Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HALLER, Acting P. J.
Consolidated appeal from a judgment of the Superior Court of San Diego County, Alvin E. Green, Jr., Judge, and petitions for writ of habeas corpus, Super. Ct. No. SCS201976.
Tyrone Elliott was convicted of petty theft with prior theft convictions and sentenced to two years in prison. In his appeal, he contends that his federal constitutional jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) were violated because the trial court, not the jury, determined the issue of his identification as the defendant who suffered the prior theft convictions. We reject this argument. Elliott also personally filed two petitions for writ of habeas corpus. We deny these petitions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 28, 2006, Mario Baeza, an undercover loss prevention officer employed at Longs Drugs, observed Elliott pry open a corner of a locked plastic display case and remove a $19.99 watch from the display. Elliott then picked up a telephone accessory from a nearby display, covered the watch with the telephone accessory, removed the watch from its case, and placed the watch in his pocket. Elliott walked towards the cash registers and deposited the empty watch case and the telephone accessory at other displays. At the cash register, Elliott tried to buy a newspaper but did not have enough money. He then exited the store without paying for the watch that was still in his pocket.
Baeza stopped Elliott outside the store, showed his badge, and asked Elliott to return the watch. Elliott stated he owned the watch. Baeza repeated his request for the watch, stating it was not paid for. Elliott responded, "Okay, here it is . . ." and handed him the watch. Baeza asked Elliott why he took the watch, and Elliott told him he was going to sell it to pay for bus or trolley fare to get home. Baeza escorted Elliott back into the store and called the police.
Elliott was charged with petty theft (Pen. Code, § 484), with allegations that he had incurred three prior theft convictions within the meaning of section 666, allowing punishment of the offense as a felony. The jury found Elliott guilty of petty theft.
Subsequent statutory references are to the Penal Code.
Elliott requested a jury trial to adjudicate the prior theft allegations. The trial court informed Elliott that under California statutory law (§ 1025) the court was required to determine the issue of whether Elliott was the defendant in the prior convictions, and the jury would then decide whether he was convicted as alleged. Elliott objected, asserting that he had a federal constitutional right under Apprendi to have all issues pertaining to the prior convictions decided by the jury, including the identification issue. The trial court rejected this argument and stated it would follow the California statute.
Thereafter, Elliott informed the court that he did not want to testify that he was not the person who incurred the prior convictions, but he did want to testify before the jury that his rights were violated during the prior criminal proceedings resulting in the prior convictions. The trial court denied this request, stating this was not a proper issue to address during a trial on prior conviction allegations. Elliott then told the court that he wanted to waive his right to a jury trial on the prior conviction allegations. After making further inquiry to ensure that Elliott's waiver was knowing and voluntary, the trial court held a bench trial on the alleged prior theft convictions.
The prosecution presented certified documents and the testimony of a fingerprint expert showing that Elliott was the defendant in the prior convictions, the prior theft convictions were incurred, and Elliott was incarcerated for the prior offenses as required by section 666. (See People v. Valenzuela (1981) 116 Cal.App.3d 798, 802-803.) The trial court found the alleged prior theft convictions true, and sentenced Elliot to the two-year middle term for the petty theft with a prior theft conviction.
Section 666 states: "Every person who, having been convicted of petty theft . . . and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison."
DISCUSSION
I. Apprendi Challenge
Section 1025 generally requires that a jury decide whether a defendant has suffered an alleged prior conviction. (§ 1025, subd. (b).) As an exception to this general rule, when the prior conviction is a sentencing factor not an element of the offense, section 1025 provides that the trial court shall determine the issue of whether the defendant is the person who suffered the prior conviction. (§ 1025, subds. (c), (d).) Elliott argues that section 1025 violates his federal constitutional jury trial right by allowing the trial court to determine the issue of his identity as the person who incurred the prior conviction.
Section 1025 states 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 is waived. [¶] (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. [¶] (d) Subdivision (c) shall not apply . . . to prior convictions alleged as an element of the offense."
Elliott does not dispute that his prior theft convictions—which allowed his current petty theft conviction to be punished as a misdemeanor or a felony—operated as a sentencing factor, not as an element of the offense. (§§ 484, 666; People v. Terry (1996) 47 Cal.App.4th 329, 331; People v. Bouzas (1991) 53 Cal.3d 467, 478.) His argument is premised solely on the United States Supreme Court's Apprendi rule which restricts a trial court's authority to impose an enhanced punishment based on facts that were not found by a jury beyond a reasonable doubt.
Petty theft is normally a misdemeanor. (§§ 486, 488, 490; People v. Terry, supra, 47 Cal.App.4th at p. 331.) However, under the provisions of section 666, petty theft may be punished as a misdemeanor or a felony if the defendant has incurred and been incarcerated for a prior theft-related conviction. (§ 666; Terry, supra, at p. 332.) The courts have long defined section 666 as a sentencing factor for the court, not a substantive element of an offense for the jury. (People v. Bouzas, supra, 53 Cal.3d at pp. 473-475; 478-480.) "[A] charge under section 666 merely puts a defendant on notice . . . that if he is convicted of the substantive offense and if the prior conviction and incarceration allegation of section 666 is admitted or found true, he faces enhanced punishment at the time of sentencing." (Id. at p. 479.)
In a series of decisions commencing with Apprendi, the United States Supreme Court set forth the rule that a defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); U.S. v. Booker (2005) 543 U.S. 220, 244 (Booker); Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 860 (Cunningham); see also Shepard v. United States (2005) 544 U.S. 13, 24 (Shepard).) Under Apprendi and its progeny, the statutory maximum is defined as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Based on the high court's definition of "statutory maximum, " if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, such judicial fact finding violates the defendant's jury trial right. (Id. at pp. 865, 868-869.)
In each of its decisions, the United States Supreme Court reiterated that an exception to the Apprendi rule—derived from its decision in Almendarez-Torres v. United States (1998) 523 U.S. 224—applies to "the fact of a prior conviction." (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301; Booker, supra, 543 U.S. at p. 244; Shepard, supra, 544 U.S. at p. 25; Cunningham, supra, 127 S.Ct. at p. 860.) Although the United States Supreme Court has suggested the Almendarez-Torres exception may at some point be subject to reexamination and possible elimination, to date the high court has not expressly overruled the exception and it continues to be viable. (See Apprendi, supra, 530 U.S. at pp. 489-490; Shepard, supra, 544 U.S. at p. 26, fn. 5; People v. Black (2007) ___Cal.4th___ [2007 Cal. LEXIS 7604, *33-34] (Black); People v. McGee (2006) 38 Cal.4th 682, 708.)
Elliott concedes that the Almendarez-Torres prior conviction exception has not been overturned by the United States Supreme Court, and he raises a challenge to the continued viability of the exception solely to preserve federal court review of the issue. Accordingly, we need not discuss this issue further.
Recognizing the prior conviction exception is still viable, Elliott additionally contends that it should not be interpreted to apply to the factual issue of the identification of the person who suffered the prior conviction.
In People v. Epps (2001) 25 Cal.4th 19, 23, the California Supreme Court cited Apprendi and stated that "[t]he right, if any, to a jury trial of prior conviction allegations derives from section[] 1025 . . ., not from the state or federal Constitution." Relying on Epps, lower appellate courts have concluded that the identification issue is within the prior conviction exception to the Apprendi rule. (People v. Belmares (2003) 106 Cal.App.4th 19, 27-28; accord People v. Garcia (2003) 107 Cal.App.4th 1159, 1165.)
Elliott suggests that this conclusion is no longer correct because in decisions that postdate Epps, Garcia, and Belmares, the United States Supreme Court has clarified that under the Apprendi rule the trial court may not enhance punishment when the enhancement requires findings beyond the facts established by the guilty verdict. (See Blakely, supra, 542 U.S. at pp. 303-304.) Drawing a corollary between the narrow definition of the facts from the current conviction that may be used to enhance punishment, Elliott posits that a trial judge should not be allowed under the prior conviction exception to determine such facts as the defendant's identification.
In cases decided subsequent to the United States Supreme Court's Blakely decision, federal and state courts in other jurisdictions have concluded that the question of whether the defendant who incurred the prior conviction is the same defendant currently before the sentencing court is encompassed within the prior conviction exception to the Apprendi rule. (U.S. v. Browning (7th Cir. 2006) 436 F.3d 780, 782; People v. Nunn (Colo.App.2006) 148 P.3d 222, 227-228; State v. Smith (La.App. 2005) 913 So.2d 836, 839-840.) In Browning, the court reasoned: "The use of a prior conviction to enhance a defendant's sentence presupposes that it is a prior conviction of him, and if there is any doubt on that score the judge has to resolve it." (U.S. v. Browning, supra, 436 F.3d at p. 782.) Similarly, in Nunn the court observed that the defendant's identity "is intimately related to the existence of the prior conviction." (People v. Nunn, supra, 148 P.3d at p. 227.) We agree with this analysis. The United States Supreme Court's directive that "the fact of a prior conviction" is exempted from the Apprendi rule has no meaning unless the defendant currently being sentenced incurred the prior conviction. To implement the prior conviction exception the trial court necessarily must inquire whether the prior conviction was suffered by the defendant. Thus, by carving out the prior conviction exception, the United States Supreme Court implicitly approved the sentencing court's authority to determine whether a prior conviction exists for the defendant.
This conclusion is also consistent with the California Supreme Court's recent decision in Black, supra, 2007 Cal. LEXIS 7604. In Black, the court defined the prior conviction exception as including "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at *37.) The Black court held that the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception, explaining that these findings "require consideration of only the number, dates, and offenses of the prior convictions alleged"; the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense"; and these types of determinations were " 'quite different from the resolution of issues submitted to a jury' " and more appropriate for a court. (Id. at *39.)
Here, the identification issue can in large part be determined from the records related to the prior conviction and does not require subjective factual assessments regarding the defendant or the prior or current offenses. The prior conviction records provide the name of the defendant and other identifying information. The only remaining task for the trial court to determine regarding identification is whether the defendant named in the prior conviction records is the same defendant currently before the court. Unlike a typical Apprendi-like factual analysis, this determination does not require the court to delve into the facts or nature of the prior or current offenses. Rather, the court must simply consider identifying information showing that the defendant who committed the past and current offenses is the same person. (See State v. Smith, supra, 913 So.2d at pp. 839-840 [identity issue within prior conviction exception because the issue can be determined by reviewing the documents submitted in support of the prior convictions].)
To support his argument that the identification issue should not be included within the prior conviction exception, Elliott relies on the United States Supreme Court decision in Shepard, supra, 544 U.S. 13, where the court limited the documents related to a prior conviction that may properly be examined by a sentencing court for purposes of a sentence enhancement.
In a plurality opinion, the Shepard court held that the sentencing court could not consider police reports to determine if a prior conviction arising from a guilty plea involved a burglary of a building or enclosed space (a "generic burglary") so as to support an enhanced sentence. (Shepard, supra, 544 U.S. at pp. 15-17.) However, the Shepard court concluded the sentencing court could consider statutory elements, charging documents, and judicial records such as jury instructions, bench trial court rulings, plea agreements and plea colloquy transcripts. (Id. at pp. 15-17, 20, 23, 26.)
In addition to construing the legislative intent evinced in the governing enhancement statute, the Shepard court evaluated whether judicial fact-finding based on a police report violated the Apprendi rule. On this latter issue, the Shepard court concluded that under Apprendi judicial fact-finding should be limited to facts that "a prior conviction 'necessarily' involved [or] a prior plea necessarily admitted . . . ." (Shepard, supra, 544 U.S. at pp. 23-24 & fn. 4.) Otherwise, "[i]f the sentencing court were to conclude, from its own review of the record, that the defendant . . . actually committed a generic burglary, . . . the defendant [could] challenge this conclusion as abridging his right to a jury trial[.]" (Id. at p. 24.) The Shepard court explained: "[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to . . . Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." (Id. at p. 25, some italics added.)
Justice Thomas concurred with the result in the court's plurality opinion, but stated his view that the Almendarez-Torres prior conviction exception should be abandoned. (Shepard, supra, 544 U.S. at pp. 27-28 (conc. opn. of Thomas, J.).) Three justices dissented, stating that allowing the trial to consider uncontradicted police reports was consistent with legislative intent and permissible under Almendarez-Torres's recidivism exception to the Apprendi rule. (Shepard, supra, at pp. 36-38 (dis. opn. of O'Connor, J.).)
This latter statement in Shepard implicitly suggests that there are matters that are (1) so closely tied to "the conclusive significance of a prior judicial record, " or (2) so unlike "the findings subject to . . . Apprendi" as to properly be encompassed within the prior conviction exception. (Shepard, supra, 544 U.S. at p. 25.) The identification issue meets this criteria. First, it is not an "Apprendi-like" fact because it is part and parcel of the prior conviction itself and it requires no subjective determinations regarding the circumstances of the prior or current offenses. Second, although the prosecution may present evidence apart from the prior conviction records (for example, as here, testimony of a fingerprint expert), the evidence concerning the defendant's identity will be largely presented in official records generated as a result of the prior conviction proceedings. Determination of the identification issue does not invoke the judicial fact-finding concerns present in Shepard.
We conclude the identification issue is covered by the prior conviction exception. Accordingly, Elliott cannot prevail on his challenge to the judgment based on the trial court's adjudication of the identity issue.
II. Writ Petitions
In his pro se petitions for writ of habeas corpus, Elliott raises various arguments, including claims concerning violation of his speedy trial rights, ineffective assistance of trial counsel for failing to file motions, violation of his Miranda rights, instructional error on the issue of intent, admission of hearsay, insufficiency of the evidence, the propriety of charging and convicting him of a felony based on his prior theft convictions, and the award of custody and conduct credits. Consistent with our court policy, we forwarded Elliott's writ petitions to Elliott's appointed appellate counsel to allow counsel an opportunity to review them for any potentially meritorious appellate or habeas issues. Elliott's appellate counsel did not incorporate into this appeal any of the issues identified by Elliott, nor did his appellate counsel file a habeas petition on his behalf.
Most, if not all, of Elliott's contentions involve issues that could have been raised in his appeal. In the absence of special circumstances, matters that could have been raised on appeal are not reviewable by writ. (In re Clark (1993) 5 Cal.4th 750, 765.) Moreover, based on our own review of the issues raised by Elliott, we conclude he has not shown a prima facie case for relief. We deny his requests for writ relief.
DISPOSITION
The judgment is affirmed. The petitions for writ of habeas corpus are denied.
WE CONCUR: McDONALD, J., IRION, J.