Jury Determination of Priors |
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The jury has been given less and less to do, and the court more and
more, in regard to the determination of whether the defendant has strikes
against him. Effective January 1, 1998, Penal Code section 1025 was amended to
provide that in a trial on prior conviction allegations, the issue of whether
the defendant is the person who was convicted of the prior felony is to be
decided by the court rather than the jury.
For purposes of enhancements
under Penal Code section 667, subdivision (a), which are not part of the Three
Strikes law, the question of whether the prior convictions were brought and
tried separately is also for the court, not the jury, to decide. This is
because that question is largely legal in nature, and legal issues are decided
by judges. (People v. Wiley (1995) 9 Cal.4th 580, 583.)
In
People v. Kelii (1999) 21 Cal.4th 452, 455, the Supreme Court concluded
that the holding and rationale of Wiley apply equally to a case
regarding prior strikes. The question of whether the defendant suffered the
prior conviction is for the jury, but the court, not the jury, decides "legal"
questions about the prior conviction, such as whether it is "serious" for
purposes of the Three Strikes Law. The Court in Kelii
acknowledged that the question of whether the prior was serious for three-
strikes purposes
has a factual aspect, but nonetheless left it to the judge. (Id. at p.
457.) The Court has previously held that 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.) This judicially-imposed limitation makes the act of examining the record
of the prior conviction to see if the offense was a serious felony comparable
to a judge's examination of a defendant's prior record for sentencing purposes,
the Court observed. (Id. at p. 457.) Therefore, the Court reasoned, it
makes sense for the judge to do it. (Ibid.) (This part of the Kelii
decision may not
survive the United States Supreme Court's decision in Apprendi v. New Jersey
(2000) 530 U.S. 466, about which more below.)
The Court in Kelii acknowledged that "this
procedure would appear to leave the jury little to do." (Id. at p. 458.)
The jury's role is limited to examining the documents evidencing the prior
conviction to see whether they are authentic (presumably the jurors just look to see
whether the documents are certified copies from the court) and comparing the
prior conviction shown in such documents to the conviction alleged, to see if
they are the same. "Whether this role makes sense," the Court noted, "is not
for us to say." (Id. at 459.)
In People v. Epps, 25 Cal.4th 19, decided
March 5, 2001, the California Supreme Court held that the U.S.
Supreme Court's decision in Apprendi v. New Jersey
does not establish a constitutional right to jury trial of priors. The United
States Supreme Court held in Apprendi that a defendant's sentence
may not be increased beyond the otherwise-applicable maximum by reason of a
fact, other than a prior conviction, that has not been determined by a jury
beyond a reasonable doubt. In Epps, the state Supreme Court
said that the right to jury trial of allegations of prior convictions is purely
a creature of state law. The state high court explicitly declined to decide
whether Apprendi recognizes a right to a jury trial of facts not revealed
by the prior conviction that must be proved in order for the prior conviction
to be a strike. For instance, a prior burglary would have to be a residential
burglary to qualify as a strike. So, despite the state high court's decision in
Kelii, a question such as whether a prior conviction for burglary was
for a residential burglary might require jury determination, thanks to Apprendi.
The state Supreme Court left that question for another day.
The Court in Epps also held that the
erroneous denial of the state-law right to a jury trial of the allegations of
prior convictions does not require reversal of the
judgment unless it is reasonably probable that a result more favorable to the
defendant would have been reached in the absence of the error. Of course, since
the jury has so little to do in deciding whether the defendant suffered the
prior conviction, it will almost never happen that a court will say that denial
of the statutory right to a jury determination of whether the priors occurred
made any difference in the result. Unless the defendant actually had not suffered
the prior conviction, it simply won't
matter whether he was denied a jury trial on the allegation of a prior.
The statutory right
to jury trial of the allegations of prior strikes, for whatever it's worth,
is waived if the defendant
fails to object to the discharge of the jury before the trial of the priors.
(People v. Vera (1997) 15 Cal.4th 269.)
The issue the Supreme Court left for another day in Epps was addressed
by Division Five of the First Apellate District in People v. McGee No. A097749,
decided February 9, 2004. James McGee, charged with various current crimes, also faced
an allegation that he had two prior strikes resulting from convictions for robbery in
Nevada. Robbery is a strike crime in California, but Nevada's robbery statute does not
contain the same elements as the California crime. For instance, in California, but not
in Nevada,
the robber must have intended to deprive the owner permanently of his property. McGee's
Nevada convictions did not reveal whether he had possessed the intent that would make the
Nevada crimes strikes under California law. The Court was faced with the
question of whether McGee had a federal constitutional right to a jury trial of the
additional facts needed to transform the Nevada robberies into strikes in California.
Relying on Apprendi, the Court determined that the federal constitutional right to
jury trial
of all elements of a crime contains only one narrow exception: the fact of a prior
conviction may be tried by a judge. But if there are additional facts about the prior
crime that must be decided to make that prior crime a strike, those facts do not fall
within that exception and must be tried to a jury.
So did McGee get a jury trial of the question of his intent in committing those
Nevada robberies? No. The judges reviewed transcripts from the Nevada cases and
decided that no reasonable jury would have concluded that McGee lacked the intent necessary
for the robberies to be strikes in California. The denial of the constitutional right to
a jury trial was harmless error which did not require correction. In effect the Court
told McGee, "You have a right to a jury trial of these facts, but we have looked at the
evidence and we think that any reasonable jury would convict you, so you don't need a
jury trial." This reasoning cannot be used to deny jury trials entirely. A state may not
prevent an accused person from having any of the facts that make up a
crime decided by a jury. But if the accused has a jury trial of some of the essential
facts, judges may fill in other essential facts, provided they conclude that no reasonable
jury would disagree with them. So People v. McGee is a victory of sorts, but it is
something less than a firm defense of the jury trial right.
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3-Strikes.
Date last modified: 2/15/04.
