Out-of-State Prior Convictions |
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In deciding whether an out-of-state prior 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 of the elements of the comparable California serious felony
offense." (People v. Myers (1993) 5 Cal.4th 1193, 1195.) " '[W]hen the
record does not disclose any of the facts of the offense actually
committed'…, a presumption arises that the prior conviction was for the
least offense punishable. …However, the record need only contain
additional evidence from which the court can reasonably presume that an element
of the crime was adjudicated in the prior conviction." (People v.
Johnson (1991) 233 Cal.App.3d 1541, 1548, quoting People v. Guerrero
(1988) 44 Cal.3d 343, 352.) "The same approach applies in determining whether
an out-of-state prior is a "strike" for purposes of the three strikes law.
(People v. Howard (1996) 47 Cal.App.4th 1526, disapproved on another
point in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn.11.)
In People v. Avery, 83 Cal.App.4th 997, the First District decided on September
22, 2000, that the prosecution had failed to prove that Avery's prior burglary
conviction in Texas contained all of the elements of the corresponding
California felony. In Texas, a person could be guilty of burglary without
having had the intent to permanently deprive the owner of his property. Such
intent is required under the California law. Because the prosecution did not
prove that Avery's intent in committing the Texas burglary was to permanently
deprive the owner of property, as distinguished from keeping it temporarily,
the prosecution did not prove a prior strike crime. The First District, in
accordance with the Monge decisions (see Double Jeopardy section), gave
the prosecution the opportunity to obtain a fuller record of the Texas
conviction and retry the strike allegations. The California Supreme Court has
agreed to review the Avery decision.
The entire record of the
out-of-state prior includes the transcript of a plea. Division One of the
Fourth District in People v. Scott (2000) D033902, partially published at
83 Cal.App.4th 784, confronted the question of
whether a conviction of third degree assault in Minnesota qualified as a
strike. If a dangerous or deadly weapon was used, the prior would be a strike.
At his plea hearing, Scott admitted that, during a scuffle with his sister, he
had touched her with a hot iron. This sufficed to make the prior a strike.
A prior out-of-state conviction may serve as a strike even if the
defendant was denied defenses that would be permissible in California. A prior
rape conviction suffered in a state that does not recognize the California
defense of a good faith, reasonable belief that the victim consented, qualifies
as a prior strike. (People v. Howard, supra, 47 Cal.App.4th at p. 1533.)
Defense counsel should be aware that this appears to be non-binding dictum,
rather than a holding, for the court noted that the defendant acknowledged that
he did not have a reasonable, good faith belief that the victim consented.
A defendant does not have the right to challenge his out-of-state
conviction on the ground that he had pleaded guilty without being informed on
the record of his rights to be tried by a jury, to confront the witnesses
against him, and to avoid incriminating himself (called Boykin-Tahl
rights after the cases Boykin v. Alabama (1969) 395 U.S. 238 and
In re Tahl (1969) 1 Cal.3d 122), unless the convicting jurisdiction
requires that the defendant be informed of such rights on the record.
(People v. Allen (1999) 21 Cal.4th 424; People v. Green (2000)
81 Cal.App.4th 463.) Again, one wonders whether the public knows that
a person cannot challenge a prior conviction resulting from a plea of guilty on
the ground that he was not informed of his trial rights if the jurisdiction
that convicted him did not require that the record show that he was informed
and waived his rights.
If defense counsel fails to obtain the record of the prior out-of-state
conviction and fails to investigate whether an out-of-state conviction
qualifies as a strike under California law, before permitting the defendant
to admit the prior, counsel is ineffective and the defendant must be allowed
to withdraw the admission, ruled the Third District in People v. Morgan (2001) 90 Cal.App.4th 853. The Third District vacated the defendant's plea and remanded the case
for further proceedings because counsel had incompetently permitted the defendant to
admit
that two Arkansas kidnapping convictions were strikes even though it was not known under
what Arkansas statutes the defendant had been convicted, or whether the elements
of the Arkansas convictions matched elements of strike crimes in California. The
California Supreme Court later ordered the decision depublished, however.
Division Three of the Second Appellate District in People v.
Trevino (1999) 77 Cal.App.4th 463, reversed a prior-murder
special circumstance, based on a Texas murder conviction for a murder committed
when the defendant was only 15 years old and when a 15-year-old could not have
been convicted for murder in California. The reversal meant that the defendant
could not be sentenced to life without possibility of parole. Special
circumstances are different from prior strikes, and it is unclear whether the
same rule would apply in Three Strike cases. The court also ruled that the
trial court erred imposing only one five-year enhancement under section 667,
subdivision (a), when the defendant had admitted two prior serious felonies.
Please send questions or comments to factsla@sbcglobal.net.
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reprinted, or reposted without permission of Families to Amend California's
3-Strikes.
Date last modified: 10/4/02.
