal.Rptr.2d Cal.4th 220 [52 documents, is not different examining significantly limited inquiry, are Wiley. generally readily from the one we considered facts ‘[S]uch of court documents. This the type ascertainable an examination *12 as function.’ of the part sentencing inquiry traditionally performed judges a to have 590.) Accordingly, statutory right 9 Cal.4th at the (Wiley,supra, p. (§§ 1158) suffered’ the prior decide whether the defendant ‘has jury the whether conviction as does include the qualifies conviction not inquiry 456-457, added.) (Kelii, 21 Cal.4th at first supra, strike.” pp. that an to the defendant’s amendment position

In so we holding, rejected of his as the had from the the jury question identity section 1025 removed all factual while leaving remaining who suffered the conviction person prior (b), determinations for the “The new section subdivision jury: the identical relevant of the version of section substantially portion previous to narrows, (c) 1025. is new. That rather clearly subdivision subdivision Only Wiley's than role. It of the does not overrule expands, jury’s interpretation section the 1025 or role whether jury’s beyond determining expand ‘has of narrowing suffered’ conviction. The this passage we legislation soon after the same statute narrowly strongly interpreted (Kelii, of supra, suggests our at legislative Cal.4th approval interpretation.” 457.)5 In view of our decision in Wiley, and the Legislature’s response Kelii), (as thereto discussed in we are convinced that there has been a clear of intent that a limited deter expression legislative jury very role in play court, mining allegations offense and that a not a examine jury, records of convictions to determine whether the conviction alleged qualifies conviction under the sentence-enhancement applicable provision.

C. Apprendi Kelii, One year after we filed our decision in supra, 21 Cal.4th United States supra, Court rendered in Apprendi, its decision Supreme 530 U.S. 466. Defendant contends the Court below correctly determined that in the wake of Apprendi, he was entitled to have a jury decide whether each of his Nevada convictions was based robbery conduct under constituting robbery California law thus was considered “serious for the Three felony” purpose California’s Strikes law. The did not address the People respond question here, presented and that high court has extended its holding court, a state to assign rather than to a the task require of a determine examining record prior conviction conviction constitutes conviction for qualifying various sentence enhancement statutes. 5 Having legislative history observed that amendment to section 1025 “inconclusive,” “[n]othing history suggests we added that legislative Legislature expand Wiley. desired to questions role or to To the overrule contrary, the bill’s express purpose significantly was to reduce the number of on trials allegations. statutory final language appears The to have been a compromise, limiting only identity bill’s reach to eliminate issue of trials on the and to leave issues, Legislature law unchanged. otherwise to leave seemed to want other such as those case, Wiley Thus, judicial and this decision. if the former version of section did not grant a jury trial on these issues—and we conclude it did not—the current does version also (Kelii, not.” 21 Cal.4th *13 a that court was confronted with state statute In the Apprendi, “ as of a firearm for an unlawful a ‘second- possession purpose classified ” “ offense, and for ‘between five by years degree’ punishable imprisonment ” statute, 468.) at A U.S. (Apprendi, supra, separate years.’ p. “ law,” ‘hate Court as a crime’ Jersey described the New by Supreme “ “ an term’ of ‘between 10 and 20 for ‘extended of imprisonment”

provided ” evidence, court, if based years’ preponderance “ crime with a that defendant in acted committing determined ‘[t]he race, of because of to intimidate an individual or individuals group purpose ” color, (Id. at ethnicity.’ orientation or religion, sexual gender, handicap, 468-469.) Due Clause of The was “whether the Process presented question pp. authorizing that a factual determination requires the Fourteenth Amendment an offense from 10 to 20 an increase in the maximum sentence for prison on the of a reasonable doubt.” be made basis proof beyond years by 469.) did involve a offense (Id. at Significantly, Apprendi enhancement. an in which the defendant fired several arose out of incident had an that moved into

bullets into home of African-American family 466, 469.) U.S. neighborhood. (Apprendi, supra, all-White previously arrested, (later retracted) defendant made a statement to the police The was incident, was with a a racial motivation for suggested charged offenses, certain offenses as guilty part number eventually pleaded an (Id. 469-470.) at The trial court thereafter held of a plea agreement. pp. in committing on the issue of the defendant’s evidentiary hearing “purpose” several The defense evidence from a shooting. presented psychologist defendant did not have character witnesses who testified that reputation testified, (Id. 470-471.) racial bias. at also “explaining pp. alcohol, of overindulgence incident an unintended was consequence African-Americans, and that he biased any against denying way (Id. at his had been described.” accurately statement denying police court, however, finding testimony The trial officer’s police “ credible, crime ‘that the finding concluded that evidence supported ” “ (Ibid.) Having ‘by racial bias.’ found preponderance was motivated by “ ” actions were made ‘with a the evidence’ that the defendant’s purpose ” statute, intimidate,’ the trial court state by specified applicable (Ibid.) The New Jersey that the hate-crime enhancement applied. concluded (Id. 471-474.) courts affirmed. appellate pp. Court, the rendered the New reversing Jersey Supreme the judgment case constitu- Court “At stake in this are

United States observed: Supreme any depriva- proscription tional protections surpassing importance: law,’ the Fourteenth guaranteed by ‘due liberty process tion of without [as Amendment], all criminal prosecutions, and the guarantee ‘[i]n trial, an impartial accused shall enjoy speedy public

697 Amendment], jury’ together, the Sixth Taken these provided rights [as entitle criminal defendant to ‘a determination that indisputably jury [he] with of element of the crime which he is guilty every charged, beyond ” 476-477, 466, omitted.) reasonable doubt.’ 530 U.S. fn. (Apprendi, supra, confined court’s the issue in was to the Notably, the of high framing Apprendi here, elements of the to the of charged offense—not, adjudication aspects criminal past. historic link between verdict and and the Reviewing judgment “[t]he consistent limitation on discretion to within the limits judges’ of operate in “the legal penalties court noted provided,” novelty that, that legislative scheme removes the from the of a determination fact found, if the criminal exceeding maximum exposes penalty he would if receive to the punished according facts reflected 466, 482-483, verdict (Apprendi, alone.” 530 U.S. italics original omitted, added, omitted.) italics fn. Here again, the court’s focus on the jury’s verdict indicates that the court to quite itself clearly addressing offense, issues that issues not to pertained charged involving defendant’s previously adjudicated criminal conduct.

The court in “We do that Apprendi continued: not suggest practices cannot course of true change centuries still remain to the principles that emerged from Framers’ ‘that the fears could be lost not jury right denial, only by gross but by erosion.’ But must at least practice [Citation.] adhere to the basic principles undergirding requirements trying offense, all facts to constitute a necessary those statutory proving facts beyond reasonable doubt. As we made clear in [(1970) Winship [In re] 358, 1068]], 397 U.S. L.Ed.2d 90 S.Ct. the ‘reasonable doubt’ [25 vital requirement ‘has role in our criminal for cogent reasons.’ procedure [a] Prosecution the criminal defendant both to ‘the subjects possibility [Citation.] that he his lose may liberty conviction and ... that he upon certainty this, would be stigmatized by conviction.’ thusWe require [Citation.] other, among order to concrete protections in substance procedural ‘provid[e] innocence,’ for the reduce the risk of presumption such imposing If a deprivations erroneously. defendant faces punishment beyond [Citation.] statute when provided by an is committed under certain circum offense others, stances but it is obvious that both the loss and the liberty stigma to the offense are it follows that the attaching heightened; necessarily defendant should not—at the moment State is of those proof put have, circumstances—be deprived until protections point, unques 483-484, added, tionably attached.” 530 U.S. (Apprendi, supra, fn. omitted.) us,

In a that bears the case passage before court in directly summarized its decision v. United States Almendarez-Torres (Almendarez-Torres). S.Ct. (1998) L.Ed.2d 1219] U.S. Almendarez-Torres, indictment considered a federal grand jury States after been found the United having with charged petitioner *15 Code, 1326(a); 8 States section in violation of United having been deported, of two years’ imprisonment. the offense carried maximum sentence 466, the 487.) guilty The to 530 U.S. (Apprendi, supra, petitioner pleaded “ indictment, had “pursuant that his ‘earlier taken admitting place deportation ” (Ibid.) The felonies.’ aggravated prosecu- to” three earlier “convictions” for “indicating that Almendarez-Torres’ report tion thereafter filed presentence because, in that 1326(b) the bounds of as specified offense fell within § aggravated had to an subsequent been original his provision, deportation conviction; could be to subject Almendarez-Torres felony accordingly, (Ibid.) The objected. rejecting sentence of to 20 years.” petitioner up had Almendarez-Torres admitted court observed: “Because objection, high had been three felonies—all of which aggravated earlier convictions safeguards to with substantial procedural entered pursuant proceedings to a trial or standard concerning their own—no question was the Court. . . . to a contested issue of fact before would proof apply turned heavily . . . our conclusion in More important, Almendarez-Torres the fact that the additional sentence to which defendant subject ” 488, (Id. crime.’ was ‘the commission of a serious omitted.)6 which it court in summarized rationale upon high Apprendi Almendarez-Torres, it relied clear that was the defendant’s

had in making it The court in that case that from distinguished Apprendi. recidivist conduct from in that recidivism was other distinguishable further explained (1) recidivism traditionally matters to enhance because punishment, employed to of an offender’s been courts increase sentencing length has used sentence, not relate (2) charged recidivism does commission offense, from that include (3) convictions result proceedings 487-488, 466, 530 U.S. supra, citing substantial (Apprendi, protections. 311, S.Ct. (1999) v. 526 U.S. 227 L.Ed.2d 119 Jones United States 1215] [143 Almendarez-Torres, 224; 523 see also Monge U.S. supra, 615, 721, question L.Ed.2d 118 S.Ct. U.S. 2246] [the [141 assault a deadly weapon the defendant’s conviction for with fell within the use determination that involved was a personal not behavior and therefore was for recidivist exception Almendarez-Torres Almendarez-Torres, defendant here admitted his involvement petitioner Like shortly after he committed those plea agreements entered into pursuant Nevada crimes procedural proceedings with substantial safe “pursuant offenses. The were entered pleas Furthermore, (Apprendi, supra, 530 U.S. as was the case in guards of their own.” Almendarez-Torres, challenged by present case stems the additional sentence ” “ crime[s],’ . from the commission of directly from commission of . . ‘the (Ibid.) current his offense. v. Seel (2004) 34 Cal.4th to double

subject jeopardy protections]; clear that court has made 100 P.3d Cal.Rptr.3d 870] [“The recidivism is different for constitutional purposes.”].)

Furthermore, that the deci- acknowledged the court in although logic could be viewed as inconsistent with sion in Almendarez-Torres latter case Apprendi, court’s the court in the reasoning explicitly broad Almendarez-Torres, instead declined to overrule its decision in preserving “ (other rule that fact ‘any “the case as a narrow exception” general for a crime must conviction) than that increases the maximum penalty indictment, beyond be in an submitted charged proven ” 466, 476, 490.) 530 U.S. (Apprendi, reasonable doubt.’ *16 Apprendi the decision in noted that tension although Accordingly, existed between the rationale of its decision and the established rule permit court, that are a rather than a to determine sentence enhancements ting convictions, a court in that did high based decision prior to overrule the case law to recidivist sentencing purport prior pertaining provisions.7

D. Epps Apprendi, supra, after court filed its decision in 530 U.S. Shortly high 466, this court an of that had to consider opportunity implications 19, decision. In 25 Cal.4th an the defendant Epps, supra, information charged with various criminal and a conviction offenses alleged prior felony for sentence enhancement and the Three Strikes law. The trial court purposes bifurcated the trial of the from the trial of the allegations conviction prior counts, substantive offenses. After the found the defendant on all jury guilty the trial and held a court dismissed over the defendant’s jury objection bench trial on the conviction those true. allegations, finding allegations prior (Epps, 22.) at The defendant that section 1025 entitled appealed, arguing him to a trial on the conviction The Court of jury allegations. prior and remanded. with the defendant and reversed the agreed judgment We General’s for review to consider whether granted Attorney petition “ 1025, of amendment to section which ‘the question prescribed 403, Blakely Washington (2004) recently, L.Ed.2d 124 S.Ct. More 542 U.S. 296 [159 621, 2531], 738], United States v. Booker and L.Ed.2d 125 S.Ct. U.S. 220 [160 circumstances, Blakely Booker variety applied in a of but neither nor specifically provision punishment involved a that authorized an increase in based convictions, solely upon prior purported interpret a conviction or and neither decision to or Blakely view, nor Booker Accordingly, neither apply exception. in our Almendarez-Torres any light sheds additional on the issue before us here. is the who has suffered the conviction whether person prior ” in right shall be tried the court without a effect “eliminated jury[,]’ not, if the erroneous a trial of whether jury allegations, trial in context to harmless error on analysis denial of this jury subject 19, 25.) 25 Cal.4th (Epps, supra, appeal.” Kelii, Wiley, supra, our decisions in Cal.4th

Relying upon held in 25 Cal.4th 21 that “the Epps, supra, 21 Cal.4th we trial, eliminate the to a but it right amendment did not completely jury narrowed the issues that the must decide” to “the considerably jury question (id. at or conviction records” authenticity, accuracy, sufficiency 27), limited trial is subject and that the “denial of this very right (Id. to harmless error at analysis.” p an curiae in Epps to an raised amicus responding argument decide

“Apprendi gives defendants have right [Sjtrikes law,” [Tjhree we conviction is a serious felony . . reaffirms that defendants have no “Apprendi. observed: here, least, [citation], ‘the the bare fact of conviction’ only fact of the conviction was at issue .... We do not now decide how would were we faced with a situation like that at issue in apply Kelii, needed to be where some fact circumstances proved regarding *17 as a residential—in conviction—such was prior burglary felony.” (Epps, supra, order to establish that the conviction is a serious 25 28.) Cal.4th at p. Courts Appeal Decisions of

E. Apprendi, In the since the court handed down its decision in a period have number of decisions rendered our intermediate courts appellate addressed, contexts, in a the claim that a defendant who faces a variety entitled, in on the basis of a conviction is in increase sentence potential a the court decide one or more Apprendi, to have rather than light jury these earlier Court issues related to the conviction. As we shall explain, Apprendi decisions followed an somewhat different Appeal approach from that taken the Court of case. present Thomas, faced an increased supra,

In the defendant Cal.App.4th based on that he had served two allegations sentence section 667.5 trial, the defend- At defense counsel to waive terms. prior prison purported trial on the but allegations, ant’s right jury prior-prison-term trial trial on those The allegations. defendant did not waive personally jury court found that the defendant had served two terms prior prison imposed the defendant an increased sentence on the basis of those enhancements. After sentenced, handed down its decision in Court the United States Supreme the defendant in Thomas that he was denied argued Apprendi, and on appeal in violation of Apprendi, allegations, trial on the prior-prison-term jury of that his waiver personal the trial court failed to obtain express because in Thomas relied following language The defendant right. “ conviction, increases a prior fact that any ‘Other than the Apprendi: fact of must be maximum statutory for a crime beyond prescribed penalty ” (Thomas, supra, a reasonable doubt.’ submitted to a beyond proved 216.) at 91 Cal.App.4th in Thomas claim. Citing the defendant’s rejected

The Court of Appeal “[Ojther that court observed: number of authorities from other jurisdictions, trial as to matters Apprendi courts have construed as jury except requiring to ‘recidivism.’ Courts have not described relating requiring Rather, than the ‘fact’ of a conviction. trials on matters other precise matters the more involving courts have held that no exists on right (Thomas, framed issue of ‘recidivism.’ broadly [Citations.]” decisions, Thomas 221.) in these the court Concurring Cal.App.4th enhance a concluded that terms of recidivism sentence findings “[i]n crime, is the controlling are unrelated to the elements of a Almendarez-Torres due . . did not overrule authority. . Almendarez-Torres. process conviction,’ refers Apprendi, ... than the fact of language ‘[o]ther section to recidivism enhancements which include 667.5 broadly prior prison (Id. the court in Thomas observed 222-223.) term at allegations.” Finally, pp. demonstrated, the evidence in that case consisted of documents without the defendant on two occasions had been dispute, separate (Id. sentenced to and had terms. completed prison v. Belmares Cal.App.4th Cal.Rptr.2d 400] (Belmares), was increased under section the defendant’s sentence similarly terms, and on the defendant 667.5 on basis of two prior prison appeal whether he contended he had a constitutional trial on issue *18 admitted was the whose name on the section 969b person packet appeared had into evidence to establish the that he served allegations prior prison 19, the Court of Epps, supra, terms.8 our decision in 25 Cal.4th Relying upon “ ‘The if to observing: right, any, the defendant’s Appeal rejected position, trial derives from sections 1025 allegations prior ” (Belmares, supra, at not from the state or federal Constitution. [Citations.]’ law omitted.) fns. The Court of further observed p. Appeal “[c]ase the court to sets out the and instruct on procedure [the issue] find (Id. added.) of these state law . . . .” at identity light term prior prison that a defendant served a permits prosecution prove Section to 969b by introducing packet prison into of certified records. evidence mandates, no constitu- the Court of concluded that the defendant had Appeal trial on the of his as the identity person tional right question 28; (Belmares, identified in the section see also 969b packet. (2003) (Garcia) [same].)

Garcia Cal.App.4th Cal.Rptr.2d 694] decisions, the Court Although acknowledging foregoing appellate broad of the in the case with their present disagreed interpretation Appeal all to recidi- relating exception encompassing questions Almendarez-Torres vism, and that the should be nar- suggested interpreted instead exception is conclude that the rowly: exception Apprendi “[W]e Almendarez-Torres of a defendant’s confined to determinations about past legal consequences conduct, such as whether his conduct has rise to a conviction or given prison itself, term, and does not extend to determinations about conduct such as that the the intent with which a defendant acted.” Reasoning question an of the defendant was increased sentence on basis subject a factual as to whether Nevada his robbery required finding at the time he committed the offense satisfied the elements conduct statute, the Court of concluded that this California robbery Appeal of factual on which defendant had a issue type Thomas, under In so the Court of Apprendi. holding, distinguished Appeal Belmares, and Garcia as issues related to the involving only legal “factual conduct, had suffered as a result of criminal past consequences [a recidivist] not whether that conduct was criminal the first place.” follows, As shall we the Court of we discussion believe explain erred in as one for a of fact framing calling finding issue conduct at the time he committed the offense. regarding defendant’s Instead, we it more accurate to characterize the that is believe is inquiry determination as a of the nature of legal California law required convictions as established the record of the criminal proceedings. to Be Made Inquiries

E Appropriate As the discussion resolution of the issue foregoing suggests, presented (1) this case two related the breadth or scope involves inquiries: to an increase in sentence so-called exception applicable Almendarez-Torres recidivism, based a defendant’s nature inquiry specific made under California law in this matter. We address to be required in turn. each of these inquiries

1. The Other Jurisdictions Scope Exception: *19 to the first regard scope With inquiry—the Almendarez-Torres that, decision numerous recognized, note as Thomas exception—we

703 more exception decisions have interpreted Almendarez-Torres out-of-state case. in the present than did the Court broadly 211], for example, Dixon A.2d State v. (2001) In 346 N.J. Super. [787 where required no to a right jury the court held there is “[t]he (Id. at the present or its elements.” does not relate to fact-finding offense case, defendant of convicted the added.) In that after a jury italics p. statute. him under a offender various the trial court sentenced charges, repeat to have a jury that he had argument right The court the defendant’s rejected short, “In increased his sentence. determine the existence of the factors that due consistent with Apprendi process, we read leaving judge, other convictions but the mere fact of task of finding only previous determinations must make related issues as well. Judges frequently factual for also determine the it anomalous to sentencing, hardly they so require (Ibid., ‘who, what, when and where’ of a conviction. [Citation.]” added.) 216, the defendant v. Wright State (Fla.Dist.Ct.App. 2001)

In 780 So.2d determine the fact of his asserted that a statute the trial court to permitting was “for a offense conviction and whether qualified The court disagreed committed within five was unconstitutional. years” have a held that even in the wake of the defendant had no Apprendi, right decide these issues. v. Hill N.E.2d People (2003) Ill.Dec. Ill.App.3d [280 138], sentencing the court considered whether the state’s recidivist mandatory The court held that there is no Apprendi. was unconstitutional provision recidivism, to a “the fact of the including trial on facts right relating convictions,” the defendant’s or number and timing, degree, sequence on his of enhancement under the recidivist statute. age purpose (Id. 150.) decision in at The court also relied its previous p. 377], Lathon noting Ill.Dec. 740 N.E.2d 317 Ill.App.3d [251 “Lathon that decision’s extensive review of Almendarez-Torres: and determined that the looked at review of Apprendi’s Almendarez-Torres but articulated Court not endorsed recidivism only exception, safeguards reasons for such an the fact that including procedural exception, conviction, not an essential enhance the recidivism is validity any prior offense[,] not relate to criminal and recidivism does element of underlying (Hill, 150.) at the commission of offense.” underlying 143], In State v. Stewart (2002) 368 Md. 26 A.2d the defendant crack cocaine and was sentenced convicted of and distribution of possession after the trial court determined that he had served to 10 years prison (Id. that he had a term. The defendant argued prison *20 on issue and to prior-prison-term have that prosecution prove (Ibid.) matter a reasonable doubt. beyond Court of Maryland Appeals “In disagreed: light language Apprendi suggesting sentencing recidivism, [citation], courts consider matters related traditionally to courts have found that the to a right trial is exception jury Almendarez-Torres (Id. not limited solely 151.) convictions.” at The court further prior p. observed in Stewart: covers exception questions “[T]he Almendarez-Torres recidivism, related to the fact of conviction. merely prior Appellee’s incarceration, term of like from previous crimes prior arising [citation], committed on occasions or the separate nature aggravated [citation], recidivism, and, is a fact related prior as stated above, recidivism ais has been reserved question traditionally for the (Id. Thus, court.” added.) at sentencing the defendant in the had Stewart case no to a trial on the right issue of the of his length conviction, confinement for the of sentence enhance upon prior purpose ment under the offender statute. subsequent v. Rosen

Finally, People 96 N.Y.2d N.Y.S.2d 844], 752 N.E.2d the New York Court of held the had Appeals “[defendant no constitutional trial to establish the facts of his prior felony U.S., convictions” 488), (citing Apprendi, supra, matters including “ to the defendant’s ‘pertaining character and the nature and history ” criminal (Rosen, circumstances of his conduct.’ at p. a number of federal lower court Similarly, decisions have reaffirmed with vitality judicial a defendant’s convic factfinding regard below, tions. As summarized the decisions of these courts have opined is not limited to the bare of a exception simply Almendarez-Torres fact conviction, defendant’s but extends as well to the nature of that conviction, determine courts to whether the thereby permitting (for conviction is the of conviction a conviction of a type example, “violent” felony) renders to an enhanced sentence. subject

One such decision is (C.D.Cal. Chamberlain v. Pliler 2004) F.Supp.2d case, 1128. In that after the found that the defendant had suffered convictions for felony assault with a the trial robbery deadly weapon, court in the state court determined that those convic- underlying proceeding tions were serious or violent convictions for of California’s felony law, Three Strikes based in the court’s determination that the record part upon criminal the conviction underlying for assault with a proceedings established that this conviction rested the defendant’s deadly weapon use of a federal personal deadly weapon. subsequent proceedings challeng- the increased sentence under district court in ing federal Apprendi, “ Chamberlain ‘As rejected challenge, reiterating: we *21 he the fact that because he believes that

understand position, [defendant’s] harm was never bodily or caused great used a dangerous weapon personally doubt to a a reasonable beyond to a and submitted proved specifically We do not his crimes. the for to increase penalty it could not be used jury, out an carving By .... of Apprendi [f] with his agree interpretation conviction, Court the we believe Supreme [in for of a proof prior exception in Kelii to set forth undertake the analysis courts free to left state Apprendi], a deadly with conviction for assault underlying prior ascertain the facts true found to be been submitted to a jury previously which had weapon or conviction which might In the of a prior a reasonable doubt. case beyond 245, strike, subdivi- under section such as conviction not constitute might the record for clear evidence underlying trial court searches the (a)(1), sion who the or the identity person the suffered victim injury type about these If there was any dispute the or deadly weapon. wielded dangerous must be offense and the issue was not resolved by prior matters hand, If, on the other deemed and not counted as strike. ambiguous use of a dangerous weapon record is clear that the offense involved personal harm, free to the court impose or actual infliction of great bodily Kelii, said in this is type inquiry sentence. As the court greater function. . . . We as of the sentencing traditionally by judges part performed the foundation for Apprendi do not believe the undercuts holding ” 1141-1142, decision in Kelii.’ (307 at F.Supp.2d pp. quoting decision, omitted, added.) Court of fns. Appeal’s 151, the defendant Santiago United States v. (2d 2001) In Cir. 268 F.3d (18 firearm a felon. U.S.C. to the offense of of a guilty pleaded possession three the defendant had 924(e).) The federal district court found 922(g), §§ occasions, that had occurred on separate convictions prior enhancement. to a conviction sentence sentenced him pursuant prior argued at the defendant (Santiago, supra, 268 F.3d On appeal, Apprendi the mle of of a conviction is from only prior exempted fact the same were committed on that the issue of whether his convictions prior (Id. at doubt. to a a reasonable beyond occasion must be proved observing Circuit Santiago, 153-154.) disagreed, In Second “[t]he pp. entails many conviction’ implicitly determination of ‘the fact of prior read Apprendi leaving . . . . subsidiary findings ...[][]... [W]e [][] the mere fact only due the task of finding consistent with judge, process, Judges frequently but other related issues as well. convictions previous so it is anomalous sentencing, hardly make factual determinations for must ‘who, what, when, of a and where’ also determine the they require 2002) v. Morris 156; accord, (7th Cir. (Id. United States conviction.” the issue of whether trial on F.3d 1012-1013 [no occasion, for single purposes were committed on enhancement].) armed career-criminal United States (8th

In Kempis-Bonola 2002) Cir. 287 F.3d the federal district court determined that the defendant was not entitled to have a jury determine whether a conviction was an aggravated felony (b)(2). of enhancement under 8 United States Code section subdivision On the defendant that because the appeal, argued regarding inquiry conviction, the fact of required factfinding beyond him. necessitated reversal of the rendered judgment against rejecting Circuit “The that there can Eighth reason position, explained: no involves be reversal here based on is because ... the issue conviction, and the Apprendi expressly excepts the issue of holding *22 from the rule it announced . recidivism sentencing-related [T]he circumstances recidivism are facts that be found may sentencing are (287 not within the F.3d at judge Apprendi’s scope holding.” 702-703, added.) pp.

2. The Nature Under Law Inquiry With to the second issue noted above—the nature of the regard (and in this context under inquiry California law—we required permitted) not, observe that the matter is as the Court of presented Appeal appears assumed, have a determination or “about finding [defendant’s earlier] itself, Instead, conduct such as the intent with which defendant acted.” it is a determination the nature the defendant’s regarding or basis whether that conviction as a conviction of conviction—specifically, qualified determination, a serious California law that in felony. this specifies making ais limited one and must be based the record of the inquiry criminal awith focus on the elements of the offense of which the proceeding, defendant was If the of the convicted. enumeration elements of the offense issue, does not resolve the an examination of the record of the earlier criminal is in order to ascertain whether that record reveals proceeding required the conviction have been based on conduct that realistically may (See, would not e.g., constitute under California law. felony Woodell, 448, 452-461.) Cal.4th supra, The need for such an does not the court will make an inquiry contemplate independent determination of fact issue to the defendant’s regarding disputed relating id. (see 460), conduct but instead that the court will simply examine the record of the to determine whether that record prior proceeding demonstrate that the conviction is of the sufficient to is type subjects under an increased California law. This is punishment inquiry that is different from the resolution of the issues submitted to a quite is one more undertaken a court. typically appropriately clear,

As the numerous and federal court discussion makes state foregoing more broadly decisions have interpreted exception Almendarez-Torres here, does and have concluded urges than defendant defend related to a determinations making sentencing a court from preclude case, had it the trial court before In ant’s recidivism. the present which defendant pleaded Nevada from the relevant proceedings, colloquies limited this “factual inquiry, Nevada From robbery charges. guilty trial (Kelii, 457), Cal.4th court documents” examining constituted each of the court could determine whether fairly sentencing of the California conviction for felony a serious prior “ reiterate, observed, ‘This is the but wish to statute. we have As previously of the traditionally by judges part type inquiry performed ” (Ibid.) function.’ court, In filed in this defendant contends briefing his supplemental leave the and its constitutional progeny even if scope unclear, States the recent decision United exception Almendarez-Torres L.Ed.2d v. United States 544 U.S. Shepard Court Supreme that a (Shepard) 125 S.Ct. indicates required 1254] whether, Shepard, context. addressed present U.S.C., (18 (ACCA) 924(e)), federal Career Act a sentenc- Armed Criminal § *23 determining look to in ing court or may reports complaint applications police for a earlier formed the basis whether a in an criminal guilty plea proceeding the defendant for a minimum “generic” conviction of burglary, qualifying Shepard, the high sentence under the In of 15-year majority ACCA. prison court that “a court the character of an admitted determining held later definition, is to the burglary generally examining statutory charging limited document, and any written of plea agreement, transcript plea colloquy, the trial to the defendant assented.” explicit factual which finding by judge (Shepard 1257].) at 16 S.Ct. at this conclusion—and p. reaching [125 court could all the assertion that the consider rejecting sentencing properly the documents within the record of the criminal contained prior proceeding— stated, that Shepard the of its analysis, in course majority opinion “[wjhile fact the fact here be described as a about prior can disputed a prior conviction, the conclusive significance it is too far removed from of record, and to Jones United judicial much like the findings subject too [v. States, 526 supra, 227 L.Ed.2d S.Ct. U.S. 119 [143 1215]] Apprendi, that to resolve clearly to authorizes say judge Almendarez-Torres avoid risks unconstitu- the The rule of statutes to of reading dispute. Jones, 239, . us to limit the scope see . . therefore counsels tionality, . . . .” of the character of a judicial factfinding disputed prior on generic plea 1262-1263], (Shepard, supra, 544 U.S. at 25-26 S.Ct. at pp. pp. [125 added;9 court id. at p. also S.Ct. at later see 1257] [“[A] Stevens, Scalia, Souter, in only justices—Justices Ginsburg—joined Although four in Thomas’s Shepard quoted passage appears, in the Justice part opinion which go join not concurring Shepard indicates that he would further and he did opinion the character of an determining admitted is limited to burglary generally definition, document, examining written statutory charging agree- plea ment, of transcript factual the trial plea colloquy, any explicit finding by to judge assented.”].) which Shepard decision

Although that a may suggest majority high court would view the issue in the case before us as legal presented presenting issue, a serious constitutional did court’s decision not to high purport resolve that issue. The before issue court in Shepard resolved a matter of and the court did decide statutory interpretation, purport whether a is state from constitutionally a court precluded permitting conduct the kind of examination of the record of a criminal proceeding that occurred in the before case us in whether a conviction determining constitutes a qualifying of enhancement under a state sentencing statute.10 we believe Shepard Accordingly, fails to establish the Court of Apprendi. validity Appeal’s application

In this it is worth regard, that in several months noting following decision, a Shepard lower number federal courts have reaffirmed the (See, e.g., United States v. viability Almendarez-Torres exception. Reeves 1031, 1035, (8th Cir. 2005) 410 F.3d United States v. quoting Marcussen (8th Cir.2005) 403 F.3d rejected have previously [“We argument the nature of be treated prior conviction differently conviction”; from the fact of a Shepard “the rule supports court, not a must determine whether convictions qualify felonies”]; United States v. Williams (7th 2005) as violent Cir. 410 F.3d can criminal make findings respecting fact “be history, they [trial as to fact of or findings as to the nature [a defendant’s] convictions,” of those Shepard because valid- “acknowledges continuing *24 of ity Almendarez-Torres”].) circumstances,

In view of the we conclude that not Shepard foregoing does the of clear of the provide type resolution issue would overturning justify the relevant California precedents.

G. Conclusion above, As noted the of the Court case construed Appeal present narrowly the recidivist as exception by for conduct Almendarez-Torres preserved because, view, part only factfinding this opinion of Justice Souter’s in Justice “The Thomas’s error, procedure rejects gives (Shepard, the court rise to constitutional not . . .” doubt. (conc. Thomas, J.).) 544 U.S. S.Ct. of opn. 1264] Shepard We court in also observe the reviewed a lower court’s consideration of police reports complaint applications—documents arguably distinguishable and sworn from the testimony by examining transcripts preliminary considered the trial court below in of the hearing plea proceedings and from two Nevada matters. however, the Court of Appeal improperly In so we believe Apprendi. holding, fact- enhancements require minimized the distinction between sentence offense, such whether a the current as to the circumstance of finding related “hate task to establish a crime”—a with the intent necessary defendant acted of court for the examination as one Apprendi jury—and identified by nature or to determine the to defendant’s conviction records pertaining “the not and speak type of task to which did Apprendi basis the conviction—a func as traditionally part sentencing that judges of inquiry perform (Kelii, tion.” Cal.4th supra, 21 Court, in

We that the United States Supreme recognize possibility decisions, by rule in the manner may suggested future extend But in our there is a significant the Court of because view Appeal below. involved in nature of the the factfinding difference between the inquiry issue in its progeny of sentence enhancements at type of the record examining to the nature involved in compared inquiry conviction to determine whether that conviction constitutes qualifying statute, we are sentencing for of a recidivist assume, court, that the a decision the high reluctant to in advance such will be federal constitutional trial interpreted apply latter context. have a

In view of determination that defendant was not entitled to our decide whether Nevada convictions as strikes robbery qualified his law, we do reach the alternate error argument any People’s committed court in harmless. For the reasons regard trial this above, not err in discussed we have concluded that trial did the record and in that the determining Nevada examining proceedings convictions robbery felony Nevada constituted California sentencing relevant purpose provisions.

III error) (on the the Court of basis harmless upheld Because enhancements, affirm the court’s we imposition of the Court of judgment Appeal. J.,

Baxter, J., Chin, J., Moreno, J., concurred. Corrigan, *25 J., (2000) New U.S. 466 KENNARD, Jersey Dissenting. In Apprendi the United States (Apprendi), Supreme L.Ed.2d 120 S.Ct. [147 2348] rule, that, to a Amendments the Court held as the Sixth Fourteenth general increasing that existence fact any federal Constitution the require by be determined the the maximum” “statutory defendant’s sentence beyond based on (Apprendi, supra, jury, beyond reasonable doubt. 530 U.S. at proof 490.) The might court there be a to high acknowledged narrow exception rule this when the the seeks to “fact of a conviction” prosecution prove prior (ibid.), but also court considered it that its decision in “arguable” v. United States (1998) 523 U.S. 224 L.Ed.2d Almendarez-Torres (Almendarez-Torres), 118 S.Ct. of this was origin exception, 1219] (Apprendi, supra, 489). decided” U.S. at “incorrectly Because in Apprendi, supra, U.S. court itself has cast doubt on the continuing of the “fact conviction” vitality prior exception Instead, this court should construe it requirement, narrowly. reads it it to this majority broadly, case even applying though Apprendi court’s for the are here. justifications exception Ac- inapplicable to the it is cording for a trial court to majority, proper a defendant deny trial, with a beyond-a-reasonable-doubt standard of not on the fact proof, only of a but conviction also on the truth or prior falsity allegations of factual conviction, to the conduct even pertaining gave rise prior though allegations those were elements of the prior disagree. offense. I view, when the my prosecution seeks increase a defendant’s sentence conviction, based on a the Sixth and Fourteenth Amendments to the trial, federal Constitution entitle the defendant to a jury with beyond proof doubt, reasonable facts on conduct pertaining underlying when, (1) here: those facts were never determined aby jury or offense, (2) court that convicted the those facts defendant, facts, true, were never admitted those if found would increase the defendant’s beyond sentence maximum. statutory

Here, the trial court sentenced defendant to a term of to life years based on finding its defendant had acted with the state of prison, requisite mind two crimes of he was which convicted in Nevada committing many earlier. The years courts defendant’s accepted guilty pleas state, crimes never decided whether he acted with that because mental his did those offenses not turn on he guilt whether acted with state of mind. Defendant never admitted acted has that he with that mental state when Thus, he committed either crime. that a denying request standard of applying beyond-a-reasonable-doubt determine proof, he acted with mental when state he committed two requisite offenses, the trial here violated defendant’s under the Sixth rights Fourteenth Amendments.

I Defendant charged with numerous felonies not here. It was pertinent enhancement, also of sentence had been alleged, that defendant

711 robberies, of and each those of two that in Nevada convicted previously “Three a “strike” under California’s for conduct constituting convictions was on Code, bifurcated trial 1170.12.)1The trial court (Pen. law. Strikes” § case, and a in this charged the offenses convictions from the of the prior most the charges. convicted defendant of of as for robbery qualify two Nevada convictions Whether defendant’s law, a issue. Under our law is difficult under California’s Three Strikes strikes a as felony” a if the conviction is for “serious conviction is strike a prior in that Robbery is listed (c) defined in of section 1192.7. subdivision however, statute, in differs from California law Nevada’s robbery provision. the defendant (1) only two The Nevada statute at least respects: requires intent, act in California defendant must act with criminal whereas general intent to the victim of specific deprive property with permanently law, by committed if is taken (2) taken. Nevada is robbery property Under harm a of either or to person victim fear present placing future contrast, Stat., 200.380); (Nev. although victim’s Rev. company § of harm to the victim in fear immediate California taking property by placing victim fear taking a is companion robbery, property placing 212) (§§211, is but extortion robbery harm to the not companion future 667.5, 1192.7, 518, (see (§§ 519), which is not strike generally §§ Therefore, on (c)).2 Nevada conviction can be based robbery subd. thus would not robbery, conduct that under law not be California would as a serious strike. felony qualify

When, here, the a defendant’s elements of the crime underlying do make offense a strike under out-of-state conviction not law, is if the conduct that gave California nevertheless strike strike, it and thus under California law. rise to would be felony, 403, 1]; 49, (2002) v. 53 38 P.3d Avery Cal.Rptr.2d 27 Cal.4th (People [115 P.2d (1998) v. 17 Cal.4th 950 Cal.Rptr.2d Woodell [71 situation, But call to establish 85].) may in that not witnesses prosecution conduct; rather, on shown in the rely the defendant’s it can conduct only (Woodell, conviction. record of the to the proceedings pertaining from of that limitation is to The purpose prosecution “bar[] . . thereby of a . years ago the circumstances crime committed relitigating akin to denial threatening jeopardy the defendant with harm double Cal.3d (People Cal.Rptr. trial.” Guerrero speedy stated, statutory are Penal Unless otherwise all references to the Code. California, that in Nevada statutes also differ in Defendant contends Nevada, (as victim opposed taking property by means fear of future harm unlike however, extortion, General, act robbery. Attorney argues that such an companion) not agree and the majority well as I with the Court robbery would be in California as in Nevada. need be resolved here. dispute *27 688, 1150]; 748 P.2d see also v. Reed 13 Cal.4th 223 184].) P.2d Cal.Rptr.2d

Defendant here denied that the conduct his two Nevada convic- underlying law, tions would felonies robbery qualify under California he asked for a on the issue. The trial court denied jury After request. examining of Nevada convic- preliminary hearing transcripts defendant’s tions, the trial court found that the conduct those underlying prior robbery convictions satisfied the elements of under law. The robbery only the trial issue court submitted to a was whether the jury records defend- authentic; ant’s were prior convictions so determined. The trial jury court sentenced defendant under the Three law Strikes to a term of 90 prison years to life. Defendant appealed.

The Court of held that the trial court violated Appeal right trial, doubt, with jury beyond reasonable when it his proof denied to request have determine his Nevada robberies constituted “serious under felonies” California law. But the Court nevertheless affirmed its judgment, based on conclusion that the trial court’s error did not defendant. This court prejudice review. granted

II Almendarez-Torres, Two decisions of high court are here: pertinent 523 U.S. 530 U.S. supra, Apprendi, supra, 466. Almendarez-Torres, the defendant guilty pled returning illegally

United States having after been sentence maximum deported.

federal law for that crime was two unless the years previous deportation resulted from a conviction for an in which aggravated case the felony, maximum sentence became 20 The trial court years. sentenced years to seven and one month in on based its that he had been prison finding for three felonies. The court deported aggravated high determina- upheld tion, rejecting defendant’s contention the federal Constitution gave trial, doubt, him right to a with on beyond reasonable proof of whether he had been convicted of an question felony. aggravated (Almendarez-Torres, 239-247.) 523 U.S. at supra, pp. later,

Some two U.S. years Apprendi, decided 466. case, In that the defendant to an offense that carried a pled guilty ordinarily maximum of 10 but New law penalty years prison, Jersey permitted of a term if the trial court found imposition greater prison by preponderance of the evidence that the defendant committed the crime of racial because bias. found, The trial court so and it term of 12 imposed prison years. challenge the defendant’s had bargain preserved

The parties’ plea the trial court law that allowed Jersey of the New the constitutionality bias under a truth the racial allegation preponderance decide the that the law was Court held The United States Supreme evidence standard. trial, unconstitutional, entitled to a with defendant was his of whether on proof, question standard beyond-a-reasonable-doubt *28 As this of racial bias. to whether crime was because commission the Almendarez-Torres, its recent decision in was with then holding consistent 224, it was “arguable the court observed supra, high 523 U.S. supra, 530 U.S. at (Apprendi, incorrectly was decided.” Almendarez-Torres concluded, however, whether to 489.) that it need not decide The court p. in in because it was distinguishable overrule its decision Almendarez-Torres “had admitted the The defendant in (1) three respects: Almendarez-Torres at (Apprendi, supra, 530 U.S. felonies” aggravated three earlier convictions for to with 488); those “had been entered (2) pursuant proceedings admissions p. (ibid.) the to a jury which included right substantial procedural safeguards” fact; and a doubt on contested issues of trial and reasonable beyond proof “ recidivism, ‘a (3) at in was the defendant’s issue Almendarez-Torres traditional, traditional, a court’s increas- sentencing if not the most basis for ” (ibid.). to Apprendi court in went on an offender’s sentence’ The ing high conviction, a “[ojther fact that increases the than the any say fact of a the maximum must be beyond statutory for crime prescribed penalty (Apprendi, supra, a doubt.” beyond submitted reasonable proved whether, 490, added.)3 under that “fact 530 U.S. at At issue here p. it for the trial court rather than conviction” proper exception, the existence of defendant’s two Nevada to determine not jury merely rise gave to the conduct that pertaining for also but robbery, facts to the convictions. To I to first and second of the three reasons resolve that issue look the Apprendi: to that the court carved out in right high trial jury exception convictions, (2) (1) whether the admitted the prior (Apprendi, admissions those safeguards” occurred with “substantial procedural reason, 488). do the third that recidivism supra, 530 U.S. at I not consider p. “ offender’s ‘is a . . for a court’s an sentencing increasing traditional . basis trial, right jury Apprendi, Supreme Court said that In United States doubt, statutory beyond beyond proof with reasonable on facts that increase sentence supra, (Apprendi, process Amendment. maximum is based the due clause of Fourteenth on 469.) on high say court is based 530 U.S. at But more recent decisions trial, Fourteenth Amendment. the Sixth and do not mention the Amendment’s 738]; Blakely 220, 621, (United (2005) v. States v. Booker U.S. L.Ed.2d S.Ct. 298, 403, 2531].) Washington L.Ed.2d 124 S.Ct. 542 U.S. 308-312 [159 view, requirement of Apprendi is best viewed my being based on both amendments: Its Amendment, proof beyond reasonable originates requirement the Sixth and its Amendment. process doubt is the due clause of Fourteenth mandated ” (ibid.), sentence’ because United States Court Supreme recently aban- Booker, In United States doned that ground. 543 U.S. in which its applied the federal holding guidelines, the court said that traditional “does not judicial authority provide a sound to enforcement of Sixth guide Amendment’s of a guarantee (Id. trial in today’s world.”

Here, defendant never admitted the factual allegations to the pertaining conduct his underlying Nevada convictions that now being are used in (He California to increase his sentence. never admitted that he committed the two robberies in Nevada with the intent to permanently deprive victims of their and that he property, victims or placed victims’ persons fear immediate company trial courts that injury.) defend- accepted ant’s guilty two never pleas offenses determined the truth of robbery those allegations, factual did not defendant with they provide any *29 procedural to those safeguards pertaining allegations, because his guilt Nevada offenses did not turn on truth the or of those falsity The allegations. case, trial court in this based on its determination that the factual allegations true, to the relating robbery convictions were prior a sentence imposed Thus, beyond statutory maximum. defendant a trial on denying of truth those factual allegations, the trial court violated defendant’s Sixth and Fourteenth Amendment a rights to trial. here that “the majority insists nature of the . . . under inquiry required

California law ... not determination ... or ‘about finding ” ante, “Instead,” conduct itself.’ 706.) [defendant’s at (Maj. p. earlier] opn., “it is a or nature basis majority says, determination regarding defendant’s prior conviction—specifically, that conviction qualified (Ibid., as Thus, a conviction omitted.) serious italics felony.” added concludes that the majority Court held wrong when it that the trial court made a factual determination pertaining conduct underlying two convictions for prior robbery Nevada.

I disagree. The to only determine the “nature or basis” a defend- way ant’s determine conviction is to prior conduct that gave rise that Indeed, conviction. this majority recognizes elsewhere in its opinion, court, when it that a explains to decide whether an out-of-state prior strike, conviction is a must determine “whether conviction realistically based on conduct been may have not would constitute a felony ante, Moreover, law.” (Maj. added.) at as opn., p. this court explained years 20 California’s nearly ago, law increased imposing conduct, crime.” penalties “refers prior specific Guerrero, v. (People supra, 355.) 44 at Cal.3d This court has p. repeatedly when, that the truth of an explained determining alleged conviction as

715 here, elements do not establish that it is necessary law, Three Strikes the trier of serious and thus to California’s felony, subject conduct, as demonstrated in the fact must decide whether the defendant’s conviction, record of the shows that the crime was a serious felony. Avery, (See, Cal.4th at 53 as a serious People supra, e.g., v. p. qualify [“To a conviction from another must involve conduct felony, jurisdiction v. Kelii California”]; would People qualify felony Cal.4th the determi 981 P.2d Cal.Rptr.2d [describing 518] Woodell, v. nation as a “factual 17 Cal.4th at inquiry”]; supra, p. “ of fact must . . . conduct determine ‘whether the offense involved [trier which satisfies all of the elements of the California serious comparable felony ”].) offense’

True, evidence there is an unusual limitation on the type of use to the conduct a defendant’s prosecution may prove underlying conviction: It on matters in the record of the may rely only appearing conviction. This limitation to be the basis for the conclu appears majority’s sion here that the trial court determined the “nature or basis” of defendant’s two convictions rather than conduct those convictions. underlying ante, earlier, 706.) (Maj. As I have of this opn., explained purpose limitation is to protect defendants from “harm akin to double jeopardy Guerrero, denial of trial.” (People Cal.3d at It is speedy ironic indeed that the uses a rule the accused majority designed protect from one unfairness as the basis for the accused to a far type subjecting trial, greater unfairness: denial of the with beyond proof *30 doubt, reasonable on the truth or of factual that determine falsity allegations whether the accused can be sentenced to a term of life imprisonment California’s Three Strikes law.

Ill Having concluded above that the trial court constitu- violated defendant’s convictions, tional trial on the facts his two underlying the remaining is whether this error reversal of the question judgment. requires

The Court of held that the error was harmless. test Appeal Applying for “non-structural” constitutional error court articulated high 824], Chapman (1967) 386 U.S. 18 L.Ed.2d 87 S.Ct. [17 that, doubt, the Court of concluded a reasonable the sentence beyond enhancement been allegations would have been found true had the issue submitted to a with a standard of It is beyond-a-reasonable-doubt proof. unclear, however, is the test. before Pending applicable v. Recuenco United States Washington Court is 546 U.S. 960 Supreme 478], L.Ed.2d error which will decide whether 126 S.Ct. se, or whether per Chapman’s a “structural” error and thus reversible court has high standard applies. harmless-beyond-a-reasonable-doubt Recuenco, before the and it will decide case argument heard already away. current which is a few weeks just court’s term ends July circumstance, I vacate submission of this matter pending Given that would Recuenco, I the outcome of Recuenco. Once decided court has high decide the then recalendar this case for oral argument question would harmless error standard the adopts whatever by applying prejudice in Recuenco. J., concurred.

Werdegar,