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Name: People v. Epps
Case #: S082110
Court: CA Supreme Court
District CalSup
Opinion Date: 03/05/2001
Subsequent History: Rehg. den. 5/16/01

The 1997 amendment to Penal Code section 1025, adding subdivision (c), did not completely eliminate the right to a jury trial of a prior conviction allegation. However, it considerably narrowed the issues the jury must decide. Subdivision (b) of section 1025 says the question of whether the defendant has suffered a prior conviction shall be tried by the jury. Subdivision (c) says: “Notwithstanding…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.” The issue of whether the prior conviction ever occurred, i.e., whether the record of it has been fabricated, is in error, or is sufficient remains for the jury to determine. The court notes that these issues would rarely be seriously in issue, but it was not for the Court to question the wisdom of assigning such a limited role to the jury. The Court did encourage the Legislature to revisit the statute and adopt a rule that makes more sense from the point of view of sound judicial administration. The Court expressly noted it was not deciding how Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], would apply in a situation where some additional fact other than the bare fact of the prior conviction needed to be proved, such as whether a prior burglary was residential. Here the prior conviction, kidnaping, was a serious felony by definition under Penal Code section 1192.7. Werdegar, J. specially concurred, but expressed doubt whether the harmless error rule applied, and whether Apprendi had invalidated the premises of earlier decisions. Mosk and Kennard, JJ. dissented, finding the error reversible per se.