Prior Convictions (PC 667(a))
Category > Prior Convictions (PC 667(a))
Updated 3/6/2024The trial court erred in admitting the uncertified, unauthenticated exhibits as proof that defendant suffered a prior conviction.The trial court erred in admitting uncertified, unauthenticated records to prove defendant suffered a prior felony conviction. The court no longer kept physical court files, and instead maintained digital copies on its own electronic system. But the court here did not take judicial notice of the digital copies in the system. Moreover, the contents of the uncertified records cannot support a finding of authenticity.id: 26560
Updated 3/6/2024Defendant whose appeal began before the enactment of SB 1393, could seek relief under that provision without obtaining a certificate of probable cause.Effective January 1, 2019, SB 1393 amended Penal Code sections 667 (a)(1) and 1385, and granted trial courts discretion to strike or dismiss previously mandatory five-year prior felony conviction enhancements. Defendant entered a plea, was sentenced and filed a notice of appeal approximately one year before SB 1393 was enacted. His failure to obtain a certificate of probable cause at the time of the appeal did not bar his claim on appeal requesting relief based on a change in the law.id: 26595
Updated 2/26/2024Arizona robbery prior could not be used for purposes of the three strikes law or Penal Code section 667, subd.(a) where the Arizona law did not contain the same elements as the California robbery law.Because Arizona’s robbery statute does not require asportation of the stolen property (as California robbery statute does) the true finding regarding the Arizona prior was reversed for purposes of the three strikes law allegation and the five year serious felony prior.id: 26279
Updated 2/3/2024Because the trial court discharged and lost control fo the jury after the verdict, the subsequent proceedings on the prior conviction allegation were a “nullity.”After the verdict was read, the trial court discharged the jurors. Realizing the prior conviction allegation still had to be adjudicated, the court reconvened the jurors who had yet to leave the courthouse. However, the trial court lost jurisdiction over the jurors before they were reconvened, thus rendering their verdict as to defendant’s prior serious felony conviction a nullity.id: 27723
Defendant, whose case was not final on appeal, was entitled to a remand under SB 1393 to allow the court to strike the 667(a)(1) enhancement. Defendant’s case was not final on appeal when SB 1393 became effective, so he was entitled to a remand to allow the trial court to exercise its discretion to strike the five year sentence enhancement under Penal Code section 667, sub.(a)(1).id: 26155
SB 1393, which gives trial courts discretion to strike serious felony enhancements, applies retroactively to cases not yet final when the law took effect.The recent amendments to Penal Code sections 667, subd. (a) and 1385, subd. (b), (provided by SB 1393) giving the trial courts discretion to strike serious felony enhancements apply retroactively to cases not yet final when the amendments took effect. id: 26183
The matter was remanded for resentencing to allow the court to dismiss the section 667(a) enhancement even though the defendant had agreed to a stipulated sentence. Defendant entered a guilty plea to one count of residential burglary and admitted to a prior serious felony allegation. The court then sentenced him to the stipulated nine year prison term. He then sought to have the matter remanded for resentencing after the enactment of SB 1393, which gave the court discretion to strike the five year serious felony conviction enhancement. The matter was remanded for a new sentencing hearing although the judge could consider whether dismissing the Penal Code section 667, subd. (a) enhancement was comparable with the plea agreement. id: 26142
Defendant was entitled to remand under SB 1393 to allow the trial court discretion to strike his five year enhancement under section 667, subd.(a).SB 1393 became effective while defendant’s case was pending on appeal. His case was remanded to allow the trial court discretion to dismiss his prior serious felony under Penal Code section 667, subd. (a), which was mandatory at the time of the original sentencing.id: 26082
While SB 1393 is retroactive, remand to allow the court to exercise its discretion to dismiss a serious felony prior was not required where the court’s comments at sentencing show it would not have dismissed the priors.Prior to 2019, the trial courts had no discretion to dismiss five-year serious felony prior enhancements under Penal Code section 667, subd, (a)(1). SB 1393, which became effective on January 1, 2019, removed that prohibition. The new law is retroactive to cases, like defendant’s, that were not yet final on appeal as of its effective date. However, remand to allow the trial court to exercise its discretion was not required because the trial court’s statements on the record clearly indicate it would not in any event have stricken the prior when it originally sentenced the defendant.id: 26067
The case was remanded to allow the sentencing court the opportunity to strike the serious felony prior under the new law.During sentencing after defendants’s robbery conviction, the trial court noted that it lacked discretion to strike the five year prior serious felony enhancement under Penal Code section 667, subd. (a). Effective January 1, 2019, the law now offers a trial court that discretion and the new law applies retroactively to defendant. The matter was remanded to allow the trial court to exercise its discretion to strike the enhancement.id: 26039
Amendment to prior drug-related conviction enhancement statute applied retroactively to defendant’s case that was pending on appeal when the new law became effective.Defendant pled guilty to transporting methamphetamine and admitted having suffered four prior drug-related convictions within the meaning of Health and Safety Code section 11370.2, subd. (c). After his sentencing, section 11370.2 was modified such that his prior drug offenses no longer constituted qualifying convictions. The new law applied to the case under In re Estrada (1965) 63 Cal.2d 740, and the case was remanded so that the court could strike the enhancements.id: 25517
The trial court erred by imposing the unpleaded five year prior serious felony conviction enhancement.The trial court erred by imposing the serious felony conviction enhancement. Under Penal Code section 1170.1, subd. (e) the enhancement must be alleged in the accusatory pleading. The requirement is not satisfied merely by alleging the facts underlying an enhancement as the basis for a substantive offense or for a different enhancement. Moreover, a violation of this requirement results in an unauthorized sentence, and therefore defense counsel did not forfeit the error.id: 25453
The trial court erred by imposing a consecutive five year prior serious felony enhancement as to the determinate sentence for the ADW count where sentencing had been stayed under section 654.Where a trial court is required to stay a determinate sentence under Penal Code section 654 or exercises its discretion to run the determinate sentence concurrently with the indeterminate sentence, the prior serious felony enhancement (Penal Code section 667, subd.(a)) that attaches to the determinate counts must also be stayed or ordered to run concurrently.id: 25476
Because the unwarned stipulation to the prior conviction subjected defendant to a longer term, the stipulation was invalid under Yurko. Defendant was charged with felony infliction of corporal injury under Penal Code section 273.5(a) along with a prior conviction under section 273.5. Defendant stipulated to the prior conviction and the court accepted the stipulation without advising defendant of his trial rights. However, because the unwarned stipulation to the prior conviction had the direct consequences of subjecting defendant to a longer term, the stipulation was invalid under In re Yurko (1974) 10 Cal.3d 857.id: 24097
The trial court erred by failing to strike one of the two serious felony priors that were not brought and tried separately.Defendant’s two prior serious felony convictions (robbery and attempted robbery) were not “brought and tried separately” as provided by Penal Code section 667, subd.(a) where the two priors were charged together under the same case number and adjudicated in the same proceeding. The trial court erred by staying execution of the priors.id: 24101
The trial court committed prejudicial Yurko error by failing to advise the defendant about his rights to remain silent and to confront witnesses before accepting his admission on the prior conviction allegations.Before accepting defendant’s admission on the prior conviction allegations, the trial court advised him of his right to a trial but did not mention his right to silence or to confront or cross-examine witnesses. The last time he had been advised of his Boykin-Tahl rights was 15 months earlier when he was arraigned on the complaint.id: 24062
A defendant whose prior felony conviction was later reduced to a misdemeanor was not subject to the five year enhancement under section 667, subd.(a) for having been convicted of a serious felony prior.When the trial court in a prior proceeding properly exercised its discretion by reducing a felony assault with a deadly weapon conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of Penal Code section 667, subd.(a). The trial court therefore erred in adding the five year enhancement to defendant’s sentence.id: 23183
1999 conviction that was later reduced to a misdemeanor could not be used as a prior serious felony under section 667, subd.(a).Defendant was convicted of making a criminal threat. He received an additional 5 year sentence under Penal Code section 667 for a prior criminal threats conviction in 1999. However, that conviction was later reduced to a misdemeanor so it could not be used as a prior serious felony under section 667.id: 23270
The failure to obtain on-the-record advisement and waiver of constitutional rights required that the prior conviction findings be vacated.The record does not show that defendant was properly advised of his constitutional rights before he admitted the prior conviction allegations. While the parties referred to defendant’s waiver of his right to a jury trial at one point, there is no indication on the record that he was ever advised of his rights. The prior prison term and strike allegations were vacated.id: 22877
A trial court may strike a prior serious felony conviction for the purpose of applying presentence custody credits under section 4019.The recently amended Penal Code section 4019 provides additional presentence custody credits unless a defendant has a prior serious felony conviction. Defendant argued his prior did not prevent him from obtaining the additional credits because the trial court struck that prior conviction. But the trial court dismissed his prior for purposes of the three strikes law sentencing, not necessarily for the purpose of applying the amended section 4019. The matter was remanded so that the trial court could determine whether to strike the prior conviction for purposes of section 4019.id: 21726
The definition of “serious felony” for purposes of section 1192.7, subd.(c)(28) does not include a misdemeanor offense that was sentenced as a felony under the alternate penalty provision of section 186.22,
subd.(d).The Penal Code section 1192.7, subd. (c)(28) definition of a serious felony as a “felony offense, which would also constitute a felony violation of section 186.22 “does not include a misdemeanor punished as a felony pursuant to section 186.33, subd.(d). Because there was no evidence to show whether defendant’s prior conviction was for a felony or a misdemeanor punished as a felony, the court’s true finding on the prior serious felony allegation was not supported by substantial evidence.id: 21053
Even after Prop 21 amendment, ADW under section 245(a)(1) only qualifies as a serious felony for three strikes purposes if the defendant personally used a weapon.The record did not support the trial court's finding that defendant's prior assault conviction under Penal Code section 245, subd.(a)(1) qualified as a serious or violent felony within the meaning of the three strikes law or Penal Code section 667, subd.(a). Following Prop 21, a conviction for ADW under section 245(a)(1) now qualifies as a serious felony whether defendant was convicted as a direct perpetrator or an aider and abettor. However, the amendment did not change the status of assault by means of force likely to produce great bodily injury - the other variant of section 245(a)(1). The documents presented to the court were silent on the question of whether defendant personally used a gun or personally inflicted great bodily injury.id: 18614
Unsworn and unauthenticated medical report which was not received in evidence in the 1986 case was not part of the record which may be used to determine whether the prior was a strike.Defendant argued trial counsel was ineffective in failing to advise, prior to a guilty plea in a three strikes case, that one of the alleged priors did not qualify as a strike. In order to prove the 1986 sexual assault case involved the infliction of great bodily injury the prosecution used the preliminary hearing testimony of the victim. Contrary to defendant's claim, an unsworn and unauthenticated medical report which was not received in evidence in 1986, and did not fall with a hearsay exception, was inadmissible to contradict the victim's claim. The report was not part of the "record of conviction" which may be used to prove whether the offense involved great bodily injury.id: 17495
Apprendi provides a right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance punishment.Under Apprendi v. New Jersey (2000) 530 U.S. 466, a criminal defendant has a federal right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance a sentence. The trial court decided the issue of whether defendant had acted with the intent required by California law, and thus whether the Nevada robbery convictions counted as strikes. This deprived defendant of the right to have the issue of intent decided by the jury. However, the error was harmless where any reasonable jury would have found defendant's conduct satisfied the elements of robbery under California law.id: 17744
Supreme Court says government may not prove prior felony when defendant offers to stipulate.In U.S. v. Breitkreutz, 8 F.3d 688, 690-92 (9th Cir. 1993) the Ninth Circuit held that the government had the right to refuse an offer to stipulate to the prior conviction in a felon in possession of a firearm case under 18 U.S.C. section 922(g). Relying on that rule, the district court in the present case allowed the government to show the name and nature of the prior felony. The Supreme Court granted certiorari and reversed, in a 5-4 opinion written by Justice Souter. The majority rejected the argument that government was entitled to prove all of the elements of the crime. The majority recognized that a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. But the majority nonetheless held that Rule 403, Fed. R. Evid. requires the district court to balance the probative value of this evidence against its prejudicial effect. Because the purpose of the evidence in the present case was solely to prove the element of prior conviction, the district court abused its discretion in rejecting the offer to stipulate. Justice O'Connor, Rehnquist, Scalia and Thomas dissented.id: 10673
Prior serious felony convictions from a single complaint did not support two section 667 enhancements.Penal Code section 667 provides for a five year sentence enhancement for each prior conviction brought and tried separately. The phrase on charges brought and tried separately requires that the charges underlying the prior serious felony convictions must have been made in proceedings that were formally distinct.id: 13972
Since the prior Florida offense constitutes a misdemeanor in California the 5 year enhancement was improper.Appellant was convicted of several sex offenses and was given a five year sentence enhancement based on his prior conviction of a serious felony in Florida. However, since the Florida offense constitutes a misdemeanor in California, imposition of the enhancement for the Florida prior was improper.id: 13979
There may be no implied waiver of a jury trial on the issue of prior convictions.Defendant was convicted of selling cocaine but the jury was discharged without a finding as to whether defendant had suffered the charged prior convictions. The People argued that defendant impliedly waived his right to a jury trial when he moved to prohibit the reading of the probation ineligibility clause to the jury. However, a wavier of jury trial on the issue of prior convictions cannot be implied from conduct.id: 13988
Before accepting defendant's admission of a prior conviction the court erred in failing to advise him of his right to confrontation and right not to incriminate himself.Before accepting defendant's admission of a prior serious felony conviction the court specifically and expressly told him he had a right to a jury trial, but did not tell him he had a right to confrontation and a right not to incriminate himself. The failure to give the defendant a sufficient advisement of his constitutional rights before accepting his admission necessitated a reversal and remand on that issue.id: 9883
Accepting an admission of prior convictions absent a waiver of the privilege against self-incrimination was reversible error.Before accepting defendant's admissions of three prior felony convictions for enhancement purposes, the court advised him of certain constitutional rights. However, the court's advisement neglected to mention that defendant would be giving up the right not to incriminate himself. The failure to obtain, on the record, a knowing and intelligent waiver of this right before accepting defendant's admission of prior convictions was per se reversible error.id: 9878
The enhancements for two prior convictions for a serious felony were not brought separately.The two five year enhancements pursuant to Penal Code section 667(a) for armed robbery and kidnapping occurred on the same date and were thus insufficient for enhancement purposes. The charges were not brought separately, but were made in a single complaint.id: 13985
Triple hearsay statements in the probation report did not establish that defendant personally used a weapon for the prior assault with a deadly weapon conviction as required for the enhancement under section 667 subdivision (a).A Penal Code section 245 subdivision (a)(1) conviction can only constitute a prior serious felony (within the meanings of section 667 subdivision (a), and 1192.7 subdivision (c)(23)) if the prosecution properly pleads and proves that defendant personally used a deadly or dangerous weapon in the commission of the offense. The proof offered in the instant case was insufficient where the assertion used to impose the additional five-year prison term not only did not come from the defendant's mouth, but constituted hearsay thrice removed<197>an assertion by the sheriff, reported by the probation officer that the victim told him (the sheriff) that defendant held a knife to the victim's back.id: 13993
Court's legal conclusion characterizing the present offense as a serious felony was premature.In pleading no contest to a charge of assault with a deadly weapon, defendant admitted that he used a metal pipe. The trial court's legal conclusion that defendant's conduct qualified as a serious felony within the meaning of Penal Code sections 667 and 1192.7 was stricken as premature. However, defendant's admission that he personally used a deadly or dangerous weapon may stand.id: 13949
Honorable discharge from the CYA made defendant's crime a misdemeanor for all purposes.Defendant was convicted of residential burglary. In a separate court trial, the court found to be true three prior felony convictions alleged pursuant to Penal Code section 667. However, one of those priors had to be reversed because after he had been honorably discharged from the California Youth Authority, the conviction became a misdemeanor for all purposes.id: 13960
Life without parole sentence under section 667.7 did not apply where appellant's prior out-of-state robberies did not require an intent to steal.Penal Code Section 667.7 permits out-of-state prior convictions to be used for enhancement purposes only if the out-of-state offense includes all of the elements of the offense under California law. Appellant's prior robbery conviction in Colorado could not be used to enhance the sentence because the definition of robbery in Colorado does not require an intent to steal. Similarly, appellant's three Missouri robbery convictions could not be used because intent to steal also is not an element of the crime of robbery under Missouri law. Because he had not served the requisite two prior prison terms for violent felonies, section 667.7 was inapplicable and the sentence of life without possibility of parole was set aside.id: 13966
Appellant could not be retried on priors after the court erred in prematurely discharging the jury before the issue of the priors was tendered to it.Appellant was charged with having suffered five felony convictions. She denied the allegations, did not waive her right to a jury trial, and did not request a bifurcated trial. After the verdict on the principal charge was read, the court discharged the jury. The court received evidence and made findings as to the priors the following day. Appellant was denied her right to have a jury determine the prior felony conviction allegations and the denial invalidated the court's findings that the priors were true. Moreover, appellant cannot be retried on the alleged prior convictions. When the trial court improvidently discharged the jury before the issue of the prior convictions was tendered to it, double jeopardy considerations prohibited the impaneling of a new jury to try the issue of the priors.id: 9882
The court struck the legal conclusion that the instant assault would qualify as a serious felony because that finding was premature.Appellant was charged with assault with a deadly weapon on a peace officer. The prosecutor further alleged that defendant personally used a deadly weapon within the meaning of Penal Code sections 667 and 1192.7. No prior serious felony pursuant to those sections was alleged. The abstract of judgment showed the court found true the personal use allegation. The legal conclusion that appellant committed a serious felony was stricken because resolution of that legal issue was premature. The factual finding of personal use was allowed to stand.id: 13984
Yurko error was reversible notwithstanding a signed waiver of rights in the file of his 1979 case.Prior to accepting defendant's admission to the prior prison term enhancements there was no mention of the right to trial by jury, of confrontation, or against self-incrimination, and no mention of the maximum penalty. The People conceded the <U>Yurko</U> error but argued it was harmless because the court admitted into evidence a certified copy of the file including a signed waiver of rights. However, the failure to admonish defendant of his constitutional right to a jury trial and obtain a waiver thereof before accepting his admission was reversible error.id: 14000
Defendant's admission of the prior federal bank robbery conviction was improperly induced by the court's misrepresentation that his ability to appeal the legality of the prior was preserved.There was a question as to whether defendant's federal bank robbery conviction constituted a serious felony within the meaning of Penal Code section 667, subd. (a). The trial court was incorrect in advising defendant that his admission preserved the right to appeal the issue. Since it was clear that defendant only admitted the enhancement allegation after being assured that he could appeal the issue, his admission was improperly admitted and constituted grounds for reversal.id: 13950
Prison term may not be enhanced both for a prior conviction and for a prior prison term imposed for that conviction.Penal Code section 667 prior serious felony conviction enhancements and section 667.5, subdivision (b) prior prison term enhancements cannot separately be imposed for a prior serious felony conviction and the prior prison term served therefor. When multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one will apply.id: 13976
Admission of prior convictions was defective where record showed defendant was aware of his constitutional rights but not that he was prepared to waive them.Defendant's admission of the prior felony convictions was not voluntary and intelligent under the circumstances. There was no doubt defendant was aware of his right to a jury trial, his right to confront witnesses and his right to remain silent, all of which he had just exercised in trial. What was impossible to determine from the silent record was whether he was not only aware of the rights but was also prepared to waive them as a condition to admitting the prior offenses. The matter was remanded to determine the validity of the priors.id: 9880
Trial court made no finding that the priors had been proved.The attorney general argued the trial court exceeded its authority in staying the sentence on the Penal Code section 667 prior felony conviction enhancement. Appellant argued the People's failure to object in the trial court precluded them from raising the issue on appeal. However, there was a more fundamental defect. Section 1158 requires that whenever a previous conviction is charged in a pleading the judge must find whether defendant suffered such conviction. When the trier of fact fails to make a finding the effect is the same as a finding of not true. Here the court made no finding. The court's acquiescence to the clerk's suggestion "you are going to stay the priors" was not an implied judicial finding the priors had been proved.id: 13991
Court erred in imposing a concurrent three year enhancement based on defendant's prior federal narcotics conviction.Health and Safety Code section 11370.2, subd. (b), provides that one convicted of manufacturing or conspiracy to manufacture a controlled substance under section 11379.6, shall receive a consecutive three-year term for a prior conviction under certain specified sections of the California Health and Safety Code. This section does not authorize a court to impose a three-year consecutive enhancement for a prior foreign controlled substance conviction. The court therefore erred in imposing the conviction based on defendant's prior federal court conviction of conspiracy to possess and distribute narcotics.id: 13942
Single prior robbery conviction cannot support a section 667 and a section 667.5, subdivision (b) enhancement.Based on a single prior conviction for robbery in 1986, defendant's sentence was enhanced under both Penal Code section 667 (5 year prior serious felony enhancement) and section 667.5, subdivision (b) (prior prison term). However, in such a case only the greater enhancement of five years under section 667 for the robbery was proper. The lesser enhancement must be stricken.id: 13980
Where multiple enhancement provisions are available for the same prior, one of which is a section 667 enhancement, only one may be imposed.The trial court erred in imposing five year enhancements under both Penal Code section 667, subdivision (a) and 667.6, subdivision (a) (prior convictions of certain serious sex offenses) for the same 1984 rape conviction. Section 667.6, subdivision (a) applies to a set of facts included within the ambit of section 667. Moreover, in enacting section 667 when section 667.6 was already law, the voters undoubtedly did not intend the two enhancements to be cumulative.id: 13997
Yurko error was prejudicial where there were no admonitions or waivers and the record did not show defendant knew of his rights.The trial court erred under <i>In re Yurko</i> (1974) 10 Cal.3d 857, by failing to obtain a voluntary and intelligent waiver of defendant's constitutional rights before he admitted a prior conviction. The People argued the error was harmless because there was no reasonable probability that the defendant would have denied the prior or that the prior would not have been found to be true. However, there were no admonitions or waivers whatsoever. The record did not show that appellant knew of his constitutional rights and voluntarily waived them in admitting the prior. Under the circumstances the admission was invalid.id: 13999
Waiver forms were insufficient to support jury's true findings regarding the alleged prior convictions.Evidence was insufficient to support the jury's finding regarding the two alleged prior convictions. The waiver forms ("Waiver on Plea of Guilty") introduced as evidence in support of the challenged priors established only that defendant intended to plead guilty and knowingly waived his constitutional rights, not that he actually pled no contest or guilty to the charges.id: 13996
Evidence did not support the section 667 enhancement because an assault with hands does not prove the personal use of a dangerous or deadly weapon.A conviction of assault under Penal Code section 245, subdivision (a)(1), is not necessarily a prior serious felony for purposes of the section 667 enhancement. In order for it to be so the prosecution must plead and prove defendant's personal use of a dangerous or deadly weapon. Defendant correctly argued his plea to the prior in the statutory language for felonious assault in the conjunctive and, specifically with his hands did not show the personal use of a dangerous or deadly weapon required for a serious felony. The dangerous or deadly weapon must be a an object or weapon extrinsic to the human body.id: 13955
A postverdict amendment to an information to add prior conviction allegations is not permissible before sentencing if the jury has been discharged.Under Penal Code section 1025, subd.(b), a defendant has the statutory right to have the same jury decide both the issue of guilt and the truth of any prior conviction allegations. Because the jury was discharged before the prosecution amended the information to add the additional priors, defendant did not have the same jury as required under section 1025, subd.(b). The court acted in excess of its jurisdiction by permitting the postdischarge amendment to the information.id: 15096
The section 667, subd.(a) enhancement was stricken as the current offense was not a serious felony, since the jury rejected the "great bodily injury" allegation even though it found defendant inflicted "serious bodily injury."Defendant was convicted of corporal injury on a cohabitant under Penal Code section 273.5. The jury rejected the enhancement allegation that he inflicted "great bodily injury" on the victim, although it convicted him of the additional charge of battery resulting in "serious bodily injury." The jury's finding of serious bodily injury was not the equivalent of a finding of great bodily injury, and the trial court was not at liberty to make what amounted to a legal determination that defendant inflicted great bodily injury. The finding violated defendant's right to a jury trial on the factual basis for imposing the section 667, subd.(a) enhancement. The five year enhancement imposed by the court was stricken.
id: 17848
Trial court erred in finding the mandatory terms of section 667, subdivision (a) deprives the court of discretion to grant probation.Imposition of a Penal Code section 667, subdivision (a) enhancement for a prior serious felony conviction does not deprive a trial court of its discretion to grant probation to a defendant who is otherwise eligible for probation.id: 16163
Court erred in denying defendant a jury trial on the prior conviction allegations but the error was harmless where identity was the only contested issue.The 1997 amendment to Penal Code section 1025, which added subdivision (c), did not eliminate the right to a jury trial on prior conviction allegations. However, it narrowed the issues that the jury must decide. Though subdivision (c) gives the question of identity to the court, the question of whether the alleged prior conviction ever occurred remains with the jury. The error in denying the jury trial was harmless under the <i>Watson</i> test where the defendant did not challenge that the prior convictions occurred, but rather challenged the issue of the identity of the perpetrator.id: 15013
Any error in instructing that defendant was the person in the 969b packet at the priors trial was harmless in light of the overwhelming evidence of identity.Defendant argued he had a constitutional right to a jury trial on the identity of the person in the Penal Code section 969b packet at the trial on the priors, and the court's instruction that he was the person in the packet violated due process and section 1025. While noting a possible problem, the court did not decide the issue since evidence of identity was overwhelming. Moreover, since the issue involved a fundamental constitutional right, the failure to raise it in the trial court did not waive the issue on appeal.id: 17203
Double jeopardy prevented the court from proceeding on the prior conviction allegation after having dismissed the jurors before obtaining a waiver of a jury trial on the issue.After the verdict was returned, the trial court dismissed the jury. Both counsel and the court agreed to have the hearing on the prior felony conviction (Penal Code section 6675.5, subdivision (b)) the following day. However, double jeopardy prevented the court from proceeding on the prior, having dismissed the jurors before obtaining defendant's waiver of trial on the issue.id: 12000
Trial court prejudicially erred in taking the prior conviction allegation waiver and admissions in a summary manner.Following the trial on the substantive charges the trial court asked whether defendant waived his right to a trial on the prior conviction allegations. The record did not reflect he was ever advised fully or even in a summary fashion as to the nature of the rights he was giving up by his decision to waive trial and admit the priors. The error was prejudicial given the grave consequences of the serious/violent felony prior alleged in the case.id: 11575
Trial court erred in accepting defendant's spontaneous admission of the prior convictions without obtaining an intelligent waiver of his constitutional rights.After the guilty verdict on the underlying offense, defense counsel said defendant was willing "waive jury" on the issue of the prior conviction. Defendant blurted out that he was guilty of the prior which was charged as a strike and a five year prior. The court responded "That plea is accepted." However, the court erred in accepting an admission of the prior without obtaining an intelligent waiver of his constitutional rights. There was no mention of the right of confrontation or the privilege against self-incrimination. While the right to a jury trial was earlier mentioned it was never waived. Finally, defendant did not explicitly admit the prior (he was stopped by the court in mid-sentence) and he was not told of the consequences of an admission. The matter was remanded to determine the truth of the allegation.id: 16564
Inadequate admonitions regarding the admission of prior convictions required a new trial concerning truth of the priors for sentencing but did not affect the section 666 conviction.Defendant was charged with two counts of petty theft with a prior conviction pursuant to Penal Code section 666. Prior to trial he admitted the two priors for section 666 purposes. The court's inadequate admonitions required a new trial on the truth of the priors. Defendant was never advised of his privilege against compulsory self-incrimination and his right to confront accusers and he never expressly waived those rights. Moreover, he was never informed of the penal consequences of his admission of the priors. The failure to properly admonish required a reversal of the sentence imposed under the three strikes law, but not the section 666 conviction. Remand was necessary to properly determine the truth of the charged priors.id: 9389
Court prejudicially erred in failing to obtain waivers on the right to confront witnesses and the privilege against self-incrimination before accepting admissions on the prior strikes.Defendant's admissions of his prior felony convictions were invalid because he was not advised of his right to confront witnesses and his privilege against self-incrimination. Because all of the court's sentencing decisions were based on the premise this was a third strike case, the failure to obtain a proper admission of the first two strikes required a reversal of the sentence and a remand for a trial on the priors.id: 9383
Findings on the allegations of the strike priors were reversed where defendant was not advised of the right to remain silent or confront his accusers.Defendant admitted two prior convictions for use as strikes and serious felony allegations. He was advised of and expressly waived his right to a jury trial on the allegation of the priors. However, there was no advisement of the right to confront his accusers or the right to remain silent. The true findings as to the priors were reversed.id: 9388
Trial court erred in refusing appellant's request to bifurcate the trial of guilt from the trial on the drunk driving priors.Appellant was charged with driving under the influence of alcohol with three or more priors (Vehicle Code sections 23152 subdivision (a) and 23175). The prior offender status under section 23175 is not an element of the crime but an enhancement. Therefore, the trial court erred in refusing appellant's request to bifurcate the trial of guilt from the trial on the priors. However, appellant's conviction on the substantive charge need not be reversed because he admitted his prior convictions, and they were not revealed to the jury in the trial on the issue of guilt.id: 10628
Informing the jury of appellant's prior auto theft conviction required reversal where appellant had stipulated to the prior.Appellant was convicted of illegal taking or driving of a vehicle with a prior conviction for the same offense (Penal Code section 666.5). Section 666.5 provides for enhancement of the sentence rather than defining a new offense. Consequently, the prior Vehicle Code section 10851 conviction was not an element of any offense charged here, and Article 1, section 28, subd. (f) did not require that it be proven to the trier of fact. Penal Code section 1025 provides that when such a prior conviction allegation is admitted before trial the jury is not to be informed of the charge or admission. The error was prejudicial since the People's case on the substantive charge was less than overwhelming on the single controverted issue, intent to deprive the owner of possession.id: 10441
Updated 3/7/2024SB 1393 applies retroactively. Senate Bill 1393 applies retroactively and defendant’s case was remanded to allow the sentencing court discretion to strike his prior serious felony conviction imposed under Penal Code section 667, subd. (a).id: 26301
Updated 3/6/2024Defendant was not entitled to a remand under SB 1393 so that the court could consider striking his five year prior conviction enhancement under section 667 (a) where his sentence resulted from a negotiated plea.Defendant pled no contest to forcible rape and admitted prior felony convictions. He was sentenced to 17 years pursuant to the negotiated plea. Defendant later sought remand under newly enacted SB 1393 to have his admission to the five year prior conviction reversed. However, because the sentence resulted from a negotiated plea, defendant was not entitled to a remand under the new law.id: 26519
Updated 3/6/2024SB 1393 does not apply to final convictions.Senate Bill 1393 gives the trial courts discretion to strike prior serious felony enhancements. The law applies retroactively on appeal to nonfinal convictions but does not apply to final convictions.id: 26657
Updated 3/5/2024No remand under section 1393 was required as it would be futile given the trial court’s acceptance of the plea bargain that included five years for the serious prior felony.Defendant entered a plea that included a nine year term. He later filed for relief under Penal Code section 1393, which became effective after his plea bargain, seeking resentencing in an effort to have the court strike his serious prior felony under section 667 (a). However, remand would have been futile here. The record showed the trial court had the authority initially to reject the plea bargain if it believed the five year enhancement was overly harsh. There was no reason to believe the court would strike it on remand if given the opportunity.id: 26797
Updated 2/26/2024A defendant sentenced before SB 1393 must obtain a certificate of probable cause before seeking a remand for resentencing under the new law.Under SB 1393, trial courts have the discretion to strike prior serious felony conviction enhancements (Penal Code section 667, subd.(a)) in the interest of justice. Defendants who entered plea agreements must obtain a certificate of probable cause before asking, on appeal, for a remand for resentencing under SB 1393. id: 26282
Updated 2/24/2024Remand was not required to allow the court to dismiss the five-year prior serious felony enhancement, but it was required to allow the court to dismiss the gun enhancement under SB 620.The trial court did not err by refusing to dismiss defendant’s five-year prior serious felony enhancement. Resentencing was not required where the court indicated at the original sentencing that it would not dismiss the prior even if it had the authority to do so. Resentencing was required to allow the court the opportunity to dismiss the firearm enhancement under SB 620 where the sentencing court made no statement about what it would do if it had discretion to dismiss the enhancement.id: 26600
Updated 2/1/2024The CDCR, and not defendants, must initiate the action to resentence a defendant under SB 483.Years after defendant’s case became final the Legislature changed the enhancement laws invalidating the one year Penal Code section 667.5(b) prison priors and giving the courts discretion to dismiss the five year serious felony priors under section 667(a). Defendant filed a pro per petition for resentencing under SB 483. However, his petition was properly denied as the law requires that the action be initiated by the CDCR.id: 27909
Following a guilty plea, the defendant could not seek resentencing under SB 1393 without first obtaining a certificate of probable cause. Defendant pled guilty to certain offenses and was sentenced to 19 years in prison. He argued the case should be remanded under SB 1393 so that the court could decide whether to strike or dismiss prior serious felony convictions. However, the appeal was dismissed because defendant did not obtain a certificate of probable cause.id: 26207
Remand under SB 1393 was not required where the sentencing court indicated it would not have dismissed the prior serious felony even it had discretion to do so.Defendant asked for a remand following the enactment of SB 1393, so that the trial court could exercise its discretion to strike a prior serious felony allegation. However, such a remand would be futile in this case where the sentencing court imposed the upper term and made it clear it would not dismiss defendant’s prior serious felony even if it had discretion to do so.id: 26218
Defendant’s appeal seeking a remand under SB 1393 was dismissed where the parties had agreed to the 18 year sentence as part of the plea bargain and defendant did not obtain a certificate of probable cause.Defendant was a three strikes offender who pled guilty to residential burglary plus enhancements, agreeing to an 18 year sentence. He later sought to appeal the sentence seeking a remand to allow the trial court to exercise its discretion to dismiss the prior serious felony conviction enhancements under the newly enacted SB 1393. The appeal was dismissed where defendant did not obtain a certificate of probable cause.id: 26099
Senate Bills 620 and 1393, which became effective while defendant’s case was pending on appeal, provide the trial court with discretion to strike firearm and serious felony prior enhancements, and even though the court was unsympathetic to defendant at sentencing, remand was ordered to allow the court to exercise its discretion.Defendant was convicted of murder and the jurors found he had a prior serious felony conviction , and that he personally used a firearm in the killing. While his appeal was pending, the legislature enacted Penal Code section 12022.53, subd. (h), which gives trial courts discretion to dismiss firearm enhancements in the interest of justice. The legislature also passed SB 1393, which gives the trial courts discretion to dismiss five-year prior serious felony enhancements under section 667, subd. (a). The law applies retroactively to the defendant’s case. Even though the trial court made comments at sentencing suggesting a lack of sympathy for the defendant, the defense never had the opportunity to argue for dismissal of the firearm use enhancements, or his prior serious felony enhancement. The matter was remanded for sentencing out of an abundance of caution.id: 26059
Vehicle Code section 41403 does not permit a defendant to move to strike a prior conviction in a drunk driving case based on the ineffective assistance of counsel.In Garcia v. Superior Court (1997) 14 Cal.4th 953, the court found that a defendant could not move to strike a prior conviction alleged as an enhancement, on the basis of ineffective assistance of counsel in the prior case. Contrary to defendant’s claim, Vehicle Code section 41403, which provides procedural rules for authorized challenges, does not allow a different result.id: 25207
Defendant’s felony forcible rape juvenile adjudication in 1980, proved by a probation report, disqualified him for Prop 47 relief.The trial court found defendant was ineligible for Prop 47 relief because of a felony forcible rape juvenile adjudication. The hearsay statements in the probation report presented to the court were sufficiently reliable to be admissible. The forcible rape adjudication was a disqualifying prior because it was a “super strike,” it is an offense listed in Welfare and Institutions Code section 707, subd.(b), and it is a serious and violent felony.id: 25084
Recidivism enhancements were properly added to each count for a second strike offender under the three strikes law. Defendant was convicted of several counts stemming from a shooting incident including possession of a firearm by a felon and attempting to elude a pursuing officer. He argued the trial court erred by adding enhancements for prior prison terms (Penal Code section 667.5) and prior serious felony (section 667, subd.(a)) for both of those counts because the enhancements should only have been added once - to the base term. However defendant was convicted and sentenced under the three strikes law and the intent of the law was to impose recidivism enhancements for every qualifying offense for both second and third strikers.id: 24006
The five year serious felony enhancement may be added only once to multiple determinate terms imposed as part of a second-strike sentence. Defendant with a single strike prior was convicted of several current offenses. The trial court erred by adding a Penal Code section 667, subd.(a), to each of the defendant’s determinate terms. The enhancement may be added just once to second strike sentence.id: 24064
A prior serious felony enhancement must be applied to each term imposed under the three strikes law, whether for a second strike offense or a third strike offense. Defendant argued the trial court erred by imposing a prior serious felony enhancement (Penal Code section 667, subd.(a)) to multiple determinate terms imposed under the three strikes law, as part of his stayed sentence under the one strike law. However, a prior serious felony enhancement must be applied to each term imposed under the three strikes law, whether for a second offense or a third strike offense.id: 23488
Defendant’s prior Washington convictions constituted sentencing factors that did not need to be pled or proven to render him ineligible for county jail under the Realignment Act.Defendant pled guilty to drug possession. He argued that he should have been sentenced to county jail rather than prison, under the Criminal Justice Realignment Act of 2011, because his prior convictions in Washington were neither pled nor proven to a jury. However, the prior Washington convictions were sentencing factors that did not need to be pled and proven to a jury to render him ineligible for county jail.id: 23035
The trial court did not err in using a prior felony that had been reduced to a misdemeanor to add five years under section 677, subd. (a), and double the sentence under the three strikes law.The trial court did not err by imposing a five year enhancement under section 667, subd.(a) even though the prior serous felony conviction had been reduced to a misdemeanor and dismissed. Neither did the trial court err by refusing to dismiss the prior for purposes of the three strikes law where it had already dismissed the other strike prior to double defendant’s sentence.id: 23114
The admission of certified records to prove defendant’s prior convictions did not violate his right of confrontation.The admission of the Penal Code section 969b packet to prove defendant’s prior convictions and prison terms did not violate his right to confront and cross-examine witnesses following Melendez-Diaz.id: 22042
By failing to object at sentencing, defendant forfeited his claim regarding the trial court’s failure to advise him about the penal consequences of his admission of a prior conviction.Defendant forfeited the argument that the trial court erred by failing to advise him of the penal consequences of his admission. Unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally required. Consequently, the error is forfeited if not raised at or before sentencing.id: 22283
Admitting certified records of prior convictions did not violate the confrontation clause because the records were not prepared for the purpose of providing evidence in criminal trials.Defendant argued the admission of certified records of his prior convictions violated his confrontation clause rights under Melendez-Diaz. However, the documents in the Penal Code section 969b packet are not testimonial in nature and are prepared for other purposes in the ordinary course of other business of the courts and prison system.id: 22153
The trial court erred by imposing a five year enhancement for a prior that gave rise to a prison term. The trial court erred by imposing both a consecutive five year enhancement under Penal Code section 667, subd.(a)(1) for the felony conviction which gave rise to the prior prison term, and the one year enhancement under section 667.6, subd.(b) for that prior prison term. The court should have stricken rather than stayed the one-year enhancement.id: 22187
Admission of “prison packets” to prove prior convictions did not violate the confrontation clause.In proving defendant’s prior convictions, the prosecution relied upon certified copies of defendant’s “prison packets.” Admission of the packets did not violate the confrontation clause following Melendez-Diaz because they were prepared for administrative purposes rather than to prove a fact at trial. id: 22185
Melendez-Diaz did not require that the prosecution authenticate the prior fingerprints with testimony from the technicians who took those fingerprints.Defendant argued the prosecution failed to properly prove his prior convictions and prison term because it relied on a fingerprint expert who compared the prints taken by other technicians in the prior and present case. However, there was no Melendez-Diaz violation because the work of the technicians who took the fingerprints in the earlier proceedings and record the results was not “testimonial” under the Sixth Amendment. id: 22132
The trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony for strikes purposes.The trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony as defined by Penal Code section 1192.7, subd,(c)((23) because the conduct that made the prior conviction a felony (interfering with the victim’s civil rights) differed from the conduct that made the prior conviction a serious felony (personally using a deadly or dangerous weapon).id: 22134
Where a defendant challenges the constitutional validity of a prior conviction, the defendant must prove such invalidity by a preponderance of the evidence. In an earlier opinion in this case, Curl v. Superior Court (1990) 51 Cal.3d 1292, the court determined that a defendant does not have a right to a jury trial on the constitutional validity of prior conviction and bears the burden of proving such invalidity by a preponderance of the evidence. Neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v. Arizona (2002) 536 U.S.584, superseded or overruled the earlier decision. id: 20973
By failing to object, defendant forfeited the claim that the court erred by failing to advise him about the consequences of his admission of a prior arson.The trial court erred in failing to inform defendant of the direct consequences of his admission of a prior arson offense. He also claimed the trial court failed to consider additional mitigating factors before imposing sentence. However, defendant forfeited these claims due to his failure to object at or before sentencing. The court refused to review the issues based upon the ineffective assistance of counsel where the record did not show why counsel failed to object, and counsel may have had valid reasons for not objecting.id: 20920
Where five priors were not “brought and tried separately” as required by section 667, subd.(a), the trial court properly imposed but stayed four of the five enhancements.Defendant was charged with one count of robbery along with allegations that he had suffered five prior convictions within the meaning of Penal Code section 667, subd.(a)(1). All five priors arose from a single prosecution in 1997 and therefore were not “brought and tried separately” as required by section 667, subd.(a)(1). Defendant argued that the court could only find one allegation to be true. However, the “brought and tried separately” requirement only restricts the number of five year terms to be served rather than the number of allegations the court may find true. The trial court properly imposed but stayed four of the five enhancements.id: 20828
The trial court had jurisdiction to reconvene the jury to conduct the trial on the prior conviction even though it had just announced that the jury was excused.After the verdict on the substantive counts the trial court excused they jury. However, before the jury left the box, the prosecutor advised the court the jury was still needed for a trial on the prior convictions. Under the circumstances, the trial court maintained the jurisdiction to reconvene the jury since it had not been exposed to outside influences and there was no prejudice to defendant.id: 20684
The court properly struck the section 186.22, subd.(b) gang enhancement after using section 186.22 to find the improper discharge of a weapon under section 246.3 constituted a serious felony in order to impose the section 667, subd.(a) enhancement.Defendant argued the trial court erred in failing to submit to the jury the question whether his current conviction, discharge of a firearm in a grossly negligent manner, is a serious felony for purposes of the two enhancements - the gang enhancement under Penal Code section 186.22, subd.(b), and the section 667, subd.(a) prior felony conviction - each of which requires the current offense be a serious felony. Section 246.3 is not specifically listed as a serious felony, but may qualify under section 1192.7, subd.(c) if defendant personally used a firearm or committed a violation of section 186.22. The jury's true finding on the section 186.22, subd.(b) enhancement was tantamount to a finding that the offense was a serious felony, so the imposition of the section 667, subd.(a) enhancement was proper. However, imposing the section 186.22, subd.(b) enhancement under the circumstances would be an improper bootstrapping, and was not allowed.id: 18297
Despite the "without authority remains" language in the Illinois burglary statute the offense is the same as in California and the enhancement was proper.Defendant was charged with a prior serious felony conviction based on a residential burglary in Illinois. He argued that the enhancement was improper since a burglary in Illinois based on remaining within a building is not a burglary in California which requires unauthorized entries in all cases. However, one who remains in a building with the intent to commit a theft is also guilty of burglary in California. In this respect the elements of the crime are the same and imposition of the enhancement was proper. Even assuming his Illinois prior did not fall within the enhancement provisions, he would be estopped from challenging his admission of the prior.id: 13953
Supreme Court holds that a prisoner who claims conditions of confinement violate 8th Amendment must show a culpable state of mind on the part of prison officials.Petitioner, a state prisoner, alleged that the conditions of his confinement in inadequate and unsanitary prison facilities constituted cruel and unusual punishment. In an opinion written by Justice Scalia, the Supreme Court emphasized that the 8th Amendment only bans cruel and unusual <i>punishment</i>. If the pain inflicted is not formally meted out as <i>punishment</i> by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify. The court held that this mental element can be satisfied by showing deliberate indifference on the part of prison officials. The judgment was vacated and the case remanded for reconsideration. Justices White, Marshall, Blackmun and Stevens concurred in the judgment but dissented from the holding that prisoners challenging the conditions of their confinement must show deliberate indifference.id: 13982
The trial court did not err in denying the motion to bifurcate trial on the prison prior because the testifying defendant would have been impeached with evidence of the prior conviction anyway.Defendant argued the trial court abused its discretion when it
refused to bifurcate the trial on his prior convictions from the trial on his underlying convictions. However, in light of defendant's decision to testify, the court's ruling was not erroneous because he would have been impeached with the evidence of his prior conviction.id: 19507
The trial court improperly stayed the five year enhancement required by section 667, subd.(a)(1).Defendant waived his right to a jury trial in exchange for a maximum sentence of 15 years. He was convicted of three felonies in a court trial. The court then erred by staying the five year enhancement on the second serious felony conviction because a stay is not authorized under Penal Code section 667, subd.(a)(1). The matter was remanded to allow the court to restructure a permissible sentence subject to the 15 year maximum.id: 19142
Defendant was subject to the serious prior felony enhancement on the second strike offense even though he received a similar enhancement for the assault count. Defendant argued the trial court erred by imposing the Penal Code section 667, subd.(a) prior conviction enhancement twice - once for the determinate term imposed on the assault count and
again on the indeterminate term imposed on the torture count. Although defendant was a second strike defendant, rather than a third striker, he was nonetheless a recidivist, and was thus subject to a section 667, subd.(a) enhancement on the second strike offense even though he received a similar enhancement for the assault count.id: 19118
In light of defendant's waiver of a jury trial on the prison allegations, the court properly determined the current offense was a serious felony. Defendant argued the imposition of a five year enhancement under Penal Code section 667, subd.(a)(1) was unauthorized because the jury did not make a finding that his current offense was a serious felony. However, in light of defendant's waiver of a jury trial on the prior allegations, the trial court properly assumed the responsibility of determining whether defendant's current offense was a serious felony. Thus, the court was warranted in concluding that defendant's violation of section 243, subd.(d) was such a felony.id: 19091
A pre-Proposition 21 conviction for making a criminal threat was a serious felony under section 667, subd.(a), since it qualified as a serious felony at the time of the current offense.Defendant argued his pre-Proposition 21 conviction for making a criminal threat (Penal Code section 422) was not a serious felony under Penal Code section 667, subd.(a), because section 422 was not considered a serious felony before Prop 21, and as a matter of statutory interpretation, only convictions occurring after the passage of Prop 21 can constitute serious felonies. However, based upon the plain language of section 667, subd.(a), the crucial date for determining if a prior conviction qualifies as a serious felony is the date of the charged offense. At the time of defendant's current offenses, section 422 was listed as a serious felony under section 1192.7, subd.(c)(38).id: 18848
The trial court did not violate Crawford by admitting evidence of the preliminary hearing transcript as part of the record of conviction of defendant's prior serious felony.At the retrial on the prior conviction allegation, defendant argued the trial court violated the principles set forth in Crawford v. Washington (2004) 541 U.S. 36, and Shepard v. United States (2005) 125 S.Ct. 1254, by admitting evidence of the preliminary hearing transcript as part of the record of conviction of defendant's prior serious felony. However, the primary issue at the preliminary hearing was the same as the issue at trial - whether defendant negligently discharged a firearm. Defense counsel cross-examined the witness on that issue. The court did not err by admitting evidence of the preliminary hearing transcript as part of the record of conviction of the prior serious felony.id: 18689
All felony violations of the dissuading a witness statute, including those not involving force or threats, are serious felonies under section 1192.7, subd. (c)(37).Penal Code section 136.1, subdivisions (a) and (b) require that a defendant knowingly and maliciously prevent or dissuade (or attempt to prevent or dissuade) a witness from testifying. These offenses are wobblers. Subdivision (c)(1) adds force as an element of the offense and converts it to a straight felony. Defendant argued that only violations of section 136.1, subd. (c)(1) are violent felonies within the meaning of section 1192.7, subd.(c)(37). However, the court found that all felony violations of section 136.1 are serious felonies under that provision.id: 18259
Prop 21 addition to serious felony list applies to any felony offense committed to benefit a street gang under section 186.22, subd.(b)(1).Penal Code section 1192.7, subd.(c)(28) (added by Prop 21) which adds to the list of serious felonies "any felony offenses, which would also constitute a felony violation of section 186.22" does not apply only to the substantive offense of active participation in a criminal street gang defined in section 186.22, subd.(a). It also applies to any felony offense committed for the benefit of a criminal street gang, as defined in section 186.22, subd. (b)(1).id: 18179
Under the three strikes law, Penal Code section 667(a) enhancements are to be applied individually to each count of a third strike sentence.In People v. Tassell (1984) 36 Cal.3d 77, the court held that when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense. However, Tassell's holding does not apply to multiple indeterminate third strike sentences imposed under the three strikes law where a prior conviction enhancement may be added to the third strike sentence for each new offense.id: 18141
Defendant can voluntarily and intelligently admit a prior conviction under certain circumstances despite being advised and having waived only his right to a jury trial.When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised and waiving only the right to trial, that admission can be voluntary and intelligent even though the defendant was not told of, and thus did not waive, the concomitant rights to remain silent and confront adverse witness if the totality of the circumstances surrounding the admission supports the conclusion.id: 17967
Defendant has no right to a jury trial on the issue of whether he is the person whose name appears on documents admitted to establish the convictions.The trial court did not err under Apprendi v. New Jersey (2000) 530 U.S. 466, by instructing the jury at the time of the trial on the prior convictions that defendant "is the person whose name appears on the documents admitted to establish the convictions." A defendant has no right to a jury trial on whether he is the person whose name appears on the documents admitted to establish the convictions.id: 17285
The jury's true finding that defendant committed a strike prior is sufficient to support the section 667, subd.(a) enhancement when both are based upon the same prior conviction.Defendant argued the five year term imposed by the trial court for the 1992 burglary conviction under Penal Code section 667, subd.(a)(1) must be stricken because the jury failed to return a true finding for that allegation. However, a true finding by the jury that defendant suffered a prior serious felony conviction pursuant to section 1170.12, subd.(a), is sufficient to support imposition of an enhanced term under section 667, subd.(a), when both enhancements are based upon the same prior conviction.id: 16863
There is no doctrinal, constitutional, or fairness bar to retrial of a prior conviction allegation where the trial court's finding of "true" is found to be unsupported by substantial evidence on appeal.A prior serious felony allegation may be retried where appellate review has determined the trial court erroneously found sufficient evidence to sustain a true finding at the first trial. The retrial does not violate principles of double jeopardy, res judicata, collateral estoppel, law-of-the-case or fundamental fairness.id: 16617
Service of two prison terms concurrently did not preclude imposition of two separate enhancements.The service of two prison terms concurrently did not preclude imposition of two separate enhancing terms (Penal code section 667 and 667.5) where there were two separate crimes, two separate prior convictions, and perforce two separate acts.id: 16433
Grand theft of a firearm is a grand theft involving a firearm for purposes of section 1192.7, subdivision (c).Defendant argued his prior conviction for grand theft firearm (former Penal Code section 487.3) was not a serious prior felony under section 1192.7, subdivision (c)(26). That section provides "grand theft involving a firearm" is a serious felony. However, contrary to defendant's argument, grand theft of a firearm is a theft involving a firearm, and the enhancement was proper.id: 16238
Denial of statutory right to a jury trial on prior conviction allegations is subject to harmless error analysis.Denial of the statutory right to a jury trial on prior conviction allegations is subject to harmless error analysis. The error was harmless (under any harmless error analysis) in the present case where the evidence strongly supported the determination that defendant suffered the prior convictions.id: 15930
Trial court did not err in reconsidering its ruling on the validity of defendant's 1975 prior conviction.On April 29, 1997, the trial court denied defendant's motion to invalidate the 1975 prior conviction. On May 2, 1997, after a guilty plea, the court found the prior allegation true. On June 10, 1997, defendant filed a motion to reconsider the validity of the plea. On July 17, 1997, the court granted the motion and reversed its prior ruling. Contrary to the People's argument, the court did not lack power to reconsider its finding under Code of Civil Procedure section 1008. The record established a proper exercise of due consideration, and the court appropriately chose to exercise its inherent power to reconsider.id: 15851
Trier of fact may consider the appellate court record in determining whether an out-of-state conviction qualifies as a prior serious felony conviction.In determining where an out-of-state conviction qualifies as a prior serious felony conviction under the California law, the trier of fact may look to the entire record of conviction but no further. The record of conviction is not limited to the trial court record but extends to the appellate court record, including the appellate opinion. The jury was therefore entitled to consider the appellate opinion to help determine whether the assault conviction was based upon personal use of a deadly weapon.id: 15215
Dismissing the manslaughter prior for strike purposes was not a dismissal for all purposes and imposition of the five-year enhancement was mandatory.The trial court believed that because it had stricken the manslaughter conviction for three strike purposes, the conviction was stricken for all purposes including imposition of the five-year enhancement pursuant to Penal Code section 667, subdivision (a). Defendant's admission of the prior conviction, the truth of which the court recognized when it struck the prior conviction, negated the necessity of an express finding by the court. Because imposition of the five-year enhancement was mandatory, the matter must be remanded with directions that the court impose the enhancement.id: 15174
The court, rather than the jury, determines whether a conviction is a serious felony for three strikes purposes.Pursuant to Penal Code sections 1025 and 1158, the trial court, not the jury, determines whether a prior felony conviction qualifies as a "serious felony" for purposes of the three strikes law.id: 15183
The trial court did not abuse its discretion in granting the prosecutor's motion to bifurcate the trial on the strike priors.Before trial, defendant informed the court he wished to have the prosecution prove the truth of the prior conviction allegations as part of the prosecution's case-in-chief. The trial court then granted the prosecutor's request for a bifurcated trial. The trial court has discretion under Penal Code section 1044 to bifurcate the trial. A defendant has no right to a unitary trial and no right to jury nullification. While the court could not grant such a motion based only on a generalized concern that a jury might exercise nullification, the court was entitled to consider prejudice to the defendant from having the jury learn of his 12 prior convictions in a unitary trial. There was no abuse of discretion in granting the motion to bifurcate.id: 15188
Neither res judicata nor collateral estoppel bar the retrial of a prior conviction allegation after reversal on the ground of insufficient evidence.It is well settled that the doctrine of double jeopardy will not bar the retrial of a prior conviction allegation after reversal on the ground of evidentiary insufficiency. The court in the present case found that neither do the doctrines of res judicata or collateral estoppel preclude such a retrial. Moreover, the doctrine of law of the case will be ineffective to prevent a true finding upon retrial, provided that the prosecution at such retrial, presents additional evidence beyond that previously found to be insufficient.id: 14988
Apprendi did not transfer defendant's right to a jury trial on the priors from a statutory right into a constitutional right.Defendant argued that <i>Apprendi v. New Jersey</i> (2000) 530 U.S. 466, entitled him to relief because his right to a jury trial of the alleged prior strike convictions is now a right of constitutional dimension. However, the right to a jury trial to determine the fact of a prior conviction derives solely from California statutory law.id: 15012
Retrial on the prior assault conviction following a reversal for insufficient evidence was not barred by double jeopardy, res judicata or law of the case.In an earlier opinion the Court of Appeal determined the evidence was insufficient to support the trial court's finding that defendant had suffered a prior serious felony conviction for assault under Penal Code section 245, subd.(a)(1), which qualified as a strike under the three strikes law. The court reversed the sentence and remanded the matter for a retrial on the prior conviction allegation. The principles of res judicata, law of the case, and double jeopardy whether singularly or in combination, do not preclude a new trial on the issue of whether defendant personally used a dangerous or deadly weapon in committing the crime underlying his prior assault conviction.id: 14984
Court may not invalidate a prior conviction on Boykin-Tahl grounds without complying with the Sumstine/Allen procedures.The trial court determined the alleged federal prior conviction for bank robbery was not true because the prosecution failed to prove the validity of the <i>Boykin-Tahl</i> waiver at the time of the guilty plea. However, the prosecution is not required to prove, as an element of the "truth of a prior conviction" the validity of the underlying change of plea because such a challenge can only be made pursuant to the procedures set forth in <i>People v. Sumstine</i> (1984) 36 Cal.3d 909, and <i>People v. Allen</i> (1999) 21 Cal.4th 424.id: 14942
Trial court did not err in failing to state reasons for imposing consecutive sentences pursuant to section 667, subdivision (a).The trial court did not err in failing to state reasons for imposing consecutive sentences on the prior conviction enhancements under Penal Code Section 667, subdivision (a). Imposition of the enhancements for the prior serious felony convictions is mandatory. There being no sentencing choice, no statement of reasons was necessary.id: 13989
Trial court had no discretion to consider imposition of the enhancements pursuant to section 667.5, in lieu of that described in section 667, subdivision (a).Appellant was charged with five priors under Penal Code Section 667, subdivision (a). Following his admissions under the plea bargain and the court's findings as to the five prior serious felony convictions, imposition of sentence under section 667, subdivision (a) was mandatory. The service of a prison term for a felony enhancement within the meaning of section 667.5, subdivision (b), is not an alternate sentencing scheme or lesser included enhancement of the five-year section 667, subdivision (a) enhancement.id: 13990
Trier of fact may consider the record of the prior out-of-state conviction to determine whether the section 667, subdivision (a) enchancement has been established.The trier of fact may look beyond the statutory elements of a crime of which a defendant was convicted in another state and may consider the entire record of the proceedings leading to imposition of judgement on the prior conviction to determine whether the enhancement pursuant to Penal Code section 667, subdivision (a) has been established.id: 13992
Two prior serious felony enhancements were proper where the cases were brought and tried separately notwithstanding that the conduct occurred over a short period of time and one court was tried in both trials.In 1980 defendant was tried for several counts of robbery in two separate trials. The first trial resulted in conviction on several counts, but a hung jury as to the last count. A mistrial was declared as to that count. The People amended the information for the second trial to include that count with the new charges. Defendant was convicted on all counts at the second trial. Under the circumstances, defendant incurred two prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a). Moreover, imposition of the two enhancements did not amount to a denial of equal protection notwithstanding defendant's argument that he was similarly situated with these recidivists who committed crimes over a short period of time and had cases tried together.id: 13994
Two unrelated prior convictions which were distinctively adjudicated by plea at the same time based upon separate complaints were brought and tried separately for purposes of section 667.Defendant's two 1988 burglary convictions - which were distinctively adjudicated by plea at the same time based upon separate complaints - were brought and tried separately for purposes of imposing two enhancements under Penal Code section 667. The priors involved unrelated separate criminal incidents and originated in separate complaints. The mere fact that defendant, pursuant to a plea agreement, entered pleas to both offenses in one proceeding, and was later sentenced for both offenses in another proceeding, did not overcome the conclusion that the offenses were brought and tried separately.id: 13995
Yurko error is not reversible per se.The trial court committed Yurko error in failing to advise defendant regarding his privilege against self-incrimination before accepting his admission that he had served a prison term for burglary within the preceding five years. However, the error did not require reversal where defendant was admonished as to other rights, he was actively represented by counsel, and there was a strong factual basis for the plea.id: 13998
Evidence supported the five-year enhancement for the assault prior despite the original sentencing court's failure to impose a term for the GBI enhancement.In order for defendant's prior assault conviction to justify the five-year enhancement term imposed under Penal Code section 667, subdivision (a), he must have personally inflicted great bodily harm during the crime. He argued that because the court that sentenced him for the 1983 assault stayed the term for the serious bodily injury enhancement, it cannot now be used as a basis for the current section 667, subdivision (a) enhancement. However, despite the original sentencing court's failure to impose a term for the section 12022.7 enhancement, the enhancement was still found to be true.id: 13956
For purposes of imposing the section 667, subdivision (a) and section 667, subdivision (b) enhancements the underlying convictions need not be based on charges brought and tried separately and defendant need not serve separate prison terms.The trial court did not err in imposing a five-year enhancement pursuant to Penal Code section 667, subdivision (a)(1) based on defendant's prior robbery conviction, and a one-year enhancement pursuant to section 667.5, subdivision (b) based on defendant's prior conviction for second degree burglary and resulting prison term. This is so because the enhancements were based on different offenses. There was no requirement that the underlying convictions be based on charges which were brought and tried separately nor that defendant served separate prison terms for those convictions.id: 13957
Gross vehicular manslaughter while intoxicated or otherwise is a serious felony under section 667 if defendant inflicts great bodily harm.By virtue of Penal Code section 1192.7, subdivision (c)(8), either gross vehicular manslaughter while intoxicated (Penal Code section 191.5) or gross vehicular manslaughter other than while intoxicated (section 192, subdivision (c)(1)) will be a serious felony for purposes of the section 667 enhancement if in the commission of the crime the defendant personally inflicted great bodily injury on any person other than an accomplice. Section 1192.7, subdivision (c)(8) does not require that defendant specifically intended to inflict the injury. Moreover, the infliction of the injury need not be explicitly charged or explicitly found true in the prior proceeding to qualify as a serious felony under section 667. Relevant <U>portions</U> of a properly authenticated preliminary hearing transcript in the prior proceeding will be admissible to prove that in the commission of the prior felony the defendant personally inflicted the injury.id: 13958
Honorable discharge from CYA following a conviction in adult court does not preclude later use of that conviction for a serious felony enhancement.A felony conviction of a minor in adult court, followed by successful completion of a commitment to the California Youth Authority and honorable discharge working a release from all penalties and disabilities pursuant to Welfare and Institutions Code section 1772, may support a five-year serious felony enhancement of a sentence upon a later conviction.id: 13959
Imposition of enhancements for a prison prior and serious felony prior were proper where the two priors involved separate convictions resulting from a joint trial.In <i>People v. Jones,</i> (1993) 5 Cal.4th 1142, the court held Penal Code section 654 prohibited multiple enhancements where the prior prison term and the serious felony prior enhancements were based on the same conviction. However, this holding does not preclude the imposition of a prison prior enhancement for a term served when a serious felony enhancement is imposed for a conviction of a separate crime where the two convictions resulted from a joint trial.id: 13961
Imposition of prior prison term and prior serious felony enhancements for 1987 conviction was not improper where the enhancements referred to multiple offenses.Defendant argued the trial court erred in imposing enhancements for both Penal Code section 667.5, subdivision (a) (three-year enhancement for a prior prison term for a violent felony conviction) and section 667, subdivision (a) (five year enhancement for a prior serious felony) because both were based upon his 1987 conviction for which he served over five years in prison. However, both the prison prior and the prior serious felony enhancements referred to multiple offenses. Although they each referred to the same armed kidnapping and armed robbery offenses, either one would provide a sufficient basis in and of itself to support either enhancement.id: 13962
In deciding whether a defendant has suffered a prior serious felony conviction the court may consider the probation report and the preliminary hearing transcript.Where the nature of the proceeding is to determine whether a defendant has suffered a prior serious felony conviction (not to determine whether he was guilty of that earlier offense), the defendant's statements contained in the probation report and the entire preliminary hearing transcript, albeit hearsay, are each admissible as an exception to the hearsay rule to explain his admissions.id: 13963
Intent required in the use of force . . . likely to produce great bodily injury in habitual offender statute is a general intent.Penal Code section 667.7 provides that any person convicted of a felony in which the person inflicted great bodily injury or used force likely to produce great bodily injury, who has served two or more prior separate prison terms is a habitual offender. Contrary to the holding in <i>People v. Santos</i> (1990) 222 Cal.App.3d 723, the intent required in the use of force likely to produce great bodily injury is a general intent.id: 13964
Legislature's failure to authorize a counterpart to section 667.5 for those defendants who receive probation instead of a prison term did not violate equal protection.Defendant argued the five year enhancement under Penal Code section 667 violates equal protection because an individual who is convicted of a serious felony and serves a prison term can be charged in the discretion of the prosecutor, with the one year enhancement authorized by section 667, but an individual convicted of a serious felony who received probation could only be charged with the five year section 667 enhancement. However, the Legislature's failure to authorize a counterpart enhancement to section 667.5 for those defendants who receive probation, instead of a prison term, did not violate equal protection principles.id: 13965
Out-of-state robbery convictions had all the elements of assault with a deadly weapon under California law and qualified as prior serious felonies.Appellant argued his out-of-state prior convictions would not support enhancements under Penal Code section 667 because neither the Colorado nor Missouri robbery statutes contain the essential element of an intent to steal, by the equivalent California crime. The trial court erred in examining the record to search for the intent to steal. However, the enhancements were still proper because the prior out-of-state robberies, although not the equivalent to robbery as defined in California, do include all of the elements for assault with a deadly weapon, which qualifies as a serious felony under section 667.id: 13967
Penal Code section 667 does not require an equivalency between the foreign offense and the similarly named California crime.Appellant argued the three five-year enhancements under Penal Code Section 667 were improper because neither the Colorado nor the Missouri robbery statute contains the essential element of an intent to steal as required by the California Penal Code. However, section 667 authorizes the imposition of an enhancement for an offense committed in another jurisdiction which has all the elements of a serious felony, as defined in section 1192.7, even if the offense does not meet the definition of the correlative California crime. In determining whether a foreign conviction qualifies as a serious felony the sentencing court is limited to a consideration of the elements of the prior conviction actually adjudicated in the foreign jurisdiction.id: 13968
Pleading the wrong Illinois statute in the serious prior felony allegation was not fatal.Defendant was charged with a prior serious felony regarding a residential burglary in Illinois. However, the wrong Illinois statute was pled in the serious prior felony allegation. An erroneous reference to a statute in a pleading is of no consequence provided the pleading adequately informs the accused of the act he is charged with having committed.id: 13969
Prior burglary was a previous conviction for enhancement purposes even though appellant was on probation for the prior when he committed the new burglary.Appellant argued that his prior burglary conviction did not qualify for the Penal Code section 667, subdivision (a) enhancement because he was on probation for it at the time he committed the new offense. According to appellant, he should not be deemed convicted of the prior case until the court revoked his probation and sentenced him to a term in state prison. However, for purposes of section 667, subdivision (a), a defendant has been convicted at the time of the adjudication of guilt, even if judgment has not yet been pronounced or become final.id: 13970
Prior Missouri rape conviction was properly used to enhance the sentence despite the People's failure to submit the pertinent Missouri statute.Defendant was convicted of assault with intent to commit rape and that he had suffered a prior rape conviction within the meaning of Penal Code section 667 subdivision (a). The prior conviction occurred in Missouri. Defendant argued that because of the prosecution's failure to submit the pertinent Missouri statute at the trial on the prior, the jury may have relied on facts that were not properly adjudicated in the original proceeding to support its finding that his prior conviction was a serious felony under California law. However, the indictment, which was admitted, squarely set forth allegations which, if true, would constitute forcible rape in California.id: 13971
Prior serious felony enhancement need not be reversed where the prosecution proves a serious felony under section 1192.7, subdivision (c) other than the one expressly pleaded in the information.Appellant argued a serious felony finding under Penal Code section 1192.7, subdivision (c)(23) was precluded because the information expressly alleged subdivision (c)(8) and no mention was made of subdivision (c)(23). However, a prior serious felony enhancement need not be reversed in a case where the prosecution proves a serious felony under a specific provision of subdivision (c) of section 1192.7 other than the one expressly pleaded in the information. Reversal was not required here where the change in theory underlying the charged felony (use of knife rather than great bodily injury) did not deprive defendant of an opportunity to defend against the charge.id: 13973
Prior Texas conviction of kidnapping for extortion was properly used to enhance.Defendant argued his prior Texas conviction of kidnapping for extortion could not be used to enhance his sentence since force is not an essential element of that crime unlike the kidnapping statute (Penal Code section 207) in California. However, kidnapping for extortion is more comparable to California's aggravated kidnapping (section 209) which does not require force. Therefore the section 667 enhancement was proper.id: 13974
Priors were tried separately notwithstanding that guilty pleas and sentencing for the cases occurred on the same date.Defendant argued the court improperly imposed three serious felony prior convictions under Penal Code section 667, subdivision (a), because the offenses were not tried separately as required. Although none of the cases were consolidated, there was a common date for certain criminal proceedings in connection with the charges, including the date of the entry of his guilty pleas and the date of sentencing. However, the cases were separate with files for each case and transcripts showing each case was dealt with by its separate number. It was not significant that the guilty pleas were taken on the same date or that other transactions occurred on the same date. The three pairs of priors were formally distinct and the five year enhancement for each was proper.id: 13975
Properly certified rap sheets may be used to prove a prior conviction.The state and local rap sheets used to prove appellant's 1984 robbery conviction were not part of the record of conviction. The documents were merely used by the prison system for administrative or investigative purposes. However, under Penal Code section 969b, the <i>People</i> may satisfy the burden of proving a prior conviction by introducing into evidence a certified copy of a prison record. Rap sheets are prison records within the meaning of section 969b. However, the rap sheets in the instant case were not properly certified since the custodian of records never testified that the printed computer compilations were correct copies of the originals as required under Evidence Code section 1531. Finally, the rap sheets were not admissible under the business records exception to the hearsay rule where the custodian neither compiled the information nor described the mode of preparation of the records.id: 13977
Section 667 enhancements must run consecutively to each other.While enhancement terms under Penal Code section 667 must be consecutive to the principal term, defendant argued that section 667 grants the trial court discretion to make the terms for multiple section 667 enhancements concurrent to each other. However, the statute makes clear that each enhancement term shall run consecutively to the other enhancement terms.id: 13978
Striking an admitted enhancement for sentencing purposes did not negate the seriousness of the felony for which defendant was convicted.In an earlier proceeding, defendant pled guilty to assault with a deadly weapon and admitted inflicting great bodily injury in the commission of that offense. However, the sentencing court in the prior case then struck the great bodily injury enhancement. That striking did not prevent the trial court in the subsequent case from using the stricken enhancement for purposes of treating the earlier offense as a serious felony under Penal Code section 667. subdivision (a).id: 13981
Supreme Court upholds presumption of regularity for prior convictions used to enhance sentence.Under a Kentucky statute regarding repeat felony offenders, a presumption of regularity attaches once the state proves the existence of the prior conviction. If the defendant refutes the presumption of regularity, the burden shifts back to the state to affirmatively show validity. Respondent challenged two convictions under <i>Boykin v. Alabama</i>, 395 U.S. 238 (1969) because the records did not contain transcripts of the plea proceedings and did not affirmatively show that the guilty pleas were knowing and voluntary. Justice O'Connor, writing for an eight member majority, found that the Kentucky burden-shifting rule did not violate due process. It cannot be presumed from the mere unavailability of a transcript that a defendant was not properly advised. Due process does not require the state to prove the validity of a prior conviction by clear and convincing evidence. The court did not decide whether due process requires state courts to permit challenges to priors that are used for enhancement purposes.id: 13983
The records of defendant's prior Oregon burglary convictions did not establish that those convictions were serious felonies for purposes of the five year enhancement.The trial court erred in finding that two prior convictions suffered in Oregon were serious felonies under Penal Code sections 667 and 1192.7, subd.(c). The Oregon statutory definition of first degree burglary does not necessarily support enhancement of defendant's sentence pursuant to Penal Code section 667 because a first degree burglary conviction can be obtained in Oregon without a finding that the perpetrator intended to commit grand larceny, petit larceny or a felony at the time of entry. Moreover, the records of the prior convictions did not establish that defendant had at least the specific intent to commit larceny under California Law.id: 13986
The brought and tried separately limitation of section 667(a) does not bar multiple enhancements where convictions are based on unrelated counts of different accusatory pleadings.Appellant argued the prior robbery conviction was not subject to enhancement under Penal Code section 667, subdivision (a) because he was sentenced contemporaneously, and served concurrent sentences for that offense, together with the two prior rape convictions. The robbery occurred nearly four years after the rape and became the subject of the same plea bargain only because appellant committed additional crimes while an escapee from the state hospital, requiring the filing of a new information. The separately brought and tried limitation of section 667, subdivision (a) does not bar multiple enhancements where convictions are based upon unrelated counts of different accusatory pleadings.id: 13987
Court did not err in using a 1970 prior robbery to enhance sentence where defendant pled guilty in 1970 to three counts and the counts were merged without identifying which counts were stayed.Defendant argued the trial court erred in using his 1970 prior robbery conviction to enhance his sentence. The 1970 abstract shows defendant pled guilty to two counts of armed robbery and one count of assault with a deadly weapon arising out of the same act. In an apparent attempt to avoid the multiple punishment prohibition of Penal Code section 654 the court ordered that the three counts be merged. Defendant argued that because the court could not determine which of the three counts were stayed under section 654 it was precluded from using any of the three to enhance his sentence. However, defendant may not avoid the consequences of his recidivism invoking a technicality, i.e., the failure of the court to identify which of the counts was imposed.id: 13941
Court has discretion to bifurcate the determination of truth of the alleged prior conviction from guilt of the charged offense.A trial court has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of a defendant's guilt of the charged offense. However, the court is not required to do so if the defendant will not be unduly prejudiced by having the truth of the alleged prior conviction determined in a unitary trial.id: 13943
Court may determine whether prior convictions arose from charges brought and tried separately.Although a defendant has a statutory right to have the jury determine whether he or she suffered prior convictions alleged pursuant to Penal Code section 667, subdivision (a)(1), the issue whether such prior conviction arose from charges brought and tried separately is to be determined by the court rather than the jury. The instant showing that the prior conviction at issue arose from separate information bearing case numbers that differ significantly, constituted sufficient evidence to support the conclusion that the prior convictions were brought and tried separately within the meaning of section 667, subdivision (a)(1).id: 13944
Court may look to the entire record to determine Yurko error and is not confined to the colloquy between the judge and defendant prior to the admission of the priors.After a jury verdict of guilty on the principal counts, defendant waived further trial and admitted the commission of three prior felonies. The trial court arguably committed error under <i>In re Yurko</i> (1974) 10 Cal.3d 857 in taking the admission of the priors without specifically advising defendant as to his privilege against self-incrimination. <i>Yurko</i> error is reversible per se. However, the appellate court may look to the entire record to determine whether defendant received adequate advisements, and is not confined to the dialogue between the court and defendant prior to the admissions. The record supports the conclusion that defendant knew of this privilege against self-incrimination. He had just participated in a jury trial where he utilized the privilege and less than three hours before the waiver he listened to full jury instructions which detailed his privilege against self-incrimination.id: 13945
Court may rely on the Texas information to which defendant pled guilty to establish the elements of a California robbery.The trial court enhanced defendant's sentence based on his earlier Texas robbery conviction. The court properly relied on the Texas information to which he pled guilty to establish the elements of the California robbery. Because the prior Texas conviction contained all the elements of robbery under California law, the Penal Code section 667, subdivision (a) enhancement was proper.id: 13946
Court properly determined the 1983 attempted burglary was a serious felony for enhancement purposes notwithstanding that defendant pled guilty to attempted second degree burglary.Defendant argued the trial court erroneously imposed a five-year sentence enhancement under Penal Code section 667, subdivision (a), for his 1983 conviction of attempted second degree burglary because it is legally impossible for a second degree burglary committed after January 1, 1983, to be residential and thus a serious felony for which the additional punishment may be imposed. However, the court properly determined from the conduct involved in the 1983 attempted burglary conviction that it was a serious felony within the meaning of sections 667 and 1192.7, notwithstanding the fact he pled guilty to the specific crime of attempted second degree burglary.id: 13948
Defendant's base declaration of nonwaiver was insufficient to support a collateral challenge to the constitutional validity of his prior conviction.As evidence of the court's failure to obtain defendant's waiver of his right to a jury trial on the prior conviction, defendant submitted a copy of a minute order noting his arraignment on the change of his plea from not guilty to guilty. Defendant noted that the space next to the statement that he was advised of his legal rights was not checked at the arraignment. However, the evidence presented by the minute order of a silent record and defendant's base declaration of nonwaiver of his right to a jury trial are insufficient to support his challenge of the prior conviction. Defendant did not allege that he was unaware of his right to a jury trial at the time of his prior conviction and that he would not have pled guilty had he known of the right. He therefore failed to establish a prima facie case for collateral relief.id: 13951
Defendant's guilt phase admission was properly used in the bifurcated enhancement phase to prove the prior robbery conviction true.Defendant argued that his testimony given during the guilt phase of the trial could not have been used against him at the subsequent bifurcated trial on the prior convictions. However, once defendant decided to testify and waive his privilege against self-incrimination, his testimony was admissible against him to prove the prior conviction allegations.id: 13952
Enhancements under section 667.9 (defenseless victims) must be imposed in conjunction with serious felony enhancements under section 667 and cannot accompany section 667.6, subd. (a) (prior forcible rape) enhancements.Defendant was convicted of multiple sex offenses. Enhancements were also alleged under Penal Code section 667, subd. (a) (prior serious felony convictions), section 667.9 (crimes against victims over age 65 or under 14) and section 667.6, subd. (a) (previous rapes or forcible oral copulation). The court stayed the enhancements under section 667, subd. (a) because they were based on the same conduct as those under section 667.6, subd. (a). Defendant argued the court erred in imposing four full-term enhancements under section 667.9 rather than imposing one-third the full enhancement on the second, third, and fourth application as called for in section 1170.1. However, the limitation under section 1170.1 does not include section 667.9. The court did err in imposing enhancements under section 667.9 inasmuch as the two serious felony enhancement terms imposed were pursuant to section 667.6, subd. (a) and the terms under section 667, subd. (a) were stayed. Imposition of a section 667.9 enhancement must accompany those in section 667, subd. (a). The court cannot impose enhancements under section 667.6, subd. (a) and section 667.9. If the court imposed an enhancement under section 667.6, subd. (a) the section 667.9 enhancements must be stricken.id: 13954
Court did not err in imposing an enhancement for a violent sex prior for rape, a conviction brought and tried with a kidnapping conviction for which a separate five year enhancement was imposed.Defendant was convicted of rape. He had a prior conviction of kidnapping and in that same case he was convicted of rape. The trial court properly imposed a Penal Code section 667.6, subdivision (a) enhancement for the prior rape conviction brought and tried with the kidnapping conviction for which he received a separate section 667, subdivision (a) enhancement.id: 13884
CYA commitment constitutes a prior prison term within the meaning of the habitual offender statute.Defendant argued he was improperly sentenced under Penal Code section 667.7 (the habitual offender statute) because one of his prior prison terms was a commitment to the California Youth Authority. However, a CYA commitment constitutes a prior prison term within the meaning of section 667.7.id: 13793
The court may use section 654 to sentence on the lesser offense but must impose the section 667 enhancement associated with the greater offense.Defendant pled guilty to robbery and burglary and he admitted a prior conviction within the meaning of Penal Code section 667. The court sentenced him to three years on the burglary count and stayed the sentence on the robbery count and the section 667 enhancement. However, because imposition of a section 667 prior serious felony enhancement does not depend on imposition of the sentence on the present serious felony, the invocation of section 654 to sentence on the lesser crime does not affect the operation of section 667. The court may invoke it to sentence on the lesser offense, but must impose the enhancement for any prior serious felony conviction.id: 13774
Court could properly use the same prior robbery conviction to impose a five year enhancement under section 667, subdivision (a) and add eight month term for petit theft with a prior under section 666.Defendant argued the court erred in imposing a five year enhancement under Penal Code section 667, subdivision (a) for a prior robbery conviction after the identical prior was used as an element of the section 666 conviction of petit theft with a prior robbery. However, it was not improper for the court to impose an eight month subordinate term for the petit theft with the prior and an additional five years for the robbery enhancement under section 667, subdivision (a).id: 13733
Double jeopardy does not preclude retrial of a prior conviction allegation following Yurko error.Appellant's admission of his prior conviction for assault was set aside because of the trial court's failure to advise him of his constitutional rights and to obtain his waiver of those rights. However, the former jeopardy does not preclude retrial of the prior conviction. Appellant argued he could not be retried for the prior because the jury which determined his guilt on the new charges did not also determine the truth of the alleged prior conviction. There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt on the primary offenses.id: 11997
In a bifurcated proceeding after the original jury was discharged without objection of defendant the impanelling of a new jury to determine the truth of the priors did not violate statutory or double jeopardy provisions.The trial court discharged the jury that was deadlocked on the underlying charges before the jury had determined the truth of the alleged prior convictions. Defendant argued that impanelling a new jury to determine the truth of the prior conviction allegations violated state statutory law and unconstitutionally placed him twice in jeopardy. However, defendant's failure to object to the premature discharge of the original jury precluded him from appellate relief on the basis of statutory error. (Penal Code sections 1025 and 1164.) Moreover, because determination of the truth of the alleged priors was bifurcated from the trial of the current charges, the court's action in impanelling the new jury did not violate the double jeopardy clause of the state or federal Constitution.id: 12004
Prior conviction allegations do not implicate double jeopardy and there is no bar to a retrial where there was no express waiver of the right to a jury trial.The court bifurcated trial on the prior conviction issues. At the end of the trial but before the verdict was announced the court asked whether defendants wanted a jury trial on the priors. Neither defendant expressed in words a waiver of the right to a jury trial. There was only counsel's representation that defendants wished to waive jury trial. The finding as to the priors was therefore made in violation of defendant's constitutional rights and required reversal. Contrary to defendant's claim the prior conviction allegations do not implicate double jeopardy and there was no bar to a retrial on that issue. Moreover, Penal Code section 1025 does not hold that, for good cause, another jury may not be impaneled to retry the prior conviction enhancements. Good discussion of the applicability of the double jeopardy clause to prior conviction enhancements.id: 12006
Court did not violate double jeopardy by permitting the prosecution to reopen to present evidence of the prior conviction after having found him guilty of possession.In a non-bifurcated court trial, the prosecution did not present evidence of defendants prior conviction before the trial court convicted him of cocaine possession. He argued the trial court erroneously permitted the prosecution to reopen, over his double jeopardy objection, to prove his prior conviction. However, because the trial was not finished, and defendant earlier told the prosecutor he would admit the prior conviction, the double jeopardy prohibition was not violated.id: 11984
Docket sheet,supported by testimony was substantial evidence of a valid waiver of rights before pleading guilty.Appellant argued the trial court should have stricken his 1987 prior because the record failed to demonstrate that he expressly and explicitly waived his rights before pleading guilty. However, the docket sheet on its face reflected an express and explicit waiver: defendant was specifically advised of each of his rights, he understood them, and he personally, knowingly and voluntarily waived each one. Moreover, there was no credible evidence to support a reasonable doubt to the contrary.id: 11548
In accepting defendant's guilty plea to a felony, the court has no duty to advise him that this conviction may be used to enhance future felony convictions.In accepting a guilty plea to a felony, the trial court is not required to advise the defendant that his conviction may result n an enhanced sentence for a future felony conviction.id: 11559
Single advisement of constitutional rights was proper before accepting a guilty plea and admissions of prior convictions.Defendant's plea to the substantive offenses and admission of the prior convictions occurred in a single proceeding and were not separated in time. Nor did the magistrate separate the substantive offenses from the prior conviction allegations by the manner in which the advisement was given and the plea was taken. The single express advisement was sufficient to inform the defendant of each of his constitutional rights with respect to the guilty pleas to the substantive offenses and the admissions of prior convictions.id: 11571
Court erred in striking the prior conviction for failure to advise on the potential deportation consequences of the plea.The trial court granted defendant's motion to strike a 1989 prior conviction for residential burglary on the ground that before accepting the plea, the trial court in that case failed to give a statutorily required advisement concerning the potential deportation consequences of his plea. However, striking the prior was an inappropriate remedy. Defendant should have been permitted to withdraw the guilty plea and enter a not guilty plea.id: 11535
Felony drunk driving can constitute a serious felony for purposes of a section 667 enhancement.Appellant plead guilty to felony drunk driving after broadsiding the victim's car and accelerating after the victim's car was pinned against the wall. He argued the offenses of drunk driving causing injury (Vehicle Code section 23153, subd. (a)) and hit and run with injury (Vehicle Code section 20001, subd. (a)) are not serious felonies within the meaning of Penal Code section 667, subd. (a). Offenses involving drunk driving can come within the categories of serious felonies for purposes of the five year enhancement. However, the complaint to which appellant plead guilty did not allege either that appellant inflicted great bodily injury or that he intentionally used his vehicle as a weapon. The omission was waived by appellant's failure to challenge the sufficiency of the complaint prior to entering his plea.id: 10596
Sex offender's sentence may be enhanced under section 667.6, subdivision (b) with out-of-state prior convictions.Defendant was convicted of two counts of forcible rape and one count of forcible oral copulation. His sentence was enhanced by the finding of prior sex offenses resulting in prison terms under Penal Code section 667.6, subdivision (b). He argued the 20-year enhancement of his sentence must be stricken because, in his view, section 667.6, subdivision (b) does not authorize the use of foreign convictions such as his 1987 Arizona conviction for sexual assault. However, section 667.6, subdivision (b) authorizes the use of foreign convictions of comparable violent sex offenses.id: 9991
Admission of a prior was valid despite the lack of an express waiver of a right to a jury where defendant had been advised of that right and the hearing took place while the jury was deliberating on the underlying charge.Defendant argued that his admission of a prior robbery conviction was constitutionally defective because he did not expressly waive his right to a jury trial on the prior conviction. He had been advised of the right to a jury trial and was advised of and waived his rights of confrontation and against self-incrimination. Moreover, the court conducted the hearing on the prior while the jury was deliberating on the underlying offense and at one point the proceedings were momentarily suspended as the jurors actually filed past defendant and counsel on their way out of the courtroom. Defendant knew that by admitting the prior conviction at a time when the jury was still deliberating he was giving up his right to a jury trial on that issue.id: 9879
Admission of prior convictions at the penalty phase did not require Yurko advisements because such admission did not subject the defendant to an increased penalty.Defendant argued that his stipulation to the prior convictions was improper under <i>In re Yurko</i>, (1972) 10 Cal.3d 857, because during voir dire at the second penalty trial he did not expressly waive his privilege against self-incrimination or his right to a jury trial on the priors. However, <i>Yurko</i> did not apply because defendant's stipulation to the priors was not analogous to the admission of the truth of a sentence enhancement as in <i>Yurko</i>, but was instead comparable to a stipulation to the admission of a subsidiary evidentiary matter.id: 9881
Bifurcation of trial is not required where a prior felony conviction is alleged and discharge of the jury does not preclude trial of the priors.Neither constitutional considerations nor concepts of fundamental fairness require bifurcation of the trial when a prior felony conviction is alleged. If a defendant stands on his right to have a jury decide whether in fact he had suffered a prior felony conviction as alleged, that issue should be determined along with all other issues in the case and bifurcation is not required. Moreover, if there is a bifurcated trial and the defendant is convicted of the new charges, a discharge of the jury does not preclude trial of the priors.id: 9884
Counsel's informing the judge that defendant wants a court trial on the issue of the validity of the prior which results in the jury's discharge is a waiver of the right to later claim that jeopardy attached.Prior to voir dire, the trial court asked defense counsel whether he wished to bifurcate the issue of the prior felony conviction enhancement under Penal Code section 667.5, subdivision (b). Counsel stated that the defense wanted a separate trial and after conferring with defendant stated that if convicted, defendant wished for a court trial on the enhancement. Following conviction, the court discharged the jury and then advised defendant of his jury trial rights regarding the enhancement. Defendant waived jury and admitted the allegation. On appeal he argued that discharging the jury before he personally waived jury invalidated the enhancement on double jeopardy grounds. However, counsel's informing a judge that defendant wants a court trial on the issue of the validity of a prior conviction which results in the jury discharge is a waiver of the right to later claim that jeopardy attached.id: 9885
Court did not abuse its discretion in permitting the prosecution to reopen its case where no evidence on the priors was presented during the case-in-chief due to the prosecutor's inadvertence.The information alleged that defendant suffered three prior serious felony convictions pursuant to Penal Code section 667. During the bench trial, the prosecution rested its case-in-chief without offering any evidence as to the alleged prior convictions. Defendant moved for an acquittal pursuant to section 1118 of the primary charge and the enhancements. The prosecutor thought that the priors could not be proven until after a conviction on the primary offense, but defendant had never moved to sever the enhancements. The trial court did not abuse its discretion in permitting the prosecution to reopen the case to introduce evidence of the prior convictions.id: 9886
Court did not err by going forward with trial on the prior conviction allegation in defendant's absence, even without a written waiver, because defendant's absence was voluntary.Defendant orally waived his right to be present at the hearing on the prior conviction. Defendant argued this procedure violated the Penal Code section 977 written waiver requirement. However, no written waiver was required where the defendant knowingly and voluntarily absented himself from the trial. Even if a written waiver was required any error was harmless where his presence had no relationship to the fullness of his opportunity to defend.id: 9887
Court did not err in ordering enhancements under sections 667 and 667.5 where the prior prison term was based in part on the same case that served as the basis for the prior serious felony conviction enhancements.The trial court erred in enhancing defendant's sentence for both a prior felony conviction (Penal Code section 667) and the prior prison term served for that conviction (section 667.5). However, the court also imposed another section 667 enhancement where the prison term resulted from two crimes, one of which was the serious felony underlying the section 667 enhancement. The court was not precluded from imposing a one-year enhancement under section 667.5 when the prior prison term is based in part on the same case that also is the basis for imposition of a serious prior felony conviction under section 667, subdivision (a), and based in part on a separate, independent case.id: 9888
"Serious felony" was established by weapon use after the jury found the great bodily injury allegation not true.Defendant was convicted of assault with a deadly weapon. The information alleged appellant personally inflicted great bodily injury under Penal Code section 12022.7 which caused the charged offense to be a serious felony within the meaning of section 1192.7, subdivision (c)(8). The jury found the allegation to be not true. However, a true finding in this regard is not a prerequisite to a determination that the charged offense is a serious felony under section 1192.7. The court did not base its finding of a serious felony in subdivision (c)(8) of section 1192.7 (although it did refer to that section). Viewed in context it was clear the court found the offense, instead, to be a serious felony under subdivision (c)(23) - any felony in which the defendant personally used a dangerous or deadly weapon.id: 9874
A dishonorable discharge from the CYA does not reduce the commitment from a felony to a misdemeanor for the purposes of a serious felony conviction enhancement.Appellant argued the court erred in not striking his prior serious felony conviction. He claimed that because he was committed to the Youth Authority for the offense and was discharged from the Youth Authority albeit dishonorably, the conviction was reduced to a misdemeanor by operation of law. However, a dishonorable discharge from the Youth Authority does not reduce the commitment from a felony to a misdemeanor for the purposes of a serious felony conviction enhancement.id: 9875
A federal bank robbery conviction is a prior serious felony for purposes of the section 667, subdivision (a) enhancement.A bank robbery within the meaning of 18 United States Code section 2113 (a) is now a serious felony for purposes of the Penal Code section 667, subdivision enhancement. Defendant argued the evidence was insufficient to support the enhancement because the federal bank robbery statute contains two prongs: one which describes bank robbery as the taking by force or violence and the other which involves a nonviolent larceny. Defendant argued the prosecutor failed to prove which paragraph defendant was convicted under and the nonviolent larceny does not qualify as a serious felony. However, since defendant pled guilty in 1981 to the bank robbery charge he has admitted that his conduct fell under the first paragraph of section 2113(a) and thus conformed to the definition of serious felony. The court also found the lack of a specific intent requirement in the bank robbery statute did not change the result.id: 9876
A prior conviction for attempted arson under Penal Code section 455 is a serious felony under section 1192.7 for which a five-year enhancement is proper.Defendant argued the five-year enhancement for his attempted arson conviction was improper because attempted arson under section 455 is not a serious felony under section 1192.7. He claimed that only an attempted arson conviction under section 664 (general attempt statute) and 451 may enhance punishment as a recidivist offender under section 667, subdivision (a). However, defendant's prior conviction of attempted arson under section 455 qualified as a serious felony for purposes of the five year enhancement.id: 9877
Enhancements were not barred by virtue of their commission prior to the enactment of section 667 where the instant offense occurred after that date.Appellant argued the enhancements as to the prior felony convictions occurring prior to 1986 (the enactment of Penal Code Section 667) violated the prohibition against ex post facto laws. The enhancements were not bared by virtue of their commission prior to May 6, 1986, since the instant offense occurred after that date. It is the repetitive nature of the present offense which section 667 punishes.id: 9482
Transcript of the trial which resulted in a mistrial was part of the record of the prior conviction and was admissible in a later trial to determine whether the prior qualified as a strike.Defendant's felony drunk driving sentence was doubled under the three strikes law after the jury found that as to his prior conviction of willfully discharging a firearm with gross negligence he personally used a firearm. The trial court erred in refusing to allow the defense to introduce portions of the transcript of the jury mistrial which preceded his plea of nolo contendere in the prior conviction. Such evidence would contradict the evidence that he personally used a firearm. The transcript of testimony given in a trial which resulted in a mistrial is part of the record of the prior conviction and it is admissible in a subsequent trial to determine whether that conviction qualifies as an enhancement. The failure to allow the evidence was prejudicial and required reversal.id: 9374
Defendant may not challenge a prior on the ground of ineffective assistance of counsel in the course of a current prosecution for a noncapital offense.A defendant whose sentence for a noncapital offense is subject to enhancement because of a prior conviction may not employ the current prosecution as a forum for challenging the validity of the prior conviction based upon alleged ineffective assistance of counsel in the prior proceeding.id: 9386
Preliminary hearing transcript was admissible to prove the prior conviction was a serious felony because it came within the former testimony exception to the hearsay rule.The prosecution sought to admit two pieces of hearsay evidence from the record of defendant's prior assault conviction to prove the prior conviction was for a serious felony within the meaning of Penal Code section 667, subdivision (a), and 1192.7, subdivision (c)(23). The preliminary hearing transcript excerpts were not inadmissible hearsay because they came within the former testimony exception to the hearsay rule. The probation report fragment, however, was inadmissible because it contained hearsay that was not shown to be within any hearsay exception.id: 9343
Defendant's admission of certain facts to his probation officer was admissible to prove his prior felony conviction qualified as a strike.Defendant argued his trial counsel should have objected to the admission of the probation report to prove defendant's prior assault with a deadly weapon conviction qualified as a strike. However, the probation officer's written report of defendant's admissions (of personally using the knife) to her qualified as an official record under Evidence Code section 1280. Moreover, the portion of the report regarding defendant's admissions was reliable within the more narrowly defined meaning of record of conviction. While the probation report was admissible it was not necessarily conclusive. Finally, the admissions to the probation officer did not violate defendant's right against self-incrimination. Defense counsel was not ineffective in failing to object to the admission of the probation report.id: 9331
Evidence supported the ADW strike notwithstanding the possibility he may not have personally used the weapon.One of the strikes alleged against defendant was for a prior assault with a deadly weapon in violation of Penal Code section 245. To support the allegation the prosecution submitted an abstract of judgment stating defendant was convicted of 245(a) ASLT GBI/DLY WPN. Defendant argued the evidence did not establish he personally used a deadly or dangerous weapon as required. However, the evidence supported the finding despite the possibility he may not have personally used the weapon.id: 9334
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245