THE PEOPLE, Plaintiff and Respondent, v. LESTER KELII, Defendant and Appellant, 21 Cal. 4th 452

Opinion CHIN, J. In People v. Wiley (1995) 9 Cal.4th 580 [38 Cal.Rptr.2d 347, 889 P.2d 541] (Wiley), we held that the court, rather than the jury, determines whether prior serious felony convictions were brought and tried separately. In this case, we address an issue we left open in People v. Woodell (1998) 17 Cal.4th 448, 460-461 [71 Cal.Rptr.2d 241, 950 P.2d 85]: whether the court or the jury determines if a prior felony conviction qualifies as a “serious felony” for purposes of the “Three Strikes” law. (Pen. Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Both Wiley and this case turn primarily on an

interpretation of sections 1025 and 1158. We conclude that the court, not the jury, determines whether a conviction is serious. A jury convicted defendant of two counts each of second degree burglary and grand theft, committed in January 1995. It subsequently found defendant had previously suffered three burglary and one attempted burglary convictions. The trial court later found that the prior convictions were of first degree or attempted first degree burglary and hence were residential and qualified as serious felonies. It sentenced defendant to state prison for 25 years to life.

On appeal, defendant argued that the jury, not the court, should have determined whether his prior convictions qualified as serious felonies. The Court of Appeal disagreed. It remanded the matter for a reason not relevant to the issue before us and otherwise affirmed the judgment. We granted review. “Various sentencing statutes in California provide for longer prison sentences if the defendant has suffered one or more prior convictions of specified types.

A highly publicized example is the ‘Three Strikes’ law adopted in 1994, which is involved in this case. [Citation.] In general, this ‘legislation provides longer sentences for certain prior serious or violent felonies popularly denoted “strikes” ’ [Citation.]” (People v. Woodell, supra, 17 Cal.4th at p. 452.) In this case, the jury determined that defendant suffered the prior burglary convictions, but the court determined that they qualified as serious felonies for purposes of the Three Strikes law. Defendant argues that the jury should have made both determinations.

We addressed a similar question in Wiley, supra, 9 Cal.4th 580. In that case, we considered the requirement of

section 667, subdivision (a)(1) (not part of the Three Strikes law), that serious felony convictions must have been “brought and tried separately” for a court to impose separate enhancements for each.

We held that the court, not the jury, makes this determination. (Wiley, supra, 9 Cal.4th at pp. 583, 592.) First, we concluded that defendants have “no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement.” (Id. at p. 589; see also id. at pp. 585-586 [discussing federal Constitution], 586-589 [discussing state Constitution].) This conclusion did not itself dispose of the question.

We noted in Wiley that “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.” (Wiley, supra, 9 Cal.4th at p. 589.) When we decided Wiley and when the crimes and sentencing of this case occurred,

section 1025 provided that if a defendant denies the prior conviction allegation, “ ‘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 stated, and still states, that when a defendant is found guilty, and the accusatory pleading also alleges 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.’ ” (Wiley, supra, 9 Cal.4th at p. 589.) But these statutes “are limited in nature . . . .” (Ibid.) “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.” (Ibid.) This case does not involve whether prior convictions were brought and tried separately, but whether they qualify as strikes under the Three Strikes law.

Specifically, the burglary convictions of this case are strikes only if they were residential. (§ 1192.7, subd. (c)(18); see §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) But the holding and rationale of Wiley apply equally to this case. Sections 1025 and 1158 require the jury to determine whether the defendant “has suffered” the prior convictions. The jury here did make that determination. Wiley states that an additional determination, such as whether the convictions were brought and tried separately, is “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. [Citations.] 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.” (Wiley, supra, 9 Cal.4th at p. 590.) Determining whether a prior conviction qualifies as a strike under the Three Strikes law is also the type of inquiry that judges traditionally perform as part of the sentencing function. Often this determination is purely legal, with no factual content whatever. The Three Strikes law defines a strike as, among other things, “any offense defined in subdivision (

c) of

Section 1192.7 as a serious felony in this state.” (§§■ 667, subd. (d)(1), 1170.12, subd. (b)(1).)

Section 1192.7, subdivision (c), lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking. If a defendant’s prior conviction falls into this group, and the elements of the offense have not changed since the time of that conviction, then the question whether that conviction qualifies as a serious felony is entirely legal. Sometimes the determination does have a factual content, just as the question whether convictions were brought and tried separately has a factual content.

As we explained in Woodell, “Sometimes the definition of the qualifying prior conviction is not completely congruent with the definition of the crime of which the defendant has been convicted. For example, in [People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150]], the alleged prior conviction was for a ‘ “burglary of a residence.” ’ (People v. Guerrero, supra, 44 Cal.3d at p. 346 [quoting Pen.

Code, former § 1192.7, subd. (c)(18)].) The statutory use of the phrase, ‘burglary of a residence,’ posed a problem because ‘there is no offense specifically so defined in the Penal Code.’ (Guerrero, supra, at p. 346.) A particular burglary conviction might or might not have involved a residence.” (People v. Woodell, supra, 17 Cal.4th at p. 452.) But these factual questions are of limited scope. In determining whether a prior conviction is serious, “the trier of fact may look to the entire record of the conviction” but “no further.” (People v.

Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150], original italics.) Thus, no witnesses testify about the facts of the prior crimes. The trier of fact considers only court documents. It is true that sometimes the trier of fact must draw inferences from transcripts of testimony or other parts of the prior conviction record. (See, e.g., People v.

Reed (1996) 13 Cal.4th 217, 220 [52 Cal.Rptr.2d 106, 914 P.2d 184].) But the factual inquiry, limited to examining court documents, is not significantly different from the one we considered in Wiley. “[S]uch 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.” (Wiley, supra, 9 Cal.4th at p. 590.) Accordingly, the statutory right to have a jury decide whether the defendant “has suffered” (§§ 1025, 1158) the prior conviction does not include the inquiry whether the conviction qualifies as a strike. Defendant argues that a recent amendment to

section 1025 supports his position. Effective January 1, 1998,

section 1025 is divided into subdivisions. Subdivisions (

b) and (c), the pertinent ones, provide as relevant: “(

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 . . . . [f] (

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.” (Stats. 1997, ch. 95, § 1.) Defendant argues that the Legislature has removed from the jury the question of his identity as the person who suffered the conviction but, by implication, has left all other factual determinations for the jury. We disagree. We first note that the amendment postdated the crimes and sentencing of this case, so it does not apply here. But more fundamentally, the amendment does not support defendant’s position. The new

section 1025, subdivision (b), is substantially identical to the relevant portion of the previous version of

section 1025. Only subdivision (

c) is new. That subdivision clearly narrows, rather than expands, the jury’s role. It does not overrule Wiley's

interpretation of

section 1025 or expand the jury’s role beyond determining whether the defendant “has suffered” the prior conviction. The passage of this narrowing legislation soon after we narrowly interpreted the same statute strongly suggests legislative approval of our

interpretation. This is not merely a case of legislative inaction, which provides at most a weak inference of legislative approval (see People v. Escobar (1992) 3 Cal.4th 740, 750-751 [12 Cal.Rpt.2d 586, 837 P.2d 1100]), but a case of a legislative reenactment of a statute we just interpreted, which does imply legislative approval. “ ‘Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it.’ ” (Wilkoff v.

Superior Court (1985) 38 Cal.3d 345, 353 [211 Cal.Rptr. 742, 696 P.2d 134]; see also People v. Bouzas (1991) 53 Cal.3d 467, 475 [279 Cal.Rptr. 847, 807 P.2d 1076].) The legislative history of the amendment to

section 1025 is inconclusive but, if anything, supports our view of its significance. As introduced on February 28, 1997, Senate Bill No. 1146 (1997-1998 Reg. Sess.) would have amended

section 1025 to provide that “the question whether or not [the defendant] has suffered the previous conviction shall be tried by the court.” A bill analysis prepared for the Senate Committee on Public Safety states that the bill’s primary purpose “is to save the cash-strapped trial courts millions of dollars per year in needless jury trials of prior conviction enhancements.” (Sen. Com. on Public Safety, Statement on Sen. Bill No. 1146 (1997-1998 Reg. Sess.) May 6, 1997.) Several of the legislative documents analyzing the bill cite Wiley, supra, 9 Cal.4th 580, with apparent approval, indicating the Legislature was indeed aware of its existence. Eventually, the bill was amended to have

section 1025 read as it now does, which preserves a role for the jury. Nothing in the legislative history suggests the Legislature desired to expand the jury role in questions of prior convictions or to overrule Wiley. To the contrary, the bill’s express purpose was to reduce significantly the number of jury trials on prior conviction allegations. The final statutory language appears to have been a compromise, limiting the bill’s reach to eliminate jury trials only on the issue of identity and to leave the law otherwise unchanged. The Legislature seemed to want to leave other issues, such as those of Wiley and this case, for judicial decision. Thus, if the former version of

section 1025 did not grant a jury trial on these issues—and we conclude it did not—the current version also does not. This leaves the final question of exactly what role the jury does play under

section 1025. Perhaps because the final statutory enactment was a compromise, with the Legislature reducing, but not entirely eliminating, the jury’s role, the answer is not readily apparent. 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 burglary and attempted burglary convictions. 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. Whether this role makes sense is not for us to say. If the Legislature wants to provide a greater, or more precisely defined, role for the jury, or chooses to eliminate the jury altogether as many states have done, it may still do so. In the meantime, we must interpret the amendment to

section 1025 as we find it—narrowing but not entirely eliminating the jury’s role. We affirm the judgment of the Court of Appeal. George, C. J., Baxter, J. and Brown, J., concurred. A11 further statutory references are to the Penal Code. Originally, we granted both defendant’s petition to review the question who decides whether a conviction was serious, and the Attorney General’s petition to review unrelated sentencing issues. Later, we limited the issues to the one raised in defendant’s petition. (Cal. Rules of Court, rule 29.2(b).)