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Name: Dillard v. Roe
Case #: 99-56345
Court: US Court of Appeals
District 9 Cir
Opinion Date: 03/27/2001
Subsequent History: Amended on rehearing den. 5/17/01

The District Court did not violate appellant’s constitutional rights by taking judicial notice of two Los Angeles County Superior Court criminal case files, which contained official records of his prior felony convictions pursuant to Penal Code section 667, subdivision (a)(1). The trial court did not remove any determination from the jury except for the fact that a person named Adrian Dillard had been previously convicted of two serious felonies. The jury was still free to find that Adrian Dillard was not the defendant. Therefore, the trial court did not err, much less commit federal constitutional error. However, appellant’s constitutional rights were violated by the imposition of two five-year sentence enhancements because the jury did not find that his instant offense constituted a serious felony. The jury was required to determine beyond a reasonable doubt that appellant used a firearm, because the additional fact transformed the felony conviction into a serious felony. Since they did not make that determination, the court erred in imposing the two five-year enhancements. The error was not harmless because the evidence of personal use of a firearm was not substantial. Since the appellate court could not conclude that a jury would have found beyond a reasonable doubt that appellant used the firearm, appellant was entitled to habeas relief with respect to that claim.