Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF107655. J. Thompson Hanks, Judge.
Mark L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Maxine P. Cutler and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Ruben Miguel Chavira appeals from judgment entered following a jury conviction for first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true allegations that defendant suffered three prior prison terms. The trial court sentenced defendant to 28 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence supporting the trial court’s finding that he was competent to stand trial. Defendant also argues that the corpus delicti was not established by any evidence independent of defendant’s confession, and the prior prison term enhancements should be reversed because the court improperly instructed the jury that defendant’s identity was a conclusively proven fact.
We reject defendant’s contentions and affirm the judgment.
1. Factual and Procedural Background
In July 2001, real estate agent Wende Deaton listed a small house on Cavandish Lane in Moreno Valley. On July 31, 2001, real estate agent Emma Motte showed the property. When she opened the door to the house, there was a foul odor. Her clients nevertheless insisted on seeing the home. The husband entered the master bedroom and returned, saying they had to leave because there was a dead body in the bathroom. The police were notified.
Deputy Sheriff Bennett and other officers reported to the scene. They found a female body, face up in the bathtub, in the master bathroom. The tub was partially filled with water and the victim’s head was above the water. She was wearing tennis shoes and was fully clothed. There were no weapons or any sign of a struggle. A window in the living room appeared to have been broken from the outside. There was no evidence that anyone else had been in the house.
Bruce Moore, an investigator for the sheriff’s office, inspected the house and also observed the victim’s body in the bathtub. The drain was stopped up with a rag stuffed in the drain hole.
Dr. Montez, who performed the autopsy, testified there was no evidence of homicide at the crime scene or in the autopsy.
Chief forensic pathologist Dr. Cohen, testified that the record of the autopsy on the victim indicated the body had significantly decomposed and therefore it was very difficult to determine any injuries or the cause of death. According to Dr. Cohen, the toxicology report showed the victim’s body contained alcohol, in an amount consistent with the process of putrefaction (decomposition), methamphetamine, and a metabolite of cocaine.
Although Dr. Cohen said the death was consistent with an accidental drowning, he explained his opinion was not conclusive but rather based on exclusion. The difference between a drowning and a natural death normally cannot be determined. A drowning diagnosis can only be made when there is a history or witness account to support it or if the body is found in water, as in the instant case. Dr. Cohen also stated there was nothing in the autopsy contradicting defendant’s confession that he drowned the victim.
Cortney Dillard testified he was defendant’s friend in 2001. On July 25, 2001, Dillard went to a party near where the homicide occurred. Defendant was there. At the end of July, Dillard heard that someone he knew had died in the area. Dillard became concerned about defendant. The police contacted Dillard. Dillard told them he was worried about defendant and that Dillard had heard defendant had been in the house that was taped off.
Sergeant Lujan of the Riverside County Sheriff’s Department testified that in January 2003, he was a homicide investigator. On January 7, 2003, Lujan’s supervisor told him that defendant had just walked into the Compton police station and confessed to committing a murder in Moreno Valley. Lujan and Detective Spivacke of the Moreno Valley station interviewed defendant in Compton.
After defendant briefly described the murder, Lujan and Spivacke concluded the murder sounded like the Moreno Valley death in July 2001, investigated by Moore. Lujan and Spivacke therefore transported defendant to the Moreno Valley station and interviewed defendant in depth.
Defendant stated during the videotaped interview that, about a year and a half before, he travelled to Moreno Valley on a bus and stayed a few days in a motel. He then stayed at Dillard’s home for one week. After that, he stayed in a vacant house in Moreno Valley for about four days. The house was for sale, was unfurnished, and had electricity and water. Defendant entered the house by popping the window off with a screw driver.
While inhabiting the house, defendant went to a party. After leaving the party, he met a prostitute near a Jack in the Box restaurant. She was in her early 50’s, white or Greek, and 5 feet 1 inch to 5 feet 5 inches. She had short blond hair and was wearing a white ski jacket. The woman asked for $10. Defendant gave her $40 worth of crack cocaine, plus money for sex. They walked to the vacant house, which was about a mile and a half from the Jack in the Box. They entered the house through a sliding glass door about 11:45 p.m. The woman took a bath for 45 minutes. She then smoked crack and defendant smoked marijuana, and they had sex. They stayed up the rest of the night using drugs.
In the morning the woman was “tweaking” on marijuana, acting stupid, and “talking bullshit.” She was verbally abusive and would not leave. Defendant was angry because he had been overly generous by giving her $40 worth of crack, which he could have sold for $100. Defendant got fed up with the victim. He filled the tub with water, using a rag for a stopper. After the woman entered the bathroom to get her belongings and was leaving, defendant grabbed her by the neck, knocked her down, pushed her into the tub, and submerged her head face up in the tub of water. The woman was fully clothed, including her jacket and tennis shoes.
The woman screamed and struggled for about five minutes. Defendant held her down in the water for at least 20 minutes to make sure she was dead. Defendant then gathered his belongings, jumped over the back wall into a river bed, and took a bus to Los Angeles.
Defendant’s life thereafter took a turn for the worse. He could not get a girlfriend, money, or a job. He was not eating or sleeping well. He decided to tell what he had done because he was tired of his situation and hoped that confessing would solve his problems. He hoped to get a stable place to live and get his life squared away.
Investigator Moore testified he corroborated what defendant had said during the interview. Defendant had ties to Moreno Valley; he had resided in Riverside County; the homicide occurred during the summer of 2001; Dillard knew defendant; a window was broken to allow entry into the vacant house; there were sliding glass doors leading to the kitchen and bedroom; the house was for sale and vacant in July 2001; the victim was white, 50 years old, 5 feet 1 inch, clothed in shorts, a jacket, and tennis shoes, and had short hair; she was found face up in water, in the tub; a rag was used as a stopper; the victim’s feet were facing the spigot; and there was a waterway behind the house.
After defendant’s interview, he showed Lujan and Moore where he had met the victim near the Jack in the Box, and directed them to the house.
2. Competency to Stand Trial
Defendant contends he established that he was not competent to stand trial. He claims he provided substantial evidence that he did not have sufficient ability to consult with his lawyer and did not have a rational and factual understanding of the proceedings against him.
A. Applicable Law
Conviction, whether by trial or plea, of a legally incompetent person violates due process. (§ 1367.) “A defendant is incompetent to stand trial when he suffers a mental disorder or developmental disability rendering him ‘unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’” (People v. Frye (1998) 18 Cal.4th 894, 951; see also People v. Marks (2003) 31 Cal.4th 197, 215.) On appeal, a finding of competency cannot be disturbed if there is any substantial and credible evidence in the record to support that finding. (People v. Hightower (1996) 41 Cal.App.4th 1108, 1111, citing People v. Campbell (1976) 63 Cal.App.3d 599, 608.) Our power to weigh the evidence in this context is very limited by deference to the trier of fact and we must view the record in the light most favorable to the verdict. (People v. Marks, supra, at p. 215; People v. Samuel (1981) 29 Cal.3d 489, 505.)
B. Competency Trial Evidence
After hearing testimony and reviewing defendant’s records and other evidence presented at defendant’s competency hearing, the trial court found defendant competent to stand trial. The trial court explained that defendant was “antisocial to the extent of not cooperating. People just don’t sometimes cooperate. [¶] . . . [¶] . . . I do not believe he falls within the purview of 1368 et seq. of the Penal Code and, therefore, shall reinstate criminal proceedings against him.” As a consequence, the court reinstated defendant’s criminal proceedings, and defendant was tried and convicted of first degree murder.
The following evidence was presented at defendant’s competency hearing.
(1) Dr. Kirkish’s Report and Testimony
The court ordered Dr. Kirkish appointed to evaluate defendant. Accordingly Dr. Kirkish interviewed defendant for 55 minutes in May 2003. She attempted to do so again in 2005, but defendant refused to see her. Dr. Kirkish stated in her May 2003 report and at trial in 2005 that defendant had persecutory delusions which rendered defendant incompetent to stand trial as well as incompetent to assist his attorney in his defense.
(2) Dr. Oshrin’s Report and Testimony
The court also ordered Dr. Oshrin appointed to evaluate defendant. Defendant met with Dr. Oshrin in 2003 but defendant refused to allow Dr. Oshrin to interview him. Defendant told Dr. Oshrin he had nothing to say and did not want to participate in the interview. Dr. Oshrin again attempted to interview defendant in 2005. Defendant refused to leave his cell when he was told Dr. Oshrin had come to interview him. Based on defendant’s records and Dr. Kania’s report, Dr. Oshrin concluded defendant was able to understand the court proceedings, and was able to cooperate with his attorney but was unwilling to do so.
Dr. Oshrin testified that after his 2003 report, he reviewed defendant’s videotaped confession. He stated he would have preferred to have interviewed defendant but felt he could provide an opinion based on the other background information he had been provided. Nothing that he had reviewed led him to believe defendant was incompetent. Dr. Oshrin further noted that he could not diagnose someone as incompetent who refused to speak to him. Due to a lack of any information to the contrary, Dr. Oshrin concluded defendant was competent, although Dr. Oshrin acknowledged his opinion was weak. Dr. Oshrin believed defendant suffered from impulse control disorder, which related to his behavior, and not necessarily his intellect. Defendant could be competent even with such a disorder. Dr. Oshrin also concluded defendant was capable of understanding the proceedings and assisting counsel if he chose to do so.
(3) Dr. Franks’s Report
The court ordered a third doctor, Dr. Franks, to examine defendant. In 2003, Dr. Franks interviewed defendant for 30 minutes. During the interview, defendant refused to answer questions or cooperate, and vented his frustrations and anger. In Dr. Franks’s July 2003 report, he noted that from his review of defendant’s records and other doctors’ reports that from 1997 until 1999, no psychiatric disorder was found. Thereafter reports indicated defendant displayed strange behavior, could use mental health treatment, and had a history of behavioral problems. Defendant said he did not want to have anything to do with doctors and had no problems or need for a psychological exam. He simply wanted his case tried. Defendant claimed there was no evidence against him and he would be exonerated.
Dr. Franks concluded in his report that defendant was suffering from a mental illness which was difficult to assess because he would not cooperate in being interviewed and tested. Dr. Franks believed defendant appeared to be delusional and paranoid. Although defendant could understand the nature and purpose of the proceedings against him, his understanding was not reality-based. Defendant was not able to cooperate rationally with his attorney in presenting a defense and therefore was not able to prepare and conduct his own defense in a rational manner. Defendant stated he had no desire to conduct his own defense without counsel. Dr. Franks believed defendant should be referred to a locked psychiatric facility for treatment.
(4) Dr. Kania
In 2003, the court ordered another psychologist, Dr. Kania, appointed on behalf of defendant for a defense evaluation of defendant. In his May 2003 report, Dr. Kania stated that he met with defendant at the jail and attempted to interview him. Defendant failed to cooperate in the interview and thus impeded Dr. Kania’s ability to evaluate him. Dr. Kania stated that defendant was confused about who represented him and the nature of his charges. Defendant said he did not know why he was incarcerated. Defendant appeared not to understand what was going on in his case.
Dr. Kania concluded in his report that defendant was not “trial competent,” since defendant did not seem to understand the nature and purpose of the proceedings against him. It was also clear defendant was incapable of cooperating in a rational manner with Dr. Kania during the evaluation or with his attorney in presenting his defense.
At trial Dr. Kania testified that based on his review of defendant’s records and his interview with defendant, Dr. Kania concluded defendant was not competent. He concluded this primarily because defendant was unable to provide information he should have been able to provide his attorney for his defense. Also, based on defendant’s psychological history, Dr. Kania concluded defendant was genuinely confused about his attorney and did not appear to be malingering to avoid his murder trial.
Dr. Kania was requested to interview defendant again in March 2005. Before doing so, Dr. Kania viewed defendant’s videotaped police interview. When Dr. Kania attempted to interview defendant, he was unable to do so because defendant refused to leave his cell for the interview. Dr. Kania, however, spoke to the deputies at the facility. They said defendant had been placed in a single cell and that he needed medication, if he was not being medicated already, because he made “weird comments” and “goes off easily.”
Dr. Kania testified that based on viewing defendant’s videotaped police interview, it appeared that defendant’s thinking was not logical. He contradicted himself and did not always make sense, although he made more sense in the videotape in January 2003 than when Dr. Kania tried to interview him in May 2003.
Dr. Kania concluded defendant could not assist counsel with his defense in a rational manner. According to Dr. Kania, defendant’s behavior, as well as his records, indicated he had a severe psychological problem and was not malingering. Dr. Kania added he would be uncomfortable attempting to diagnose defendant based on the limited information he had been provided. Dr. Kania noted that defendant was very confused and contradictory. Defendant did not know what had happened and was unable to provide coherent information about whether he had an attorney.
(5) Defendant’s Aunt
Defendant’s aunt, Linda Astorga, who had known defendant since he was a child, testified that she visited defendant about 15 times over the two-year period prior to her testimony in August 2005. Defendant did not know why he was in custody and told her he should not be there. He claimed he had not done anything wrong.
Astorga knew the basic facts of defendant’s charged offense and his confession. Defendant told her he did not understand why he could not go home and was tired of being there.
Astorga said she had seen defendant do some bizarre things when she visited him, such as waving at something and saying he was waving at his brother who was not there. Another time, when she was traveling with him, he said he saw a unicorn lying down on the side of the road. Defendant seemed different than when he was in his teens. As a child he had behaved normally. After he began taking crack cocaine when he was around 25 years old, defendant started having mental problems. He did not make sense when he talked and he had temper problems. Defendant was 36 years old at the time of Astorga’s testimony.
When Astorga visited defendant, he usually asked about his mother and grandmother. Sometimes he asked about his son and extended family members. Her visits were normally 45 minutes.
(6) Deputy Sheriff Crandall
Deputy Sheriff Crandall testified that he had worked in the unit where defendant was housed. He had observed defendant in the unit but the only time he had a conversation with him was when defendant asked for a tray of food. Crandall did not notice anything peculiar about defendant’s behavior. Crandall did not see defendant talk to anyone else. Defendant just watched TV all day. Case notes indicated defendant had some problems.
(7) Correctional Deputy Ramirez
Correctional Deputy Ramirez testified that he was assigned three or four days every other month to defendant’s housing unit. Ramirez had observed defendant while defendant was in the day room for 30 minutes or while Ramirez was looking into defendant’s cell during security checks. Ramirez had not heard defendant bark or do any other strange things. Ramirez had spoken with defendant in normal conversations while passing trays or mail or doing security checks. Their conversations were not in any depth. Ramirez was not able to say whether defendant was competent. Ramirez had not written defendant up for any problems but others might have.
(8) Defendant’s Testimony
At trial, defense counsel asked defendant if he understood that defense counsel was willing to let defendant testify and the prosecutor had agreed not to ask defendant about the facts of the case. Defendant said he did not understand this, and he did not care because he did not want to have anything to do with the proceedings. He added he did not understand why he was arrested and the matter was never investigated. He did not know what was going on. He was told there were witnesses and suggested they testify. If there was evidence, they should present it at trial. He said he had nothing more to say.
Defense counsel informed the court that he would not call defendant to testify.
C. Discussion
Defendant argues there was insufficient evidence to support the trial court’s finding he was competent to stand trial since three experts, Drs. Kirkish, Franks, and Kania believed defendant was unable to assist counsel in a rational manner with his defense due to his mental illness. In addition, while Dr. Franks believed defendant might understand the nature of the proceedings, Dr. Kania was not certain about this, and Dr. Kirkish believed defendant clearly could not understand the proceedings. Only Dr. Oshrin believed defendant could both understand the proceedings and assist counsel with his defense.
Defendant further asserts that there was insufficient evidence of his competency because Dr. Oshrin said his opinion was “weakly” held since he did not have the chance to interview defendant. Also Dr. Oshrin stated that his opinion was premised on the court presumption of competence.
Defendant agrees that the court must presume a defendant is competent unless the defendant refutes the presumption by a preponderance of the evidence. (§ 1369, subd. (f); People v. Medina (1990) 51 Cal.3d 870, 881-885.) Defendant argues that this presumption, however, only applies to the court and not to experts. Therefore, it is improper for an expert such as Dr. Oshrin to base his opinion on such a presumption and conclude that, because there was insufficient evidence to rule out competency, defendant was competent. Defendant asserts that Dr. Oshrin’s opinion was improper because, by relying on the court competency presumption, he failed to base his opinion on his own expertise and the information before him. Defendant thus argues the evidence was persuasive and uncontradicted that defendant was not competent to stand trial.
We disagree. There was substantial evidence supporting a finding of competency. Such evidence included Dr. Oshrin’s report and testimony that defendant was able to understand the nature and purpose of the proceedings, based in part on Dr. Franks’s report concluding this. Dr. Oshrin testified that he reviewed police reports, Dr. Kania’s reports, correctional department reports, and various other documents, and none of the information indicated defendant suffered from mental illness that would render him incompetent.
Defendant’s ability to think rationally was also supported by his aunt’s testimony that when she visited him in prison, he often asked about his family and asked if when he was released, he could have his aunt’s box of albums. Dr. Oshrin testified that his conversations with his aunt indicated he was able to use his intellect, memory, and reasoning.
As to Dr. Kania’s conclusion in his report that defendant could not cooperate in a rational manner in assisting his attorney, Dr. Kania did not speak to anyone in defendant’s family or to any of the nurses who treated defendant. Dr. Kania also did not mention conversations with any of the corrections deputies who observed defendant in his prison unit. Dr. Kania did not testify at the trial. In addition, Dr. Kania interviewed defendant for only 30 minutes, during which defendant was uncooperative, and the interview occurred over two years before the competency trial. Dr. Kania acknowledged in his report that defendant’s mental status could have changed since then. Under such circumstances, the court could have reasonably concluded Dr. Kania’s report and conclusions that defendant could not assist in his defense did not carry much weight.
Also, correctional deputies Crandall and Ramirez testified that defendant’s behavior while in prison was not significantly unusual. The deputies observed defendant over a substantial period of time at the detention center. They testified that they did not observe defendant commit any unusual behavior. Defendant watched TV and did not talk with other inmates. Such behavior is not sufficient to support a finding of incompetency.
Dr. Kirkish’s report and conclusions could also be discounted because, as she acknowledged at trial, they were based on an incomplete evaluation. Defendant was uncooperative throughout the interview. In addition, Dr. Kirkish did not speak to any of defendant’s family. Dr. Kirkish noted that when she asked defendant what his charges were, he correctly stated he was charged with “187,” indicating he was charged with murder. He also said, when asked what his attorney was supposed to do for him: “Her job is the defense. She sticks up for the rights.” This indicated defendant understood the role of his attorney.
Defendant also indicated he understood he might get convicted and, if he did, he would be sent to prison. Defendant stated during his interview with Dr. Kirkish that he understood the difference between a guilty and not guilty plea. Dr. Kirkish further testified that she could not give any opinion as to defendant’s ability at the time of trial to assist his attorney since Dr. Kirkish had not seen him since 2003.
Viewing the totality of the evidence in a light most favorable to the trial court’s finding of competency, we conclude there was substantial evidence supporting the trial court’s finding that defendant was competent to stand trial.
3. The Corpus Delicti
Defendant contends his conviction for murder violated the corpus delicti rule because there was no independent corroboration of his murder confession. Specifically, he argues there was no evidence that the victim’s death was caused by criminal means. Without any such evidence, defendant’s confession could not be considered. In turn, defendant argues, there was insufficient evidence to support his murder conviction.
A. Forfeiture
This issue may not be raised for the first time on appeal and therefore was forfeited by defendant’s failure to raise it below. (People v. Martinez (1994) 26 Cal.App.4th 1098, 1103-1104; People v. Sally (1993) 12 Cal.App.4th 1621, 1628; People v. Alvarez (2002) 27 Cal.4th 1161, 1172, fn. 8.)
Without deciding whether the issue was forfeited, the court in Alvarez noted that Court of Appeal decisions have split on whether “the defendant must either give the prosecution trial notice of his insistence on independent proof or forfeit the benefit of the independent-proof rule entirely.” (People v. Alvarez, supra, 27 Cal.4th at p. 1172, fn. 8.)
Even if defendant did not forfeit the issue, we reject on the merits defendant’s corpus delicti contention and conclude there was sufficient independent evidence that the victim’s death was caused by criminal means.
B. Applicable Law
Under the corpus delicti rule, the corpus delicti of a crime must be proved independently from a defendant’s extrajudicial admissions. (People v. Jennings (1991) 53 Cal.3d 334, 364.) “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)
C. Discussion
Here, there was sufficient independent evidence establishing that the victim’s death was caused by a criminal act. The coroner, Dr. Montez, and Riverside County chief forensic pathologist, Dr. Cohen, agreed that although the victim’s death was consistent with accidental drowning, this was not conclusive. Rather, their opinion was based on exclusion since differentiation between a drowning and a natural death often cannot occur, particularly when the body has decomposed. A drowning diagnosis is made only when there is a history or witness account to support it or if the body is found in water.
In addition, when Dr. Cohen was given a hypothetical based on facts consistent with those stated in defendant’s confession, Dr. Cohen testified the facts were consistent with a person having been drowned, and there was nothing in the autopsy protocol contradicting a finding that the victim was intentionally drowned.
Here, there was evidence, not only of a drowning, but also that the drowning arose from a criminal cause or act. The victim’s body was found fully clothed and seated in a tub of water, inside a vacant home, where defendant had been staying. The victim’s body contained traces of methamphetamine and a cocaine byproduct. There was also independent evidence corroborating that defendant was staying at the home when the victim died, around the time of the victim’s death.
In addition, there was evidence corroborating many of the facts defendant stated in his confession. While contrary inferences could be made from the evidence, the People provided sufficient evidence establishing a reasonable inference that the death was caused by a criminal agency. “The corpus delicti may be established by circumstantial evidence and by the reasonable inferences to be drawn from such evidence.” (People v. Mitchell (1982) 132 Cal.App.3d 389, 401 (Mitchell).) The prosecution was not required to negate all inferences supporting a finding of a noncriminal cause of death. (Alvarez, supra, 27 Cal.4th at p. 1171; People v. Jacobson (1965)63 Cal.2d 319, 327.) In addition, “For corpus delicti purposes the person charged need not be shown to have committed the crime.” (Mitchell, supra, at p. 401.)
Furthermore, as noted by the court in Mitchell, supra, 132 Cal.App.3d at page 402, “A drowning is not a death by natural causes and therefore establishes the possibility of criminal agency. The observed facts do not point to the likelihood this was either an accidental or suicidal death, but most reasonably supports the inference of a criminal agency.” In Mitchell, a fully clothed boy was found face up in a bathtub filled with 10 to 15 inches of water. The victim had bruises on his neck and the defendant was seen with a wet watch shortly after the police arrived at the scene. (Id. at pp. 401-402.) The Mitchell court concluded that “The complete corpus of murder was established, the admissions properly admitted and the information properly upheld.” (Id. at p. 402.)
Even though the facts in Mitchell are stronger, Mitchell supports the trial court’s finding that there was sufficient evidence independent of defendant’s confession to establish the murder corpus delicti. Defendant’s murder confession was thus properly admitted and, in turn, there was substantial evidence supporting defendant’s conviction for murder.
4. Prior Prison Term Enhancements
Defendant contends the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial by instructing the jury it must find defendant was the person named in the documents used to prove defendant’s three prior prison terms. Defendant argues there is no binding precedent on the question of whether prior prison term identity must be decided by the jury, but case law supports the proposition that identity must be determined by the jury beyond a reasonable doubt.
In the information the People included three prior prison term allegations. (§ 667.5, subd. (b).) During the jury trial, a forensic technician testified that defendant’s fingerprints on a booking card matched the fingerprints in a section 969b prison packet for each of the three convictions underlying the prison priors. The trial court instructed the jury that the court had found that “the defendant is the person whose name appears on the documents admitted to establish these [prior] convictions.” (CALJIC No. 17.18.) The defendant failed to object in the lower court to the challenged instruction. We nevertheless shall consider the matter on the merits. (People v. Belmares (2003) 106 Cal.App.4th 19, 27.)
In Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez- Torres), the United States Supreme Court held that a prior conviction, which need not be proven in order to prove the charged offense, is not an element of the offense. It is merely a sentencing factor. (Id. at pp. 226-227.) If the prior conviction allegation is not an element of the charged offense, the federal Constitution does not require that the defendant be afforded full trial rights, including the right to have a jury determine the truth of the allegation. (Id. at pp. 239-247.) In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the court expressly held that any fact which is used to increase a defendant’s punishment beyond the maximum of the statutory range “[o]ther than the fact of a prior conviction” must be found by a jury beyond a reasonable doubt. (Id. at p. 490.) The court reaffirmed Apprendi in United States v. Booker (2005) 543 U.S. 220, 224.
Proof of a prior conviction thus remains subject only to state statutory rights, and is not limited by the state or federal Constitution. (See People v. Epps (2001)25 Cal.4th 19, 23 (Epps), discussed below.) In Epps, supra, the California Supreme Court held that a defendant faced with a prior conviction allegation has a statutory right to a jury trial. However, a 1997 amendment to section 1025 limited the jury’s role to determining as a matter of historical fact whether the alleged conviction actually occurred. Other questions, such as the defendant’s identity as the person who suffered the conviction, exactly what the offense was, whether the offense is a serious or violent felony for purposes of the “Three Strikes” law, and whether the defendant served a prison term for the prior offense, are reserved for the trial court. (Epps, supra, at pp. 23-28.) The sole issue which the jury is empowered to decide is whether the alleged prior conviction ever occurred, and “the question of authenticity, accuracy, or sufficiency of prior conviction records.” (Id. at p. 27; see also id. at pp. 25-26 and People v. McGee (2006) 38 Cal.4th 682, 700 (McGee).)
In People v. Belmares, supra, 106 Cal.App.4th at pages 21-22, 26-28, relying on People v. Thomas (2001) 91 Cal.App.4th 212, 222-223, the court held the defendant had no right to a jury trial on the prior prison term allegations. The Belmares court held the trial could make such a finding based on a section 969b packet.
Relying on Belmares, the California Supreme Court in McGee, supra, 38 Cal.4th at pages 692-702, 706-708, held that a jury was not required to decide the issue of whether the defendant’s out-of-state prior convictions qualified as serious felonies under California’s Three Strikes law. The court noted that the matter was not a jury question because “[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 [citation], but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law. This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.” (McGee, supra, at p. 706.)
Likewise, the determination of whether defendant is the same individual named in the section 969b packets submitted to establish the prior prison term allegations is not the type of inquiry that requires a jury determination. Such a finding merely requires the court to examine the record to determine if defendant is the same individual named in the 969b packets. (McGee, supra, 38 Cal.4that p. 707.)
Since the court properly found defendant was the same person identified in the section 969b packets for each of the three convictions underlying the prison priors, the trial court properly instructed the jury that the court had determined defendant to be the person whose name appeared in the section 969b packets used to establish his three prior prison terms. (People v. Kelii (1999) 21 Cal.4th 452, 458; Epps, supra, 25 Cal.4th at pp. 27-28.)
5. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., Richli, J.