Filed 5/31/17 P. v. Kelleher CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD JOHN KELLEHER,
Defendant and Appellant.



A147926

(San Mateo County
Super. Ct. No. SC079354A)


After a jury trial, defendant Edward John Kelleher was convicted of the felony offense of criminal threats (Pen. Code, § 422, subd. (a) ). At a bifurcated proceeding, the jury also found true that defendant had suffered a prior serious and strike conviction (§§ 667, subd. (a)(1);1170.12, subd. (c)(1)). At sentencing, the court imposed an aggregate term of seven years and eight months in state prison, consisting of two years and eight months (the lower term doubled for the prior conviction) on the substantive crime, plus a consecutive term of five years for the prior conviction enhancement.
On appeal, defendant’s sole argument is that the procedure by which he was found to have suffered a prior conviction contained a structural defect, requiring automatic reversal and a remand for a new hearing. We see no merit to defendant’s argument of a structural defect, and further conclude that any purported error in procedure was harmless beyond a reasonable doubt. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After defendant was convicted of the substantive offense of criminal threats, the trial court indicated it would take a recess before proceeding with a jury trial on the allegation that defendant had suffered a prior conviction. During the recess, the court met in chambers with counsel outside the presence of defendant and then made a record in open court outside the presence of the jury. In open court, the court explained that at the chambers discussion, the court had taken judicial notice of the facts in People’s Exhibits 7, 8, and 9, which were certified copies of the court records (the information, written plea agreement signed by defendant, and abstract of judgment) in Case No. SC43732A concerning defendant’s 1998 conviction for felony assault with a deadly weapon (§ 245, subd. (a)(1)). The court overruled defense counsel’s objections to the request for judicial notice, which were based on hearsay, lack of foundation, and lack of relevance. The court found it was required to take judicial notice of the documents pursuant to the Evidence Code, and it did so at that time. The court agreed that defense counsel would not have to renew his objections in open court in the presence of the jury.
When the jurors were brought into the courtroom, and without objection by defense counsel, the court made the following opening remarks: “This is a bifurcated trial; that is there is an allegation that the Defendant suffered a prior conviction. . . . [¶] And Mr. Kelleher is entitled to have you, as the triers of fact, determine whether, in fact, he has suffered that prior conviction. . . . [¶] . . . [¶] The People have alleged that the Defendant was previously convicted of another crime. It has already been determined the Defendant is the person named in the exhibits that will be presented here. [¶] . . . [¶] Both counsel will present an opening statement at this time. . . .”
In her opening statement, the prosecutor informed the jury that “[t]his portion of the trial is merely documents only. You will hear no testimony presented by the People. [¶] The evidence presented to you will be proof that the Defendant did, in fact, suffer a prior conviction of the Penal Code section 245(a)(1), assault with a deadly weapon. That . . . he plead to this charge on December 29th, 1998. [¶] And as the judge just mentioned, it is not your role to decide whether or not these documents have to do with the Defendant; that has been determined by the judge that, in fact, these are documents that relate to the Defendant. [¶] Identity is not an issue. It’s just for you to decide did, in fact, this conviction occur. . . .” Defense counsel made no objection to the prosecutor’s opening remarks. In defense counsel’s opening statement, he asked the jury “to keep an open mind, even though it seems . . . very straightforward. And maybe we’re only talking about a few pieces of papers and rubber stamps . . . . But it is not a rubber-stamp process. And the burden is still beyond a reasonable doubt. The burden is still on the prosecution, never shifts . . . .”
Before the jury, in her case in chief, the prosecutor asked the court to take judicial notice of People’s Exhibits 7, 8, and 9. The court took judicial notice of the documents, informing the jury that People’s Exhibits 7, 8, and 9, “[are] documents taken from the Court’s own file in SC43732[A], and our official court records of the San Mateo Superior Court. And to the extent that I have previously indicated in chambers my finding of the identity of the Defendant for that case. [¶] I note, for the record, that identity of Mr. Kelleher has been proven to the Court’s satisfaction as to that case number.” Defense counsel made no objection to the court’s remarks to the jury. The People rested, and defendant rested without presenting any evidence. At the suggestion of the trial court, the prosecutor moved for the admission into evidence of People’s Exhibits 7, 8, and 9, and the court granted the request based on its earlier finding that the documents “were properly judicially noticed . . . on the motion of the District Attorney.”
In closing instructions, the court again advised the jury, in pertinent part, as follows: “[T]he People have alleged that the Defendant was previously convicted of another crime. It has already been determined that Defendant is the person named in the Exhibits 7, 8, and 9. [¶] You must decide whether the evidence proves that the Defendant was convicted of the alleged crime. The People allege that the Defendant has been convicted of a violation of Penal Code Section 245(a)(1) on December 29, 1998, in the San Mateo Superior Court, Case No. SC43732[A].” Defense counsel made no objection to the court’s closing jury instructions. Following counsels’ closing arguments, the jury returned a verdict finding true the allegation that defendant suffered a prior conviction of Penal Code section 245 (a)(1) on December 29, 1998, in San Mateo County, Docket No. SC43732A.
Before sentencing, defendant filed a motion seeking a new trial on the prior conviction allegation. In pertinent part, he complained the trial court never held a court trial on the issue of identity, but rather the jury was simply told the court had determined the issue of identity. Consequently, defendant asserted he “never had the required opportunity to be heard on” the issue of identity before the matter was submitted to the jury. The prosecutor filed an opposition, arguing, in pertinent part, that there was no established formality that the court had to follow when determining whether a defendant is the person who is named in the conviction records. As is often the case, and as occurred in this case, the court takes judicial notice of the court files, the court reviews the court files both on the bench and back in chambers, and thereafter, the court indicates that after having reviewed the files defendant is in fact the person named in the court files, and then the jury is so instructed on the court’s finding.
After extensive argument by counsel, the trial court denied defendant’s motion for a new trial. The court found there was no structural defect in the trial, that at best there may have been a procedural error merely in the chronology relating to its finding on identity, and whether or not the purported procedural error was one of constitutional dimension, any error was harmless beyond a reasonable doubt.
DISCUSSION
Defendant argues he was denied his constitutional right to due process of law by the trial court’s failure to hold a “court trial” on the issue of identity before submitting the matter to the jury. He further asserts the error was a structural defect, which requires automatic reversal and a remand for a new hearing. We disagree.
“[I]n the absence of a statutory provision, a criminal defendant is not entitled as a federal constitutional matter to a trial, formal or informal, of sentencing issues, even when the sentence turns on factual determinations such as the existence of prior convictions. [Citations.]” (People v. Monge (1997) 16 Cal.4th 826, 832.) “Though states need not provide a trial of sentencing allegations, the California Legislature has elected to grant defendants a statutory right to a jury trial on prior conviction allegations.” (Id. at p. 833.) Section 1025, which governs the adjudication of prior conviction allegations, provides, in pertinent part, as follows: “(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 . . . . [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.”
As written, section 1025 contemplates a single unified proceeding to resolve the validity of a prior conviction allegation. “[T]he jury decides whether the defendant ‘ “ ‘has suffered’ ” ’ the prior conviction [and] . . . [t]he question subsumes the question of identity – that is whether the defendant is the person described in the records of the prior conviction – but also may include the question whether the alleged prior conviction ever even occurred. For example, in a rare case, 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. Though subdivision (c) of section 1025 gives the question of identity to the court, the question whether the alleged prior conviction ever occurred, when legitimately at issue, remains for the jury determination under subdivision (b).” (People v. Epps (2001) 25 Cal.4th 19, 25 (Epps).)
Section 1025 does not explicitly prescribe the procedure by which the issues are to be resolved by the trial court and the jury, or the evidence that is sufficient to demonstrate a defendant has suffered a prior conviction. Our Supreme Court has posited the following possible scenario: “The trial court might choose to determine first whether the defendant is the person who suffered the conviction. A determination that the defendant is not that person would clearly end the matter. If, however, as would usually be the case, the court finds the defendant is that person, the jury apparently would then make a determination like the one it made in this case – that the defendant suffered the prior [conviction]. The court would, however, instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction. This procedure would appear to leave the jury little to do except 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.” (Epps, supra, 25 Cal.4th at pp. 26-27.) The scenario outlined by the Epps court, however, does not address the specific juncture at which the trial court must make its finding of identity before submitting the matter to the jury. If there is no real question that defendant has suffered the prior conviction, the court may very well decide it is more efficient to consider the issue of identity contemporaneously with the jury’s consideration of the matter, and then, the court can inform the parties and the jury as to its finding of identity before the jury commences its deliberations. While in this case the trial court in its opening instructions and the trial prosecutor in her opening remarks informed the jury that the issue of identity had already been determined, we find the order in which the court proceeded in this case is of no moment. During the portion of the proceeding before the jury, the court appropriately took judicial notice of the facts in the certified court records of defendant’s prior conviction, the court made the requisite finding of identity based on those judicially noticed facts, and the certified court records were admitted into evidence. Thus, before the jury began its deliberations, it had all the evidence necessary for an adjudication of the prior conviction allegation. We therefore find unavailing defendant’s argument that there was a structural defect in the proceeding.
In all events, having found no structural defect, we further conclude, as did the trial court, that any purported error in the court’s procedure was harmless beyond a reasonable doubt. “As a practical matter, . . . prior convictions are normally proved by the use of documentary evidence alone.” (People v. Keating (1981) 118 Cal.App.3d 172, 183; italics added.) Here, the prosecution submitted the information filed in the prior conviction, the change of plea form executed by defendant in the prior conviction, and the abstract of judgment of the prior conviction, which documents were admitted into evidence. “Once the prosecutor presents this prima facie evidence of conviction, the [trier of fact] is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, [the trier of fact] may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony.” (People v. Henley (1999) 72 Cal.App.4th 555, 560 (Henley); see People v. Mendoza (1986) 183 Cal.App.3d 390, 400-401 [court found sufficient evidence defendant was person who suffered prior convictions where first and last names were the same, albeit middle names were spelled differently]; (People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806 [“photographic or fingerprint evidence . . . not necessary” to prove prior conviction where defendant had “sufficiently uncommon” name].) We see no merit to defendant’s argument that there was no judicial proceeding at which his counsel could have objected to the court’s finding on identity. The finding on identity was referred to in the court’s opening remarks and closing jury instructions, the prosecutor’s opening statement to the jury, and during the jury portion of the proceeding. Having heard the various references to the finding on identity, defense counsel could have raised an objection at any of those times if he believed there was an error in procedure. (See Wainwright v. Witt (1985) 469 U.S. 412, 431, fn. 11 [“failure to speak in a situation later claimed to be so rife with ambiguity as to constitute constitutional error is a circumstance we feel justified in considering when assessing [appellant’s] claims”].) Such omission strongly “suggests that ‘ “the potential for [prejudice] argued now was not apparent to one on the spot.” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1203.) Under these circumstances, we see no reason to set aside the court’s finding that defendant was the person who suffered the prior conviction described in the certified court records. (See Henley, supra, at p. 560.) Defendant has not shown there is “a reasonable possibility” of a different outcome were we to reverse and remand for a new hearing. (Chapman v. California (1967) 386 U.S. 18, 24.) We therefore conclude any purported error in procedure was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.





People v. Edward John Kelleher, A147926