People v. Kelii

• Decision Date: 19 August 1999
• Docket Number: No. S070960,S070960
• Citation: 981 P.2d 518,87 Cal.Rptr.2d 674,21 Cal.4th 452
• Parties: , 981 P.2d 518, 99 Cal. Daily Op. Serv. 6709, 1999 Daily Journal D.A.R. 8561 The PEOPLE, Plaintiff and Respondent, v. Lester KELII, Defendant and Appellant
• Court: California Supreme Court

Page 674

87 Cal.Rptr.2d 674

21 Cal.4th 452, 981 P.2d 518, 99 Cal. Daily Op. Serv. 6709,

1999 Daily Journal D.A.R. 8561

The PEOPLE, Plaintiff and Respondent, v. Lester KELII, Defendant and Appellant.

No. S070960.

Supreme Court of California

Aug. 19, 1999.

Gary M. Mandinach, Los Angeles, under appointment by the Supreme Court, and Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, Sanjay T. Kumar and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

In People v. Wiley (1995) 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541 (Wiley ), we held that the court, rather than the jury, determines whether prior serious felony convictions were brought and tried separately. In this case, we address an issue we left open in People v. Woodell (1998) 17 Cal.4th 448, 460-461, 71 Cal.Rptr.2d 241, 950 P.2d 85: whether the court or the jury determines if a prior felony conviction qualifies as a "serious felony" for purposes of the "Three Strikes" law. (Pen.Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) ¹ Both Wiley and this case turn primarily on an interpretation of sections 1025 and 1158. We conclude that the court, not the jury, determines whether a conviction is serious.

A jury convicted defendant of two counts each of second degree burglary and grand theft, committed in January 1995. It subsequently found defendant had previously suffered three burglary and one attempted burglary convictions. The trial court later found that the prior convictions were of first degree or attempted first degree burglary and hence were residential and qualified as serious felonies. It sentenced defendant to state prison for 25 years to life. On appeal, defendant argued that the jury, not the court, should have determined whether his prior convictions qualified as serious felonies. The Court of Appeal disagreed. It remanded the matter for a reason not relevant to the issue before us and otherwise affirmed the judgment. We granted review. ²

"Various sentencing statutes in California provide for longer prison sentences if the defendant has suffered one or more prior convictions of specified types. A highly publicized example is the 'Three Strikes' law adopted in 1994, which is involved in this case. [Citation.] In general, this 'legislation provides longer sentences for certain prior serious or violent felonies popularly denoted "strikes" ' [Citation.]" (People v. Woodell, supra, 17 Cal.4th at p. 452, 71 Cal.Rptr.2d 241, 950 P.2d 85. In this case, the jury determined that defendant suffered the prior burglary convictions, but the court determined that they qualified as serious felonies for purposes of the Three Strikes law. Defendant argues that the jury should have made both determinations.

We addressed a similar question in Wiley, supra, 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541. In that case, we considered the requirement of section 667, subdivision (a)(1) (not part of the Three Strikes law), that serious felony convictions must have been "brought and tried separately" for a court to impose separate enhancements for each. We held that the court, not the jury, makes this determination. (Wiley, supra, 9 Cal.4th at pp. 583, 592, 38 Cal.Rptr.2d 347, 889 P.2d 541.) First, we concluded that defendants have "no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement." (Id. at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541; see also id. at pp. 585-586 [discussing federal Constitution], 586-589, 38 Cal.Rptr.2d 347, 889 P.2d 541 [discussing state Constitution].)

This conclusion did not itself dispose of the question. We noted in Wiley that "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." (Wiley, supra, 9 Cal.4th at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.) When we decided Wiley and when the crimes and sentencing of this case occurred, section 1025 provided that if a defendant denies the prior conviction allegation, " 'the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty....' " Similarly, section 1158 stated, and still states, that when a defendant is found guilty, and the accusatory pleading also alleges a prior conviction, " 'the jury, or the judge if a jury trial is waived, must ... find whether or not he has suffered such previous conviction.' " (Wiley, supra, 9 Cal.4th at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.) But these statutes "are limited in nature...." (Ibid.) "By their terms, sections 1025 and 1158 grant a defendant the right to have the jury determine only whether he or she 'suffered' the alleged prior conviction, and not whether multiple prior convictions were separately brought and tried." (Ibid.)

This case does not involve whether prior convictions were brought and tried separately, but whether they qualify as strikes under the Three Strikes law. Specifically, the burglary convictions of this case are strikes only if they were residential. (§ 1192.7, subd. (c)(18); see §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) But the holding and rationale of Wiley apply equally to this case. Sections 1025 and 1158 require the jury to determine whether the defendant "has suffered" the prior convictions. The jury here did make that determination. Wiley states that an additional determination, such as whether the convictions were brought and tried separately, is "a matter for the court, because that question is largely legal in nature. As is demonstrated by the numerous decisions that have considered the proper application of the requirement that the prior charges be 'brought and tried separately,' resolution of this issue frequently depends upon the interpretation of complex and detailed provisions of California criminal procedure. [Citations.] Although there are, of course, some underlying 'facts' that are relevant to the determination as to whether charges have been 'brought and tried separately,' such as the filing of charges either in a single complaint or multiple complaints, such facts generally are readily ascertainable upon an examination of court documents. This is the type of inquiry traditionally performed by judges as part of the sentencing function." (Wiley, supra, 9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)

Determining whether a prior conviction qualifies as a strike under the Three Strikes law is also the type of inquiry that judges traditionally perform as part of the sentencing function. Often this determination is purely legal with no factual content whatever. The Three Strikes law defines a strike as, among other things, "any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Section 1192.7, subdivision (c), lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking. If a defendant's prior conviction falls into this group, and the elements of the offense have not changed since the time of that conviction, then the question whether that conviction qualifies as a serious felony is entirely legal.

Sometimes the determination does have a factual content, just as the question whether convictions were brought and tried separately has a factual content. As we explained in Woodell, "Sometimes the definition of the qualifying prior conviction is not completely congruent with the definition of the crime of which the defendant has been convicted. For example, in [People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150], the alleged prior conviction was for a ' "burglary of a residence." ' (People v. Guerrero, supra, 44 Cal.3d at p. 346, 243 Cal.Rptr. 688, 748 P.2d 1150 [quoting Pen.Code, former § 1192.7, subd. (c)(18) ].) The statutory use of the phrase, 'burglary of a residence,' posed a problem because 'there is no offense specifically so defined in the Penal Code.' (Guerrero, supra, at p. 346, 243 Cal.Rptr. 688, 748 P.2d 1150.) A particular burglary conviction might or might not have involved a residence." (People v. Woodell, supra, 17 Cal.4th at p. 452, 71 Cal.Rptr.2d 241, 950 P.2d 85.)

But these factual questions are of limited scope. In determining whether a prior conviction is serious, "the trier of fact may look to the entire record of the conviction" but "no further." (People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150, original italics.) Thus, no witnesses testify about the facts of the prior crimes. The trier of fact considers only court documents. It is true that sometimes the trier of fact must draw inferences from transcripts of testimony or other parts of the prior conviction record. (See, e.g., People v. Reed (1996) 13 Cal.4th 217, 220, 52 Cal.Rptr.2d 106, 914 P.2d 184.) But the factual inquiry, limited to examining court documents, is not significantly different from the one we considered in Wiley. "[S]uch facts generally are readily ascertainable upon an examination of court documents. This is the type of inquiry traditionally performed by judges as part of the sentencing function." (Wiley, supra, 9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.) Accordingly, the statutory right to have a jury decide whether the defendant "has suffered" (§§ 1025, 1158) the prior conviction does not include the inquiry whether the conviction qualifies as a strike.

Defendant argues that a recent amendment to section 1025 supports his position. Effective January 1, 1998, section 1025 is divided into subdivisions. Subdivisions (b) and (c), the pertinent ones, provide as relevant: "(...