People v. Wiley

889 P.2d 541, 9 Cal. 4th 580, 38 Cal. Rptr. 2d 347, 95 Daily Journal DAR 2748, 95 Cal. Daily Op. Serv. 1618, 1995 Cal. LEXIS 703

• Court: California Supreme Court
• Decided: March 2, 1995
• Docket: S034307
• Status: Published

Opinions

Opinion

GEORGE, J.

Penal Code section 667, subdivision (a)(1),¹ provides that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” (Italics added.) For the reasons that follow, we hold that, although a defendant has a statutory right to have the jury determine whether he or she suffered prior convictions alleged pursuant to section 667(a)(1), the issue whether such prior convictions arose from “charges brought and tried separately” is to be determined by the court rather than the jury. We further hold that the circumstances of the present case, which include a showing that the prior convictions at issue arose from separate informations bearing case numbers that differ significantly, constitute sufficient evidence to support the conclusion that the prior convictions were “brought and tried separately” within the meaning of section 667(a)(1).

I

By an amended information filed June 24,1991, defendant Romero Wiley was charged with attempted murder (§§ 187, 664), assault with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§§ 459, 460), and second degree burglary (ibid.). Several sentence enhancements also were alleged, including two allegations, pursuant to section 667(a)(1), that on September 27, 1983, defendant had suffered two previous convictions for the serious felony of first degree burglary.

Prior to trial, the superior court granted defendant’s motion to bifurcate the determination of the truth of the section 667(a)(1) prior conviction allegations from the trial of the currently charged offenses. A jury trial commenced the following day, and defendant subsequently was convicted of those charged offenses. At the ensuing second phase of the jury trial involving the prior conviction allegations, the People introduced into evidence the following documents: (1) an abstract of judgment reflecting that on September 27, 1983, defendant was convicted in Contra Costa Superior Court, in cases No. 27767 and No. 27902, of two counts of first degree burglary; (2) a portion of the court minutes in these two cases, which showed that in case No. 27767 defendant had been convicted following a court trial conducted on September 26, 1983, and had been convicted in case No. 27902 following a court trial conducted on the following day; and (3) the amended information filed in superior court in case No. 27767, which reflected that defendant was charged with committing burglary of “the apartment of Thelma Radford” on May 5, 1983. The information in case No. 27902 was not produced.

Before the court instructed the jury regarding the prior conviction allegations, defense counsel requested that these instructions direct the jury to determine whether the two prior burglary charges had been “brought and tried separately” within the meaning of section 667(a)(1). The trial court declined to so instruct the jury, ruling that this was an issue of law to be decided by the court.

The jury found true the prior conviction allegations. The trial court subsequently sentenced defendant to a term of twenty-two years, eight months, in prison, including enhancements of five years each for the two prior serious felony convictions alleged under section 667(a)(1). The trial court did not expressly state that the two prior burglary convictions had been brought and tried separately, but did declare that they “are offenses that fall within the provisions of Section 667(a).”

On appeal, the Court of Appeal agreed with the trial court that the issue whether prior convictions alleged pursuant to section 667(a)(1) arose from charges brought and tried separately is a question of law for the court to determine, but held that the evidence submitted by the People was insufficient to support a finding that the prior convictions here at issue had been brought separately. We granted review to consider (i) whether, in a jury trial, the court or the jury should determine whether alleged prior convictions arose from charges “brought and tried separately” within the meaning of section 667(a)(1), and (ii) whether the evidence presented in this case is sufficient to support the trial court’s implied finding that the prior convictions here at issue arose from charges separately brought.

II

As noted above, section 667(a)(1) provides that a defendant who is convicted of a serious felony, as defined in section 1192.7, shall receive a five-year sentence enhancement for each previous conviction for a serious felony “on charges brought and tried separately.” In In re Harris (1989) 49 Cal.3d 131, 136 [260 Cal.Rptr. 288, 775 P.2d 1057], we held that “the requirement in section 667 that the predicate charges must have been ‘brought and tried separately’ demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.” We held that the prior convictions alleged in Harris had not been brought separately, because the charges that led to these convictions had been “made in a single complaint” filed in municipal court and a single preliminary hearing had been held, although the charges thereafter were prosecuted in the superior court in two separate informations. {Id. at pp. 134, 136.) We previously have not decided, however, whether the court or a jury should determine whether prior convictions alleged pursuant to section 667(a)(1) were “brought and tried separately.”

It is clear that the federal Constitution does not confer a right to have a jury determine this (or any other) aspect of a sentence enhancement imposed upon a defendant for previously having been convicted of a serious felony set forth in section 667(a)(1). In general, “there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” (McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 [91 L.Ed.2d 67, 81, 106 S.Ct. 2411], citing Spaziano v. Florida (1984) 468 U.S. 447, 459 [82 L.Ed.2d 340, 351-352, 104 S.Ct. 3154]; cf. Walton v. Arizona (1990) 497 U.S. 639, 648 [111 L.Ed.2d 511, 524, 110 S.Ct. 3047] [“ ‘[T]he Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.’ ”].) The absence of any federal constitutional requirement that a jury determine the truth of prior conviction allegations is reflected in the circumstance that most jurisdictions in the United States do not grant the defendant a right to a jury determination of such sentencing issues. As we noted recently in People v. Calderon (1994) 9 Cal.4th 69, 76 [36 Cal.Rptr.2d 333, 885 P.2d 83]: “At least half the states, as well as the federal government and the District of Columbia, . . . [have] the court, rather than a jury, determine the truth of alleged prior convictions. This is the approach recommended by the Model Penal Code. [Citation.]” (Fn. omitted.)

Neither does the California Constitution grant a right to have a jury determine the truth of prior conviction allegations that relate to sentencing. The pertinent provision of the California Constitution, article I, section 16, simply states: “Trial by jury is an inviolate right and shall be secured to all . . . .” Nothing in the text or history of this provision purports to require a jury determination of all factual issues involved in a criminal trial.² It is well settled that it is within the province of the court to resolve factual issues that arise in many contexts in a criminal proceeding.³

Thus, the ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned. From the earliest days of statehood, trial courts in California have made factual determinations relating to the nature of the crime and the defendant’s background in arriving at discretionary decisions in the sentencing process, for example, with regard to the grant or denial of probation. (See, e.g., § 1203, subd. (b) [“If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation.” (Italics added.)].) It previously was well settled, for example, that a trial court, in deciding whether a defendant was eligible for probation under section 1203, could determine whether the defendant had suffered a previous felony conviction, even though the prior offense had not been pleaded or proven before the jury. (People v. Tell (1954) 126 Cal.App.2d 208, 209 [271 P.2d 568]; People v. Leach (1937) 22 Cal.App.2d 525, 527-528 [71 P.2d 594].) A recent Court of Appeal opinion holds that trial courts still are empowered, in determining probation eligibility, to decide whether the defendant suffered prior convictions that neither were pleaded nor proven before the jury. (People v. Dorsch (1992) 3 Cal.App.4th 1346, 1349-1351 [5 Cal.Rptr.2d 327]; but see People v. Warner (1978) 20 Cal.3d 678, 685, fn. 4 [143 Cal.Rptr. 885, 574 P.2d 1237]; see also People v. Welch (1993) 5 Cal.4th 228, 234 [19 Cal.Rptr.2d 520, 851 P.2d 802] [“The statutory scheme obviously contemplates that all issues relevant to the probation determination will be litigated in the sentencing court.”].)

Currently, under the provisions of the Determinate Sentencing Act, trial courts are assigned the task of deciding whether to impose an upper or lower term of imprisonment based upon their determination whether “there are circumstances in aggravation or mitigation of the crime,” a determination that invariably requires numerous factual findings. (§ 1170, subd. (b) [“In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.” (Italics added.)].) Similarly, trial courts are called upon to make factual determinations in their decision whether to impose consecutive sentences. (Cal. Rules of Court, rule 425 [“Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] . . . Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominately independent of each other. [¶] (2) The crimes involved separate acts of violence or threats of violence. [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”].) Additionally, in order to determine whether there is a potential for multiple punishment prohibited by section 654,⁴ the trial court must determine whether the commission of multiple offenses was “ ‘incident to one objective ....’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208 [23 Cal.Rptr.2d 144, 858 P.2d 611].) No case ever has suggested that the jury trial provision of the California Constitution grants a criminal defendant the right to have a jury, rather than the court, make such factual determinations relating to the sentencing process.

In People v. Najera (1972) 8 Cal.3d 504 [105 Cal.Rptr. 345, 503 P.2d 1353], however, this court cited the California Constitution in holding that section 12022.5, which provides a sentence enhancement where a defendant personally used a firearm in the commission of one of several specified offenses, “requires a jury determination of the factual question whether or not defendant used a firearm in the commission of the underlying offense . . . (8 Cal.3d at p. 510, fn. omitted.) But, as explained below, the court’s reliance upon the California Constitution was unnecessary to the decision in Najera and was not supported by persuasive analysis or citation to relevant authority.

The issue in Najera was whether, in a jury trial, the enhancement provided in section 12022.5 could be imposed where it had not been pleaded in the information or found true by the jury. The People conceded that, under such circumstances, the section 12022.5 enhancement must be stricken, but this court discussed the foregoing issue, nevertheless, observing that, at the time the charged offenses were committed, no statute expressly provided a right to have a jury determine the truth of a section 12022.5 enhancement. Section 969c required that in order to justify imposition of an additional term, the closely related enhancement for being armed with a firearm, set forth in section 12022, must be pleaded and found true by the jury; however, when the Legislature added the enhancement for using a firearm set forth in section 12002.5, it failed to amend section 969c or otherwise require that the latter enhancement also be pleaded and found true by the jury.⁵ This court held: “ ‘[Tjhis omission [to amend section 969c to include section 12002.5] does not manifest a legislative intent to exclude allegations under section 12002.5 from the class of cases in which there is a right to a jury trial.’ ” (People v. Najera, supra, 8 Cal.3d at pp. 509-510.) The foregoing conclusion undoubtedly was correct as a matter of statutory interpretation, but the decision in Najera went on, unnecessarily, to cite in support of its conclusion the provision of the California Constitution that grants the right to a jury trial. (Id. at p. 510.) At the time, this provision provided simply: “The right of trial by jury shall be secured to all, and remain inviolate . . . .” (Cal. Const., former art. I, § 7.) The Najera decision failed to explain why this constitutional provision applied to the sentencing enhancement at issue in that case, and failed even to consider the numerous circumstances, noted above, in which factual questions related to sentencing traditionally have been determined by the court, rather than by a jury. Accordingly, we believe that this brief mention in Najera of the state constitutional right to a jury trial cannot properly be viewed as a considered decision determining the scope of the California constitutional right to a jury trial, as applied to sentencing enhancements.

The Legislature has acknowledged this general lack of a constitutional right to a jury determination of the truth of alleged sentence enhancements by enacting numerous statutes providing that when a defendant pleads guilty to the underlying offense, the truth of alleged sentence enhancements is to be determined by the court, rather than by a jury. (See, e.g., §§ 666.5, subd. (b), 666.7, subd. (b), 667.7, subd. (b), 667.71, subd. (e), 667.72, subd. (e), 667.75, 667.9, subd. (d), 667.10, subd. (b), 969c, 969d.)⁶

Although there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement, California is one of a minority of states that, by statute, has granted defendants the right to have a jury determine the truth of such prior conviction allegations. (People v. Calderon, supra, 9 Cal.4th 69, 76-77, fn. 3.) The applicable statutes, however, are limited in nature and do not confer a right to have a jury determine whether charges were brought and tried separately within the meaning of section 667(a).

Section 1025 provides that if a defendant denies having suffered an alleged prior conviction, “the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty . . . .” Similarly, section 1158 states that if a defendant is found guilty of an offense charged in an accusatory pleading that also alleges that the defendant suffered a prior conviction, “the jury, or the judge if a jury trial is waived, must. . . find whether or not he has suffered such previous conviction.” By their terms, sections 1025 and 1158 grant a defendant the right to have the jury determine only whether he or she “suffered” the alleged prior conviction, and not whether multiple prior convictions were separately brought and tried.

Section 1170.1, subdivision (f), states that specified enhancements, including the one here at issue, “shall be pleaded and proven as provided by law.” We cited this statute, among others, in People v. Hernandez (1988) 46 Cal.3d 194, 206 [249 Cal.Rptr. 850, 757 P.2d 1013], in holding that “the inevitable pattern” of the determinate sentencing system of which section 667 is part “is to require additional terms to be imposed only after the enhancement has been found true by the trier of fact.”

The defendant in Hernandez was convicted, following a jury trial, of rape and kidnapping. The trial court imposed a three-year sentence enhancement pursuant to section 667.8 upon finding that the defendant had kidnapped the victim “for the purpose of committing” rape, despite the fact that such an enhancement had not been alleged in the information or found true by the jury. This court held the enhancement could not be imposed unless it had been “pled and proven before the trier of fact.” (People v. Hernandez, supra, 46 Cal.3d 194, 206, fn. omitted.) In so holding, however, we recognized that the trial court was not precluded from making factual findings as part of the sentencing process. We concluded that it is the function of the jury to determine “the wrongful criminal conduct for which punishment is being imposed,” but that it remains the function of the trial court to decide matters such as whether aggravating or mitigating circumstances are present, or whether the potential exists for multiple punishment proscribed by section 654, as part of the court’s duty to determine “what terms can be imposed from among those available based on the conviction offenses and the enhancements found true. [Citations.]” (Id. at p. 205.)

In the present case, the information alleged, and the jury found true, that defendant had suffered two prior convictions of serious felonies under section 667(a). The jury thus determined “the wrongful criminal conduct for which punishment is being imposed,” as required by our decision in Hernandez. (People v. Hernandez, supra, 46 Cal.3d 194, 205.) The additional question whether the charges leading to these two prior convictions had been “brought and tried separately” within the meaning of section 667(a)(1) properly was a matter for the court, because that question is largely legal in nature. As is demonstrated by the numerous decisions that have considered the proper application of the requirement that the prior charges be “brought and tried separately,” resolution of this issue frequently depends upon the interpretation of complex and detailed provisions of California criminal procedure. (See, e.g., People v. Wagner (1994) 21 Cal.App.4th 729, 732-737 [26 Cal.Rptr.2d 383]; People v. Smith (1992) 7 Cal.App.4th 1184, 1189-1193 [9 Cal.Rptr.2d 491]; People v. Gonzales (1990) 220 Cal.App.3d 134, 138-144 [269 Cal.Rptr. 221]; People v. Thomas (1990) 219 Cal.App.3d 134, 145-147 [267 Cal.Rptr. 908].) Although there are, of course, some underlying “facts” that are relevant to the determination as to whether charges have been “brought and tried separately,” such as the filing of charges either in a single complaint or multiple complaints, such facts generally are readily ascertainable upon an examination of court documents. This is the type of inquiry traditionally performed by judges as part of the sentencing function.

None of the authorities cited by defendant supports his argument that the jury must determine whether charges leading to multiple prior convictions were “brought and tried separately.” Defendant cites People v. Leever (1985) 173 Cal.App.3d 853, 871 [219 Cal.Rptr. 581] for the proposition that “the elements of a section 667 enhancement must be pleaded and, if contested, proved beyond a reasonable doubt.” But, in Leever, the jury’s role was limited to finding true the allegations that defendant had suffered the prior convictions. It was the trial court that determined whether those prior convictions qualified as serious felonies within the meaning of section 667(a). (173 Cal.App.3d at p. 872.) The Court of Appeal in Leever did not suggest that the jury, rather than the court, should have determined whether the prior convictions constituted serious felonies. Accordingly, Leever does not support defendant’s position.

Defendant also cites People v. Jackson (1985) 37 Cal.3d 826, 835, footnote 12 [210 Cal.Rptr. 623, 694 P.2d 736], for the proposition that “[t]he court could not impose an enhanced term for a subsequent serious felony without proof of each fact required for that enhancement. . . .” But Jackson did not purport to address the question whether the court or the jury is to determine whether multiple prior convictions were separately brought and tried. Accordingly, Jackson does not support defendant’s argument.

Defendant next cites People v. Smith, supra, 7 Cal.App.4th 1184, 1189-1190, for the proposition that, in order to obtain multiple enhancements under section 667, the People must prove that each prior serious felony conviction was separately brought and tried. But Smith did not consider whether this was an issue for determination by the jury, because the defendant in Smith waived his right to jury trial as to the section 667 allegations. Accordingly, Smith also fails to support defendant’s argument.

Defendant additionally relies upon two Court of Appeal decisions construing an earlier habitual criminal statute, former section 644, subdivision (a), which provided a term of life imprisonment for persons convicted of certain specified offenses “who shall have been previously twice convicted upon charges separately brought and tried, and who shall have served separate terms therefore in any state prison” upon conviction of specified prior offenses. According to defendant, “the courts found that the prosecution must prove to the factfinder the fact that the charges were brought and tried separately.” But neither of the cited cases held that the jury, rather than the court, must determine whether the charges were separately brought and tried. In People v. Collins (1964) 228 Cal.App.2d 460 [39 Cal.Rptr. 595], defendant, before trial, admitted the prior conviction allegations. The jury found defendant guilty of the currently charged offenses, and “[t]he court then declared defendant to be an habitual criminal under section 644, subdivision (a). . . (Id. at p. 462.) Noting the People’s concession that the sentences served by defendant as a result of his prior convictions “may have overlapped,” the Court of Appeal held that the trial court “was clearly in error in declaring defendant to be an habitual criminal in the absence of proof that he served separate terms.” (Id. at p. 464.) Nothing in the decision in Collins suggests that the jury, rather than the court, should have determined whether the prior prison terms had been separately served.

The other Court of Appeal decision relied upon by defendant in support of his interpretation of former section 644 fails to support his argument, and actually compels a conclusion to the contrary. The defendant in People v. Figuieredo (1956) 146 Cal.App.2d 807 [304 P.2d 161] admitted the alleged prior convictions, was convicted by a jury of the currently charged offenses, and was declared by the court to be an habitual criminal. On appeal, the defendant argued successfully that the trial court erred in declaring him an habitual criminal in the absence of proof he had served separate prison terms resulting from the alleged prior convictions. But the defendant did not contend this determination should have been made by the jury. To the contrary, the defendant stated: “[I]t would appear that such finding should be made (on proper proof) by the trial court.” (Id. at p. 809.)

In light of the foregoing authority, we hold that the issue whether multiple prior convictions alleged under section 667(a)(1) were “brought and tried separately” is to be determined by the trial court.

III

We now turn to the question whether the evidence before the trial court in the present case was sufficient to support its implied finding⁷ that the alleged prior convictions arose from charges “brought and tried separately.”

As noted above, we held in In re Harris, supra, 49 Cal.3d 131, 136, that prior convictions arising from a single complaint were not brought separately within the meaning of section 667(a)(1), even though the charges thereafter were prosecuted in separate informations. (49 Cal.3d at pp. 134, 136.) The evidence before the trial court in the present case reflects that the charges leading to the prior convictions were prosecuted in separate informations in the superior court, but the evidence does not disclose whether one or two complaints were filed in municipal court. Defendant asserts, and the Court of Appeal agreed, that under these circumstances the evidence was insufficient to support a finding that the charges leading to the prior convictions were separately brought. We do not agree.

It is apparent that the prosecution need not always produce the complaints filed in municipal court in order to prove that charges were brought separately within the meaning of section 667(a)(1). If, for example, the alleged prior convictions occurred several months or years apart, or arose in different counties or states, the trial court could draw the reasonable inference that the charges leading to those prior convictions had been brought in separate complaints. The present case presents a more difficult situation, because the informations were filed in the same county, defendant was convicted in court trials occurring only one day apart, and he was sentenced in both cases during the same court session. Under these circumstances, the prosecution would have been well advised to produce the complaints, if possible. Had the prosecution done so in the present case, much effort would have been avoided both by the parties and the courts.

We conclude, however, that because the separate informations from which the alleged prior convictions arose bear case numbers that differ significantly (Nos. 27767 and 27902), the trial court reasonably could infer that the charges had been initiated in separate complaints. Had the charges been filed in a single complaint, followed by a single preliminary hearing, but thereafter been prosecuted in superior court under separate informations, as in Harris, we would expect those informations to bear case numbers that are successive, or nearly so. (See People v. Wagner, supra, 21 Cal.App.4th 729, 732 [cases numbered consecutively in superior court following a single plea proceeding in municipal court].) The circumstance that the informations in the present case bear case numbers that differ significantly is sufficient, in the absence of contrary evidence, to support a reasonable inference that the charges were filed in separate complaints and, therefore, were separately brought within the meaning of section 667(a)(1).⁸

Our decision in Harris does not stand for the proposition that the prosecution must produce the complaints filed in municipal court in order to establish that charges were separately brought within the meaning of section 667(a)(1). To the contrary, the trial court in Harris concluded, based solely upon the production of separate informations, that the charges had been separately brought, and the Court of Appeal affirmed. It was only when the defendant filed a petition for writ of habeas corpus in this court, and we issued an order to show cause, that the Attorney General conducted further investigation and discovered that the prior convictions had arisen from the filing of a single complaint. Despite the circumstance that the two convictions had been initiated by a single complaint, the Attorney General contended in Harris that the charges leading to the prior convictions had been separately brought within the meaning of the statute because they had been prosecuted in superior court under separate informations. As noted above, we disagreed and held that only a single enhancement could be imposed under such circumstances.

Although we hold that the evidence before the trial court in the present case was sufficient to support its implied conclusion that the prior convictions in the present case arose from charges separately brought, because, as our decision in Harris demonstrates, this is a matter that can be revisited on habeas corpus, we have determined that it is appropriate to obtain portions of the municipal court records pertaining to the. alleged prior convictions. We provided copies of these records to the parties and permitted them to submit further briefs regarding whether we should take judicial notice of these documents and, if so, the effect this evidence would have upon the present proceedings. Defendant objects that taking judicial notice of these documents would deprive him of his right to a jury determination of whether the charges were separately brought within the meaning of section 667(a)(1). As explained above, however, defendant does not have a right to a jury determination of this issue. Having considered defendant’s objection, we take judicial notice that on May 6, 1983, in case No. 832606, defendant was charged by felony complaint with the May 5, 1983, burglary of “the apartment of Thelma Radford.” (Evid. Code, § 452, subd. (d); see People v. Arreola (1994) 7 Cal.4th 1144, 1151, fn. 4 [31 Cal.Rptr.2d 631, 875 P.2d 736]; People v. Hayes (1990) 52 Cal.3d 577, 611, fn. 3 [276 Cal.Rptr. 874, 802 P.2d 376]; People v. Prado (1982) 130 Cal.App.3d 669, 675 [182 Cal.Rptr. 129].)⁹ We also take judicial notice that on June 13, 1983, in case No. 833243, defendant was charged by felony complaint with the June 9, 1983, burglary of “the dwelling house of Lloyd Coyne.” Finally, we take judicial notice that on July 14, 1983, in case No. 27902, defendant was charged by information with the June 9, 1983, burglary of “the dwelling house of Lloyd Coyne.” These records confirm that the prior convictions alleged in the present case arose from charges separately brought.

IV

We reverse that portion of the judgment of the Court of Appeal that modified defendant’s sentence by striking one of the two 5-year enhancements imposed by the trial court pursuant to section 667(a)(1). In all other respects, the judgment of the Court of Appeal is affirmed.

Lucas, C. J., Arabian, J., and Baxter, J., concurred.

1 Hereafter section 667(a)(1). All further statutory references are to the Penal Code unless otherwise indicated.

2 Article I, section 3, of the California Constitution of 1849 stated, in pertinent part: “The right of trial by jury shall be secured to all, and remain inviolate forever . . . .” In nearly identical language, the original article I, section 7, of the California Constitution of 1879 stated, in pertinent part: “The right of trial by jury shall be secured to all, and remain inviolate ”

3 See, e.g., section 1538.5, subivision (c) (“[T]he judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion [to suppress evidence].”); People v. Rios (1976) 16 Cal.3d 351, 357 [128 Cal.Rptr. 5, 546 P.2d 293] (“A proceeding pursuant to section 1538.5 is one in which factual issues are resolved by the court sitting as a finder of fact. [Citation.]”); Evidence Code section 405, subdivision (a), dealing with rulings on the admissibility of evidence (“The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.”); see Comment—Assembly Committee on the Judiciary, 29B West’s Annotated Evidence Code (1966 ed.) section 405, page 277 (“Section 405 requires the judge to determine the existence or nonexistence of disputed preliminary facts except in certain situations covered by Sections 403 and 404.”).

4 Section 654 states: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”

5 This anomaly later was corrected by the enactment of section 969d, which requires that the section 12022.5 enhancement for using a firearm be pleaded in the information and, in a jury trial, be found true by the jury in order to authorize the trial court to impose an additional term.

6 One of these statutes, section 969c, was relied upon in People v. Najera, supra, 8 Cal.3d 504. The decision in Najera recognizes that section 969c grants a right to a jury determination of the truth of the sentence enhancement only if the defendant pleads not guilty and has a jury trial on the charged offenses. If the defendant pleads guilty, the truth of the alleged enhancement is determined by the court. The decision in Najera fails to acknowledge that this statutory limitation on the right to a jury determination of the truth of the enhancement would be invalid if the California Constitution guaranteed a right to a jury determination of the truth of the enhancement.

7 “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193], italics in original.)

8 We need not, and do not, decide whether a contrary holding that the evidence was insufficient would necessitate striking the enhancement or, instead, remanding the case to the trial court for a redetermination of whether the charges were separately brought. (See People v. Morton (1953) 41 Cal.2d 536, 541-545 [261 P.2d 523]; see also Caspari v. Bohlen (1994) 510 U.S. _, _ [127 L.Ed.2d 236, 249-250, 114 S.Ct. 948, 956-957], discussing, but not deciding, whether the double jeopardy clause of the federal Constitution applies to noncapital sentencing.)

9 Evidence Code section 452 states, in pertinent part: “Judicial notice may be taken of the following matters ... [¶] ... [¶] (d) Records of (1) any court of this state . . . .”