A Court of Appeal opinion is admissible to prove prior serious felony. In 2004 petitioner was convicted of a felony. He had a jury trial on his two strike priors, one of which was a 1992 conviction for evading the police, causing injury. (Veh. Code, §2800.3.) His conviction was affirmed. Later, petitioner sought habeas relief alleging ineffective assistance of trial and appellate counsel for not protecting his rights with respect to proof of the section 2800.3 prior. Trial counsel was not ineffective for failing to assert petitioner’s right to jury trial on whether he personally inflicted serious bodily injury and whether this equaled great bodily injury, as these are legal questions. Apprendi does not require a jury trial to prove the “fact of a prior” and petitioner’s plea proved he personally inflicted the injuries. Although his 1992 plea only admitted “proximately causing” serious bodily injury, which is insufficient to establish the personal infliction required (People v. Valenzuala (2010) 191 Cal.App.4th 316), the facts contained in the Court of Appeal’s 1992 opinion affirming petitioner’s conviction (derived from the probation report), filled in the evidentiary gaps. The opinion was evidence on which the trial court could have relied (citing People v. Woodell (1998) 17 Cal.4th 448, 457).

Previous appellate counsel was not ineffective. In his 2004 appeal, petitioner challenged the proof of his strike priors, but failed to claim that use of his statements to the probation officer to prove the section 2800.3 prior was error. At the time, People v. Monreal (1997) 52 Cal.App.4th 670 held such statements admissible. One week after petitioner’s 2004 review petition was denied, the California Supreme Court held in People v. Trujillo (2006) 40 Cal.4th 165, that a defendant’s post-plea statement to a probation officer is not part of the “record of conviction,” overruling Monreal. However, appellate counsel could not have reasonably known this issue was pending in Trujillo, as none of the Supreme Court notices reflected it intended to address whether such admissions could be used to prove a prior.

There was, and is, no valid basis to recall the remittitur to apply Trujillo to petitioner’s case. A remittitur may be recalled to correct clerical errors, or on the grounds of fraud, mistake or inadvertence. However, recall of remittitur may be used to correct judicial error where it is deemed an adjunct to a writ of habeas corpus; it may be granted to implement a defendant’s habeas corpus right to correct the error. However, assuming petitioner’s case was not yet final when Trujillo was decided, and that his first appellate counsel should have moved to recall the remittitur, petitioner would not have enjoyed a more favorable result, because the facts contained in the court’s 1992 opinion could have been used to prove petitioner’s evasion conviction was based on his inflicting serious bodily injury to nonaccomplices.

(Editor’s note: Appellant filed a Petition for Rehearing on 6/17/11. The Court of Appeal has issued an order directing the Attorney General to file an answer to the petition by the close of business on 6/29/11.)