People v. McGee
| Decision Date | 09 February 2004 |
| Docket Number | No. A097749.,A097749. |
| Citation | 115 Cal.App.4th 819,9 Cal.Rptr.3d 586 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. James Corey McGEE, Defendant and Appellant. |
John A.W. Halley, under appointment by the Court of Appeal, Redwood City, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, John H. Deist and George F. Hindall III, Deputy Attorneys General, for Plaintiff and Respondent.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi), the United States Supreme Court announced that the federal due process clause entitles criminal defendants to a jury trial on all factual issues, other than the fact of a prior conviction, that increase the penalty for a crime beyond the statutory maximum. The next year, in People v. Epps (2001) 25 Cal.4th 19, 104 Cal.Rptr.2d 572, 18 P.3d 2 (Epps), the California Supreme Court raised but declined to resolve whether Apprendi henceforth required a jury trial of factual issues relating to the circumstances of a prior conviction used to enhance punishment. This case requires us to answer the question left open by Epps. In the published part of this decision, we hold that under Apprendi, a criminal defendant has a federal constitutional right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance punishment.
Defendant James McGee (McGee) was charged with two "strikes" arising from prior Nevada robbery convictions. Because Nevada's robbery statute omits certain elements required under California law, the trial court decided whether McGee had acted with the intent required by California law, and thus whether the Nevada convictions counted as strikes. This deprived McGee of his due process right to have the issue of his intent decided by a jury.
Nevertheless, in this instance the error was harmless. Because any reasonable jury would have concluded, as the trial court did, that McGee's conduct satisfied the elements of robbery under California law, we affirm.
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, and Lopez opened his door. A man wielding a shotgun demanded money. Lopez gave him $200. The robber instructed Lopez to shut the door. Kelly and Lopez heard a shot either a few moments or a minute later. 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. Minutes later, the car stopped close by, and the driver fired on Lopez and Andrade. Lopez was hit by a shotgun pellet and suffered a minor cut. Lopez and Andrade fled.
McGee was arrested and charged with two counts of attempted murder with firearm discharge enhancements (Pen.Code, §§ 187, 664, 12022.5, subd. (a)(1) — counts 1 and 10),1 two counts of assault with a firearm with a firearm use enhancement (§§ 245, subd. (a)(2), 12022.5, subd. (a)(1) — counts 2 and 11), two counts of unlawful possession of a firearm (§ 12021, subd. (a)(1) — counts 3 and 6), unlawful possession of ammunition (§ 12316, subd. (b)(1) — count 4), one count of robbery and two counts of attempted robbery with use and discharge of a firearm enhancements (§§ 212.5, 664, 12022.5, subd. (a)(1) — counts 5, 7, and 8), two counts of dissuading a witness with firearm use enhancements (§§ 136.1, subd. (c)(1), 12022.5 — counts 9 and 14), and two counts of discharging a firearm from a vehicle (§ 12034, subd. (c) — counts 12 and 13). A jury acquitted McGee of attempted murder but convicted him on all other counts.
The information listed two Nevada robbery convictions and alleged them as strikes under section 1170.12, subdivision (c)(2) and serious felonies under section 667, subdivision (a). The information alleged that because Nevada's robbery statute included all the elements of robbery under California law, the Nevada convictions should count as strikes and serious felonies under California law. The information also alleged a prior prison term under section 667.5, subdivision (b) for the second Nevada robbery conviction.
McGee argued that Nevada's robbery statute differed from California's robbery statute, and the People agreed. Thus, a determination had to be made whether defendant's conduct that led to the Nevada convictions would have violated California law. McGee argued that due process entitled him to have a jury make this decision. The People argued that McGee had no constitutional right to have a jury decide prior conviction issues, and that the Penal Code authorized the judge to determine whether McGee's actual conduct fit California's robbery statute.
The trial court agreed with the People. It examined the records of McGee's prior convictions as submitted by the People. The trial court found the elements of California's robbery statute were met, then instructed the jury to determine only whether McGee had suffered the two prior robbery convictions — in essence, whether the Nevada records were authentic. The jury found the prior strike allegations true. The trial court sentenced McGee to 90 years to life.
On appeal, McGee challenges the trial court's denial of his request for a jury as a violation of due process. He also challenges a single evidentiary ruling in the conduct of the underlying trial, which we dispose of in the unpublished portion of this opinion.
(People v. Avery (2002) 27 Cal.4th 49, 53, 115 Cal.Rptr.2d 403, 38 P.3d 1, fn. omitted.)
"To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California." (People v. Avery, supra, 27 Cal.4th at p. 53, 115 Cal.Rptr.2d 403, 38 P.3d 1; see §§ 667, subd. (d)(2),2 1170.12, subd. (b)(2).3) In determining whether an out-of-state conviction is a serious felony, "the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all the elements of the comparable California serious felony offense." (People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.) Thus, the trier of fact may consider both the legal elements of the crime and the actual conduct, as revealed by the record of conviction. (People v. Woodell, supra, 17 Cal.4th at p. 453, 71 Cal.Rptr.2d 241, 950 P.2d 85; People v. Avery, supra, 27 Cal.4th at p. 53, 115 Cal.Rptr.2d 403, 38 P.3d 1.)
Conviction of a "violent felony" as defined in section 667.5, subdivision (c) also triggers application of the Three Strikes law. (§§ 667, subds.(d)(1) & (2), 1170.12, subds. (b)(1) & (2); People v. Nava (1996) 47 Cal.App.4th 1732, 1735, 55 Cal.Rptr.2d 543.) The same principles apply to violent felonies as to serious felonies. A conviction for an offense in another jurisdiction will qualify so long as it includes all the elements of the same felony under California law. (§ 1170.12, subd. (b)(2).) In determining whether the defendant has been convicted of a violent felony, the trier of fact may consider the entire record of proceedings. (People v. Riel (2000) 22 Cal.4th 1153, 1204-1205, 96 Cal.Rptr.2d 1, 998 P.2d 969.)
Consequently, determining whether a conviction from another jurisdiction is a strike involves distinct legal and factual questions. Legally, does the crime for which a defendant was convicted include all elements of one of the crimes listed as a violent felony in section 667.5, subdivision (c) or a serious felony in section 1192.7, subdivision (c)? If not, then factually, does the record of conviction demonstrate that the defendant's conduct satisfied any missing elements? And — the question posed in this case — who decides these first two questions, a judge or a jury?
McGee does not dispute that the threshold comparison of the foreign jurisdiction's law with California law is a question for the judge. Here, the People conceded at trial that the elements of robbery under Nevada law and California law differed, and consequently that the fact of McGee's Nevada robbery convictions alone did not establish that he had been convicted of serious felonies under section 1192.7, subdivision (c)(19) or violent felonies under section 667.5, subdivision (c)(9).
McGee contends that the Nevada robbery statute differs from the California robbery statute in two respects. First, "[u]nder California law, theft requires an intent to permanently deprive another of property." (People v. Avery, supra, 27 Cal.4th at p. 52, 115 Cal.Rptr.2d 403, 38 P.3d 1; see People v. Ortega (1998) 19 Cal.4th 686, 693, 80 Cal.Rptr.2d 489, 968 P.2d 48 [...
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