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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Eugene MATTHEWS, Jr., Defendant and Appellant.

No. E023356.

Decided: October 06, 1999

Patrick Morgan Ford, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Brozio, Supervising Deputy Attorney General, and Larissa Karpovics Hendren, Deputy Attorney General, for Plaintiff and Respondent.


A defendant appeals from his conviction of possession of a forged check with the intent to defraud for which he was sentenced to prison for 25 years to life.   We affirm.


In July of 1996, the defendant, Eugene Matthews, Jr., attempted to pass a fraudulent American Express traveler's check in order to purchase a woman's dress at Mervyn's.   Suspecting fraud, the cashier asked the defendant for some identification.   The defendant showed the cashier his driver's license.   The cashier then took the check to the store's loss prevention officer while the defendant waited and filled out a credit card application.   The loss prevention officer determined that the check was not authentic, and that determination was confirmed by American Express.   The loss prevention officer received authorization to detain the defendant if he made a purchase, but the defendant exited the store without taking the dress and quickly drove off.   Nevertheless, the store's security agent was able to record the defendant's license plate, leading to his arrest by the police.

The defendant was charged with possession of a forged check with intent to defraud, in violation of Penal Code section 475, subdivision (a).1  THE PROSECUTION ALso alleged that the defendant had suffered five serious or violent convictions within the meaning of the three strikes law.   After the trial, the jury found the defendant guilty as charged.   In July of 1998, the trial court determined that each of the five prior conviction allegations was true, and sentenced the defendant to an indeterminate prison term of 25 years to life.

The defendant appeals, contending that the trial court erred (1) by failing to exclude evidence that the prosecution had not disclosed in pretrial discovery, (2) by trying issues concerning his prior convictions that are statutorily reserved for the jury, and (3) by denying his motion to strike his prior convictions in the interests of justice.

In the published portion of the opinion, we conclude that the amendment to section 1025 effective January 1, 1998, took away the criminal defendant's right to a jury trial on prior-conviction allegations.   In the unpublished portion of the opinion, we reject the defendant's remaining contentions and affirm.


I **


The Defendant's Right To A Jury Trial On The Priors

Prior to 1998, section 1025 unequivocally provided that if a criminal defendant denied the truth of a prior-conviction allegation, “the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose, or by the court if a jury is waived.”  (Stats.1951, ch. 1674, § 88, pp. 3844-3845.)   However, in an amendment enacted in 1997 and effective January 1, 1998, section 1025 was changed to read in relevant part:

“(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury trial is waived.

“(c) Notwithstanding the provision of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.”  (Stats.1997, ch. 95, § 1, No. 4 West's Cal. Legis. Service, pp. 449-450.)

The defendant contends that, by trying the prior-conviction allegations entirely by itself to the exclusion of the jury, the trial court erroneously deprived him of his statutory right to a jury trial of those issues.   He reasons, first, that subdivision (c) of section 1025 (“section 1025(c)”) cannot be applied to him because he committed the crime before the effective date of the amendment.   Alternatively, he argues that, even if section 1025(c) does apply to him, it authorizes a trial judge to determine only the issue of whether defendant was actually the person convicted of the priors;  all other issues that must be decided in order to determine the truth of the prior-conviction allegations must be tried by a jury.

By contrast, the People contend that the section 1025(c) was not retroactively applied to the defendant because it addressed the conduct of future criminal trials, not past criminal behavior.   The People also assert that although subdivision (b) of section 1025 on its face suggests that a defendant is entitled to a jury trial on some issues related to prior convictions, the practical effect of section 1025(c) was to take the entire issue away from jury consideration.

As we shall explain, the People are correct on both points.

A. Retroactivity

Noting that his criminal conduct occurred prior to the effective date of section 1025(c), the defendant invokes the rule that “a new statute is presumed to operate [only] prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.”  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434.)   His reliance is mistaken.

 A penal statute is not retroactive if it changes, not the effect of criminal behavior which has already taken place, but merely the procedures governing the conduct of trials which have yet to take place.  “Even though applied to the prosecution of a crime committed before the law's effective date, a law addressing the conduct of trials still addresses conduct in the future․   Such a statute is not made retroactive merely because it draws upon facts existing prior to its enactment.”  (Tapia v. Superior Court, supra, 53 Cal.3d at p. 288, 279 Cal.Rptr. 592, 807 P.2d 434;  internal quotation marks omitted.)   For instance, those provisions of Proposition 115 that eliminated postindictment preliminary hearings, made hearsay admissible at preliminary hearings, and made discovery reciprocal, were not retroactive and were properly applied in the trials of defendants charged with having committed crimes before Proposition 115 took effect.  (Tapia, pp. 299-300, 279 Cal.Rptr. 592, 807 P.2d 434.)

Here, the enactment of section 1025(c) had no bearing on the defendant's past criminal conduct or on the punishment for that conduct.   Instead, it merely altered the way in which his future trial on the prior-conviction allegations was to be conducted.   Since that trial was conducted after the effective date of the amendment, the application of section 1025(c) to the defendant's trial was not retroactive.

B. Right To A Jury Trial On The Priors

Since section 1025(c) was properly applied to the defendant's case, we must now determine the effect of the amendment on the defendant's right to a jury trial on the priors.

We are not the first court to address this issue.   Two Court of Appeal decisions that dealt with this issue are currently under review by the California Supreme Court.  (People v. Valentine (1999) 70 Cal.App.4th 1168, 1171-1172, 83 Cal.Rptr.2d 161, review granted June 30, 1999 (S078564) and People v. Hale (1999) 70 Cal.App.4th 992, 83 Cal.Rptr.2d 125, opinion modified on denial of rehearing, 71 Cal.App.4th 884a, 884c, review granted July 14, 1999 (S078448), pending disposition of People v. Kelii (1998) 63 Cal.App.4th 854, 73 Cal.Rptr.2d 917, review granted July 29, 1998 (S070960).)  After the California Supreme Court decided to review this issue, two divisions of the Second District concluded that section 1025(c) did not entirely eliminate a defendant's right to a jury trial on the priors, although the courts split on the question whether the error is reversible per se.  (Compare People v. Epps (1999) 73 Cal.App.4th 1332, 87 Cal.Rptr.2d 373 [section 1025(c) only removed the issue of identity from the jury and failure to grant defendant a jury trial on the balance of the issues constitutes a per se reversible error] with People v. Gonzales (1999) 73 Cal.App.4th 885, 87 Cal.Rptr.2d 28 [reaching the same result with respect to interpretation of section 1025(c), but holding that failure to grant a jury trial is amenable to harmless error review].)

On August 19, 1999, the California Supreme Court decided People v. Kelii (1999) 21 Cal.4th 452, 87 Cal.Rptr.2d 674, 981 P.2d 518 (Kelii ).  The issue in Kelii was a narrow one:  “whether the court or the jury determines if a prior felony conviction qualifies as a ‘serious felony’ for purposes of the ‘Three Strikes' law.”  (Id., p. 454, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   The court “conclude[d] that the court, not the jury, determines whether a conviction is serious.”  (Ibid.)

The effect of section 1025(c) was not before the court in Kelii.   As the court itself expressly noted, “the amendment postdated the crimes and sentencing of this case, so it does not apply here.”  (Kelii, p. 457, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   Nevertheless, in the final four paragraphs of the opinion, the court discussed whether section 1025(c) “preserves a role for the jury.”  (Id., p. 458, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   After stating that it does (ibid.), the court then offered its views on what that role might be:

“This leaves the final question of exactly what role the jury does play under section 1025.   Perhaps because the final statutory enactment was a compromise, with the Legislature reducing, but not entirely eliminating, the jury's role, the answer is not readily apparent.   The trial court might choose to determine first whether the defendant is the person who suffered the conviction.   A determination that the defendant is not that person would clearly end the matter.   If, however, as would usually be the case, the court finds the defendant is that person, the jury apparently would then make a determination like the one it made in this case-that the defendant suffered the prior burglary and attempted burglary convictions.   The court would, however, instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction.   This procedure would appear to leave the jury little to do except to determine whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.   Whether this role makes sense is not for us to say.   If the Legislature wants to provide a greater, or more precisely defined, role for the jury, or chooses to eliminate the jury altogether as many states have done, it may still do so.   In the meantime, we must interpret the amendment to section 1025 as we find it-narrowing but not entirely eliminating the jury's role.”  (Kelii, pp. 458-459, 87 Cal.Rptr.2d 674, 981 P.2d 518.)

 As the Supreme Court has acknowledged, the Courts of Appeal are not bound by stare decisis to follow Supreme Court dictum.  (People v. Macias (1997) 16 Cal.4th 739, 743, 66 Cal.Rptr.2d 659, 941 P.2d 838.)   The discussion in Kelii concerning the interpretation of section 1025(c) is dictum because that issue was not before the court.   We presume that, for the same reason, the Supreme Court did not have the benefit of briefs addressing that issue, as we did.   For both reasons, we undertake our own analysis of the issue.

 “Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose․   The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.  [Citations.]   Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.  [Citation.]   Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.  [Citations.]   Rules of statutory construction require courts to construe a statute to promote its purpose, render it reasonable, and avoid absurd consequences.”  (Conservatorship of Bryant (1996) 45 Cal.App.4th 117, 120, 52 Cal.Rptr.2d 755.)

 There is no doubt that the Legislature intended to reserve a role for the jury.   The express language of the statute removed from the jury only the issue of identity. (§ 1025, subd. (b) and (c).)   The legislative history confirms that the intent of the legislation was that the judge would determine “whether the defendant was the person who suffered the prior conviction, but the jury must resolve the other questions concerning the prior conviction.”  (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1146 (1997-1998 Reg. Sess.) as amended June 19, 1997, p. 2.) Thus, the question is not whether the Legislature intended to reserve a role for the jury, but whether the legislation adopted by the Legislature successfully implements that intent.   We conclude that it does not.

The Legislature assumed that the identity of the person who suffered a prior conviction was only one of numerous issues raised by a prior-conviction allegation:  “When the prosecutor alleges in a criminal complaint or information that the defendant suffered a particular prior conviction, there are several potential issues (although it is rare for a defendant to raise more than one or two of them):  [¶] Was someone convicted?   What was the offense?   What is the date of the conviction?   In what court was the person convicted?   Is the defendant the person who suffered the prior conviction?   In some cases, there are additional questions, such as was the defendant sentenced to prison based on that conviction?   How long has the defendant been out of custody since he or she suffered the prior conviction?”  (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1146, supra, p. 2.)

If the Legislature's assumptions were correct, then its conclusion that there are material issues other than identity for the jury to decide would also be correct.   But each of its assumptions is incorrect.

 The purpose of section 1025(c) is to reduce the number of jury trials of prior-conviction allegations.  (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1146, supra, p. 2.) The Legislature reasoned that because the “identity of the person suffering the prior conviction” is the most commonly contested issue-and often the only contested issue-in the trial of those allegations, allocating the decision of that issue to the judge “will significantly reduce the number of such jury trials.”  (Ibid.) To accomplish that reduction, that issue must be submitted to the judge before any issues are submitted to the jury.   As the Supreme Court observed, a determination by the judge that the defendant is not the person who suffered the prior conviction would end the matter entirely.  (Kelii, p. 458, 87 Cal.Rptr.2d 674, 981 P.2d 518.)

Contrary to the Legislature's assumptions, there are no material issues remaining after the judge has determined that “the defendant is the person who has suffered the prior conviction ․” (§ 1025(c).)   The judge cannot decide that the defendant suffered the prior conviction unless or until the judge determines that “someone” suffered that conviction.   Thus, the question posited by the Legislature, “Was someone convicted?” is necessarily subsumed in the question which is answered by the judge.

Similarly, although the Legislature assumed that the jury would be deciding the nature of the offense, it is now settled that the determination of whether a prior conviction is a serious felony is made by the judge.   (Kelii, p. 454, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   A judge cannot determine whether a particular offense is a serious felony unless and until the judge knows the answer to the second question posed by the Legislature, “What was the offense?”   Thus, that question is also subsumed in the issues to be decided by the judge.

The date of the conviction and the time that the defendant has been out of custody since his or her last conviction are irrelevant.   The three strikes law applies regardless of the length of time that has passed since the prior conviction.   There is no “washout” period. (§ 667, subd. (c)(3).)   Similarly, although the question of whether the defendant had been sentenced to state prison in a prior case may be relevant for the purposes of a one-year prior-prison-term enhancement under section 667.5, subdivisions (a) and (b), the prior sentence is irrelevant to the determination of whether the prior conviction places the defendant within reach of the three strikes law. (§ 667, subd. (d)(1).)

Nor is the court in which the person was convicted relevant to the application to the three strikes law.   All that is relevant is the jurisdiction in which the offense was committed, which the judge must know in order to determine whether the offense on which the conviction is based is a serious felony under California law. (§ 667, subd. (d)(2).)

In short, each of the factual issues which the Legislature purported to reserve for the jury is either irrelevant or subsumed within the issues assigned to the judge.

The roles for the jury that were suggested in the Supreme Court's dicta in Kelii are no more persuasive.   The jury need not determine whether the documents before it are authentic.   The documents in question are the section 969b prison packets, which the trial courts can judicially notice.  (Evid.Code, § 452, subd. (d);  People v. Wiley (1995) 9 Cal.4th 580, 594, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   The trial court will not take judicial notice of those documents unless they are authentic.   Once judicial notice of the documents has been taken, that authenticity is conclusively established, and the judge should “instruct the jury to accept as a fact the matter so noticed.”  (Evid.Code, § 457;  1 Witkin, Cal. Evidence (3d ed.  1986) Judicial Notice, § 120, p. 103.)

The court also suggested that the jury would be required to determine whether the documents before it “are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.”  (Kelii, pp. 458-459, 87 Cal.Rptr.2d 674, 981 P.2d 518.)   But that issue, much like the issues of whether a prior conviction constitutes a strike and was separately brought and tried, are resolved via a factual inquiry limited to examination of the court documents and prison records.   In both Kelii and People v. Wiley, the Supreme Court held that such inquiries are properly made by the trial court, not the jury.  (Kelii, pp. 456-457, 87 Cal.Rptr.2d 674, 981 P.2d 518;  People v. Wiley, supra, 9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   By parity of reasoning, the comparison of the convictions shown in the documents with the convictions alleged should likewise be resolved by the trial court.

Until our Supreme Court conclusively resolves the question of the interpretation of section 1025(c), we respectfully decline to follow either the dicta in Kelii or the Second District's decisions in People v. Epps, supra, 74 Cal.App.4th 645, 87 Cal.Rptr.2d 373 and People v. Gonzalez, supra, 73 Cal.App.4th 885, 87 Cal.Rptr.2d 28.   Instead, we conclude that identity is the only material factual issue to be tried.   Section 1025(c) having allocated that issue to the judge for decision, and it being the judge's responsibility to determine whether a given conviction is for a serious or violent felony, the practical effect of that allocation was to eliminate altogether the right to a jury trial on prior-conviction allegations.

It would be absurd to impanel a jury that would have nothing to decide.   Therefore, the trial court did not err in dismissing the jury and acting as the trier of fact during the trial on the priors.

III ***


The judgment is affirmed.


1.   All further section references are to the Penal Code unless specified otherwise.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.


HOLLENHORST, Acting P.J., and RICHLI, J., concur.