December 23, 2015
2015-IPG#13: HOW THE PROGENY OF DESCAMPS ARE MAKING IT
TOUGHER TO PROVE SOME PRIOR CONVICTIONS TO A JUDGE
In this edition of IPG, we briefly review the statutory right of a defendant to a jury trial on prior
convictions and then try to provide answers to the following questions regarding a defendant’s
constitutional right to a jury trial on prior convictions in light of Descamps v. United States (2013)
133 S.Ct. 2276 and several recent California appellate decisions interpreting the scope of Descamps:
1.
Does the Sixth Amendment allow the prosecution to prove to a court (rather than a jury) that a
defendant has a prior conviction that increases defendant’s maximum punishment?
2.
If so, does the Sixth Amendment allow the prosecution to not only prove the bare fact of the
conviction but other facts about the conviction to a court (rather than a jury)?
3.
In light of Descamps and its California progeny, what documents may the prosecution safely
rely on in proving the fact a defendant had suffered a prior conviction to a court?
4.
From a constitutional standpoint, does the fact a prior conviction is being proved to a jury
instead of a court change what may be relied upon in proving the prior conviction?
This IPG memo is accompanied by a podcast providing 50 minutes of general self-study MCLE
credit. It can be accessed at: https://youtu.be/5vlT8IrtQ60.
NOTE: Other bottom line answers to questions on how prosecutors should proceed
when proving priors and taking pleas in light of Descamps and its progeny may be
found at pp. 38-40 of this memo.
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Defendant’s Statutory Right to a Jury Trial on Prior Convictions
Before we begin trying to answer the constitutional questions, it should be made clear that the
question of whether a defendant has a constitutional right to a jury trial on his prior convictions is
a different question than whether the defendant has a statutory right to a jury trial on his prior
convictions. We are going to discuss some of the interplay between the constitutional and statutory
rights later. For now, here is a brief summary of the statute and case law governing the statutory
right to trial on prior convictions.
Penal Code sections 1025(b) and 1158, together, provide a limited statutory right to jury trial on
prior convictions.
Subdivision (b) of section 1025 provides: “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.”
Subdivision (c) of section 1025 provides: “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.”
Penal Code section 1158, in pertinent part, provides: “Whenever 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.”
The California Supreme Court has held that Penal Code section 1025 greatly restricts, but does not
eliminate, the right to a jury trial of prior conviction allegations. (People v. Epps (2001) 25 Cal.4th
19, 28.) Where only the bare fact of the prior conviction is at issue, the judge makes the
determination of identity, i.e., that the defendant is the person who suffered the conviction. The
judge then instructs the jury “to the effect that the defendant is the person whose name appears on
the documents admitted to establish the conviction” and it is left to the jury “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.” (People v. Kelii (1999) 21 Cal.4th 452, 458-459;
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see also People v. Epps (2001) 25 Cal.4th 19, 28 [indicating jury decides whether the alleged
prior conviction ever even occurred where, for example, “the records of the prior conviction may
have been fabricated, or they may be in error, or they may otherwise be insufficient to establish the
existence of the prior conviction”].)
“In determining whether a defendant is subject to increased punishment on the basis of a prior
conviction, it sometimes is necessary to examine the record of the earlier proceeding to determine
whether it involves the type of qualifying prior conviction that authorizes increased punishment
under the applicable sentencing statute. In view of the unusual and somewhat specialized nature of
the inquiry that must be conducted for this purpose—an examination that is strictly limited to a
review and interpretation of documents that are part of the record of the prior criminal proceeding
— . . . it is the court, rather than the jury, that is entrusted with the responsibility of undertaking this
inquiry and making the determination.” (People v. McGee (2006) 38 Cal.4th 682, 685.)
However, “[t]he need for such an inquiry does not contemplate that the court will make an
independent determination regarding a disputed issue of fact relating to the defendant’s prior
conduct [.]” (Id. at p. 706, emphasis added by IPG.)
The following determinations have been held to be questions for the court under the statutory
scheme for providing prior convictions:
Penal Code section 667(a)(1) serious felony priors
Section 667(a)(1) provides for the imposition of a five additional years in state prison to be added to
a defendant’s sentence for each prior conviction of a serious felony listed in Penal Code section
1192.7(c) or of “any offense committed in another jurisdiction which includes all of the elements of
any serious felony,” when the prior convictions stem from “charges brought and tried separately.”
(Emphasis added by IPG.)
Whether the charges leading to multiple prior convictions have been ‘brought and tried separately’
within the meaning of section 667(a)(1) is “a matter for the court, because that question is largely
legal in nature.” (People v. McGee (2006) 38 Cal.4th 682, 693; People v. Wiley (1995) 9
Cal.4th 580, 589.)
Whether the prior conviction “qualifies” as a serious felony is question for the court even when the
issue does not involve an entirely legal question. (People v. McGee (2006) 38 Cal.4th 682, 693695; People v. Kelii (1999) 21 Cal.4th 452, 456-457.)
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Penal Code section 667(d)/1170.12(b) strike priors
Sections 667(d) and 1170.12 allow for, among other things, an increased sentence if the defendant
has one or more prior convictions for a “serious” felony as defined in Penal Code section 1192.7(c)
and/or a “violent” felony as defined in Penal Code section 667.5(c), or a prior conviction from
another jurisdiction that “includes all of the elements of the particular violent felony as defined in
subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7,” or
certain juvenile adjudications. (Pen. Code, §§ 667(d) and 1170.12(b).)
Whether an offense qualifies as a strike prior (i.e., a serious or violent felony conviction) under the
“Three Strikes” law is a question for the court. (People v. McGee (2006) 38 Cal.4th 682, 693-695;
People v. Kelii (1999) 21 Cal.4th 452, 456-457.)
Penal Code section 667.5(b) one-year state prison priors
Section 667.5(b), among other things, increases a sentence by one year for each prior separate prison
term or county jail term imposed under Penal Code section 1170(h) if the term has been served (i.e.
completed) and the defendant has remained free for a period of five years of “both the commission
of an offense which results in a felony conviction, and prison custody or the imposition of a term of
jail custody imposed under subdivision (h) of Section 1170 felony sentence that is not suspended.”
(Pen. Code, § 667.5(b), emphasis added.)
It is somewhat of an open question whether all the elements of section 667.5 are proved to a court or
a jury. In People v. Winslow (1995) 40 Cal.App.4th 680, the court held that the jury must
determine whether the defendant served a prior prison term for a felony conviction. (Id. at p. 687.)
Although many aspects of the holding in Winslow have been repudiated (see People v. Kelii
(1999) 21 Cal.4th 452, 458–459; People v. Wiley (1995) 9 Cal.4th 580, 592), the portion of the
case holding that the jury must determine if the defendant served a prison term for a felony has not
been overruled. And both CALCRIM 3100 and CALJIC 17.18 suggest/assume the ancillary aspects of
section 667.5 should be proved to a jury. (But see People v. Epps (2001) 25 Cal.4th 19, 25-26
[expressing doubt whether, for example, the defendant was sentenced to prison is a question for the
jury]; People v. Tolbert (unpublished) 2002 WL 1938767, *18 [stating elements of proving a prior
prison term allegation (i.e., that defendant was previously convicted of a felony, was imprisoned as a
result of that conviction, completed the term of imprisonment, and did not remain free for five years
of both prison custody and the commission of a new offense) each encompass the issue of identity,
which is solely for the court to decide].)
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1.
Does the Sixth Amendment allow the prosecution to prove to a court (rather
than a jury) that a defendant has a prior conviction that increases the
punishment imposed for the charged offense beyond the maximum punishment
that could be imposed for committing the charged offense?
The Sixth Amendment to the United States Constitution, in relevant part, provides: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury .
. .” (U.S.C.A. Const. Amend. 6, emphasis added by IPG.)
Under a series of decisions beginning with Apprendi v. New Jersey (2000) 530 U.S. 466, the
United States Supreme Court has established that the Fourteenth Amendment right to due process
and the Sixth Amendment right to trial by jury, taken together, require that any fact used to increase
the sentence of a criminal defendant beyond the maximum term permitted by conviction of the
charged offense alone must be proved to a jury beyond a reasonable doubt. (See Apprendi at p.
490; Blakely v. Washington (2004) 542 U.S. 296, 303–304; Cunningham v. California
(2007) 549 U.S. 270, 274–275; Descamps v. United States (2013) 133 S.Ct. 2276, 2288; People
v. Nguyen (2009) 46 Cal.4th 1007, 1010.)
This holds true whether the fact at issue is considered an “element” of the charged offense or is
characterized as an enhancement or a sentencing factor. (See Apprendi v. New Jersey (2000)
530 U.S. 466, 494 [“when the term “sentence enhancement” is used to describe an increase beyond
the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater
offense than the one covered by the jury’s guilty verdict”].)
Editor’s note: Before Apprendi issued, whether a fact that could be used to increase a sentence had
to be proved to a jury often turned on whether the fact was considered an “element” of the crime or a
“sentencing factor.” (See e.g., Almendarez-Torres v. United States (1998) 523 U.S. 224; 241-242;
McMillan v. Pennsylvania (1986) 477 U.S. 79, 85.) The Apprendi court rejected this distinction
and held that when the Sixth Amendment was adopted, “any fact crucial to the maximum punishment
for an offense was, for that purpose, an “element” of the offense, and thus equally subject to the
requirements of indictment or presentment, proof beyond reasonable doubt, and jury trial.” (People v.
Nguyen (2009) 46 Cal.4th 1007, 1010.) The High Court in Apprendi made it clear, however, that a
distinction could still be drawn between “sentencing factors” and “elements” for Sixth Amendment
purposes when it came to the exercise of judicial discretion to select a specific sentence within a defined
statutory range. In that circumstance the defendant has no right to a jury determination of the facts
(i.e., sentencing factors) that the judge deems relevant. (See Alleyne v. United States (2013) 133
S.Ct. 2151, 2163; United States v. Booker (2005) 543 U.S. 220, 233; Cunningham v. California
(2007) 549 U.S. 270, 294; see also Apprendi at p. 494, fn. 19.)
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It is indisputable that if the general principle established in Apprendi were applied to prior
convictions that enhance a sentence, prior convictions would have to be proved to a jury because
prior convictions are being used to increase the sentence of a criminal defendant beyond the
maximum term permitted by conviction of the charged offense alone.
Q:
So, are you trying to tell us that Apprendi dictates we have to prove prior convictions to a jury?
No. In Apprendi, the High Court actually declined to apply the general rule to prior convictions.
(Id. at p. 400 [stating “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”].)
The reason the Apprendi court qualified the general rule was because it continued to recognize that
in Almendarez-Torres v. United States (1998) 523 U.S. 224 it had previously held the fact of a
prior conviction may be found by the judge even if it increases the statutory maximum sentence.
(Apprendi at pp. 486-487; Ring v. Arizona (2002) 536 U.S. 584, 597, fn. 4.)
The Apprendi court viewed the Almendarez-Torres decision as being based on the fact that
recidivism (i.e., enhancement with a prior conviction) is different “from other matters employed to
enhance punishment, because (1) recidivism traditionally has been used by sentencing courts to
increase the length of an offender’s sentence, (2) recidivism does not relate to the commission of the
charged offense, and (3) prior convictions result from proceedings that include substantial
protections.” (People v. McGee (2006) 38 Cal.4th 682, 698 citing to Apprendi at pp. 486-487.)
However, the Apprendi court drew this distinction despite expressing significant doubt that such a
distinction should be drawn between prior convictions and all other types of enhancements for
purposes of the Sixth Amendment requirement of a jury trial on all facts increasing the penalty for a
crime beyond the prescribed statutory maximum. (Id. at p. 489, fn. 15.) These doubts did not result
in the Apprendi court overruling Almendarez-Torres because the defendant in Apprendi was
not challenging the validity of Almendarez-Torres. Thus, the Apprendi court ended up by
simply treating a judge’s reliance on the “fact” a defendant had suffered a prior conviction (i.e.,
recidivist behavior) to enhance a sentence “as a narrow exception to the general rule” that facts
increasing a penalty beyond the statutory maximum must be proved to a jury. (Apprendi at p.
490.) This “narrow exception” is referred to as the Almendarez-Torres exception. (See Alleyne
v. United States (2013) 133 S.Ct. 2151, 2160; People v. McGee (2006) 38 Cal.4th 682, 698.)
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Moreover, in the California Supreme Court decision in People v. McGee (2006) 38 Cal.4th 682,
the California Supreme Court was asked to determine whether “a criminal defendant had a right
under the federal Constitution to have a jury, rather than the court, examine the record of the
prior criminal proceeding to determine whether the earlier conviction subjects the defendant to an
increased sentence when that conviction does not itself establish on its face whether or not the
conviction constitutes a qualifying prior conviction for purposes of the applicable sentencing
statute.” (People v. McGee (2006) 38 Cal.4th 682, 685-686, emphasis added.) The McGee
majority held the defendant did not have such a right. (Id. at p. 686.)
In McGee, it had been alleged that defendant suffered two robbery convictions in Nevada and that
each of those robbery convictions was a serious felony (Pen. Code, § 667(a) and a “strike” under
California’s “Three Strikes” law (Pen. Code, § 1170.12. (Id. at pp. 687-688.) In order for those prior
robbery convictions to enhance defendant’s sentence (i.e., qualify as a serious felony or strike) it had
to be shown that the robbery convictions in Nevada involved conduct that would qualify as a serious
felony in California. (Id. at p. 691.) The defense and prosecution agreed that the elements of
robbery under Nevada law differed in two respects from the elements of that offense under
California law because (i) under Nevada law, robbery only requires a general intent while under
California law, robbery requires a specific criminal intent to permanently deprive another person of
property; and (ii) under Nevada law, a taking accomplished by fear of future injury to the person or
property of anyone in the company of the victim at the time the offense qualifies as a robbery while
under California law, such a taking would not constitute robbery unless the person in the company
of the victim was a relative or family member of the victim. That is, both parties agreed it was
theoretically possible the defendant’s Nevada convictions involved conduct that would not constitute
robbery under California law and thus it would be necessary to inquire into the record of the Nevada
convictions to determine if the defendant’s Nevada convictions actually qualified as serious felonies
and strikes. (Id. at p. 688.)
The defendant in McGee requested a jury trial on the question of whether the Nevada priors
constituted qualifying priors for purposes of the alleged enhancements. But the trial judge made
that determination on his own based on looking at the record of conviction (including a preliminary
examination transcript). (Id. at pp. 688-689.) The trial court’s ruling was upheld by the McGee
court which stated: “In view of the unusual and somewhat specialized nature of the inquiry that
must be conducted for this purpose—an examination that is strictly limited to a review and
interpretation of documents that are part of the record of the prior criminal proceeding—our
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decisions establish that under California law it is the court, rather than the jury, that is entrusted
with the responsibility of undertaking this inquiry and making the determination.” (Id. at p. 685.)
The McGee majority understood the review undertaken by the court as, in essence, simply
determining whether the record adequately showed what crime defendant either pled to or was
found guilty of; and found this does not require the judge to “make an independent determination
regarding a disputed issue of fact relating to the defendant’s prior conduct[.]” (Id. at p. 706.)
Moreover, the McGee court held the determination is made by the court, regardless of whether it
can be made based on the face of the prior conviction (i.e., by simply considering the elements of the
prior conviction) or requires looking at the records supporting the conviction to determine if the
actual conduct underlying the prior conviction permits use of the conviction to enhance a
defendant’s punishment. (Id. at p. 686.)
Relying on the Almendarez-Torres exception, the McGee court rejected that argument that
either Apprendi or the High Court decision in Shepard v. United States (2005) 544 U.S. 13
(which addressed what evidence may be considered under a federal statute in assessing the nature of
a prior) required the jury to make this determination. (Id. at pp. 700-709.)
2.
So does the Sixth Amendment allow the prosecution to not only prove the bare
fact of the conviction but other facts about the conviction to a court as opposed
to a jury, or do we have something to worry about?
We do have plenty of things to worry about. The Almendarez-Torres exception is hanging
around by a thread that at least once justice wants to completely cut and others want to pare down to
a bare minimum.
The Almendarez-Torres decision was a 5-4 decision. One of the justices in the majority (Justice
Thomas) has since expressed remorse over that decision and has repeatedly written that he now
believes that a prior conviction that enhances a sentence beyond the statutory maximum should be
proved to the jury. (See dissenting opinion of J. Thomas in Apprendi at pp. 519-523; concurring
opinion of J. Thomas in Shepard v. United States (2005) 544 U.S. 13, 27-28 [“AlmendarezTorres . . . has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a
majority of the Court now recognizes that Almendarez-Torres was wrongly decided”]; concurring
opinion of J. Thomas in Descamps v. United States (2013) 133 S.Ct. 2276, 2294.)
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Even in People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court recognized the
High Court might limit the Almendarez-Torres exception in a manner requiring “a jury trial on
factual issues relating to the circumstances and conduct underlying a prior conviction used to
enhance punishment.” (Id. at p 709.)
Editor’s note: The language in quotation marks actually comes from the court of appeal decision in
McGee which specifically held “that under Apprendi, a criminal defendant has a federal
constitutional right to a jury trial on factual issues relating to the circumstances and conduct underlying
a prior conviction used to enhance punishment.” (People v. McGee (2004) 9 Cal.Rptr.3d 586, 588589.) The California Supreme Court decision in McGee (which overruled the Court of Appeal)
actually stated: “We recognize the possibility that the United States Supreme Court, in future decisions,
may extend the Apprendi rule in the manner suggested by the Court of Appeal below.” (Id. at p. 709,
emphasis added.) Our above summary just flushes out the emphasized language.
The California Supreme Court in McGee also acknowledged that “the Shepard [v. United States
(2005) 544 U.S. 13] decision may suggest that a majority of the high court would view” allowing a
court to determine anything beyond the bare minimum fact of conviction “as presenting a serious
constitutional issue” – albeit ultimately concluding the decision in Shepard left the issue open and
so did not require a re-evaluation of earlier California precedent “permitting a court to conduct the
kind of examination of the record of a prior criminal proceeding that occurred in the case before us
in determining whether a conviction constitutes a qualifying prior conviction for purposes of
enhancement under a state sentencing statute.” (McGee at p. 708; but see the dissenting opinion
of J. Kennard (joined by Werdegar) in People v. McGee (2006) 38 Cal.4th 682, 713-714 [agreeing
it was improper “for the trial court rather than a jury to determine not merely the existence of
defendant's two prior Nevada convictions for robbery, but also facts pertaining to the conduct that
gave rise to the prior convictions”].)
In addition, there is language in United States v. Booker (2005) 543 U.S. 220 (a case finding the
mandatory federal sentencing guidelines ran afoul of the Apprendi rule) hinting that one of the
rationales upon which the Almendarez-Torres exception was based (i.e., that recidivism
traditionally has been used by sentencing courts to increase the length of an offender’s sentence) is
on wobbly ground. Specifically, in Booker, the High Court rejected a dissent argument that a jury
need not decide certain facts used to aggravate a sentence under the federal guidelines because those
guidelines rely on “traditional judicial authority to increase sentences” based on “unusual
blameworthiness in the manner employed in committing a crime[.]” (Id. at p. 235.) The majority
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rejected this argument because that tradition did “not provide a sound guide to enforcement of the
Sixth Amendment’s guarantee of a jury trial in today's world.” (Id. at p. 236; see also dissent of J.
Kennard (joined by Justice Werdegar) in People v. McGee (2006) 38 Cal.4th 682, 713-714.)
More importantly, there is semi-dicta in a post-McGee decision by the United States Supreme Court
(Descamps v. United States (2013) 133 S.Ct. 2276) that has created serious questions about (i)
whether the Almendarez-Torres exception to the Sixth Amendment requirement of jury trial
allow proof of ancillary facts about the conviction to be proved to a court instead of a jury or only
applies to proof of the bare fact of the conviction itself; and (ii) what documents may be considered
in assessing whether a conviction qualifies as an enhancement (e.g., in assessing whether a prior
conviction from out-of-state qualifies as a serious or violent felony).
Even more importantly, there several new California appellate court cases that have glommed onto
that semi-dicta in Descamps to either suggest or specifically hold that the Sixth Amendment
prevents a court from deciding anything about a prior conviction beyond the bare fact of the
conviction absent a waiver of the constitutional right to jury trial on the prior conviction: People v.
Denard 2015 WL 7774288; People v. Marin (2015) 240 Cal.App.4th 1344; People v. Saez
(2015) 237 Cal.App.4th 1177; People v. Wilson (2013) 219 Cal.App.4th 500.
Editor’s note: On the other hand, the Descamps decision may mark an end to the steady erosion of
the Almendarez-Torres exception. The Court has passed on several opportunities to completely
eliminate the exception, including in Descamps where Justice Thomas stood alone in calling for its
complete elimination. (See also Rangel-Reyes v. United States (2006) 547 U.S. 1201, J. Thomas,
dissenting from the denial of certiorari [wherein Justice Thomas laments that the Court has not chosen
to reconsider the Almendarez-Torres exception even though the petitioners, “like many other
criminal defendants, have done their part by specifically presenting this Court with opportunities to” do
so].)
Q.
What was Descamps all about and what is it about that case that has generated concern that the
manner in which we currently prove prior convictions is unconstitutional?
Before we discuss Descamps, we need to set the stage by briefly discussing two predecessor
decisions of the United States Supreme Court: Taylor v. United States (1990) 495 U.S. 575 and
Shepard v. United States (2005) 544 U.S. 13.
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Taylor v. United States (1990) 495 U.S. 575
In Taylor, the Supreme Court addressed what a trial court could consider in determining whether
certain state convictions could qualify as enhancing priors under a federal statute (the Armed Career
Criminal Act) that provided a sentence enhancement for a defendant who was convicted of certain
federal offenses after suffering three prior convictions for certain designated crimes, including
“burglary.” (Id. at pp. 577-578.) Before reaching that issue, the High Court clarified that the term
“burglary” in the federal statute referred to a crime “having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”
(Id. at p. 599.) The Court designated these basic elements as the “generic” definition of burglary.
(Ibid.)
The Court then noted that some states have statutes that incorporate these generic elements while
other states have statutes that do not. If the defendant “was convicted of burglary in a State where
the generic definition has been adopted, with minor variations in terminology, then the trial court
need find only that the state statute corresponds in substance to the generic meaning of burglary.”
(Ibid.) The trial court does not generally look at anything other than “the fact of conviction and the
statutory definition of the prior offense.” (Id. at p. 602.)
On the other hand, if the defendant was convicted of burglary in a State where the statute does not
match the generic definition, the prior conviction may still be used to enhance and the sentencing
court may “go beyond the mere fact of conviction in a narrow range of cases” if the “jury [in the
prior case] was actually required to find all the elements of generic burglary.” (Id. at p. 601, italics
and bracketed information added by IPG].) In the latter circumstance, the sentencing judge may
consider the “charging paper and jury instructions” to see if the jury was actually required “to find all
the elements of generic burglary in order to convict the defendant.” (Id. at p. 602.)
To illustrate what type of state statute would not match the generic description of burglary under the
federal act, the Taylor court described a state burglary statute which included entry into an
automobile as well as a building. In that case, the Taylor court said “if the indictment or
information and jury instructions show that the defendant was charged only with a burglary of a
building, and that the jury necessarily had to find an entry of a building to convict, then the
Government should be allowed to use the conviction for enhancement.” (Id. at p. 602.) Another
type of state statute that would not match the generic description used in the ACCA, but which could
potentially still be used to enhance (i.e., if the information and jury instructions showed a conviction
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for a burglary meeting the generic definition) would include statutes that do not require that the
entry be unlawful. (Id. at p. 599.)
Editor’s note: The California burglary statute is a non-generic statute for two different reasons. First,
there is no requirement that the entry be unlawful. Second, it includes entry into places or things other
than structures or buildings such as tents, vessels, cars, and aircraft. (See Pen. Code, § 459.)
Aside from the narrow exception allowing consideration of the charging document and jury
instructions when it came to non-generic burglary statutes, the Taylor court held, as a matter of
statutory interpretation, that a sentencing judge could consider only the statutory definitions of the
prior offenses - not other evidence concerning the defendant’s prior crimes. (Id. at p. 600.) This
approach the Court referred to as the “categorical approach.” (Id. at p. 602.)
In coming to this interpretation, the Taylor court considered the following: (i) the specific statutory
language in 18 U.S.C.A. § 924(e); (ii) the specific legislative history of that statute; and (iii) the
practical difficulties and potential unfairness of a factual approach. (Taylor at p. 601.)
In explaining some of the practical difficulties that might arise if they adopted a factual approach,
the Court indicated it did not contemplate the prosecution being able to use trial transcripts or
introduce the testimony of witnesses to prove the prior conviction was actually for a generic
burglary. (Id. at p. 601.) Moreover, the Court indicated it would be unfair to impose a sentence
enhancement where the prosecution could prove the underlying facts showing a generic burglary
occurred but the defendant only pleaded guilty to a lesser, nonburglary offense as the result of a plea
bargain. (Id. at p. 601.)
The only hint that adoption of the categorical approach was dictated by the Sixth Amendment
arose when the Court suggested that if they adopted a factual approach and “the sentencing court
were to conclude, from its own review of the record, that the defendant actually committed a generic
burglary,” the defendant could potentially “challenge this conclusion as abridging his right to a jury
trial[.]” (Id. at p. 601.)
Although Taylor involved prior burglary convictions, the approach adopted would apply equally to
any other type of “generic” prior convictions under the ACCA. (Id. at p. 600; see also Shepard v.
United States (2005) 544 U.S. 13, 17, fn. 2.)
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Shepard v. United States (2005) 544 U.S. 13
In Shepard, the High Court was confronted with the question that was not addressed in Taylor –
what a sentencing court could consider in deciding whether a prior conviction based on a guilty
plea (as opposed to a trial) could qualify as an enhancing prior under the ACCA -the same federal
statute involved in Taylor. Specifically, the Shepard court had to resolve “whether a sentencing
court [could] look to police reports or complaint applications to determine whether an earlier guilty
plea necessarily admitted, and supported a conviction for, generic burglary. (Id. at p. 16.)
At the district court level, the sentencing judge rejected the argument he could examine reports
submitted by the police with applications for issuance of the complaints, as a way of telling whether
the defendant’s guilty pleas went to generic burglaries even though the description of the offenses in
the complaints tracked a definition of burglary that was more expansive than the generic definition
of burglary under the ACCA. (Id. at pp. 17-18.)
The sentencing judge pointed out that the
defendant never was told what was in the reports at the time of the plea and never admitted to the
facts contained in the attached reports. (Id. at p. 18.)
The Shepard plurality agreed with the sentencing judge and held “Taylor’s reasoning controls the
identification of generic convictions following pleas, as well as convictions on verdicts, in States with
nongeneric offenses. (Id. at p. 19, emphasis added.)
Editor’s note: The Shepard court reaffirmed its holding in Taylor that when it comes to prior
convictions stemming from a trial, the ACCA generally prohibits a court from deciding whether a
prior conviction qualified as a generic offense by looking beyond the fact of conviction and the
statutory definition of the prior offense except in “‘a narrow range of cases where a jury [in a State
with a broader definition of burglary] was actually required to find all the elements of the generic
offense.” The Shepard court also reaffirmed that in that circumstance, “the indictment or
information and jury instructions” could be used to show “the defendant was charged only with a
burglary of a building, and that the jury necessarily had to find an entry of a building to convict[.]”
(Id. at p. 16.)
Because the convictions in Shepard involved conviction following a plea, the High Court had to
Shepard v. U.S. (2005) 544 U.S. 13, 17 [125 S.Ct. 1254, 1258, 161 L.Ed.2d 205]
decide what documents could be considered in that context. The plurality decided a sentencing
court “determining the character of an admitted burglary is generally limited to examining the
statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.” (Id. at p. 16.)
13
Editor’s note: At the end of the opinion, the plurality described their holding as follows: “enquiry
under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute
necessarily admitted elements of the generic offense is limited to the terms of the charging document,
the terms of a plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this
information.” (Id. at p. 26.)
The Shepard court, however, held that “police reports or complaint applications” could not be
considered to “determine whether an earlier guilty plea necessarily admitted, and supported a
conviction for, generic burglary” (id. at p. 16) – at least where the report or complaint applications
were not explicitly incorporated into the plea agreement or were not expressly made part of the
factual basis for the plea.
The plurality was not convinced by the argument that the documents could be used because the
defendant never “seriously disputed” that he did in fact break into the buildings described in the
police reports or complaint applications. (Id. at p. 19.)
Significantly, while the Shepard plurality reiterated that the rule adopted in Taylor (requiring
evidence of generic conviction be confined to records of the convicting court) was based primarily on
the congressional intent behind the ACCA and avoidance of collateral trials, it concluded the
approach was reinforced by decisions after Taylor (i.e., Jones v. United States (1999) 526 U.S.
227, 243, n. 6 and Apprendi v. New Jersey (2000) 530 U.S. 466, 490) that made it clear “that
any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence
must be found by a jury, in the absence of any waiver of rights by the defendant[.]” (Id. at p. 24.)
In other words, there is a Sixth Amendment component to the rule limiting what the state can use to
prove prior convictions. If the sentencing court could consider the reports attached to the complaint
even though the plea did not reference the reports, the sentencing court would be making “a
disputed finding of fact about what the defendant and state judge must have understood as the
factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi:
the Sixth and Fourteenth Amendments guarantee [of] . . . a jury’s finding of any disputed fact
essential to increase the ceiling of a potential sentence.” (Id. at p. 25.)
Editor’s note: Presumably, if there was a “written plea agreement, transcript of plea colloquy, or
explicit factual finding by the trial judge to which the defendant assented” (id. at p. 16) then the nature
of the conviction would not be “disputed” and the Sixth Amendment would not be implicated.
14
The plurality acknowledged that the disputed issue of what the defendant and sentencing court
understood was the basis for the factual plea – even in the absence of written plea agreement,
transcript of plea colloquy, or explicit factual finding - could be described as a fact about a prior
conviction[.]” (Id. at p. 25.) However, they held this determination did not clearly fall within the
Almendarez-Torres exception and thus allowing a court (as opposed to a jury) to consider
documents beyond a written plea agreement, transcript of plea colloquy, or explicit factual finding
would be constitutionally suspect. (Id. at p. 25.)
Editor’s note: Technically, the plurality’s discussion of the potential Sixth Amendment component
was not an explicit holding the Sixth Amendment required such an interpretation of what sentencing
courts could consider in assessing whether a prior conviction qualified as a generic crime like burglary.
Rather, it held that because a different approach could potentially violate the Sixth Amendment, it was
better to interpret the statute in a non-constitutionally suspect manner. (See People v. Saez (2015)
237 Cal.App.4th 1177, 1201.) That is, the plurality’s ruling could still be viewed as simply answering a
statutory, not constitutional, question. The portion of the opinion discussing the Sixth Amendment
component (part III) only commanded a total of four of the eight justices (one justice sat it out) deciding
the case. Justice Thomas did not join the opinion because he believed that allowing courts to consider
the police reports attached to the complaint in the absence of their incorporation into the plea was not
just constitutionally suspect, it was constitutionally prohibited. For Justice Thomas, it did not go far
enough. He agreed that the police reports and complaint applications could not be considered (i.e., you
got 5 justices on that aspect) but believed that even consideration of the documents approved for
consideration by the plurality involved “factfinding that is, according to the logic of this Court's
intervening precedents, unconstitutional in this very case.” (dis. opn. of J. Thomas at p. 27.) That is,
Justice Thomas would eliminate the Almendarez-Torres exception allowing judicial fact-finding
altogether. (Id. at pp. 27-28.)
Editor’s note: You might at this point be thinking that any time there is conviction by plea and the
conviction is offered as a prior enhancing conviction, a court can look at the plea agreement or plea
colloquy or explicit factual finding to determine whether the defendant actually pled to a crime that
matches the elements of the crime for which enhancement is allowed. If so, you are in for a surprise.
Read on.
Descamps v. United States (2013) 133 S.Ct. 2276)
Facts and Procedural History:
The defendant was charged with a federal offense and alleged to have suffered several prior
convictions that could enhance his sentence under the ACCA (the same federal act at issue in
15
Taylor and Shepard). One of those convictions was for “burglary” and was based on a conviction
in California for violating Penal Code section 459. (Id. at p. 2282.)
However, the elements of the burglary statute in California do not match the elements of generic
burglary under the ACCA because it does not require unlawful or unprivileged entry as required for a
crime to be considered a generic burglary under the ACCA. (Id. at p. 2282.)
Of course, many burglary convictions in California do, in fact, involve a defendant who actually
engaged in conduct matching the elements of generic burglary under the federal statute.
Accordingly, in the district court, the prosecution attempted to prove to the judge that defendant had
been convicted of a crime that qualified as a generic burglary by introducing certain documents,
including the record of the plea colloquy, to show the defendant had actually admitted the elements
of a generic burglary” when entering his plea. The transcript of the plea colloquy showed the
prosecutor had proffered that the crime had involved the breaking and entering of a grocery store
and the defendant failed to object to that statement. (Id. at p. 2282.) The district court judge found
defendant’s prior conviction qualified as a generic burglary. (Ibid.)
The Ninth Circuit agreed, relying on its decision in United States v. Aguila–Montes de Oca
(2011) 655 F.3d 915, held that when a sentencing court considers a conviction under section 459—
any other statute that is “categorically broader than the generic offense”—the court may scrutinize
certain documents to determine the factual basis of the conviction. (Id. at pp. 2282-2283.)
The High Court granted review to determine whether courts can apply a “modified categorical
approach” (i.e., look at documents like written plea agreements, transcripts of plea colloquies, or
explicit factual findings to assess whether the conviction qualifies as a generic burglary) when the
prior conviction involves a statute that is broader than the generic offense and encompasses some
conduct that would qualify as a generic offense but also some conduct that would not. (Id. at p.
2283.)
1.
The High Court reiterated that there are two approaches a court can take when deciding whether a
prior conviction qualifies as an enhancing prior – in this circumstance whether the prior conviction
qualified as a generic burglary.
One of those approaches has become known as the “categorical approach” and simply involves
comparing “the elements of the statute forming the basis of the defendant’s conviction with the
16
elements of the ‘generic’ crime—i.e., the offense as commonly understood.” (Id. at p. 2281.) Under
this approach, the only thing a sentencing court considers is the document showing the conviction
for a violation of the particular statute. Then the sentencing court checks to see if the elements of
the particular statute are the same as the elements of the generic offense or the statute could not be
violated with necessarily proving the elements of the generic offense. (Id. at p. 2281.)
Editor’s note: The Descamps court actually stated that, under the categorical approach, “the prior
conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower
than, those of the generic offense.” (Id. at p. 2281.) IPG described it differently because using the
term “narrower” gets very confusing. Narrower usually means fewer, suggesting that the approach
applies to state statutes with fewer elements than the generic burglary. But the Court is using the term
to reflect the state statute is narrower than the generic burglary in the sense that every violation of the
state statute would qualify as a generic burglary but not every generic burglary would qualify as a
violation of the state statute. Just one of the many unnecessarily confusing aspects of this opinion.
The other approach is known as the “modified categorical approach. Under the modified categorical
approach, a sentencing court may consult a limited class of documents such as indictments and jury
instructions if the conviction stemmed from a trial, or plea agreements or transcripts of the colloquy
between judge and defendant if the conviction stemmed from a plea. (Id. at pp. 2281, 2284.) “The
court can then do what the categorical approach demands: compare the elements of the crime of
conviction (including the alternative element used in the case) with the elements of the generic
crime.” (Id. at p. 2281.)
2.
The modified categorical approach is just a mechanism for making a comparison when a statute lists
multiple, alternative elements, and so effectively creates “several different ... crimes.” (Id. at p.
2285.) “If at least one, but not all of those crimes matches the generic version, a court needs a way to
find out which the defendant was convicted of. That is the job, as we have always understood it, of
the modified approach: to identify, from among several alternatives, the crime of conviction so that
the court can compare it to the generic offense.” (Ibid.)
3.
The Court held that use of the modified categorical approach (and the accompanying ability to
consult documents like the complaint or transcript of the plea) is limited to cases involving
defendants who were previously convicted of “divisible” statutes. This approach cannot be used
when the defendant is convicted of an “indivisible” statute. (Id. at pp. 2281-2282.)
17
4.
A “divisible statute” is a statute that “sets out one or more elements of the offense in the alternative”
and one alternative matches an element in the generic offense, but the other alternative does not.
(Id. at p. 2281.) The court illustrated a divisible statute by using an example of a state burglary
statute where the statute can be violated either by unlawfully entering a car or unlawfully entering a
building. (Id. at p. 2281.) “When a statute is ‘divisible’—i.e., comprises multiple, alternative
versions of the crime—a later sentencing court cannot tell, without reviewing something more, if the
defendant’s conviction was for the generic (building) or non-generic (automobile) form of burglary.”
(Id. at p. 2284.)
5.
An “indivisible statute” is a statute that does not contain alternative elements and “criminalizes a
broader swath of conduct than the relevant generic offense.” (Id. at p. 2282; see also conc. opn. J.
Kennedy at p. 2293 [an indivisible statute describes “a class of criminal statutes that are drafted with
a single set of elements that are broader than those of the generic definition of the corresponding
crime enumerated in the Armed Career Criminal Act (ACCA)”].)
6.
The modified categorical approach should not have been used by the sentencing court to determine
whether the defendant’s conviction for violating Penal Code section 459 was an enhancing prior
“because that state law defines burglary not alternatively, but only more broadly than the generic
offense.” (Id. at p. 2283.) It is an indivisible statute.
“The dispute here does not concern any list of alternative elements. Rather, it involves a simple
discrepancy between generic burglary and the crime established in § 459. The former requires an
unlawful entry along the lines of breaking and entering. [Citation omitted.] The latter does not, and
indeed covers simple shoplifting, as even the Government acknowledges.” (Id. at p. 2285.)
Whether [the defendant in this case] “did break and enter makes no difference. And likewise,
whether he ever admitted to breaking and entering is irrelevant. Our decisions authorize review of
the plea colloquy or other approved extra-statutory documents only when a statute defines burglary
not (as here) overbroadly, but instead alternatively, with one statutory phrase corresponding to the
generic crime and another not. (Id. at p. 2286.) The defendant’s crime of conviction did not
correspond to the relevant generic offense- that ends the inquiry. (Ibid.)
In sum, “[b]ecause generic unlawful entry is not an element, or an alternative element, of § 459, a
conviction under that statute is never for generic burglary. And that decides this case in Descamps'
favor[.]” (Id. at p. 2293.)
18
Editor’s note: The Descamps Court reserved the question of whether, “in determining a crime’s
elements, a sentencing court should take account not only of the relevant statute’s text, but of judicial
rulings interpreting it.” (Id. at p. 2291.)
Editor’s note: What makes this opinion so confusing, especially for California prosecutors, is the fact
that the California burglary statute (Penal Code section 459) is, in one sense, a divisible statute since it
can be violated by entry into a car or entry into a home. The only reason it was not considered a
“divisible statute” for purposes of the ACCA in Descamps was because it criminalized a broader swath of
conduct than the generic burglary, i.e., entry into a store during business hours. (See United States
v. Flores-Soriano 2013 WL 5217518, *2-*3.) Had the question been whether a California conviction
for burglary qualified as a prior conviction in another state that had identical elements to the California
statute but only permitted out-of-state burglary convictions of structures to be used to enhance, then
the California burglary statute would have been considered a “divisible statute” for purposes of that outof-state statute.
7.
“[W]hen a defendant pleads guilty to a crime, he waives his right to a jury determination of only that
offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later
sentencing court to impose extra punishment.” (Id. at p. 2888.) Thus, “when the District Court
here enhanced [the defendant’s] sentence, based on his supposed acquiescence to a prosecutorial
statement (that he ‘broke and entered’) irrelevant to the crime charged, the court did just what we
have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant’s
maximum sentence.” (Id. at pp. 2888-2889.)
8.
The High Court specifically rejected the Ninth Circuit’s view that “the court could look to reliable
materials (the charging document, jury instructions, plea colloquy, and so forth) to determine “what
facts” can “confident[ly]” be thought to underlie the defendant’s conviction in light of the
“prosecutorial theory of the case” and the “facts put forward by the government.” (Id. at p. 2286.)
The Court criticized the Ninth Circuit for adopting that an approach that would require courts to
“expend resources examining (often aged) documents for evidence that a defendant admitted in a
plea colloquy, or a prosecutor showed at trial, facts that, although unnecessary to the crime of
conviction, satisfy an element of the relevant generic offense.” (Id. at p. 2289.)
The Court observed that “[t]he meaning of those documents will often be uncertain. And the
statements of fact in them may be downright wrong. A defendant, after all, often has little incentive
19
to contest facts that are not elements of the charged offense—and may have good reason not to. At
trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them
for that reason.) And during plea hearings, the defendant may not wish to irk the prosecutor or
court by squabbling about superfluous factual allegations.” (Ibid.)
9.
The use of the elements-centric “formal categorical approach” is based on three grounds: (i) it
comports with the ACCA’s text and history; (ii) “it avoids the Sixth Amendment concerns
that would arise from sentencing courts’ making findings of fact that properly
belong to juries”; and (iii) “it averts ‘the practical difficulties and potential unfairness of a factual
approach.’” (Id. at p. 2287, emphasis added by IPG.)
“Those [Sixth Amendment] concerns, we recognized in Shepard, counsel against allowing a
sentencing court to ‘make a disputed’ determination ‘about what the defendant and state judge must
have understood as the factual basis of the prior plea,’ or what the jury in a prior trial must have
accepted as the theory of the crime.” (Id. at p. 2888.) “Hence our insistence on the categorical
approach.” (Ibid.)
10.
The majority recognized that there may be difficulties in distinguishing between alternative
“elements” of a crime and alternative “means” of committing a crime, but stated there was “no realworld reason to worry. Whatever a statute lists (whether elements or means), the documents . . .
approved in Taylor and Shepard—i.e., indictment, jury instructions, plea colloquy, and plea
agreement—would reflect the crime’s elements. So a court need not parse state law ...: When a state
law is drafted in the alternative, the court merely resorts to the approved documents and compares
the elements revealed there to those of the generic offense.” (Id. at p. 2285, fn. 2.)
Editor’s note (part I): The dissenting opinion in Descamps defined a “divisible” statute as
including only those offense that include “as separate elements all of the elements of the generic
offense” and defined element “to mean something on which a jury must agree by the vote required to
convict under the law of the applicable jurisdiction.” (Dis. opn. J. Alito, at p. 2296.) Alternative
“means” refers to different ways that a crime can be committed without the need for unanimity. (Id. at
p. 2298.) Justice Alito pointed out that the elements of the crime for the statute at issue (a
Massachusetts burglary offense) in Shepard and in Descamps, were: “(1) breaking and (2) entering a
building, ship, vessel or vehicle belonging to another (3) at night, (4) with the intent to commit a
felony.” (Id. at p. 2297.) Justice Alito said the “majority assumed that ‘building’ and the other locations
enumerated in the Massachusetts statutes, such as ‘vessel,’ were alternative elements, but that is
questionable. It is quite likely that the entry of a building and the entry of a vessel were simply
alternative means of satisfying an element.” (Id. at pp. 2297-2298, emphasis added by IPG.)
20
Editor’s note (part II): Justice Alito made these observations to show the majority’s assertion that
the test for determining whether a prior conviction qualified as an enhancing prior was focused solely
on the elements of the statute was not as element-centric as the majority claimed. Rather, the test
considered the conduct underlying the conviction. Regardless, Justice Alito got it right in stating that it
is not always easy to figure out what are the “elements” of a crime for purposes of deciding whether a
crime qualifies as an enhancing prior conviction. For example, if the qualifying prior conviction had to
be a premeditated murder, would a first degree murder conviction that could potentially have been
based on a premeditation or a felony-murder theory be a divisible or an indivisible statute? The
majority’s response would be that it doesn’t matter whether premeditation is an “element” of murder or
an alternative “means” of committing a murder. The documents approved in Taylor and Shepard—
i.e., indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime’s
“elements” for purposes of deciding whether the crime for which the defendant was convicted
adequately matched the crime defined in the enhancing statute. That is, those documents could be used
to help decide whether the crime was “divisible” and thus subject to the modified categorical approach.
BTW, under the Descamps analysis, in the murder example posed, the crime would likely not qualify
as “divisible” and the conviction could not be used to enhance – even if the prosecutor only argued a
felony-murder theory - unless the Information made it clear premeditated murder was the only crime
charged. (Cf., People v. Anderson (2006) 141 Cal.App.4th 430, 445 [instruction on lesser included
offenses of second degree murder and voluntary manslaughter required in that situation].)
Editor’s note: The High Court has, since Descamps, re-affirmed use of the categorical approach and
its focus on the elements. (See Johnson v. United States (2015) 135 S.Ct. 2551, 2557 [citing to
Taylor v. United States (1990) 495 U.S. 575, 600, for the proposition that the ACCA “requires courts
to use a framework known as the categorical approach” and assess “whether a crime qualifies as a
violent felony ‘in terms of how the law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion’”].)
Q:
Has Descamps been interpreted to have any bearing on the way prosecutors prove prior
convictions in California?
Yes. Several appellate court cases have relied on Descamps to either raise questions whether
prosecutors may prove anything beyond the mere fact of a conviction to a judge and/or find
prosecutors are, in certain circumstances, barred from proving certain aspects of a prior conviction
to a court. We discuss those cases below.
21
People v. Wilson (2013) 219 Cal.App.4th 500
In Wilson, a defendant charged with causing injury while driving intoxicated in violation of Vehicle
Code section 23153 and of gross vehicular manslaughter while intoxicated in violation of Vehicle
Code section 191.5 back in 1993. The case went to preliminary examination where it was established
that after defendant and his girlfriend picked up a hitchhiker, the defendant drove off the highway.
The resulting crash caused the death of the hitchhiker and serious injuries to the girlfriend. In
speaking with a motorist who arrived at the scene of the crash, the defendant claimed his girlfriend
grabbed the steering wheel. Later the defendant denied driving. The girlfriend testified at the
preliminary examination she was sleeping when the accident occurred. In argument at the
preliminary examination, the defendant specifically challenged the evidence of causation, arguing
that statements at the scene of the accident showed his girlfriend had grabbed the steering wheel,
thereby causing the accident. (Id. at pp. 505-506.) The defendant plead no contest to both charges
after the preliminary examination. (Id. at p. 506.)
Six years later, the defendant was arrested for drunk driving and the two prior convictions discussed
above were alleged as “strike” priors. After the defendant was found guilty at jury trial, the
defendant waived his right to a jury trial on the fact of the prior conviction—but not on the facts
required to prove the strike prior. (Id. at p.507.) The trial judge then held a bench trial on the
strike priors. The prosecution introduced the following documents from the record of the 1993
conviction: “(1) the information; (2) the above mentioned change of plea form; (3) minutes of the
sentencing hearing; (4) the abstract of judgment; and (5) the transcript of the preliminary hearing.
The prosecution also introduced the booking sheets from defendant’s arrests in the 1993 and 1999
offenses.” (Id. at p. 507.)
In order for those convictions to constitute serious felonies or “strike” priors under the Three Strikes
law, the trial court had to find the offense involved “the personal infliction of great bodily injury on
any person other than an accomplice[.]” (Id. at pp. 509-510; Pen. Code, §1192.7(c)(8).) The trial
court made this finding even though there was no transcript of the plea colloquy, and the plea form
from the prior conviction did not have specific findings of fact by the trial court – it simply indicated
the trial court found a factual basis for the plea. (Id. at p. 506.)
After several appeals, a federal court vacated defendant’s sentence on grounds the trial court had
violated Apprendi v. New Jersey (2000) 530 U.S. 466. On remand, the state trial court struck
the first strike but left intact the second strike that was based on the manslaughter offense. The
22
court resentenced defendant and defendant filed another appeal, claiming the trial court’s finding of
“personal infliction” for the second strike violated his right to a jury trial. (Id. at pp. 503-504.)
The appellate court reversed the conviction on the remaining strike (the conviction for gross
vehicular manslaughter) on two grounds.
First, it held the sentencing judge violated state law under People v. McGee (2006) 38 Cal.4th
682, which only allows examination of the record to determine if the prior offense is of the type that
subjects the defendant to increased punishment and “does not contemplate that the court will make
an independent determination regarding a disputed issue of fact relating to the defendant's prior
conduct.” (Wilson at p. 510.) The Wilson court held that sentencing judge could properly find
someone had suffered great bodily injury because that was implied by the elements of the offense.
But the sentencing judge could not properly resolve whether the defendant had personally inflicted
great bodily injury – a disputed fact. The Wilson court observed that the conviction itself did not
establish personal infliction of great bodily, only that the defendant proximately caused the great
bodily injury (i.e., death). And, in light of defendant’s claim his girlfriend grabbed the steering wheel,
it was disputed whether he personally inflicted great bodily injury. (Id. at pp. 511-513.)
Second, the Wilson court held that the Sixth Amendment, as interpreted in Apprendi and
Descamps “precluded the court from finding the facts—here in dispute—required to prove a strike
prior based on the gross vehicular manslaughter offense.” (Wilson at p. 515.) The Wilson court
noted the only facts in the record—apart from those necessarily implied by the elements of the
offense—were those found in the transcript of the preliminary hearing and that reflected competing
versions of key facts on the issue of personal infliction. Thus, it held the sentencing court could not
have increased the defendant’s sentence without making a disputed determination of fact—“a task
the United States Supreme Court specifically counseled against” in Descamps. (Wilson at p. 516.)
The Wilson court declined to decide “whether the broader application of Apprendi and
Descamps to California's sentence enhancement scheme would leave intact the kinds of findings—
e.g., those not concerning the facts of a defendant’s prior conduct—heretofore endorsed under
California law.” (Id. at p. 516.) Rather, it simply held “only that federal law prohibits what McGee
already proscribed: A court may not impose a sentence above the statutory maximum based on
disputed facts about prior conduct not admitted by the defendant or implied by the elements of the
offense.” (Wilson at p. 516 [albeit noting that pursuant to “Apprendi, of course, a court could
increase a defendant's sentence if a jury found the required facts beyond a reasonable doubt”].)
23
People v. Saez (2015) 237 Cal.App.4th 1177
In Saez, after the trial court determined the issue of defendant’s identity as to two alleged prior
convictions from Wisconsin, the jury found the prior convictions to be true. The trial court then
determined that they were serious felonies and strikes. (Id. at p. 1183.) One of the prior conviction
was a conviction for false imprisonment and was alleged to be a serious felony based on the claim
that in the commission of the offense “defendant personally use[d] a firearm” (see Pen. Code, §
1192.7(c)(8)). In support of its finding as to that conviction, the sentencing court relied on the
judgment of conviction, the judgment roll, and the criminal complaint. (Id. at p. 1192.)
The judgment of conviction reflected that in 1983, after a guilty plea, the Wisconsin trial court found
the defendant guilty of “False Impris. While Armed” under Wisconsin Statutes sections 939.63
(1)(a)(4) and 940.30, a felony, for a crime committed on January 17, 1983. The judgment also
showed that after the same plea, the defendant was convicted of “Reckless Use of Weapon,” a
misdemeanor, under Wisconsin Statutes section 941.20(1)(c), for a crime also committed on the
same date. (Id. at p. 1192.)
The judgment roll stated at the top that the relevant offenses were “false imprisonment while
possessin[g] a dangerous weapon” and “reckless use of weapon,” and reflected that the Wisconsin
trial court found the complaint stated probable cause for further proceedings. It also showed a
preliminary hearing was held, during which the court found “probable cause to hold [the defendant]
for further proceedings,” and that he was “given [a] copy of the information.” (Ibid.) At another
point, the roll entry from a couple months later stated: “Statement by defense counsel that defendant
wishes to enter a plea of guilty as to all counts. Over objection by both counsel, defendant still
wishes to enter a plea of guilty. Defendant sworn and examined as to his plea, advised of his
constitutional rights and of the maximum penalty. Defendant waives all his rights and pleads guilty,
Court finds defendant guilty as charged in the Information as to each count.” An entry for the
subsequent sentencing hearing states, “All parties stipulate to the facts in the criminal complaint for
basis of the plea.” (Ibid.) No transcript for any of the hearings described nor the actual Information
was included. (Ibid.)
The complaint charged the defendant with a count of “False Imprisonment While Poss. a Dangerous
Weapon,” and stated: “[O]n January 17, 1983, at or about the 500 block of South 2nd Street, City of
Milwaukee, [Saez] did intentionally, while possessing a dangerous weapon, to wit: a .38 caliber
revolver[,] restrain [the victim] without his consent and with knowledge that he had no lawful
24
authority to do so, contrary to Wisconsin Statutes sections 940.30 and 939.63(1)(a)(4).” The
complaint also charged [Saez] with a count of “Reckless Use of Weapon,” stating, “[O]n January [sic]
at or about the 500 block of South 2nd Street, City of Milwaukee, [Saez] did intentionally point a
firearm at [the same victim], contrary to Wisconsin Statutes section 941.20(1)(c).” (Ibid.)
The complaint included a police officer’s sworn statement, which stated the officer observed Saez
“grab the [victim] ... by the arm and pull [the victim] toward him ... [and] then ... remove what was
subsequently observed to be a .38 caliber Smith and Wesson handgun revolver from the inner front
portion of [his] pants whereupon ... [he] point[ed] said handgun at the chin of [the victim] whom
[he] was restraining by holding on to [the victim]'s arm with his hand whereupon ... [he], while still
holding on to [the victim]'s arm and pointing the above stated handgun at [the victim]'s body,
pull[ed the victim down the street and] ... into a vacant lot.” (Id. at p. 1193.)
The Saez appellate court held that the sentencing judge’s reliance on records in order to determine
that the Wisconsin prior was a serious felony and “strike” under the theory that he had been
convicted of an offense in another jurisdiction that would be a felony in California and that offense
“includes all the elements of a particular . . . serious felony as defined in subdivision(c) of section
1192.7” (id. at p 1193) was proper under California law as interpreted in People v. McGee (2006)
38 Cal.4th 682 but violated the Sixth Amendment as interpreted in Descamps. (Saez at p. 1191.)
The Saez court held reliance on the records was proper under California law even though just
comparing the elements of the crime of false imprisonment in Wisconsin failed to (i) establish “use”
of a firearm as opposed to simple arming; (ii) establish the use of the firearm was “personal” to the
defendant because it is possible to be armed in Wisconsin under an aiding and abetting theory; (iii)
establish use of a “firearm” because the Wisconsin statute encompasses all dangerous weapons; and
(iv) establish the Wisconsin crime would be a felony in California because, unlike felony false
imprisonment in California, the Wisconsin crime does not require the false imprisonment to be
“effected by violence, menace, fraud or deceit”. (Id at pp. 1194-1195.) Moreover, the Saez court
agreed that reliance on the police officer’s sworn statement that was attached to the complaint was
required to fully prove all the elements of a serious/strike prior. (Id. at p. 1196.) Nevertheless, the
Saez court rejected the defense argument that police officer’s statements were inadmissible hearsay
and not part of the “entire record of conviction.” (Id. at p 1197.)
The Saez court rejected the defendant’s hearsay argument (while recognizing the normal rules of
hearsay generally apply to evidence admitted as part of the record of conviction to show the conduct
25
underlying the conviction) because the statements of the officer were not being considered for the
truth of their assertions (i.e., that defendant pointed a gun at the victim while restraining the victim).
Rather, they were offered to show the basis of the conviction since the defendant had “explicitly
stipulated that the criminal complaint, which included the affidavit, was the factual basis for his
guilty plea” and thus the officer's statements could be used to demonstrate the basis of the
conviction, regardless of whether the defendant actually did what the officer described. (Id. at p.
1197, emphasis added by IPG.)
Editor’s note: The Saez court did indicate that if the statements contained in charging documents
would only be useful to show the basis of the charge, they would be hearsay but declined to decide
whether the officer’s declaration might be admissible under an exception to the hearsay rule such as
adoptive admissions. (Id. at p. 1197, fn. 17.)
The Saez court concluded the officer’s statement was part of the record even though defendant only
adopted the facts in the affidavit as the basis for the plea after the plea hearing. The Saez court
recognized that two cases have held certain post plea statements to be outside the record (People v.
Trujillo (2006) 40 Cal.4th 165 [statements made by the defendant in a post-conviction probation
report] and People v. Roberts (2011) 195 Cal.App.4th 1106, 1127–1128 [statements made after
plea in combined plea and sentencing hearing]). Nonetheless, the Saez court held neither case
stood for the principle that “anything that occurs after the conviction is immaterial in determining
the conviction’s basis” and found no reason for the timing to undercut reliance on the statements as
“reflect[ing] the facts upon which [the defendant] was convicted.” (Saez at p. 1198 [and also noting
that “unlike the probation report’s statements in Trujillo, the statements in the affidavit here were
part of the complaint and made long before the plea was entered, and Saez stipulated to the
complaint as the basis of the conviction”].)
Editor’s note: The concurring opinion in Saez would have found reliance on “the record of
conviction proffered in connection with defendant’s conviction for false imprisonment while armed is
insufficient even under California law” for two reasons. “First, the pivotal stipulation that the facts
alleged in the complaint formed the basis for the plea—even assuming it pertained to the guilty plea in
question and assuming the superseded complaint was part of the record of conviction—occurred after
defendant was convicted and therefore is not part of the record under Trujillo. Second, the probable
cause statement embedded in the Wisconsin complaint—providing the facts referenced in the
stipulation—is, under [People v.] Reed [1996 13 Cal.4th 217 (which held the preliminary hearing
transcripts were part of the record, but the testimony was subject to objection on hearsay grounds
unless sufficient exceptions applied)] inadmissible hearsay for which an exception was not established.”
(Conc. opn. J. Dondero at pp. 1215-1216 [bracketed portion added by IPG].)
26
People v. Saez (2015) 237 Cal.App.4th 1177, 1215-16 [189 Cal.Rptr.3d 72, 104]
On the other hand, while the Saez court held reliance on the records did not contravene the holding
in People v. McGee (2006) 38 Cal.4th 682 (Saez at p. 1198), it did conclude that “the California
and United States Supreme Courts have diverged on the limits of a sentencing court’s ability to
review the record of a prior conviction in determining whether the conviction can be used to increase
a sentence under a statutory sentencing-enhancement scheme” and believed the holding in
Descamps “signaled that the Sixth Amendment imposes restrictions on such review beyond those
recognized in McGee.” (Saez at p. 1195.)
The Saez court held that “while Descamps did not explicitly overrule McGee, Descamps’s
discussion of the Sixth Amendment principles applicable when prior convictions are used to increase
criminal sentences is clear and unavoidable and was adopted by eight of the nine justices on the high
court.” (Saez at p. 1207.) Under these unusual circumstances, the Saez court believed it was
compelled to apply those constitutional principles to the case before it. (Ibid; see also People v.
Manning (2014) 226 Cal.App.4th 1133, 1141 & fn. 3 [approach allowing consideration of conduct
underlying prior conviction to make strike determinations “may no longer be tenable” after
Descamps].)
The Saez court pointed to language in Descamps that the Sixth Amendment prohibits a
sentencing court from making a disputed determination “about what the defendant and state judge
must have understood as the factual basis of the prior plea ” (Saez at p. 1206 citing Descamps at p.
2288) and that “when a defendant pleads guilty to a crime, he waives his right to a jury
determination of only that offense’s elements; whatever he says, or fails to say, about superfluous
facts cannot license a later sentencing court to impose extra punishment.” (Saez at p. 1204, citing
to Descamps at p. 2289.)
The Saez court then observed that, by his plea, the defendant “did not admit, or waive his Sixth
Amendment rights regarding, the additional facts on which the strike finding was contingent: that he
personally used a firearm and that the reckless use of a firearm occurred in the course of the false
imprisonment. Nor did his stipulation to the complaint as the factual basis of his plea constitute a
waiver of Sixth Amendment rights or an admission as to those additional facts.” (Id. at p. 1206.)
The prior-conviction records did “not include the transcript of the prior sentencing hearing or any
other information about the stipulation except the bare statement in the judgment roll that ‘[a]ll
parties stipulate[d] to the facts in the criminal complaint for basis of the plea.’” (Ibid.) And “[t]here
is no evidence that the prosecutor recited the factual basis for the plea or that [the defendant]
27
specifically admitted to any of the facts in the complaint beyond the elements of the crimes.
Accordingly, it cannot conclusively be said that the defendant “admitted to personally using a
firearm or to pointing a firearm at the victim to effect the false imprisonment.” (Id. at p. 1207.)
Thus, “the trial court acted in contravention of the Sixth Amendment by necessarily relying on the
police officer’s statements in the Wisconsin record of conviction to increase [the defendant’s]
sentence.” (Id. at p. 1208.)
The Saez court did, however, did not go “full on” Descamps. Notwithstanding its reliance on
Descamps, the Saez court rejected that defendant’s argument that the Sixth Amendment
prohibited the trial court from making the identity finding. (Id. at p. 1208.) The Saez court stated
that the California Supreme Court in People v. Epps (2001) 25 Cal.4th 19 clearly assumed (albeit
did not explicitly say) the “identity issue is included in the exception under Almendarez–Torres
and that “two Courts of Appeal have rejected the same claim that there is a federal constitutional
right under Apprendi to a jury trial on the issue of identity.” (Saez at pp. 1208-1209, citing to
People v. Garcia (2003) 107 Cal.App.4th 1159, 1164–1165 and People v. Belmares (2003) 106
Cal.App.4th 19, 27–28.) The Saez court did not believe that the holding in Descamps could “be
read to undo the exception under Almendarez–Torres,” which the California Supreme Court has
interpreted to encompass the issue of identity. (Id. at p. 1209.)
Editor’s note: The Saez court’s application of Descamps also did not signal its agreement that a
trial court would violate the Sixth Amendment by relying on a defendant’s prior admission of a nonelemental fact in making a strike determination – a question the Saez court expressly left open. (Id. at
p. 1207, fn. 21.) Nor did the Saez court agree with the defendant’s “suggestion that the specific
approach described in Descamps, supra, 133 S.Ct. 2276 for establishing prior convictions under the
ACCA is necessarily required in determining strikes under California’s Three Strikes law. The
divisible/indivisible approach discussed in Descamps springs in large part from the ACCA’s focus on
the elements of the prior conviction: unlike the Three Strikes law, the ACCA prohibits consideration of
the conduct underlying the conviction. (See generally Descamps, at pp. 2283–2288.)” (Saez at p.
1208, fn. 22.) The Saez court stated it could “conceive of situations in which an examination of the
record could establish that elements of a strike were found true beyond a reasonable doubt in the prior
proceeding even though the underlying statute was ‘indivisible’ in the Descamps sense. For example, if
Saez’s conviction for reckless use of a firearm had followed a jury trial and the record of conviction
showed that no aiding-and-abetting instructions were given, we think it unlikely that a determination
that the prior conviction involved personal use of a firearm would violate the Sixth Amendment even
under Descamps’s rationale.” (Saez at p. 1208, fn. 22.)
People v. Saez (2015) 237 Cal.App.4th 1177, 1208 [189
28 Cal.Rptr.3d 72, 98]
People v. Marin (2015) 240 Cal.App.4th 1344
In Marin, a defendant was convicted of, among other things, felony driving under the influence of
alcohol. It was also alleged that defendant had a prior conviction for vehicular manslaughter in
violation of Penal Code section 192(c)(1), which is a sentencing enhancement pursuant to Vehicle
Code sections 23550 and 23550.5 and the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d)
& 667, subds. (b)-(i)). Before trial, defendant admitted the prior conviction and he was sentenced
on it. Because of problems with the waiver (unrelated to Descamps), the finding on the prior
conviction was reversed and the case was remanded for a new trial on the prior conviction. (Marin
at pp. 1349-1350.)
On remand, defendant represented himself. A jury trial was held on the prior conviction. To prove
the prior conviction, the prosecution introduced a certified copy of the abstract of judgment which
showed that defendant was convicted by ‘plea’ of violating ‘PC 192(C)(1) MANSLAUGHTER—
VEHICULAR’ on February 16, 2005, and was sentenced to two years in prison. The prosecution also
introduced a certified copy of the minute order reflecting that defendant pled no contest to the
charge.” (Id. at p.1350.) However, the prosecution did not introduce evidence of the complaint or
information, the circumstances underlying the charge, or the plea transcript. The jury found the
alleged prior convictions, including the strike allegation to be true. (Ibid.)
Once again, the defendant appealed. This time, on the ground that there was insufficient evidence
his conviction was a strike because there was no evidence introduced that defendant personally
inflicted the injuries that killed the vehicular manslaughter victim and that the victim was someone
other than an accomplice in the crime – necessary elements of proving the defendant’s prior
vehicular manslaughter conviction was a strike prior. (Id. at p. 1350.)
The appellate court agreed with defendant since, on a bare record showing only that defendant was
convicted by plea of violating section 192, subdivision (c)(1), the most the court could conclude was
“that he admitted his grossly negligent conduct proximately caused a death, not that he personally
inflicted great bodily injury.” (Id. at p. 1351; see also this IPG memo, at p. 22.)
However, because the appellate could not “know what the record of conviction (other than the
abstract of judgment and plea minute order) reveal[ed] about the defendant’s prior manslaughter
conviction and whether it might qualify as a strike,” it ordered the matter remanded “for further
proceedings to determine what the nature of that evidence, if any, is.” (Id. at p. 1351.)
29
The appellate court then had to decide if (as defendant contended) Descamps entitled defendant
on remand to a jury trial on whether he personally inflicted bodily injury on a non-accomplice in the
commission of his vehicular manslaughter or whether (as the People contended) defendant was
entitled to a jury trial only if the record of conviction showed that “the conviction realistically may
have been based on conduct” that did not involve defendant’s personal infliction of great bodily
injury on a non-accomplice. (Marin at p. 1352.)
In order to resolve these contentions and provide necessary guidance to the trial court for the
proceedings on remand, the Marin appellate court was forced to “decide whether judicial
factfinding beyond the elements of the prior conviction permitted by [People v.] McGee [(2006)
38 Cal.4th 682, 693] survives the United States Supreme Court’s interpretation of the Sixth
Amendment jury trial right in Descamps[.]” (Marin at p. 1352.)
The Marin court believed that the type of judicial factfinding on prior convictions permitted under
California law as described in People v. McGee (2006) 38 Cal.4th 682 was “virtually
indistinguishable from the Ninth Circuit approach that the high court disapproved in Descamps.”
(Marin at p. 1362, emphasis added by IPG.) That is, the Ninth Circuit approach permitting an
examination of “reliable materials” to determine “‘what facts’ can ‘confident[ly]’ be thought to
underlie the defendant's conviction in light of the ‘prosecutorial theory of the case’ and the ‘facts put
forward by the government’” is no different than the approach identified in McGee permitting an
“examination of the record of conviction to determine ‘whether that record reveals whether the
conviction realistically may have been based on conduct that would not constitute a serious felony
under California law.’” (Marin at p. 1362, emphasis in original.)
Moreover, since the Marin court believed that application of the Descamps’ analysis in this regard
was dictated by the Sixth Amendment, it held “[t]he California procedure for determining whether
prior convictions qualify as strikes, insofar as it is based on judicial factfinding beyond the elements
of the offense, is incompatible with the United States Supreme Court’s view of the Sixth Amendment
right to jury trial as articulated in Descamps. In short, such judicial factfinding, which looks
beyond the elements of the crime to the record of conviction to determine what conduct ‘realistically’
underlay the conviction, violates the Sixth Amendment right to a jury trial.” (Id. at p. 1363.)
In sum, the Marin court held “judicial factfinding beyond the elements of the defendant’s prior
conviction—so called ‘superfluous facts’ or ‘non-elemental facts’—is generally constitutionally
impermissible” under the Sixth Amendment. (Id. at p. 1364.)
30
Editor’s note: As to exact scope of what the High Court would consider judicial factfinding in
violation of the Sixth Amendment, the Marin court did a good job of identifying all the various ways
such impermissible factfinding was described in Descamps: “1) ‘“a disputed’ determination “about
what the defendant and state judge must have understood as the factual basis of the prior plea,” or what
the jury in a prior trial must have accepted as the theory of the crime’ (citing the plurality opinion in
Shepard, supra, 544 U.S. at p. 25, 125 S.Ct. 1254, and Justice Thomas’ concurrence that such a finding
would be ‘“constitutional error, no doubt,’” id. at p. 28, 125 S.Ct. 1254); (2) a finding concerning ‘what a
trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct’; (3) a finding
about ‘amplifying but legally extraneous circumstances’; (4) inferences from a plea transcript based on
‘whatever [a defendant] says, or fails to say, about superfluous facts’ (citing the Shepard plurality,
supra, 544 U.S. at pp. 24–26, 125 S.Ct. 1254); and (5) the trial court’s ‘own finding about a nonelemental fact.’” (Marin at pp. 1363-1364, citing to Descamps, supra, 133 S.Ct. at pp. 2288–2289.)
People v. Marin (2015) 240 Cal.App.4th 1344, 1363-64 [193 Cal.Rptr.3d 294, 309]
However, the Marin court also found Sixth Amendment right is not violated when, in determining
whether a prior conviction qualifies to increase a defendant’s punishment, the trial court considers
the “indictment, jury instructions, plea colloquy, and plea agreement” in order “to determine the
statutory elements of the crime of which the defendant was convicted[.]” (Id. at pp. 1348-1349.)
Moreover, despite this language, under “the reasoning of Descamps, supplemented by its favorable
treatment of Shepard, “judicial factfinding beyond the elements of the prior conviction” would be
permitted “if, in entering a guilty plea, the defendant waived his right to a jury trial as to such facts
and either admitted them or they were found true by the court with defendant’s assent.” (Id. at p.
1364.) In support of this determination, the Marin court cited to the following language from
Shepard at p. 16: “a later court determining the character of an admitted burglary is generally
limited to examining the statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”
and at p. 26: “enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a
nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” (Marin at p. 1364 [and adding italics].)
Editor’s note: Under Marin’s interpretation, if, for example, the use of a firearm was required for a crime
to be used as an enhancing prior, and the crime for which defendant was previously convicted did not have
firearm use as an element, the prior conviction could still be used to enhance if, as part of the plea, the judge
expressly asked the defendant if he used a firearm when he committed the crime and the defendant replied
he did.
31
The Marin court stated that if, on remand, the prosecution seeks to prove defendant did not
personally inflict great bodily injury on a person other than an accomplice by resort to documents in
the record of conviction, “the defendant is entitled to a jury trial on the issue whether he personally
inflicted great bodily injury on a person other than an accomplice, unless the defendant waived his
right to a jury trial as to such facts and either admitted them or they were found true by the court
with defendant's assent.” (Id. at p. 1364.)
Finally, the Marin court held the Double Jeopardy Clause did not bar retrial on the prior
conviction. They reached this conclusion even though the prior conviction was reversed for
insufficient evidence; and even though Apprendi and its progeny have eliminated some of the
distinction between “offenses” and sentencing proceedings insofar as jury trial rights - which was
one of the grounds the United States Supreme Court relied upon in Monge v. California (1998)
524 U.S. 721 to find Double Jeopardy Clause does not bar retrial of a prior conviction allegation.
(Id. at p. 1366.)
People v. Denard 2015 WL 7774288
In Denard, the People sought to prove, at a court trial, that defendant had previously been
convicted in Florida for “second degree felony manslaughter” and that the conviction qualified as a
strike prior under Penal Code sections 1170.12 and 667(d). (Id. at p. *7.) The Florida record of
conviction admitted into evidence to prove the prior conviction “consisted of a document entitled,
‘Uniform Commitment to Custody of Department of Corrections,’ an information charging [the
defendant] with manslaughter, a document entitled, ‘Judgment,’ a document entitled, ‘Sentence,’ a
‘Sentencing Guidelines Scoresheet,’ a certificate to be attached to the commitment form, and a
probable cause affidavit alleging facts in support of [defendant’s] arrest for first degree murder and
armed burglary.” (at p. *7.)
Only the probable cause affidavit described the facts of the underlying crime and it was necessary to
consider the probable cause affidavit in order to establish that the conviction qualified as a strike
prior. (Id. at pp. *7-*8.) However, the probable cause affidavit was not made contemporaneously
with the conviction. Rather, it was “a summary of witness statements from the initial investigation
of the case which was prepared for the purpose of obtaining an arrest warrant” for the defendant.
(Id. at p. *8, fn. 8.)
32
The Denard court held reliance on the probable cause affidavit was improper under California law.
(Id. at pp. *7-*9.) The Denard court observed that under California law, the sentencing court’s
focus is on the reliability of the documents in question to show “whether the conviction realistically
may have been based on conduct that would not constitute a serious felony under California law.”
(Id. at p. *8, citing to People v. McGee (2006) 38 Cal.4th 682, 706.) The documents reviewed
must be part of the record of conviction and the “record of conviction” may be viewed as the
“equivalent to the record on appeal” or more narrowly as referring only to “those record documents
reliably reflecting the facts of the offense for which the defendant was convicted.” (Id. at pp. *8-*9
[citing to People v. Reed (1996) 13 Cal.4th 217, 223], emphasis added.)
The Denard court held the probable cause affidavit could not be considered part of the “record of
conviction,” under state law for multiple reasons. First, it consisted of multiple layers of hearsay
reciting the facts of uncharged crimes, and thus “could hardly be deemed a reliable account of the
conduct underlying the offense for which [the defendant] was convicted.” (Id. at p. *9.) Second, it
set “forth a factual basis for arresting [defendant] for two crimes with which he was neither charged
nor convicted.” (Id. at p. *8, emphasis added by IPG.)
The Denard court distinguished the affidavit from the affidavit introduced in People v. Saez
(2015) 237 Cal.App.4th 1177 that was found to be admissible under California law (as interpreted in
People v. McGee (2006) 38 Cal.4th 682) to prove a strike. (Denard at p. *9; see this IPG memo
at pp. 25-26 [discussing Saez].) The Denard court noted that, unlike in Saez, “there [was] no
indication the affidavit was attached to the information or was presented to the court at the time of
the conviction” and there was no evidence the defendant “stipulated to or even acknowledged the
facts alleged in the affidavit, much less that its contents were known to him at any time.” (Denard
at p. *9.)
Editor’s note: The Denard court also believe the probable cause affidavit was improperly relied
upon because it was inadmissible hearsay outside of any exception. However, defendant’s failure to
object on that basis forfeited his ability to raise the issue on appeal. (Id. at p. *8, fn. 8.)
The Denard court also held reliance on the probable cause affidavit would violate the Sixth
Amendment. It agreed with the conclusions of the courts in Saez (see this IPG memo at pp. 27-28)
and Marin (see this IPG memo at p. 30) that “[t]he California procedure for determining whether
prior convictions qualify as strikes, insofar as it is based on judicial factfinding beyond the elements
of the offense, is incompatible with the United States Supreme Court’s view of the Sixth Amendment
33
right to a jury trial as articulated in Descamps.” (Id. at p. *12.) By looking at the probable cause
affidavit as the basis for determining that defendant’s second degree felony manslaughter conviction
was a strike under California law, the trial court violated the Sixth Amendment. (Ibid.)
In coming to this conclusion, the Denard court also considered “two other serious concerns”
identified by the Descamps court “that arise when a sentencing court usurps a jury’s factfinding
function.” (Id. at p. *11.) First, sentencing courts “have to expend resources examining (often aged)
documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial,
facts that, although unnecessary to the crime of conviction, satisfy an element of the relevant generic
offense.” (Id. at p. *11 citing to Descamps at p. 2289.) Moreover, “[t]he meaning of those
documents will often be uncertain. And the statements of fact in them may be downright wrong....”
(Ibid.) Second, some defendants will be deprived “of the benefits of their negotiated plea deals.”
(Ibid.) If “a defendant surrenders his right to trial in exchange for the government’s agreement that
he plead guilty to a less serious crime, whose elements do not match an [the elements of the
enhancing prior], “a later sentencing court could still treat the defendant as though he had pleaded
to [a crime matching the enhancing prior], based on legally extraneous statements found in the old
record.” (Id. at p. *11 citing to Descamps at p. 2289.)
The Denard court found these additional concerns particularly relevant in this case before it, where
[the defendant’s] attempt to explain the basis for his plea in arguing that the Florida manslaughter
conviction should not be considered a strike appears to have been ignored by the trial court.” (Id. at
p. *11.)
3.
In light of Descamps and its California progeny, what documents may the
prosecution safely rely on in proving the fact defendant had suffered a prior
conviction, either by plea or trial?
Descamps should not prevent a prosecutor from proving the mere fact a defendant suffered a prior
conviction to a court by introducing a certified copy of a verdict or plea form. A court may then
decide the legal issue of whether the elements of a crime for which the defendant suffered the
conviction match the elements of a crime allowing for the prior conviction to be used as an
enhancement. (See generally Descamps v. United States (2013) 133 S.Ct. 2276, 2281; Taylor
v. United States (1990) 495 U.S. 575, 600.)
34
For example, a trial court could look at a verdict form showing a defendant was convicted of the
crime in Utah and determine whether the statutory elements of that crime exactly matches or
necessarily includes all the elements of a California assault with a deadly weapon on a peace officer,
thus allowing the out-of-state conviction to be considered a “strike” for purposes of the Three Strikes
law. (See Penal Code section 667(d)(2 [defining strikes as including a “prior conviction in another
jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the
state prison. . . if the prior conviction in the other jurisdiction is for an offense that includes all of the
elements of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony
as defined in subdivision (c) of Section 1192.7”].)
Moreover, a court may look at additional documents beyond the mere verdict form (i.e., indictments
and jury instructions if the conviction stemmed from a trial, or plea agreements or transcripts of the
colloquy between judge and defendant if the conviction stemmed from a plea) without violating the
Sixth Amendment right to jury trial if the prior conviction was for a “divisible crime” – a crime that
“sets out one or more elements of the offense in the alternative” and one alternative matches an
element of the crime allowing for an enhancement but the other alternative does not. (Descamps
at pp. 2281, 2284, 2285, fn.2.)
So, let’s say the Utah statute in question could alternatively be violated by assault with a deadly
weapon on a peace officer, firefighter, or physician. In that circumstance, the Utah statute, would be
considered a “divisible” statute vis-à-vis the serious felony of assault with a deadly weapon on a
peace officer in California. That is, it sets out one or more elements of the offense in the alternative
but only one alternative matches the elements of the California serious felony of assault with a
deadly weapon on a peace officer. If the verdict or plea form from Utah only referred to a conviction
of the statute by reference to the code section without further distinction, it would be permissible
and consistent with the Sixth Amendment for the sentencing judge to also consider the charging
document and the jury instructions provided at trial if the conviction followed a trial, or the plea
agreement and records of the plea colloquy, if the conviction followed a guilty or no contest plea.
What additional kinds of documents could be considered in this circumstance is not as clear. In
People v. Marin (2015) 240 Cal.App.4th 1344, the court indicated that a court could consider,
without violating the Sixth Amendment, documents reflecting an admission by the defendant to the
court regarding a specific fact or “an explicit factual finding by the trial judge to which the defendant
assented[.]” (See Marin at p. 1364.)
35
In Shepard v. United States (2005) 544 U.S. 13, the High Court held “police reports or
complaint applications” could not be considered in figuring out whether a prior burglary conviction
qualified for enhancement under the federal statute allowing increased punishment for prior
convictions of “burglary” - at least where the report or complaint applications were not explicitly
incorporated into the plea agreement or were not expressly made part of the factual basis for the
plea. (Id. at p. 16.) But Shepard was decided before the High Court drew a distinction between
“divisible” and “indivisible” prior offenses.
And in Johnson v. United States (2010) 559 U.S. 133, a case involving the question of whether a
Florida battery statute qualified as a “violent felony” under the ACCA, the court stated: “When the
law under which the defendant has been convicted contains statutory phrases that cover several
different generic crimes, some of which require violent force and some of which do not,” the
“modified categorical approach” will permit “a court to determine which statutory phrase was the
basis for the conviction by consulting the trial record—including charging documents, plea
agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench
trial, and jury instructions and verdict forms.” (Id. at p. 144, emphasis added by IPG.) Johnson
also was decided before the High Court drew a formal distinction between “divisible” and
“indivisible” prior offenses but the term “statutory phrase” sure seems like what the Descamps
court was talking about when it referred to alternative “elements” and it appears the Johnson court
was describing a “divisible” offense. (See United States v. Howard (11th Cir. 2014) 742 F.3d
1334, 1347.)
It must be kept in mind, however, that even under the “modified categorical approach” that is
used when assessing whether a divisible offense qualifies as a crime, “[a] court must not consult
[the aforementioned types of documents] in order ‘to discover what the defendant actually did’ and
then compare that conduct to the elements of the generic offense.” (United States v. Howard
(11th Cir. 2014) 742 F.3d 1334, citing to Descamps at 2287, emphasis added by IPG.) “Instead, the
documents must be examined only ‘to determine which statutory phrase,’ meaning which
alternative element, ‘was the basis for the conviction.’” (United States v. Howard (11th Cir.
2014) 742 F.3d 1334, citing to Descamps at 2285, emphasis added by IPG; see also People v.
Denard 2015 WL 7774288, *11 [indicating sentencing courts should not be “examining (often aged)
documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial,
facts that, although unnecessary to the crime of conviction, satisfy an element of the relevant generic
offense.”].)
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On the other hand, if the prior conviction was for the violation of an “indivisible” statute (i.e., a
statute that does not contain alternative elements and “criminalizes a broader swath of conduct than
the relevant generic offense”), then no documents other than the actual record of conviction (e.g., a
verdict or plea form) may be relied upon by the judge. (See Descamps at p. 2282; see also conc.
opn. J. Kennedy at p. 2293.)
Thus, let’s say the Utah statute in question simply made it unlawful to commit an assault with a
deadly weapon. It encompassed all assaults with a deadly weapon regardless of who was the victim
of the assault. In other words it criminalized a “broader swath of conduct” than the serious felony of
assault with a deadly weapon on a peace officer. In that circumstance, the Sixth Amendment would
prohibit a judge from looking at anything other than the elements of the Utah statute itself. A judge
could only consider what the verdict form stated, and could not review the charging documents, jury
instructions or plea colloquy for evidence that the person assaulted was a peace officer.
Keep in mind, however, that the law regarding how much of Descamps’ analysis is tied to the Sixth
Amendment and how much is tied to the specific federal statutory scheme at issue in Descamps is
not yet settled. For example, as noted earlier at p. 28 of this IPG memo, the appellate court in
People v. Saez (2015) 237 Cal.App.4th 1177 disagreed that the divisible/indivisible approach
discussed in Descamps for establishing prior convictions under the ACCA “is necessarily required
in determining strikes under California’s Three Strikes law.” (Id. at p. 1208, fn 22.) The Saez court
noted the dichotomy “springs in large part from the ACCA’s focus on the elements of the prior
conviction” which unlike the Three Strikes law, prohibits consideration of the conduct underlying
the conviction. (Saez at p. 1208, fn. 22.) The Saez court stated it could “conceive of situations in
which an examination of the record could establish that elements of a strike were found true beyond
a reasonable doubt in the prior proceeding even though the underlying statute was ‘indivisible’ in the
Descamps sense.” (Saez at p. 1208, fn. 22.)
Editor’s note: Just because a crime has a lot of different alternative elements, does not mean it
should be treated as an “indivisible” statute. (See United States v. Flores-Soriano (unpublished) 2013
WL 5217518, at *3 [Health and Safety Code sections 11351 and 11352 are “divisible” statutes even though
they criminalize possession of many different kinds of controlled substances].)
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4.
From a constitutional standpoint, does the fact a prior conviction is being
proved to a jury instead of a court change what may be relied upon in proving
the prior conviction?
There is no indication in Descamps or the California appellate court cases adopting its analysis in
whole or part that the documents traditionally relied upon in proving prior convictions may not be
relied upon when proving the prior conviction to the jury. Indeed, there are strong indications the
Descamps analysis has no application at all to proving prior convictions to a jury. (See People v.
Wilson (2013) 219 Cal.App.4th 500, 516 [Pursuant to “Apprendi, of course, a court could increase
a defendant’s sentence if a jury found the required facts beyond a reasonable doubt”].)
Some Suggestions and Advice
1.
In proving prior convictions at trial, should a prosecutor, consistent with the current statutory
scheme, ask a court make all findings regarding a prior conviction other than the determination as
to whether the documents establishing the conviction are authentic and are sufficient to establish
that the convictions the defendant suffered are the ones alleged?
No. In light of the Descamps and the recent appellate decisions, prosecutors should always first
seek a waiver of both the Sixth Amendment and any other constitutional right to jury trial as
well as the statutory right to jury trial on all aspects of proving a prior conviction. (See People v.
Wilson (2013) 219 Cal.App.4th 500, 507 [finding violation of Sixth Amendment where defendant
waived his right to a jury trial on the fact of the prior conviction—but not on constitutional right to
have facts required to show strike prior proved to a jury].)
If the defendant will not waive jury trial on all aspects, seek a waiver of, at a minimum, the
constitutional right to proving the identity of the defendant and of as many other aspects of proving
the prior as possible. The defense may be willing to waive jury trial on some facts surrounding the
prior conviction, but not others.
If the defendant will not waive jury trial and the court is going to be asked to do anything more than
look at the document establishing the conviction and decide whether the elements of a prior
conviction match the elements of the enhancing prior, then close scrutiny is required to determine
what type of judicial fact-finding will be involved.
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If the statute upon which the prior conviction is based is divisible (it sets out one or more of the
relevant elements of the offense in the alternative), then it is probably okay to proceed with a court
trial so long as all that is at issue is which alternative element of the statute was violated when
defendant was convicted of the prior offense and the necessary proof of the relevant matching
elements can be established by reference to trial instructions or charging documents (if the
conviction followed a trial) or plea agreements or colloquies between the judge and defendant (if the
conviction stemmed from a plea).
If the proof of a necessary element will depend on other types of documents, more thought should be
given to insisting on a jury trial. For example, if infliction of great bodily injury is a necessary
element of showing a felony qualifies as a strike prior, but the defendant only plead guilty to the
felony, reliance on the preliminary examination transcript to establish great bodily injury could
potentially run afoul of the Sixth Amendment. (But see People v. Gallardo (unpublished) 2015
WL 7180728, *6 [when the statute violated is a divisible statute, “the sentencing court may consult
extrinsic documents to determine which alternative formed the basis of the prior conviction” and
nothing in Descamps excludes the preliminary hearing transcript from that class of documents”].)
If the statute is not divisible and something more than the mere conviction itself must be established
to prove the conviction qualifies as an enhancing prior, then it is much safer for a prosecutor to
request a jury trial on the prior conviction if the defendant will not waive that right.
2.
Should prosecutors ask for a jury trial on defendant’s identity absent a waiver of any
constitutional right to jury trial on that issue?
Maybe. The anomaly in California is that the one issue the jury is suited to decide (i.e., whether the
defendant is the person who suffered the conviction) is statutorily designated as a question for the
court. As discussed above, the only post-Descamps decision to address the issue is People v.
Saez (2015) 237 Cal.App.4th 1177, which held Almendarez-Torres still permits a judge to make a
finding that the defendant is the person named in the prior conviction notwithstanding Descamps.
(Saez at pp. 1208-1209 - see this IPG memo at p. 28]; see also State v. McKague (Wash. Ct.
App. 2011) 159 Wash.App. 489, 516 [pre-Descamps case finding identity is a fact so “intimately
related to [the] prior conviction,’ . . . as to be virtually inseparable from the finding of the existence
of a prior conviction”]; State v. Rudolph (Wash. Ct. App. 2007) 141 Wash.App. 59, 69 [same].)
Still, the analysis in Saez is a little sparse on this issue and it is not difficult to conceive of an
argument that if there is a true question whether the defendant is the person named in the prior,
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then the court is making a disputed factual finding in contravention of Descamps. Thus, all things
considered, if there is no waiver of any constitutional right to this determination, the safest course is
to prove it to a jury.
3:
If a defendant waives his statutory right to a jury trial on the priors are we going to be okay in
proving the prior conviction to the judge?
No. Any waiver of the right to jury trial on the prior convictions should make it clear that the
defendant is not only waiving his statutory right to jury trial but is waiving his constitutional right to
have a jury decide all aspects of the prior conviction. Under the statute, the jury is tasked with
determining whether a conviction occurred. It is not tasked with determining the defendant was the
person who suffered the conviction nor is it tasked with determining any facts beyond the fact of
whether defendant suffered a conviction. Under Descamps and its California progeny, the
defendant may be entitled to a jury trial on aspects of the conviction other than simply “whether [the
documents offered to prove the prior occurred] are authentic and, if so, are sufficient to establish
that the convictions the defendant suffered are indeed the ones alleged.” (People v. Kelii (1999) 21
Cal.4th 452, 458-459.) Thus, a waiver of the right to jury trial on the fact a conviction occurred is
not tantamount to a waiver of the constitutional right to jury trial on other aspects of the conviction
(like whether the conviction is a serious felony because the defendant used a deadly weapon or
whether a foreign conviction qualifies as a strike prior).
4.
Is there anything a prosecutor can do when taking pleas in order to avoid some of the problems
created by the most recent case law interpretations of what Descamps requires?
Prosecutors should make sure that the charging documents and accompanying verdicts or pleas on
any offense which could potentially be used as an enhancing prior are explicit as possible in
establishing the trier of fact has found true the aspect of the prior conviction that will later render it
eligible for enhancement.
IPG WOULD LIKE TO PROFUSELY THANK SANTA CLARA COUNTY DEPUTY
DISTRICT ATTORNEY DANIEL FEHDERAU FOR HIS CRUCIAL INSIGHT INTO THE
RAMIFICATIONS OF DESCAMPS AND ITS PROGENY, HIS REVIEW AND EDITING OF
THE IPG MEMO, AND HIS PARTICIPATION IN THE ACCOMPANY IPG PODCAST.
NEXT EDITION: ETA JANUARY 11, 2016
Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be
directed to Jeff Rubin at (408) 792-1065.
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