Trial court’s use of preliminary hearing transcript to decide that a prior conviction was a serious felony constituted inappropriate judicial factfinding in violation of the Sixth Amendment (disapproving People v. McGee (2006) 38 Cal.4th 682). Defendant was convicted of robbery and other offenses. She waived a jury trial on whether her prior assault conviction was a serious felony under both the Three Strikes law and as an enhancement (Pen. Code, § 667, subd. (a)(1)). The trial court reviewed the preliminary hearing transcript, found testimony regarding defendant’s knife use and, based on this factfinding, deemed the prior a serious felony. The Court of Appeal affirmed as to the finding on the prior. The California Supreme Court granted review. Held: Reversed. Under the Sixth and Fourteenth Amendments, any fact, other than the fact of a prior conviction, that increases the sentence for a crime beyond the statutory maximum, must be found by a jury beyond a reasonable doubt (Apprendi v. New Jersey (2000) 530 U.S. 466). In McGee, the California Supreme Court held the trial court was permitted to review the record of conviction, including the preliminary hearing transcript, to determine prior convictions qualified as serious felonies for purposes of the sentencing law. However, the U.S. Supreme Court’s discussion of background Sixth Amendment principles in Descamps v. U.S. (2016) 570 U.S. ___ and Mathis v. U.S. (2016) 579 U.S. ___, confirms that the Sixth Amendment requires a jury, and not a sentencing court, to find the facts and/or conduct giving rise to a conviction when those facts may result in additional punishment. A trial court considering whether a defendant’s prior conviction qualifies as a serious felony “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.” Instead, the court’s role is “limited to identifying those facts that were established by virtue of the conviction itself,” i.e., facts the jury was necessarily required to find to render its verdict, or that the defendant admitted as the factual basis for the plea.

The appropriate remedy is to order a limited remand to permit the trial court to make the relevant determinations about what facts defendant admitted in entering her plea. Because the record does not reflect that defendant agreed the preliminary hearing testimony provided the factual basis for her plea to the prior, it may not be used to determine the nature or basis of her prior conviction. On remand the prosecution will be afforded the opportunity to show the trial court, based on the record of the prior plea proceedings, that defendant’s plea included a relevant admission about the nature of the offense.

Defendant did not waive her Sixth Amendment claim by waiving her jury trial right on the prior and failing to raise a constitutional objection in the trial court. At the time defendant waived her right to a jury trial on the prior allegations, California law restricted a defendant’s jury trial on priors to “the question of whether or not the defendant has suffered the prior conviction.” (Pen. Code, § 1025, subd. (b).) The decision in McGee held a defendant had no right to a jury trial on whether a prior conviction qualified as a serious felony for sentencing purposes. Thus, defendant’s jury waiver in this case extended only to the limited statutory right she had at that time of whether she had suffered the prior conviction. It did not constitute a waiver of her constitutional right to have a jury decide whether the prior conviction was for a serious felony. The Supreme Court declined to decide whether defendant forfeited her Six Amendment challenge by failing to raise the issue in the trial court, as the prosecution failed to make this forfeiture argument to the Court of Appeal and it was not addressed in the court’s opinion. The court noted that, at the time of defendant’s trial, the law allowed a trial court to consider the preliminary hearing transcript to decide whether a prior conviction was for a serious felony. It is questionable whether defendant should be required to anticipate changes in California law and lodge relevant anticipatory objections.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S231260.PDF