People v. Wiley, S034307

• Decision Date: 02 March 1995
• Docket Number: No. S034307,S034307
• Citation: 889 P.2d 541,38 Cal.Rptr.2d 347,9 Cal.4th 580
• Court: California Supreme Court
• Parties: , 889 P.2d 541 The PEOPLE, Plaintiff and Respondent, v. Romero WILEY, Defendant and Appellant.

Page 347

38 Cal.Rptr.2d 347

9 Cal.4th 580, 889 P.2d 541

The PEOPLE, Plaintiff and Respondent, v. Romero WILEY, Defendant and Appellant.

No. S034307.

Supreme Court of California, In Bank.

March 2, 1995.

As Modified on Denial of Rehearing May 17, 1995.

Michael Satris, under appointment by the Supreme Court, Balinas, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Asst. Atty. Gen., Stan M. Helfman and Violet M. Lee, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Justice.

Penal Code section 667, subdivision (a)(1), ¹ provides that "any person convicted of a serious felony who previously has been convicted of a serious felony ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. " (Italics added.) For the reasons that follow, we hold that, although a defendant has a statutory right to have the jury determine whether he or she suffered prior convictions alleged pursuant to section 667(a)(1), the issue whether such prior convictions arose from "charges brought and tried separately" is to be determined by the court rather than the jury. We further hold that the circumstances of the present case, which include a showing that the prior convictions at issue arose from separate informations bearing case numbers that differ significantly, constitute sufficient evidence to support the conclusion that the prior convictions were "brought and tried separately" within the meaning of section 667(a)(1).

I

By an amended information filed June 24, 1991, defendant Romero Wiley was charged with attempted murder (§§ 187, 664), assault with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§§ 459, 460), and second degree burglary (ibid.). Several sentence enhancements also were alleged, including two allegations, pursuant to section 667(a)(1), that on September 27, 1983, defendant had suffered two previous convictions for the serious felony of first degree burglary.

Prior to trial, the superior court granted defendant's motion to bifurcate the determination of the truth of the section 667(a)(1) prior conviction allegations from the trial of the currently charged offenses. A jury trial commenced the following day, and defendant subsequently was convicted of those charged offenses. At the ensuing second phase of the jury trial involving the prior conviction allegations, the People introduced into evidence the following documents: (1) an abstract of judgment reflecting that on September 27, 1983, defendant was convicted in Contra Costa Superior Court, in cases No. 27767 and No. 27902, of two counts of first degree burglary; (2) a portion of the court minutes in these two cases, which showed that in case No. 27767 defendant had been convicted following a court trial conducted on September 26, 1983, and had been convicted in case No. 27902 following a court trial conducted on the following day; and (3) the amended information filed in superior court in case No. 27767, which reflected that defendant was charged with committing burglary of "the apartment of Thelma Radford" on May 5, 1983. The information in case No. 27902 was not produced.

Before the court instructed the jury regarding the prior conviction allegations, defense counsel requested that these instructions direct the jury to determine whether the two prior burglary charges had been "brought and tried separately" within the meaning of section 667(a)(1). The trial court declined to so instruct the jury, ruling that this was an issue of law to be decided by the court.

The jury found true the prior conviction allegations. The trial court subsequently sentenced defendant to a term of twenty-two years, eight months, in prison, including enhancements of five years each for the two prior serious felony convictions alleged under section 667(a)(1). The trial court did not expressly state that the two prior burglary convictions had been brought and tried separately, but did declare that they "are offenses that fall within the provisions of Section 667(a)."

On appeal, the Court of Appeal agreed with the trial court that the issue whether prior convictions alleged pursuant to section 667(a)(1) arose from charges brought and tried separately is a question of law for the court to determine, but held that the evidence submitted by the People was insufficient to support a finding that the prior convictions here at issue had been brought separately. We granted review to consider (i) whether, in a jury trial, the court or the jury should determine whether alleged prior convictions arose from charges "brought and tried separately" within the meaning of section 667(a)(1), and (ii) whether the evidence presented in this case is sufficient to support the trial court's implied finding that the prior convictions here at issue arose from charges separately brought.

II

As noted above, section 667(a)(1) provides that a defendant who is convicted of a serious felony, as defined in section 1192.7, shall receive a five-year sentence enhancement for each previous conviction for a serious felony "on charges brought and tried separately." In In re Harris (1989) 49 Cal.3d 131, 136, 260 Cal.Rptr. 288, 775 P.2d 1057 we held that "the requirement in section 667 that the predicate charges must have been 'brought and tried separately' demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." We held that the prior convictions alleged in Harris had not been brought separately, because the charges that led to these convictions had been "made in a single complaint" filed in municipal court and a single preliminary hearing had been held, although the charges thereafter were prosecuted in the superior court in two separate informations. (Id. at pp. 134, 136, 260 Cal.Rptr. 288, 775 P.2d 1057.) We previously have not decided, however, whether the court or a jury should determine whether prior convictions alleged pursuant to section 667(a)(1) were "brought and tried separately."

It is clear that the federal Constitution does not confer a right to have a jury determine this (or any other) aspect of a sentence enhancement imposed upon a defendant for previously having been convicted of a serious felony set forth in section 667(a)(1). In general, "there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact." (McMillan v. Pennsylvania (1986) 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67, citing Spaziano v. Florida (1984) 468 U.S. 447, 459, 104 S.Ct. 3154, 3161-62, 82 L.Ed.2d 340; cf. Walton v. Arizona (1990) 497 U.S. 639, 648, 110 S.Ct. 3047, 3054, 111 L.Ed.2d 511 [" '[T]he Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.' "].) The absence of any federal constitutional requirement that a jury determine the truth of prior conviction allegations is reflected in the circumstance that most jurisdictions in the United States do not grant the defendant a right to a jury determination of such sentencing issues. As we noted recently in People v. Calderon (1994) 9 Cal.4th 69, 76, 36 Cal.Rptr.2d 333, 885 P.2d 83: "At least half the states, as well as the federal government and the District of Columbia, ... [have] the court, rather than a jury, determine the truth of alleged prior convictions. This is the approach recommended by the Model Penal Code. [Citation.]" (Fn. omitted.)

Neither does the California Constitution grant a right to have a jury determine the truth of prior conviction allegations that relate to sentencing. The pertinent provision of the California Constitution, article I, section 16, simply states: "Trial by jury is an inviolate right and shall be secured to all...." Nothing in the text or history of this provision purports to require a jury determination of all factual issues involved in a criminal trial. ² It is well settled that it is within the province of the court to resolve factual issues that arise in many contexts in a criminal proceeding. ³

Thus, the ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned. From the earliest days of statehood, trial courts in California have made factual determinations relating to the nature of the crime and the defendant's background in arriving at discretionary decisions in the sentencing process, for example, with regard to the grant or denial of probation. (See, e.g., § 1203, subd. (b) ["If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation." (Italics added.) ].).) ].).) ].) It previously was well settled, for example, that a trial court, in deciding whether a defendant was eligible for probation under section 1203, could determine whether the defendant had suffered a previous felony conviction, even though the prior offense had not been pleaded or proven before the jury. (People v. Tell (1954) 126 Cal.App.2d 208, 209, 271 P.2d 568; People v. Leach (1937) 22 Cal.App.2d 525, 527-528, 71 P.2d 594.) A recent Court of Appeal opinion holds that trial courts still are empowered, in determining probation eligibility, to decide whether the defendant suffered prior convictions that neither were pleaded nor proven before the jury. (People v. Dorsch (1992) 3 Cal.App.4th 1346, 1349-1351, 5 Cal.Rptr.2d 327; but see People v. Warner (1978) 20 Cal.3d 678, 685, fn. 4, 143 Cal.Rptr. 885, 574 P.2d 1237; see also People v. Welch (1993) 5 Cal.4th 228, 234, 19 Cal.Rptr.2d 520, 851 P.2d 802 ["The statutory scheme obviously contemplates that all issues relevant to the probation determination will be...