Burden of Proof of Prior Conviction

The prosecution has the burden of proving the prior conviction, and if the prior conviction is for the infliction of bodily injury on a person other than an accomplice, the prosecution must prove that that the injury was indeed inflicted on someone other than an accomplice. (People v. Henley (1999) 72 Cal.App.4th 555, 558.) The Court in Henley found that the strike prior was not proved, and then remanded to give the prosecutor another chance. (Henley, supra, 72 Cal.App.4th at pp. 566-567.) The court relied on the Monge decisions, which held that the double jeopardy clause does not apply to determinations of allegations of priors. The Double Jeopardy section contains a discussion of whether the Monge rule permitting retrial of prior conviction allegations remains good law.

In People v. Cortez (1999) 73 Cal.App.4th 276, the court of Appeal held that there was insufficient evidence that the defendant's conviction for discharging a firearm from a motor vehicle was a prior felony conviction for purposes of the Three Strikes law. Because the prosecutor had not presented evidence of the facts underlying the prior conviction, the record proved nothing more than the least adjudicated elements of the prior offense. Since the least offense punishable was not a serious felony, the prior conviction could not be used to impose a sentence pursuant to the Three Strikes law. As in Henley, the court remanded for a limited new trial on the prior felony conviction allegation, giving the prosecutor a second chance to prove that the prior was a strike. (Id. at 278.)

What happens if the fact that makes the prior a serious or violent felony was never tried to a jury but there is evidence in the record (say a statement by the defense attorney or the judge during sentencing) that the defendant did personally inflict serious bodily injury? An argument can be made under Apprendi v. New Jersey (2000) 530 U.S. 466 that it is unconstitutional to increase the penalty beyond the statutory maximum on the basis of a fact - such as the fact that the defendant personally inflicted serious bodily injury in the prior crime - that was never submitted to a jury and proved beyond a reasonable doubt. Trial counsel should examine the prior to see whether every fact necessary to the prior's status as a serious or violent felony was submitted to a jury or was the subject of a valid jury waiver.

Proof of priors also raises technical evidentiary issues. In People v. Martinez (2000) 22 Cal.4th 106, the California Supreme Court ruled that uncertified computer printouts reporting criminal history information are admissible as evidence of prior prison terms. The court held that the uncertified printouts were admissible under the official records exception to the rule prohibiting hearsay and that Penal Code section 969b, which authorizes the use of certified prison records, does not establish a necessary or exclusive means of proving prior criminal history. This was not a Three Strikes case, but the ruling is likely to be applied in Three Strikes cases. As noted above, counsel should argue that it must be proved that a jury determined, beyond a reasonable doubt, every fact that makes the prior a strike.

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Date last modified: 8/28/2001.