Opinion
F041295.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. RANDY AARON HALL, Defendant and Appellant.
Linda Buchser, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Jennifer M. Runte, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Randy Aaron Hall was convicted of committing lewd and lascivious acts with a child under the age of 14. (Pen. Code, § 288, subd. (a).) Appellant admitted two prior strikes, a prior serious felony and two prior prison terms. The court sentenced him to 31 years-to-life and he appealed. This court confirmed his conviction (case No. F035016), but determined the trial court had not properly obtained Boykin/Tahl waivers prior to accepting appellants admission of the prior convictions and the case was remanded for trial on the priors and resentencing.
We previously granted appellants request for judicial notice of the record and contents in the file of case No. F035016.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On remand, the lower court determined it was to decide the issue of identity as to appellants priors and found appellant was the person to have committed the prior offenses. A jury then found true the prior conviction allegations and appellant was resentenced to the original term.
Appellant appeals again, this time contending the trial court erred in denying him a jury trial on the issue of identity as it related to the prior convictions. We affirm.
DISCUSSION
Appellants sole argument is that he was entitled, under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), to have a jury — not the judge — decide the issue of identity of the prior strike conviction and prior prison terms allegations. Respondent naturally disagrees, contending the California Supreme Court has determined that the right, if any, to a jury trial on prior prison allegations derives from statute, not the constitution, and thus there is no "right to a jury trial `of the fact of a prior conviction." (People v. Epps (2001) 25 Cal.4th 19, 23.) Respondent is correct.
The right to a jurys determination on the issue of identity is a right created by statute. (People v. Epps, supra, 2 5 Cal.4th at p. 29.) The applicable statutes are Penal Code sections 1025 and 1158. Section 1025, subdivisions (b) and (c) state:
"(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.
"(c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." (Italics added.)
Under this statute, the court decides the identity issue. The jury then determines, amongst other issues, whether the priors alleged in the information are the same priors that the prosecution has proven, whether the prior prison terms were served and whether the defendant had remained free of both prison custody and the commission of a felony offense resulting in a conviction. (People v. Epps, supra, 25 Cal.4th at pp. 25, 27; CALJIC No. 17.18.1)
Appellant nevertheless contends he was entitled to have a jury decide all issues relevant to the alleged prior strike conviction and prior prison terms, including the issue of identity. Appellant argues this is a constitutional right afforded by Apprendi, supra, 530 U.S. 466. However, he also recognizes that "California does not recognize a constitutional right to a jury trial on prior convictions." Nevertheless, he maintains the viability of Epps is "limited" and urges us, apparently, to ignore it. He argues Apprendi and subsequent United States Supreme Court cases require that all facts which elevate the range of punishment, including facts concerning a prior conviction, must be tried by the jury.
While acknowledging the holding of Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 247 — that "recidivism" may be relied upon to increase a defendants punishment even though it has not been proven as an element of the offense — appellant nevertheless contends "it is clear" after Apprendi that, given the opportunity, the United States Supreme Court is "prepared to hold ... that there is a federal constitutional right to a jury trial on allegations of prior convictions." It is upon this foreshadowing that he urges us to reverse his conviction. We decline.
The meaning and application of the decisions set forth by appellant is open to considerable debate. For our purposes, however, we simply recognize that none of the cases recited by appellant squarely holds that allegations of a prior conviction, when offered as sentence enhancements, must be tried by a jury. On the other hand, the California Supreme Court has squarely addressed this issue, and has held that there is no constitutional right to jury trial on prior offenses charged as sentence enhancements. (People v. Epps, supra, 25 Cal.4th at pp. 23, 28.) We are bound by that holding unless and until it is overruled. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject appellants claim of error.
DISPOSITION
The judgment is affirmed.