P. v. Mass

Filed 6/26/06 P. v. Mass CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Here we conclude that Shepard v. United States (2005) 544 U.S. 13, does not establish the constitutional right to a jury trial for prior conviction allegations. Steven O'Neal Mass was properly sentenced to 25 years to life under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) based on two prior convictions.^[1]

FACTS

A jury found Mass guilty of corporal injury to a cohabitant (§ 273.5, subd. (a)) and making a criminal threat (§ 422). He admitted he served a prior prison term within the meaning of section 667.5, subdivision (b). The allegation to which Mass admitted alleges the prison terms were the result of convictions for violating "section[s] 459/460(A) of the Penal Code"; that is first degree burglary.

The information alleged that Mass had suffered three prior serious felony convictions within the meaning of the three strikes law. Mass demanded a jury trial on all aspects of the three strikes allegation. The trial court denied a jury trial on the issues of identity and whether the prior convictions were for serious felonies.

The court, sitting without a jury, determined Mass was the person who suffered the three prior convictions. The determination was based on expert testimony comparing fingerprints taken from Mass with fingerprint cards in Mass's prison package. A jury then found that Mass suffered three prior convictions. Finally, the trial court found the prior convictions were for serious felonies. In addition to Mass's admission that he served a prior prison term for first degree burglaries, the trial court had certified copies of an information charging residential burglaries and an abstract of judgment showing convictions for first degree residential burglaries.

On Mass's request, the trial court struck one of the three prior convictions and reduced the criminal threat conviction to a misdemeanor. The court sentenced Mass to the three strikes term of 25 years to life on the corporal injury to a cohabitant count, plus one year for the prior prison term enhancement.

DISCUSSION

Mass does not contest that the trial court followed the procedure approved by the California Supreme Court for trying prior conviction allegations. (See People v. Kelii (1999) 21 Cal.4th 452, 458-459.) He contends, however, that the constitutionality of the procedure has been called into question by Shepard. He believes that under Shepard, a defendant has the constitutional right to a jury trial on all aspects of a prior conviction allegation.

In Almendarez-Torres v. United States (1998) 523 U.S. 224, the Supreme Court upheld a federal law allowing the judge to impose an enhanced sentence based on prior convictions not alleged in the indictment. The Court in Apprendi v. New Jersey (2000) 530 U. S. 466, kept prior convictions as an exception in announcing a general rule requiring trial by jury. The Court stated, "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." (Id. at p. 490.) The Court reiterated this statement in Blakely v. Washington (2004) 542 U. S. 296, 301, and United States v. Booker (2005) 543 U. S. 220, 227-228. Similarly, the California Supreme Court has decided there is no constitutional right to a jury trial of prior conviction allegations. (People v. Epps (2001) 25 Cal.4th 19, 23.) Any right to a jury trial on prior conviction allegations is statutory. (Ibid.; see §§ 1025 & 1158.)

Shepard concerns what evidence a judge may consider in determining whether a prior conviction qualifies as a violent felony within the meaning of the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)). The case was decided by a plurality opinion with Justice Thomas concurring in the judgment. The plurality declined to broaden the scope of the evidence a judge may consider beyond that previously allowed. Justice Thomas's concurring opinion, however, criticizes the plurality for failure to reconsider the prior conviction exception to the Apprendi rule requiring a jury trial. (Shepard, supra, 544 U. S. at p. 27.) The opinion points out that a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. (Ibid., citing Almendarez-Torres, supra, 523 U. S. at pp. 248-249 (Scalia, J., joined by Stevens, J., Souter, J. and Ginsburg, J., dissenting) and Apprendi, supra, 530 U. S. at pp. 5201-521 (Thomas J., concurring).)

It may be true that the majority of the United States Supreme Court believes Almendarez-Torres was wrongly decided. But that belief was stated in dissenting and concurring opinions. Five justices have never produced a majority opinion overruling Almendarez-Torres. In the absence of such a majority opinion, we are bound by the decisions of the California Supreme Court. (See People v. Miller (1987) 196 Cal.App.3d 846, 850-851.) Under California Supreme Court cases, the trial court did not err in denying Mass a jury trial on all aspects of the prior conviction allegations. (People v. Epps, supra, 25 Cal.4th at p. 23; People v. Kelii, supra, 21 Cal.4th at pp. 458-459.) Our Supreme Court recently reaffirmed those cases in People v. McGee (2006) 38 Cal.4th 682. There the Court determined there is no constitutional right to a jury trial on the question whether a Nevada conviction qualifies as a strike in California.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code unless otherwise stated.