CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH DISTRICT
STATE OF CALIFORNIA
Plaintiff and Respondent, E023356
v. (Super.Ct.No. FWV 11387)
EUGENE MATTHEWS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dennis Cole, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Gary W. Brozio, Supervising Deputy Attorney General, and Larissa Karpovics
Hendren, Deputy Attorney General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of parts I and III.
A defendant appeals from his conviction of possession of a forged check with the
intent to defraud for which he was sentenced to prison for 25 years to life. We affirm.
BACKGROUND AND CONTENTIONS
In July of 1996, the defendant, Eugene Matthews, Jr., attempted to pass a
fraudulent American Express traveler’s check in order to purchase a woman’s dress at
Mervyn’s. Suspecting fraud, the cashier asked the defendant for some identification. The
defendant showed the cashier his driver’s license. The cashier then took the check to the
store’s loss prevention officer while the defendant waited and filled out a credit card
application. The loss prevention officer determined that the check was not authentic, and
that determination was confirmed by American Express. The loss prevention officer
received authorization to detain the defendant if he made a purchase, but the defendant
exited the store without taking the dress and quickly drove off. Nevertheless, the store’s
security agent was able to record the defendant’s license plate, leading to his arrest by the
The defendant was charged with possession of a forged check with intent to
defraud, in violation of Penal Code section 475, subdivision (a).1 The prosecution also
alleged that the defendant had suffered five serious or violent convictions within the
meaning of the three strikes law. After the trial, the jury found the defendant guilty as
charged. In July of 1998, the trial court determined that each of the five prior conviction
1 All further section references are to the Penal Code unless specified otherwise.
allegations was true, and sentenced the defendant to an indeterminate prison term of 25
years to life.
The defendant appeals, contending that the trial court erred (1) by failing to
exclude evidence that the prosecution had not disclosed in pretrial discovery, (2) by trying
issues concerning his prior convictions that are statutorily reserved for the jury, and (3) by
denying his motion to strike his prior convictions in the interests of justice.
In the published portion of the opinion, we conclude that the amendment to section
1025 effective January 1, 1998, took away the criminal defendant’s right to a jury trial on
prior-conviction allegations. In the unpublished portion of the opinion, we reject the
defendant’s remaining contentions and affirm.
Admission Of Testimony Concerning Additional Forged Checks
The defendant contends that the trial court erred by ruling that if the defendant
testified, the prosecution would be allowed to impeach him with evidence of eight
additional forged checks that had not been disclosed in pretrial discovery. He is
In the middle of trial, the prosecutor informed the trial court that new evidence
concerning additional forged checks passed or possessed by the defendant had just been
brought to his attention. The prosecutor explained that an American Express investigator,
who was going to testify instead of the employee originally scheduled to be a witness for
the prosecution, had informed him that the investigator had in his possession eight forged
traveler’s checks bearing the defendant’s signature and driver’s license number. The
prosecution requested permission to introduce this evidence in its case-in-chief to rebut
the defendant’s potential defense that he did not appreciate the fraudulent nature of the
traveler’s check he attempted to pass at Mervyn’s. The prosecutor also stated that he
would not object to an appropriate continuance in order to allow the defense an
opportunity to review and prepare to meet this new evidence. The defendant objected,
arguing that the evidence had not been disclosed in a timely fashion and that he would not
have an adequate opportunity to prepare for it, even were a continuance to be granted.
The trial court ruled that due to the highly prejudicial nature of this evidence and
the lateness of its disclosure, the prosecution would not be allowed to use the evidence in
its case-in-chief. However, the court also ruled that the evidence would be admissible as
a part of the prosecution’s rebuttal case if the defendant took the stand and testified that
he did not know that the traveler’s check was fraudulent. Although the trial court
acknowledged the prejudicial nature of this newly discovered evidence, it found that the
evidence’s very high probative value on the defendant’s state of mind outweighed any
danger of unfair prejudice. The trial court also made an express finding that the
prosecution did not violate the reciprocal discovery law because neither the prosecution
nor law enforcement agencies were aware of the existence of this evidence until that day.
The evidence was never actually introduced because the defendant did not testify.
However, he argues on appeal that since the evidence was disclosed in the middle of the
trial, it violated the reciprocal discovery statute and significantly prejudiced the defendant
because he had to alter his defense strategy at the last minute. Specifically, the defendant
argues that the prosecution violated discovery laws by failing to discover and disclose the
information about the eight additional checks sooner.
Proposition 115 passed by the California voters in 1990 added new sections
creating reciprocal discovery obligations in criminal proceedings. (§ 1054, et seq.;
Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364.) Under section 1054.1, the
prosecution is obligated to disclose exculpatory evidence possessed by investigative
agencies to which the prosecution has reasonable access. (People v. Kasim (1997) 56
Cal.App.4th 1360.) When the evidence is discovered within 30 days from the date of the
trial, it shall be disclosed immediately. (§ 1054.7.) Sanctions for violations of those
obligations include the exclusion of the undisclosed evidence. (§ 1054.5; People v.
Hammond (1994) 22 Cal.App.4th 1611, 1621.)
Although the defendant argues that the trial court abused its discretion in failing to
exclude the evidence of the eight additional fraudulent checks, the foundational inquiry is
whether the prosecution failed to comply with its statutory discovery obligations. The
trial court found that there had been no violation. It was correct.
Section 1054.7 states that evidence discovered within 30 days from the date of the
trial must be immediately disclosed to the opposing party. The prosecution discovered
the evidence on the same day it asked the trial court to admit it, and, even by the
defendant’s trial counsel’s admission, disclosed this evidence to the defendant on that
same day. Furthermore, the defendant presented no evidence that the newly discovered
evidence was in the possession of an investigative agency to which the prosecution had
reasonable access. On this record, the trial court’s finding was correct. Accordingly, its
decision to permit the introduction of that evidence in the event that the defendant elected
to testify was not an abuse of discretion.
Nevertheless, the defendant argues that the prosecution violated section 1054.7 by
not discharging its separate duty to discover and disclose all evidence gathered by the
police. The defendant bases this novel duty argument on the fact that the witness who
was going to testify about the additional fraudulent checks had been employed as a police
officer before he became an investigator for American Express.
The defendant cites no cases that support his special-duty-to-disclose argument.
Furthermore, our research retrieved no California decisions that imposed any duty on the
prosecution to discover additional evidence of a defendant’s guilt. The defendant’s
reliance on Kyles v. Whitley (1995) 514 U.S. 419 and In re Brown (1998) 17 Cal.4th 873
is misplaced because those cases discuss the prosecutor’s duty to discover and disclose
exculpatory evidence in the possession of law enforcement. (Kyles at pp. 438-439; Brown
at pp. 879-880.) A duty to discover and disclose material evidence favorable to the
accused is justified by the prosecutor’s obligation to seek justice. (United States v.
Alvarez (9th Cir. 1996) 86 F.3d 901, 905 [“The prosecutor is ‘the representative . . . of a
sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case,
but that justice shall be done’”].) No such justification exists for the creation of an
additional duty to discover evidence of guilt. Any danger of prosecutorial gamesmanship
in untimely discovery or untimely disclosure of inculpatory evidence in possession of law
enforcement is adequately addressed by section 1054 which requires immediate
disclosure of newly discovered evidence and provides for a wide variety of sanctions for
In any event, the prosecution had no obligation to discover and disclose evidence
in the possession of the investigator employed by American Express. Law enforcement’s
sole responsibility is to preserve existing material evidence (People v. Wimberly (1992) 5
Cal.App.4th 773, 791) and it has no initial duty to collect and gather potential evidence
for the defendant’s use (In re Michael L. (1985) 39 Cal.3d 81, 88-89). It would be
illogical to place such a duty on either victims of the crime or their employees. Therefore,
we conclude that the trial court did not err in finding that the prosecutor complied with
the reciprocal discovery statute.
Finally, assuming arguendo that there had been a violation of the reciprocal
discovery statute by the prosecution, any error in allowing prosecution an opportunity to
use the newly discovered evidence in rebuttal was harmless. Since the defendant never
actually took the stand, his claim is really not that his right to testify was violated, but that
his right to testify without being impeached with evidence of prior bad acts was violated.
However, it is well settled that the defendant does not have a right to testify without being
impeached because “if a defendant exercises his right to testify on his own behalf, he
assumes a reciprocal obligation to speak truthfully and accurately.” (People v. Brown
(1996) 42 Cal.App.4th 461, 472.)
Here, the trial court did not preclude the defendant from taking the stand, but
merely allowed the prosecution an opportunity to impeach the defendant’s testimony
concerning his lack of knowledge of the fraudulent nature of the traveler’s check via
evidence that he passed eight fraudulent checks shortly before committing the current
crime. While this impeachment would have clearly cast doubt on the defendant’s line of
defense, it did not prejudicially violate his right to testify, as the defendant remained free
to take the stand and provide truthful testimony.
The Defendant’s Right To A Jury Trial On The Priors
Prior to 1998, section 1025 unequivocally provided that if a criminal defendant
denied the truth of a prior-conviction allegation, “the question whether or not he has
suffered such previous conviction must be tried by the jury which tries the issue upon the
plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose, or by
the court if a jury is waived.” (Stats 1951, ch. 1674, § 88, pp. 3844-3845.) However, in
an amendment enacted in 1997 and effective January 1, 1998, section 1025 was changed
to read in relevant part:
“(b) Except as provided in subdivision (c), the question of whether or not the
defendant has suffered the prior conviction shall be tried by the jury that tries the issue
upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury
impaneled for that purpose, or by the court if a jury trial is waived.
“(c) Notwithstanding the provision of 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.” (Stats. 1997, ch. 95, § 1, No. 4 Cal. Legis. Service, pp. 449-450.)
The defendant contends that, by trying the prior-conviction allegations entirely by
itself to the exclusion of the jury, the trial court erroneously deprived him of his statutory
right to a jury trial of those issues. He reasons, first, that subdivision (c) of section 1025
(“section 1025(c)”) cannot be applied to him because he committed the crime before the
effective date of the amendment. Alternatively, he argues that, even if section 1025(c)
does apply to him, it authorizes a trial judge to determine only the issue of whether
defendant was actually the person convicted of the priors; all other issues that must be
decided in order to determine the truth of the prior-conviction allegations must be tried by
By contrast, the People contend that the section 1025(c) was not retroactively
applied to the defendant because it addressed the conduct of future criminal trials, not
past criminal behavior. The People also assert that although subdivision (b) of section
1025 on its face suggests that a defendant is entitled to a jury trial on some issues related
to prior convictions, the practical effect of section 1025(c) was to take the entire issue
away from jury consideration.
As we shall explain, the People are correct on both points.
Noting that his criminal conduct occurred prior to the effective date of section
1025(c), the defendant invokes the rule that “a new statute is presumed to operate [only]
prospectively absent an express declaration of retrospectivity or a clear indication that the
electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53
Cal.3d 282, 287.) His reliance is mistaken.
A penal statute is not retroactive if it changes, not the effect of criminal behavior
which has already taken place, but merely the procedures governing the conduct of trials
which have yet to take place. “Even though applied to the prosecution of a crime
committed before the law’s effective date, a law addressing the conduct of trials still
addresses conduct in the future. . . . Such a statute is not made retroactive merely because
it draws upon facts existing prior to its enactment.” (Tapia v. Superior Court, supra, 53
Cal.3d at p. 288; internal quotation marks omitted.) For instance, those provisions of
Proposition 115 that eliminated postindictment preliminary hearings, made hearsay
admissible at preliminary hearings, and made discovery reciprocal, were not retroactive
and were properly applied in the trials of defendants charged with having committed
crimes before Proposition 115 took effect. (Tapia, pp. 299-300.)
Here, the enactment of section 1025(c) had no bearing on the defendant’s past
criminal conduct or on the punishment for that conduct. Instead, it merely altered the way
in which his future trial on the prior-conviction allegations was to be conducted. Since
that trial was conducted after the effective date of the amendment, the application section
1025(c) to the defendant’s trial was not retroactive.
B. Right To A Jury Trial On The Priors
Since section 1025(c) was properly applied to the defendant’s case, we must now
determine the effect of the amendment on the defendant’s right to a jury trial on the
We are not the first court to address that issue. In People v. Valentine (1999) 70
Cal.App.4th 1168, at pages 1171-1172, the Second District concluded that section
1025(c) did not entirely remove from jury consideration all issues related to whether the
defendant suffered prior convictions within the meaning of the three strikes law. Soon
thereafter, our colleagues in Division One cited Valentine with approval. (People v. Hale
(1999) 70 Cal.App.4th 992, opinion modified on denial of rehearing, 71 Cal.App.4th
884a, 884c.) But the Supreme Court subsequently granted review in both Valentine and
Hale. (Valentine, review granted and cause ordered held June 30, 1999, pending
disposition of People v. Kelii (S078564, review granted July 29, 1998); Hale, review
granted and cause ordered held July 14, 1999 (S078718).)
Thereafter, two divisions of the Second District again concluded that section
1025(c) did not entirely eliminate a defendant’s right to a jury trial on the priors, although
the courts split on the question whether the error is reversible per se. (Compare People v.
Epps (1999) 74 Cal.App.4th 1332 [section 1025(c) only removed the issue of identity
from the jury and failure to grant defendant a jury trial on the balance of the issues
constitutes a per se reversible error] with People v. Gonzales (1999) 73 Cal.App.4th 885
[reaching the same result with respect to interpretation of section 1025(c), but holding
that failure to grant a jury trial is amenable to harmless error review].)
On August 19, 1999, the California Supreme Court decided People v. Kelii (1999)
21 Cal.4th 452 (Kelii). The issue in Kelii was a narrow one: “whether the court or the
jury determines if a prior felony conviction qualifies as a ‘serious felony’ for purposes of
the ‘Three Strikes’ law.” (Id., p. 454.) The court “conclude[d] that the court, not the jury,
determines whether a conviction is serious.” (Ibid.)
The effect of section 1025(c) was not before the court in Kelii. As the court itself
expressly noted, “the amendment postdated the crimes and sentencing of this case, so it
does not apply here.” (Kelii, p. 457.) Nevertheless, in the final four paragraphs of the
opinion, the court discussed whether section 1025(c) “preserves a role for the jury.” (Id.,
p. 458.) After stating that it does (ibid.), the court then offered its views on what that role
“This leaves the final question of exactly what role the jury does play under section
1025. Perhaps because the final statutory enactment was a compromise, with the
Legislature reducing, but not entirely eliminating, the jury’s role, the answer is not readily
apparent. The trial court might choose to determine first whether the defendant is the
person who suffered the conviction. A determination that the defendant is not that person
would clearly end the matter. If, however, as would usually be the case, the court finds
the defendant is that person, the jury apparently would then make a determination like the
one it made in this case -- that the defendant suffered the prior burglary and attempted
burglary convictions. The court would, however, instruct the jury to the effect that the
defendant is the person whose name appears on the documents admitted to establish the
conviction. This procedure would appear to leave the jury little to do except to determine
whether those documents are authentic and, if so, are sufficient to establish that the
convictions the defendant suffered are indeed the ones alleged. Whether this role makes
sense is not for us to say. If the Legislature wants to provide a greater, or more precisely
defined role for the jury, or chooses to eliminate the jury altogether as many states have
done, it may still do so. In the meantime, we must interpret the amendment to section
1025 as we find it -- narrowing but not entirely eliminating the jury’s role.” (Kelii, pp.
As the Supreme Court has acknowledged, the Courts of Appeal are not bound by
stare decisis to follow Supreme Court dictum. (People v. Macias (1997) 16 Cal.4th 739,
743.) The discussion in Kelii concerning the interpretation of section 1025(c) is dictum
because that issue was not before the court. We presume that, for the same reason, the
Supreme Court did not have the benefit of briefs addressing that issue, as we did. For
both reasons, we undertake our own analysis of the issue.
“Pursuant to established principles, our first task in construing a statute is to
ascertain the intent of the Legislature so as to effectuate the purpose of the law. In
determining such intent, a court must look first to the words of the statute themselves,
giving to the language its usual, ordinary import and according significance, if possible,
to every word, phrase and sentence in pursuance of the legislative purpose. . . . The
words of the statute must be construed in context, keeping in mind the statutory purpose,
and statutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.] Where uncertainty
exists consideration should be given to the consequences that will flow from a particular
interpretation. [Citation.] Both the legislative history of the statute and the wider
historical circumstances of its enactment may be considered in ascertaining the legislative
intent. [Citations.] Rules of statutory construction require courts to construe a statute to
promote its purpose, render it reasonable, and avoid absurd consequences.”
(Conservatorship of Bryant (1996) 45 Cal.App.4th 117, 120.)
There is no doubt that the Legislature intended to reserve a role for the jury. The
express language of the statute removed from the jury only the issue of identity. (§ 1025,
subd. (b) and (c).) The legislative history confirms that the intent of the legislation was
that the judge would determine “whether the defendant was the person who suffered the
prior conviction, but the jury must resolve the other questions concerning the prior
conviction.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1146 (1997-1998
Reg. Sess.) as amended June 19, 1997, p. 2.) Thus, the question is not whether the
Legislature intended to reserve a role for the jury, but whether the legislation adopted by
the Legislature successfully implements that intent. We conclude that it does not.
The Legislature assumed that the identity of the person who suffered a prior
conviction was only one of numerous issues raised by a prior-conviction allegation:
“When the prosecutor alleges in a criminal complaint or information that the defendant
suffered a particular prior conviction, there are several potential issues (although it is rare
for a defendant to raise more than one or two of them): [¶] Was someone convicted?
What was the offense? What is the date of the conviction? In what court was the person
convicted? Is the defendant the person who suffered the prior conviction? In some cases,
there are additional questions, such as was the defendant sentenced to prison based on
that conviction? How long has the defendant been out of custody since he or she suffered
the prior conviction?” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1146,
supra, p. 2.)
If the Legislature’s assumptions were correct, then its conclusion that there are
material issues other than identity for the jury to decide would also be correct. But each
of its assumptions is incorrect.
The purpose of section 1025(c) is to reduce the number of jury trials of prior-
conviction allegations. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1146,
supra, p. 2.) The Legislature reasoned that because the “identity of the person suffering
the prior conviction” is the most commonly contested issue—and often the only contested
issue—in the trial of those allegations, allocating the decision of that issue to the judge
“will significantly reduce the number of such jury trials.” (Ibid.) To accomplish that
reduction, that issue must be submitted to the judge before any issues are submitted to the
jury. As the Supreme Court observed, a determination by the judge that the defendant is
not the person who suffered the prior conviction would end the matter entirely. (Kelii, p.
Contrary to the Legislature’s assumptions, there are no material issues remaining
after the judge has determined that “the defendant is the person who has suffered the prior
conviction . . . .” (§ 1025(c).) The judge cannot decide that the defendant suffered the
prior conviction unless or until the judge determines that “someone” suffered that
conviction. Thus, the question posited by the Legislature, “Was someone convicted?” is
necessarily subsumed in the question which is answered by the judge.
Similarly, although the Legislature assumed that the jury would be deciding the
nature of the offense, it is now settled that the determination of whether a prior conviction
is a serious felony is made by the judge. (Kelii, p. 454.) A judge cannot determine
whether a particular offense is a serious felony unless and until the judge knows the
answer to the second question posed by the Legislature, “What was the offense?” Thus,
that question is also subsumed in the issues to be decided by the judge.
The date of the conviction and the time that the defendant has been out of custody
since his or her last conviction are irrelevant. The three strikes law applies regardless of
the length of time that has passed since the prior conviction. There is no “washout”
period. (§ 667, subd. (c)(3).) Similarly, although the question of whether the defendant
had been sentenced to state prison in a prior case may be relevant for the purposes of a
one-year prior-prison-term enhancement under section 667.5, subdivisions (a) and (b), the
prior sentence is irrelevant to the determination of whether the prior conviction places the
defendant within reach of the three strikes law. (§ 667, subd. (d)(1).)
Nor is the court in which the person was convicted relevant to the application to
the three strikes law. All that is relevant is the jurisdiction in which the offense was
committed, which the judge must know in order to determine whether the offense on
which the conviction is based is a serious felony under California law. (§ 667, subd.
In short, each of the factual issues which the Legislature purported to reserve for
the jury is either irrelevant or subsumed within the issues assigned to the judge.
The roles for the jury that were suggested in the Supreme Court’s dicta in Kelii are
no more persuasive. The jury need not determine whether the documents before it are
authentic. The documents in question are the section 969b prison packets, which the trial
courts can judicially notice. (Evid. Code, § 452, subd. (d); People v. Wiley (1995) 9
Cal.4th 580, 594.) The trial court will not take judicial notice of those documents unless
they are authentic. Once judicial notice of the documents has been taken, that authenticity
is conclusively established, and the judge should “instruct the jury to accept as a fact the
matter so noticed.” (Evid. Code, § 457; 1 Witkin, Cal. Evidence (3d ed. 1986) Judicial
Notice, § 120, p. 103.)
The court also suggested that the jury would be required to determine whether the
documents before it “are sufficient to establish that the convictions the defendant suffered
are indeed the ones alleged.” (Kelii, pp. 458-459.) But that issue, much like the issues of
whether a prior conviction constitutes a strike and was separately brought and tried, are
resolved via a factual inquiry limited to examination of the court documents and prison
records. In both Kelii and People v. Wiley, the Supreme Court held that such inquiries are
properly made by the trial court, not the jury. (Kelii, pp. 456-457; People v. Wiley, supra,
9 Cal.4th at p. 590.) By parity of reasoning, the comparison of the convictions shown in
the documents with the convictions alleged should likewise be resolved by the trial court.
Until our Supreme Court conclusively resolves the question of the interpretation of
section 1025(c), we respectfully decline to follow either the dicta in Kelii or the Second
District’s decisions in People v. Epps, supra, 73 Cal.App.4th 1332 and People v.
Gonzales, supra, 73 Cal.App.4th 885. Instead, we conclude that identity is the only
material factual issue to be tried. Section 1025(c) having allocated that issue to the judge
for decision, and it being the judge’s responsibility to determine whether a given
conviction is for a serious or violent felony, the practical effect of that allocation was to
eliminate altogether the right to a jury trial on prior-conviction allegations.
It would be absurd to impanel a jury that would have nothing to decide. Therefore,
the trial court did not err in dismissing the jury and acting as the trier of fact during the
trial on the priors.
Denial of the Section 1385 Motion
The defendant contends that the trial court abused its discretion in denying his
motion to dismiss prior convictions in the interests of justice. He points out that in
denying the motion, the trial court relied heavily on the evidence received in violation of
the reciprocal discovery statute. He also argues that the denial was improper in light of
the fact that his current offense was not serious or violent and his prior strikes, although
serious, stemmed from a single incident.
The People respond that to the extent the defendant’s argument hinges on the trial
court’s improper consideration of the evidence of additional fraudulent checks, this
argument was waived through failure to assert it in the court below. The People also
point out that the sentencing court can consider a wide range of evidence in determining
the sentence, including reliable hearsay evidence and reliable unsworn evidence. Finally,
the People argue that even if the trial court erred in relying on the evidence of additional
checks, there was ample justification for the denial of the motion, in light of the
defendant’s long criminal record and the fact that his latest offense occurred five months
after the defendant was released on parole.
At sentencing, the defendant’s trial counsel made a motion to strike prior
convictions in the interests of justice under People v. Superior Court (Romero) (1995) 13
Cal.4th 497. In support of his motion, the defendant argued that he had a difficult
background. He also pointed out that despite the jury’s verdict to the contrary, he passed
the counterfeit traveler’s check without knowledge of its true nature. He also pointed out
that his latest offense was not violent in nature and that he had not committed any violent
crimes since his latest release from prison.
The court denied the motion. The court indicated that it had considered the history
of this particular case and that it understood its discretion to strike priors under Romero.
Although the court acknowledged that the defendant’s latest offense was not egregious in
nature, it stated that the denial of the motion was warranted in light of the defendant’s
extensive criminal history and his failure to remain crime-free for more than five months
since his latest release from state prison. Finally, the court noted that the defendant’s
current offense was not an isolated incident, as there was some information that the
defendant engaged in passing fraudulent checks in various locations, although this
evidence was not introduced at trial.
We review the denial of a motion to strike a prior conviction in the interests of
justice under the abuse of discretion standard. (People v. Myers (1999) 69 Cal.App.4th
Rules of evidence applicable at trial do not necessary apply in their entirety in
collateral criminal proceedings, such as sentencing hearings or parole revocation
hearings. For example, evidence not admissible at a criminal trial, such as reliable
inadmissible hearsay and reliable unsworn documentary evidence, may be admissible at a
parole or a probation revocation hearing and the trial court has wide discretion in
admitting such evidence. (People v. Maki (1985) 39 Cal.3d 707, 713-717; cf. People v.
Cain (1995) 10 Cal.4th 1, 32 [trial court has wide discretion in admitting relevant
evidence to determine propriety of imposition of the death penalty].) Furthermore, a
sentencing court may consider material which would have been inadmissible on the issue
of the defendant's guilt. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021, citing
People v. Peterson (1973) 9 Cal.3d 717, 725-728 and People v. Hubbell (1980) 108
Cal.App.3d 253, 256.)
In our view, to the extent the defendant complains of the trial court’s consideration
of additional fraudulent checks, he waived this argument by failing to raise it below.
However, out of an abundance of caution, we have considered the argument on the merits
and conclude that the trial court did not abuse its discretion in considering the evidence in
The defendant cites no authority for the proposition that the trial court could not
consider this additional evidence in determining the appropriate sentence. As stated
above, the sentencing court may rely on a wide variety of relevant evidence not
admissible on the issue of the defendant’s guilt, including unsworn reliable evidence and
hearsay testimony. (People v. Maki, supra, 39 Cal.3d at pp. 713-717; People v. Evans,
supra, 141 Cal.App.3d at p. 1021.) We find that the evidence in question was highly
probative on the issue of the defendant’s culpability for the current offense and his state
of mind and the defendant does not allege that this evidence was fabricated or inaccurate.
The defendant also concedes that the trial court could properly consider the present
offense, as well as the defendant’s character, in deciding a Romero motion. The evidence
of the defendant’s culpability for the current offense is highly relevant on both of the
above-noted issues. Thus, there was no error in the trial court’s consideration of
additional instances of the defendant’s passing fraudulent checks.
Furthermore, any error in the trial court’s reliance on the evidence of additional
acts of passing bad checks was harmless under any standard of review.
The California Supreme Court held in People v. Superior Court (Romero), supra,
13 Cal.4th at page 530, that a court has discretion to strike prior “strikes” under the three
strikes law “in furtherance of justice” pursuant to section 1385, subdivision (a). The high
court set out general principles for the exercise of this discretion, stating that such a
determination “requires consideration both of the constitutional rights of the defendant,
and the interests of society . . .” (Ibid.) Under these principles, the court explained, a trial
court abuses its discretion if it dismisses strikes based solely on judicial convenience,
court congestion, the defendant’s willingness to plead guilty, or personal antipathy to the
three strikes law, while disregarding the defendant’s background, the nature of his or her
present offenses, and other individualized considerations. (Id. at p. 531.)
Recognizing that the concept of “furtherance of justice” under section 1385,
subdivision (a) is somewhat “amorphous” (Romero, supra, 13 Cal.4th at p. 530), our
Supreme Court provided additional guidelines for exercising discretion to strike prior
“strikes” in People v. Williams (1998) 17 Cal.4th 148, 159-161. It explained that, in
making or reviewing a decision to strike a prior offense, the court “must consider
whether, in light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s [three strike law’s] spirit,
in whole or in part, and hence should be treated as though he had presently not committed
one or more felonies and/or had not previously been convicted of one or more serious
and/or violent felonies.” (Id. at p. 161.) The court cautioned that the standard of review
of an exercise of discretion is “deferential,” though not empty, requiring the reviewing
court to determine whether a ruling exceeds the bounds of reason under the law and
relevant facts. (Id. at p. 162.)
On several occasions, Courts of Appeal have reversed the lower courts’ decisions
to strike a prior conviction where the decision to strike was not made in light of the
defendant’s background, character, and prospects and where the defendant’s extensive
criminal record made him an appropriate candidate for three strikes sentencing. (See, e.g.
People v. Gaston (1999) 74 Cal.App.4th 310, 322; People v. McGlothin (1998) 67
Cal.App.4th 468, 477; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055.)
Furthermore, in People v. Humphrey (1997) 58 Cal.App.4th 809, the Second District held
that a decision to strike a prior conviction remote in time is an abuse of discretion where
the defendant has not led a “crime-free” existence since the time of his last convictions.
(Id. at p. 813.)
In order to assess the proportionality of the defendant’s sentence, we may consider
the probation report (People v. Young (1992) 11 Cal.App.4th 1299, 1310), as well as the
defendant’s prior failure at rehabilitation (People v. Shippey (1985) 168 Cal.App.3d 879,
887, abrogated on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175, fn.
We have reviewed the probation report and note that although the defendant’s
prior strikes stem from a single incident, they include kidnapping, robbery, forceful rape,
and forceful oral copulation, which are extremely serious and violent offenses. Also, the
defendant’s prior strike offenses were committed while he was on probation and his latest
offense was committed a little over three months after he was released on parole, which
indicates to this court that previous efforts to deter the defendant from the life of crime
were unsuccessful. Also, the defendant does not present any evidence of his previous
attempts to turn his life around and of his good prospects for rehabilitation. Finally, it is
evident that in denying the motion, the trial court understood its discretion to strike prior
offenses and considered the defendant’s background and the nature of his current offense.
On this record, we simply cannot say that the trial court abused its discretion in denying
the Romero motion.
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
Acting P. J.