People v. McGee

• Citation: 133 P.3d 1054,42 Cal.Rptr.3d 899,38 Cal.4th 682
• Decision Date: 22 May 2006
• Docket Number: No. S123474.,S123474.
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Corey McGEE, Defendant and Appellant.
• Court: United States State Supreme Court (California)

42 Cal.Rptr.3d 899

38 Cal.4th 682

133 P.3d 1054

The PEOPLE, Plaintiff and Respondent, v. James Corey McGEE, Defendant and Appellant.

No. S123474.

Supreme Court of California.

May 22, 2006.

John Halley, Redwood City, under appointment by the Supreme Court, for Defendant and Appellant.

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

GEORGE, C.J.

Numerous California statutes subject a defendant who is convicted of a criminal offense to increased punishment if he or she previously was convicted of another offense. In determining whether a defendant is subject to increased punishment on the basis of a prior conviction, it sometimes is necessary to examine the record of the earlier proceeding to determine whether it involves the type of qualifying prior conviction that authorizes increased punishment under the applicable sentencing statute. In view of the unusual and somewhat specialized nature of the inquiry that must be conducted for this purpose — an examination that is strictly limited to a review and interpretation of documents that are part of the record of the prior criminal proceeding — our decisions establish that under California law it is the court, rather than the jury, that is entrusted with the responsibility of undertaking this inquiry and making the determination. (See, e.g., People v. Wiley (1995) 9 Cal.4th 580, 586-592, 38 Cal.Rptr.2d 347, 889 P.2d 541 (Wiley); People v. Kelii (1999) 21 Cal.4th 452, 455-459, 87 Cal.Rptr.2d 674, 981 P.2d 518 (Kelii); People v. Epps (2001) 25 Cal.4th 19, 23-28, 104 Cal.Rptr.2d 572, 18 P.3d 2 (Epps).)

The issue presented in the case before us is whether, notwithstanding the foregoing rule established under California law, a criminal defendant has a right under the federal Constitution to have a jury, rather than the court, examine the record of the prior criminal proceeding to determine whether the earlier conviction subjects the defendant to an increased sentence when that conviction does not itself establish on its face whether or not the conviction constitutes a qualifying prior conviction for purposes of the applicable sentencing statute. The Court of Appeal held that the federal Constitution grants a criminal defendant the right to have a jury make such a determination, interpreting the United States Supreme Court's decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi) as compelling that conclusion. Although the Court of Appeal recognized that Apprendi involved a statute providing for increased punishment on the basis of a factual circumstance related to the current offense (rather than on the basis of a prior conviction), and further that the decision in Apprendi, in setting forth its holding, specifically stated that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (Apprendi, supra, 530 U.S. at p. 490, 120 S.Ct. 2348, italics added), the Court of Appeal concluded that the exception in Apprendi relating to prior convictions is a narrow one and does not apply to the circumstances presented here. We granted review to consider the conclusion reached by the Court of Appeal.

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

Accordingly, we conclude that the trial court in the present case did not violate defendant's rights by examining the record of the robbery convictions previously sustained by defendant in Nevada and by concluding that each of these offenses constituted a conviction of a "serious felony" for purposes of the applicable California sentencing statute. Although the Court of Appeal reached a contrary conclusion, finding that the trial court's action violated defendant's right to a jury trial, the appellate court further concluded that, under the circumstances of the present case, the federal constitutional error that it believed had occurred was harmless beyond a reasonable doubt. For that reason, the court upheld the increased sentence imposed by the trial court on the basis of the prior Nevada convictions. Because we conclude that no federal constitutional error occurred, we affirm the judgment rendered by the Court of Appeal, upholding the sentence imposed by the trial court.

I

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

On January 22, 2001, Lopez and Serafin Andrade were in Lopez's front yard when they heard a gunshot. Lopez recognized the robber's red car as it drove by. Within a few minutes, the red car stopped close by, and the driver fired upon Lopez and Andrade. Lopez was hit by a shotgun pellet and suffered a minor cut. Lopez and Andrade fled.

Defendant ultimately was arrested and charged with a variety of crimes and sentence enhancements in connection with the foregoing incidents.¹

The relevant charging document further alleged that (1) defendant had been convicted of robbery in Nevada in 1988 and again in 1994, and of selling a controlled substance in California in 1989, (2) all three prior convictions were felonies (§ 1203, subd. (e)(4)), (3) each of the Nevada robbery convictions was a serious felony (§ 667, subd. (a)) and a "strike" under California's "Three Strikes" law (§ 1170.12), and (4) the 1994 Nevada robbery conviction resulted in a prior prison term (§ 667.5, subd. (b)).

Defendant moved to bifurcate trial of the charged offenses from the trial of the prior conviction allegations.

A jury found defendant not guilty of attempted murder, but convicted him of the remaining charges.

Defendant requested a jury trial on the prior conviction allegations. The parties agreed that the elements of robbery under Nevada law differed in two respects from the elements of that offense under California law. First, under Nevada law, robbery requires only general criminal intent (Litteral v. State (Nev.1981) 97 Nev. 503, 634 P.2d 1226, 1227-1229, disapproved on another point in Talancon v. State (Nev. 1986) 102 Nev. 294, 721 P.2d 764, 769), whereas under California law, robbery requires a specific criminal intent to permanently deprive another person of property (see, e.g., People v. Avery (2002) 27 Cal.4th 49, 52, 115 Cal.Rptr.2d 403, 38 P.3d 1). Second, under Nevada law, a taking accomplished by fear of future injury to the person or property of anyone in the company of the victim at the time of the offense qualifies as robbery (Nev.Rev.Stat., § 200.380), whereas under California law such a taking does not (§ 212).²

In view of the foregoing distinctions between the elements of robbery under California law and those under Nevada law, it was at least theoretically possible that defendant's Nevada convictions involved conduct that would not constitute robbery under California law. Thus the parties agreed that inquiry into the record of the Nevada convictions was required in order to determine whether each constituted a qualifying felony for purposes of the relevant California sentencing statutes. (See §§ 667, subd. (a)(1), 667.5, subd. (c)(9), 1170.12, subd. (b)(12), 1192.7, subd. (c)(19); People v. Avery, supra, 27 Cal.4th at p. 53, 115 Cal.Rptr.2d 403, 38 P.3d 1; People v. Hazelton (1996) 14 Cal.4th 101, 109, 58 Cal.Rptr.2d 443, 926 P.2d 423.)

Defendant contended he had a federal constitutional right to have the jury make this determination. The trial court rejected defendant's position, reserving to itself the question of the legal sufficiency of defendant's Nevada robbery convictions and ruling that it would determine whether defendant was the person convicted in the Nevada cases and whether the Nevada convictions qualified as strikes under California law.

With regard to the 1988 Nevada case, the prosecution introduced various documents, including the transcript of the preliminary hearing in that proceeding. This transcript included the testimony of the...