Opinion
[As modified April 30, 1999.]
[REVIEW GRANTED BY CAL. SUPREME COURT]
Superior Court of Sacramento County, No. 97F07389, James Timothy Ford, Judge. COUNSEL
Judith R. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KOLKEY, J.
In this appeal, defendant contends (1) that the trial court should have allowed the jury to determine whether his prior robbery conviction was a "serious felony" for purposes of sentencing under the three strikes law; and (2) that the court committed prejudicial error in instructing the jury on reasonable doubt under the revised version of CALJIC No. 2.90. We disagree and affirm the judgment of the trial court. We conclude that (1) defendant was not entitled to a jury determination over whether his prior robbery conviction was a "serious felony" because the relevant statutes cannot be construed to afford him any such right and the issue is a legal question; and (2) the court did not err in using the reasonable-doubt instruction, since the California Supreme Court has specifically approved the modification embodied in this instruction.
Facts and Procedural Background
On February 9, 1998, a jury convicted defendant of possession of cocaine base. (Health & Saf. Code, section 11350.) The following day, the jury found true four prior convictions for purposes of sentencing under the three strikes law (Pen. Code, section 667, subds. (b)-(i)). These consisted of two prior convictions for possession of a controlled substance (Health & Saf. Code, section 11350), a conviction for carrying a concealed weapon in a vehicle (Pen. Code, section 12025), and a conviction for robbery (Pen. Code, section 211).
Further section references are to the Penal Code unless otherwise designated.
Thereafter, the trial court determined that defendant's prior robbery conviction constituted a serious felony for purposes of sentencing under the three strikes law. (sections 667, subds. (d) (1) and (e) (1), 1192.7, subd. (c) (19).) The trial court then used the robbery conviction to double the three-year sentence it imposed for the current offense. (section 667, subd. (e) (1).)
Defendant asserts that "the court never made a formal finding that the robbery in question was a serious felony ...." However, when the prosecutor informed the trial court that the probation report "indicates that there as yet [has] been no finding by the jury—or Court as to whether this falls within the ... strike provisions of the Penal Code," the court responded, "Well, of course it does." In context, the trial court's response can only be read as a determination that the robbery conviction "of course" falls within the definition of a prior "serious" felony under section 667, subdivision (d) and section 1192.7, subdivision (c). This is further confirmed by the fact that the court relied on the robbery conviction to double the sentence: "Next, the Court will impose an additional three years by way of doubling that pursuant to the prior strike that you suffered for the robbery in 1985." Hence, we must reject defendant's assertion that no finding was made, particularly in light of the principle that " ' "[a]ll intendments and presumptions are indulged to support [a lower court's judgment] on matters as to which the record is silent, and error must be affirmatively shown ...." ' " (People v. Wiley (1995) 9 Cal.4th 580, 592 fn. 7 [38 Cal.Rptr.2d 347, 889 P.2d 541], quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].)
In light of the nature of the issues raised by defendant, we need not discuss the facts underlying his conviction. Discussion
I
For purposes of the three strikes sentencing provisions (sections 667, subd. (d) (1), 1170.12, subd. (b) (1)), a qualifying prior conviction is either a prior violent felony (section 667.5, subd. (c)) or, as here, a prior serious felony (section 1192.7, subd. (c)). Subdivision (c) (19) of section 1192.7 defines "serious felony" to include "[r]obbery or bank robbery."
Defendant acknowledges that the jury found true his prior robbery conviction, but contends that "the trial court erred in doubling [his] sentence under section 667, subdivision (e) (1) without there first being a jury finding that the prior robbery conviction was a serious felony under section 667, subdivision (d) (1)."
However, he offers no explanation as to how his prior robbery conviction could not be deemed a serious felony under subdivision (c) (19) of section 1192.7. The Attorney General responds that the determination of whether defendant's prior robbery conviction was a "serious" felony presents "a pure question of law" to which defendant was not entitled to a jury determination. We agree.
The parties note that the California Supreme Court has granted review of two cases which held that the determination of whether a prior conviction constitutes a serious felony for three strikes sentencing purposes is a question of law for the court, not a question of fact for the jury. (People v. Kelii (S070960, review granted July 29, 1998) and People v. Kidd (S071352, review granted Aug. 19, 1998).)
Neither the federal nor the state constitutions confer a right to have a jury determine any "factual issues relating to prior convictions alleged for purposes of sentence enhancement." (See People v. Wiley, supra, 9 Cal.4th 580, 589 [sentence enhancement imposed under section 667, subdivision (a)].)
Instead, in California, a defendant's right to have a jury determine whether he "suffered" a prior conviction derives from statute: sections 1025 and 1158. (People v. Wiley, supra, 9 Cal.4th at p. 589; People v. Vera (1997) 15 Cal.4th 269, 274 [62 Cal.Rptr.2d 754, 934 P.2d 1279].) Section 1025 provides that when a defendant who is charged with having "suffered a prior conviction" denies the allegation, "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 ...." (section 1025, subds. (a), (b).) Likewise, section 1158 states that "[w]henever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction."
These provisions only require that the jury determine whether the prior convictions are true, not whether they are also defined as a "serious felony" under the three strikes law. Indeed, the language in both sections 1025 and 1158 highlights that the right to a jury determination is limited to the issue "whether or not the defendant has suffered the prior conviction." (section 1025, subd. (b).)
First, sections 1025 and 1158 only require a jury determination where the defendant denies the prior conviction: "If the defendant enters an admission, his or her answer shall be entered in the minutes of the court, and shall ... be conclusive of the fact of his or her having suffered the prior conviction ...." (Section 1025, subd. (a).) This admission of the prior conviction - which does not cover whether the felony is "serious" or "violent" - appears to end the right to any jury determination. Indeed, section 1025, subdivision (e) provides: "If the defendant pleads not guilty, and answers that he or she has suffered the prior conviction, the charge of the prior conviction shall neither be read to the jury nor alluded to during trial ...." Thus, if the existence of the prior conviction is conceded, section 1025 actually precludes any jury determination over the prior conviction, which would include the issue whether the prior conviction was "violent" or "serious."
Second, the scope of the jury finding envisioned by the Legislature under section 1158 shows that it is limited to the existence of the prior conviction. Section 1158 specifies that the requisite verdict is: "We ... find the charge of previous conviction true." Thus, the statute does not require the further jury determination requested by defendant.
Third, section 1025, subdivision (c) makes clear that notwithstanding the right to a jury determination whether the defendant suffered a prior conviction, "the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." Thus, there is a limitation even on the right to a jury determination of whether the defendant suffered a prior conviction. Accordingly, the plain language of the statutes only requires a jury determination of the existence of the prior conviction.
The separate question in this case—whether the prior robbery conviction constituted a "serious felony" within the meaning of sections 667, subdivisions (d), (e) and 1192.7, subdivision (c)—is legal in nature. Section 667, subdivision (d) (1) defines "serious" felony as any offense defined in subdivision (c) of section1192.7, and section 1192.7, subdivision (c) (19) provides that "[r]obbery or bank robbery" is a "serious felony." This determination is purely a matter of law and one for the trial court, not the jury, to determine.
Since the prior conviction found true by the jury in this case is one of the offenses defined as a 'serious' felony under subdivision (c) of section 1192.7, we do not have the occasion to address whether a trial court can decide that a prior conviction is serious where the prior conviction found true by the jury does not necessarily, but could, depending upon the facts, constitute a 'serious' felony as defined in subdivision (c) of section 1192.7.
In reaching this conclusion, we find People v. Wiley (1995), 9 Cal.4th 580 (Wiley) instructive. In Wiley, the Supreme Court rejected the defendant's contention that the jury was also required to determine whether his two prior convictions (which the jury had found true) had been "brought and tried separately"—a definitional requirement specified in the language of section 667, subdivision (a). That subdivision provides that a defendant who is convicted of a serious felony shall receive a five-year sentence enhancement for each previous conviction for a serious felony "on charges brought and tried separately." (9 Cal.4th at p. 590.) The court held that the issue whether the convictions were brought and tried separately was "properly ... a matter for the court, because that question is largely legal in nature." (Ibid.) The Supreme Court explained: "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 generally 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." (Wiley, supra, 9 Cal.4th at p. 590.)
Here, too, once the jury found true the prior conviction of robbery, it was purely a legal determination to decide whether such a conviction qualified as "serious" under section 667, subdivisions (d) and (e) and section 1192.7.
We also note that the court in Wiley mentioned approvingly that in People v. Leever (1985) 173 Cal.App.3d 853 [219 Cal.Rptr. 581], "... the jury's role was limited to finding true the allegations that defendant had suffered the prior convictions" and that 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; People v. Leever, supra, 173 Cal.App.3d at pp. 871-873 [superseded by statute to the extent it held that bank robbery is not a "serious" felony under California law].) In light of these authorities and based upon a plain reading of the relevant statutes, we conclude that the trial court did not err in failing to submit for the jury's consideration whether defendant's prior robbery conviction constituted a serious felony for purposes of sentencing under the three strikes law. That determination poses a legal question that was appropriately performed by the court.
After the briefing was completed, defendant brought to the court's attention the recently decided case of People v. Superior Court (Roam) (1999) 69 Cal.App.4th 1220 [82 Cal.Rptr.2d 119], for the proposition that a trial court acts in excess of its discretion "in using a procedure not authorized by statute." As shown herein, the trial court in this case did not act in excess of its jurisdiction because the relevant statutes did not require it to submit to the jury the issue whether robbery was a serious felony. Thus, Roam—which held that the court acted in excess of its jurisdiction by deferring sentencing and releasing a convicted, three strikes defendant on supervised own recognizance to attend a drug rehabilitation program-is inapposite.
II
Defendant also contends that the trial court erred by instructing the jury on "reasonable doubt" pursuant to the modified version of CALJIC No. 2.90, which eliminates the phrases "and depending on moral evidence" and "to a moral certainty," which had previously been part of that instruction. Defendant argues that the "abiding conviction" language in the instruction provides "insufficient guidance to convey the degree of certainty necessary for a conviction."
The following instruction—CALJIC No. 2.90 (1994 rev.)—was given: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
We can find no error in giving this instruction. The California Supreme Court has specifically approved this modification of the standard instruction. (People v. Freeman (1994) 8 Cal.4th 450, 504 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) And the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [114 S.Ct. 1239, 1247, 127 L.Ed.2d 583, 595-596], concluded that "[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to a moral certainty, correctly states the government's burden of proof." Responding to this decision, the California Supreme Court in Freeman thereafter said, "The high court made clear that the terms 'moral evidence' and 'moral certainty' add nothing to the jury's understanding of reasonable doubt" and thus "trial courts might, in the future, safely delete the following phrases in the standard instruction: 'and depending on moral evidence,' and 'to a moral certainty.' " (People v. Freeman, supra, 8 Cal.4th at p. 504.) The California Legislature thereafter amended section 1096 to reflect this deletion. (Stats. 1995, ch. 46, section 1 [Assem. Bill No. 1131].)
Indeed, recent decisions have rejected challenges identical to those raised here (People v. Light (1996) 44 Cal.App.4th 879, 885-889 [52 Cal.Rptr.2d 218]; People v. Torres (1996) 43 Cal.App.4th 1073, 1078 [51 Cal.Rptr.2d 77]), and the California Supreme Court has cautioned against trial court experimentation with the reasonable-doubt instruction (People v. Freeman, supra, 8 Cal.4th at p. 504). Accordingly, the trial court did not err in using, and in not altering, the modified version of CALJIC No. 2.90, which, after all, was recommended by the California Supreme Court and enacted by amendment into section 1096 in 1995. (Stats. 1995, ch. 46, section 1.)
Disposition
The judgment is affirmed.
Sims, Acting P. J., and Morrison, J., concured.