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F 17.18 n1 Prior Prison Term: Multiple Convictions Constitute One Term: (PC 667.5)
It should be noted that multiple convictions and sentences constitute only one “prior separate term” regardless of whether the priors were served concurrently or consecutively, and regardless of whether they resulted from a single sentencing proceeding or from separate proceedings. (People v. James (80) 102 CA3d 728, 732 [162 CR 548]; People v. Burke (80) 102 CA3d 932, 943 [163 CR 4]; see also People v. Jones (98) 63 CA4th 744 [74 CR2d 328] [court erred by imposing separate enhancements for prior convictions involving concurrent sentences].) On the other hand, conviction and sentence for in prison offenses may constitute a separate term. (People v. Carr (88) 204 CA3d 774, 780 [251 CR 458]; People v. Cardenas (87) 192 CA3d 51, 56 [237 CR 249].)
F 17.18 n2 Prior Prison Term: Proof Of The Prior (PC 667.5).
[See FORECITE EA V(B)–(D).]
F 17.18 n3 Prior Prison Term: Chronology Or Procedural Sequence Of The Prior (PC 667.5).
See FORECITE F 17.25 n7.
F 17.18 n4 Prior Prison Term: Judge, Not Jury, Must Find Whether Prior Was A “Serious Felony.”
ALERT: People v. Wiley (95) 9 C4th 580 [38 CR2d 347] and People v. Kelii (99) 21 C4th 452 [87 CR2d 674] may be subject to constitutional attack based on Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]. (See FORECITE PG VII(C)(32)(1).)
People v. Winslow (95) 40 CA4th 680, 688-89 [46 CR2d 901] held that when a prior prison term is alleged, the jury is required to find whether the prior is a “serious felony” and CJ 17.18 should be given. In People v. Wiley (95) 9 C4th 580 [38 CR2d 347], the California Supreme Court held that the court, and not the jury, determines whether prior serious felony convictions were brought and tried separately. In Wiley the court concluded that defendants have “no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement.” (9 C4th at 589; see also 585-86 [discussing federal constitution], 586-89 [discussing state constitution].)
People v. Kelii (99) 21 C4th 452 [87 CR2d 674], held that the holding and rationale of Wiley apply equally to the determination of whether a prior conviction constitutes a strike under PC 1192.7(c); see also PC 667(d)(1), PC 1170.12(b)(1). In Kelii, the court held that PC 1025 and PC 1158, which required the jury to determine whether the defendant “has suffered” prior convictions apply only to the question of whether the documents submitted in support of the prior conviction are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged. (21 C4th at 458.) All other determinations regarding the identity of the defendant as the person who has committed the prior conviction and the nature of the prior conviction are to be made by the court. Hence, the court, upon finding that the defendant is the person who suffered the prior conviction, should “instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction.” (21 C4th 458.) “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.” (Ibid.)
PRACTICE NOTE: It should be remembered that the United States Supreme Court has not yet expressly decided whether the right to trial by jury under the federal constitution (Sixth and Fourteenth Amendments) should apply to the determination of prior convictions. (See FORECITE PG VII(C)(32)(3).)
F 17.18 n5 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.18 n6 Prior Prison Term For Escape Is A “Separate” Term For Purposes Of PC 667.5.
See People v. Langston (2004) 33 C4th 1237.