People v. Gallardo (2017) 4 Cal.5th 120 (rehearing denied 1/24/18) determined that the trial court violated the defendant’s Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying the defendant’s prior assault conviction that had not been established by virtue of the conviction itself:
“We today hold that defendant’s constitutional right to a jury trial sweeps more broadly than our case law previously recognized: While a trial court can determine the fact of a prior conviction without infringing on the defendant’s Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction. (4 Cal.5th at 138.)
Now a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the “nature or basis” of the prior conviction based on its independent conclusions about what facts or conduct ‘realistically’ supported the conviction. The court’s role is limited to identifying those facts that were established by virtue of the conviction itself—that is, “facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (4 Cal.5th at 136.)
The Court expressly disapproved People v. McGee (2006) 38 Cal.4th 682 — cited with approval by the CALCRIM 3100, 3101, 3102 and 3103 – which held that the Sixth Amendment permits courts to review the record of a defendant’s prior conviction to determine whether the crime qualifies as a serious felony for purposes of the sentencing laws.
The “Disputed Factual Issues” authorities in CALCRIM, including its citation to McGee, should be corrected.