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

The PEOPLE, Plaintiff and Respondent, v. Lester KELII, Defendant and Appellant.

No. B112648.

Decided: May 04, 1998

Sylvia Koryn, under appointment by the Court of Appeal, La Jolla, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, and Alan D. Tate, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Lester Kelii was convicted by a jury of two counts of second degree burglary (Pen.Code, § 459;  counts 1 and 6) and two counts of grand theft of personal property (Pen.Code, § 487, subd. (a);  counts 2 and 7).1  In a bifurcated proceeding, the jury also found true four prior “three strikes” convictions (Pen.Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d));  i.e., three prior burglaries in March of 1981, and one prior attempted burglary in September of 1986.   The trial court thereafter found the four prior convictions constituted four “serious” prior felonies (Pen.Code, § 1192.7, subd. (c)) for three strikes purposes.   At sentencing, the court granted appellant's motion to strike the strike convictions as to counts 1, 2 and 7, but imposed the three strikes sentence of 25 years to life as to count 6. The court also imposed a three-year concurrent prison term as to count 1, and stayed imposition of two two-year prison terms as to counts 2 and 7 (Pen.Code, § 654).

Appellant contends:  (1) the trial court erred in failing to instruct the jury sua sponte pursuant to CALJIC No. 2.22 on weighing conflicting evidence;  (2) the court erred in not allowing the jury to determine whether appellant's prior burglary convictions were residential burglaries and thus were serious prior felonies for the purposes of three strikes sentencing;  and (3) the court failed to exercise informed discretion in not striking appellant's strike convictions as to all four counts in the present case.   Respondent contends that the sentence should be modified to reflect consecutive terms of 25 years to life as to all four counts, with imposition of the terms stayed as to counts 2 and 7. We remand for the trial court to indicate in a minute order-and not merely to state, as it did, in the reporter's transcript-the reasons for striking appellant's prior convictions, but in all other respects affirm the judgment.


On the evenings of January 16 and 23, 1995, appellant and an accomplice entered the fenced yard of Mills Techniques, a carpet cleaning business in Monrovia.   On both occasions, they broke into one of the locked vans.   They stole equipment and supplies worth a total of approximately $18,500.   The parking area's surveillance videotapes, which depicted a person looking similar to appellant committing the thefts, and still photographs made from the videotapes were introduced into evidence at appellant's trial.

Appellant was arrested the day after the second burglary.   He had stolen property in his possession (tools taken from a cabinet store in Monrovia), and two written pages appearing to refer to the disposition of other stolen equipment.   The jury was provided with photographs depicting appellant's appearance at the time of his arrest and the clothing he wore at the time of his arrest.   Neither the owner of the burglarized premises nor its employees knew appellant or ever gave him or anyone else permission to take any of the property stolen.

Appellant did not testify in his own behalf.   He did, however, present evidence that a partial palm print from the door jamb of a van which had been entered did not match appellant's palm prints.


I. No error in failing to instruct sua sponte pursuant to CALJIC No. 2.22 on weighing conflicting evidence

 Appellant contends the trial court prejudicially erred in failing to instruct the jury sua sponte, pursuant to CALJIC No. 2.22, regarding the weighing of conflicting evidence.2  We acknowledge that this instruction should be given sua sponte in every criminal case in which conflicting testimony has been presented.  (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884, 123 Cal.Rptr. 119, 538 P.2d 247.)

According to appellant, there was conflicting evidence presented by the prosecution and the defense regarding video and fingerprint evidence.   To the contrary, there was no conflicting testimony.   First, no one testified that appellant was depicted in the videotape;  that determination was left for the jury upon viewing the evidence.   Since CALJIC No. 2.22 applies, by its very terms, to conflicting “testimony” and there was none as to the videotape evidence, the instruction was inapplicable.   Second, regarding the partial palm print found on the van, the prosecution never contended the print belonged to appellant.   No prosecution testimony contradicted the defense testimony that the partial palm print was not his.   Accordingly, the instruction on weighing conflicting testimony was again inapplicable and not warranted under the circumstances.

II. Whether appellant's prior convictions were “serious” was essentially a question of law, and the issue was properly determined by the court rather than by the jury

 Contrary to appellant's contention, the trial court did not err in precluding the jury from determining the truth of the prior conviction allegations.   In addition to the seven felony counts charged in the present case, appellant was alleged to have been previously convicted of four serious or violent felonies, within the meaning of the three strikes sentencing provisions (Pen.Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), specifically, three counts of residential burglary (on March 2, 1981) and one count of attempted residential burglary (on September 11, 1986).   Appellant urged the trial court to modify the standard jury instructions and have the jury determine whether the prior convictions were “serious” felonies within the meaning of the statute.3

According to appellant, the version given of CALJIC No. 17.26 was inadequate because it lacked any requirement that the jury find he was convicted of a particular offense which constituted a serious felony.4  The trial court held the question was purely one of law and ruled it would only ask the jury whether the prior convictions were true.

The trial court reviewed the records the prosecutor was prepared to offer to the jury.   The court expressly found, based upon the length of sentences imposed, that the three prior burglaries and the one attempted burglary were of the first degree.   Appellant argued that finding the crimes were in the first degree did not necessarily mean they were “residential.” 5  Before the bifurcated trial commenced on the prior convictions, the prosecutor sought to introduce the court files from the prior convictions, including the transcripts of the pleas and sentences.   Appellant successfully objected to admission of the transcripts of the guilty plea and sentencing since, in part, the trial court would be “ruling on the serious felony” issue.   A brief bifurcated trial then ensued, with the introduction of fingerprint evidence, minute orders and commitment orders, and the jury found the four prior convictions true.

Appellant thereafter moved to strike his prior convictions on the ground that whether they were serious should have been decided by the jury.   The trial court reiterated that such a determination was a legal issue and denied the motion.   The court then sentenced appellant, striking his prior convictions as to three counts, but not as to the fourth count.

We find that the trial court was not required to submit for the jury's consideration, as opposed to determining for itself as a question of law, whether appellant's prior convictions constituted serious felonies for three strikes sentencing purposes.   The situation in People v. Wiley (1995) 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541 is analogous and instructive.   In Wiley, the information charged and the jury found true five-year sentence enhancement allegations (Pen.Code, § 667, subd. (a)) that the defendant had suffered two prior convictions of serious felonies.   On appeal, the defendant contended the jury was required to determine whether the two prior convictions had been “brought and tried separately,” a definitional requirement specified in the language of the enhancement statute.

Wiley held that the “brought and tried separately” issue was “properly a matter for the court, because that question is largely legal in nature.”   (People v. Wiley, supra, 9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)  “As is demonstrated by the numerous decisions that have considered the proper application of the requirement that the prior charges be ‘brought and tried separately,’ resolution of this issue frequently depends upon the interpretation of complex and detailed provisions of California criminal procedure.  [Citations.]  Although there are, of course, some underlying ‘facts' that are relevant to the determination as to whether charges have been ‘brought and tried separately,’ such as the filing of charges either in a single complaint or multiple complaints, such facts are readily ascertainable upon an examination of court documents.   This is the type of inquiry traditionally performed by judges as part of the sentencing function.”   (Ibid.)

Similarly, whether a prior conviction is a serious felony, as defined in Penal Code section 1192.7, is largely a legal question, often involving legal interpretation.  (See, e.g., People v. Equarte (1986) 42 Cal.3d 456, 229 Cal.Rptr. 116, 722 P.2d 890 (prior assault with a deadly weapon as serious felony if defendant personally used a dangerous or deadly weapon);  People v. Harrell (1989) 207 Cal.App.3d 1439, 1445, 255 Cal.Rptr. 750 (“residence” and “inhabited dwelling” equivalent for purposes of burglary serious felony);   People v. Carr (1988) 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458 (retroactivity of changed legal standard for assessing evidence of residential nature of second degree burglary prior).)   An examination and assessment of court documents, some rather cryptic and technical, is also involved.  (See, e.g., People v. Gomez (1990) 219 Cal.App.3d 157, 159, 268 Cal.Rptr. 50;   People v. Johnson (1990) 217 Cal.App.3d 978, 984, 266 Cal.Rptr. 221;   People v. Carr, supra, 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458;   People v. Batista (1988) 201 Cal.App.3d 1288, 1293-1294, 248 Cal.Rptr. 46.)   Therefore, the determination of whether a prior conviction is a serious felony is most appropriately performed as a part of the court's sentencing function.

Moreover, we note that our Supreme Court in Wiley discussed with approval People v. Leever (1985) 173 Cal.App.3d 853, 871, 219 Cal.Rptr. 581, where “the jury's role was limited to finding true the allegations that defendant had suffered the prior convictions [and where it] was the trial court that determined whether those prior convictions qualified as serious felonies [for the five-year sentence enhancement allegations].”   (Wiley, supra, 9 Cal.4th at p. 591, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   Wiley's approval of Leever further supports the conclusion that it is more properly the province of the trial court to determine whether a prior conviction constitutes a statutorily defined serious felony for the purpose of three strikes prior convictions.

 Appellant properly concedes that pursuant to People v. Wiley, supra, 9 Cal.4th at pages 589-592, 38 Cal.Rptr.2d 347, 889 P.2d 541, there is no federal constitutional right to have the jury determine factual issues relating to prior convictions alleged for the purposes of sentence enhancement.   Nonetheless, appellant notes that the statutory right to a jury trial of prior conviction allegations (Pen.Code, § 1025) has been expanded to include various procedural guarantees.  (See, e.g., People v. Tenner (1993) 6 Cal.4th 559, 566, 24 Cal.Rptr.2d 840, 862 P.2d 840 (proof must be beyond a reasonable doubt);  In re Yurko (1974) 10 Cal.3d 857, 863, fn. 5, 112 Cal.Rptr. 513, 519 P.2d 561 (privilege against self-incrimination applies);  People v. Reed (1996) 13 Cal.4th 217, 224, 228, fn. 6, 52 Cal.Rptr.2d 106, 914 P.2d 184 (rules of evidence and rights of confrontation and cross-examination apply).)   He thus urges that a further expansion is in order, requiring that the residential character of a prior burglary be deemed an element of the prior serious felony allegation, which, pursuant to People v. Jackson (1985) 37 Cal.3d 826, 835, 210 Cal.Rptr. 623, 694 P.2d 736, “unless admitted by the defendant, becomes [an issue] to be proved at trial.”

However, appellant's reliance on People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, is misplaced.  Jackson interpreted the statutory list of serious felonies as referring not to specific criminal offenses, but to the criminal conduct described in the statute, and applicable whenever the prosecution pleads and proves that described conduct.   (People v. Jackson, supra, 37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   As our Supreme Court subsequently explained in People v. Reed, supra, at page 222, 52 Cal.Rptr.2d 106, 914 P.2d 184, “Because of [Jackson's] admission [in the current proceeding that his prior conviction involved the burglary of a residence], Jackson did not require us to decide how the nature of a prior conviction might be proven.”

Nor is People v. Reed, supra, 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184, instructive in determining whether or not the trial court as a legal matter may determine the residential character of appellant's prior burglaries.  Reed held that at the bifurcated trial on the alleged prior serious felony enhancement admission of preliminary hearing transcripts containing hearsay evidence did not violate the defendant's constitutional right to confrontation, and certain probation report excerpts were nonprejudicial hearsay.  (People v. Reed, supra, 13 Cal.4th at pp. 223-231, 52 Cal.Rptr.2d 106, 914 P.2d 184.)  Reed thus addressed the admission of items of evidence and did not resolve the present matter.

Our conclusion that the determination of the serious felony status of a prior conviction is most appropriately a judicial, not a jury, function is consistent with a recent statutory amendment.  Penal Code section 1025 provides, in pertinent part, as follows:  “(b) ․ 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 ․ (c) Notwithstanding the provisions 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.”  (As amended by Stats.1997, ch. 95, § 1, italics added.)   As required by subdivision (b), which is substantially the same as a provision in the prior version of the statute applicable herein, whether appellant “suffered the [alleged] prior conviction” was indeed determined by the jury, which was not statutorily required to determine its serious felony status.   Pursuant to subdivision (c), a recent substantive addition to the statute, and not applicable in the present case, even the identity of the defendant as the person who suffered the prior felony would be determined by the court without a jury.   The role of the jury at the bifurcated proceeding on the alleged prior conviction is thus quite limited.

Accordingly, it is within the province of the trial court to rule as a matter of law whether a prior conviction, found true by a jury in a bifurcated proceeding, constitutes a serious felony within the meaning of Penal Code section 1192.7, subdivision (c).

III. No remand for resentencing is required

 At appellant's sentencing hearing, the trial court opined that an appropriate punishment for his crimes would be a prison term of 15 years to life, but acknowledged that the three strikes law requires a sentence of either 25 years to life or 50 years to life.   The court deemed the possible sentence of 50 years to life “absurd in this case” to the extent that it “would be cruel and unusual punishment.”   The court struck the three strikes findings as to counts 1, 2 and 7, but imposed a three strikes sentence of 25 years to life as to count 6. In striking the strikes as to three of the counts, the court noted that in appellant's three prior burglary offenses he “did not use the weapons [taken in the burglary] in any defensive way” during his arrest, appellant “has been very cooperative since arrested on this case [and] has been of some help to the police on other matters,” and “there is no violence involved in any of his crimes [though appellant] is a very large man and probably fairly strong and probably is capable of violence if he were so inclined.”   The trial court specifically stated it struck the strikes as to three of the four counts pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, 53 Cal.Rptr.2d 789, 917 P.2d 628, and Penal Code section 1385.

On appeal, appellant contends that the trial court failed to exercise informed discretion in striking the strikes as to only some counts, when the reasons stated for doing so applied with equal force to all counts.   Respondent, on the other hand, urges that the trial court's ability to strike a strike is limited, and that there is no principled basis for striking strikes as to some counts but not as to other counts in a multi-three strikes case.   Respondent thus seeks to increase appellant's sentence to 50 years to life.   According to respondent, appellant should receive prison terms of 25 years to life on each of the four counts of which he was convicted, with imposition of terms stayed as to counts 2 and 7 (see Pen.Code, § 654), for a total consecutive term on counts 1 and 6 of 50 years to life.  (See People v. Hendrix (1997) 16 Cal.4th 508, 512-513, 66 Cal.Rptr.2d 431, 941 P.2d 64 (consecutive sentences for crimes not committed on the same occasion and not arising from same operative facts).)

We disagree with both appellant and respondent.   The trial court was fully capable of exercising what discretion was left to it after the three strikes law.   Assessing the sentencing value of the matter before it, the court stated rational and credible reasons (not challenged on appeal) for striking the strikes as to all but one count.   In People v. Garcia (1997) 59 Cal.App.4th 834, 837-838, 69 Cal.Rptr.2d 463, as modified at 60 Cal.App.4th 1241a, this court observed that neither statutory provisions nor the Romero decision expressly preclude trial courts from striking prior convictions as to some counts only, as opposed to striking priors as to all counts.   We adhere to our opinion in Garcia.

 Finally, although the trial court acknowledged on the record its duty to enter in the minutes its reasons for striking the strikes, it apparently neglected to do so.   The reasons for striking prior convictions in the furtherance of justice “ ‘ “must be set forth in an order entered upon the minutes.” ’ ”  (People v. Williams (1998) 17 Cal.4th 148, 159, 69 Cal.Rptr.2d 917, 948 P.2d 429.)  “ ‘ “The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement.   It is not enough that on review the reporter's transcript may show the trial court's motivation;  the minutes must reflect the reason ‘so that all may know why this great power has been exercised.’ ” ' ”  (Ibid.) The trial court is thus directed to enter such a minute order.


We remand for the trial court to indicate in a minute order the reasons for striking appellant's prior three strikes convictions as to count 1, 2 and 7, but in all other respects affirm the judgment.


1.   The jury failed to reach a verdict as to a third count of burglary (count 3), a third count of grand theft (count 4), and one count of the unlawful use of a motor vehicle (count 5).   The court granted the People's motion to dismiss those counts in the furtherance of justice.

2.   CALJIC No. 2.22 provides as follows:  “You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force.   You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other.   You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides].   The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”

3.   For three strikes purposes (Pen.Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1)), a qualifying prior conviction is either a prior violent felony (Pen.Code, § 667.5) or, as here, a prior serious felony (Pen.Code, § 1192.7, subd. (c)).  Pursuant to Penal Code section 1192.7, subdivision (c)(18), a serious felony includes “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building.”

4.   The jury was instructed, pursuant to CALJIC No. 17.26, regarding its duty to find a prior felony in a bifurcated trial, as follows:  “The defendant was accused in the information of having violated Penal Code sections 487a and 459 and the jury has now returned verdicts of guilty as to those particular charges, on two counts of each section.  [¶] It is also alleged in the information that the defendant previously has been convicted of violations of 3 counts of burglary on March 2, 1981 and a violation of attempted burglary on September 11, 1986.  [¶]  You must now determine the truth of these allegations.  [¶] In considering this question, you must not be influenced by the previous convictions on which you have already returned a verdict or any evidence received in support of that allegation.  [¶] You must consider each of the alleged prior convictions separately.  [¶] The People have the burden of proving the truth of these allegations.   If you have a reasonable doubt as to whether any such alleged prior conviction is true, you must find the allegation to be not true.  [¶] You will include a special finding on that question, using a form that will be supplied to you.”The Use Note to the newer and present version of CALJIC No. 17.26 (6th ed.1996) indicates as follows:  “It would appear that this instruction can be utilized for Penal Code section 667.   Certain facts making a prior conviction a ‘serious' or ‘violent’ felony may be an issue of fact for the court to determine.  [¶] Depending on the particular allegation, further definitional instructions may be required.  (See People v. Winslow (1995) 40 Cal.App.4th 680 [46 Cal.Rptr.2d 901].)”   This 1996 version of the CALJIC instruction includes, by way of bracketed example, a prior conviction of “a burglary of an inhabited dwelling house or trailer coach, or of an inhabited portion of any other building.”   Of course, to the extent the present version of CALJIC No. 17.26 conflicts with the opinion herein or other case law, such judicial opinions prevail.

5.   On appeal, appellant now offers no explanation as to how his prior first degree burglaries or attempted burglary could not be deemed serious (see Pen.Code, § 1192.7, subd. (c)(18)) for the purposes of the present three strikes allegations.Indeed, the definition of a serious felony includes the “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building” (Pen.Code, § 1192.7, subd. (c)(18)).   That language defining a serious felony is identical to the 1986 definition of first degree burglary, applicable to appellant's 1986 attempted burglary (Pen.Code § 460;  see Stats.1982, ch. 1290, § 1;  Stats.1982, ch. 1297, § 1), and is largely parallel to but even more inclusive than the 1980 definition of first degree burglary, applicable to appellant's three 1981 burglary convictions (Pen.Code § 460;  see Stats.1978, ch. 579, § 23, in some situations restricting first degree burglaries to those committed in the nighttime).

BOREN, Presiding Justice.

FUKUTO and ZEBROWSKI, JJ., concur.

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