Making the Prosecutor Do it’s Job when it Alleges “Strike” Priors

Often times, the District Attorney alleges one of your client’s prior convictions for purposes of enhancing the sentence under the alternative sentencing scheme of Penal Code section 667 (b)-(i) and 1170.12, otherwise known as the “Three Strikes Sentencing Scheme”[1]. Sometimes, the allegation is made with little or no research by the prosecuting agency, e.g., they simply rely on your client’s “rap sheet”.

The government on a finding of proof beyond a reasonable doubt must prove strike priors, just as the charged crime. (People v. Tenner (1993) 6 Cal.4th 559, 566.) Often times a plea bargain contemplates that our clients “admit” the strike prior. Whether by a way of plea disposition or trial, it is imperative that competent defense counsel independently research the strike prior to determine if the prosecutor can legally prove it. (In re Brown (2013) 218 Cal.App.4^th 1216.)

A growing trend in the Los Angeles District Attorney’s Office appears to be exclusive reliance on “969b”[2] prison packets. These certified documents include the defendant’s fingerprints, a photograph, and the Abstract of Judgment of the prior conviction, among other things. Sometimes, this may be the only official document still in existence.[3] 969b packets alone are insufficient for purposes of establishing a prior strike allegation and should be challenged.

The Law

Prison packets and Abstracts of Judgment have never been held to be sufficient for purposes of proving the nature of the prior conviction, to wit, whether the prior conviction qualifies as a strike.[4] The following traces the case law as it pertains to proving the nature of prior convictions.

In People v. Colbert (1988) 198 Cal.App.3d 924, the Second Appellate District held that a trial court may properly consider the prior accusatory pleading in conjunction with other relevant court documents in determining the truth of an allegation that a defendant was previously convicted of the serious felony of “burglary of an inhabited dwelling house” (the nature of the prior conviction).

Then in People v. Guerrero (1988) 44 Cal.3d 343, the Supreme Court was a little more definitive in what it defined as the “record of conviction” and ruled that it includes “an accusatory pleading charging a residential burglary and [the] defendant’s plea of guilty or nolo contendere.” (Guerrero, at p. 345.) Two years later in People v. Gomez (1990) 219 Cal.App.3d 157, the Fifth Appellate District held that the information charging defendant with residential burglary together with the abstract of judgment showing his plea of guilty constituted admissible evidence sufficient to establish the residential nature of the prior alleged 459. A few years later, the Supreme Court in People v. Trujillo (2006) 40 Cal.4^th 165 held: “[A] reporter’s transcript of a preliminary hearing is a part of the record of a prior conviction within the meaning of the rule announced in Guerrero.” (Trujillo, at p. 177.) The Trujillo Court stated “[I]n determining the truth of a prior conviction allegation, the trier of fact may `look beyond the judgment to the entire record of the conviction’ [citation] `but no further.‘ ” (Trujillo, supra, 40 Cal.4th at p. 177, citing Guerrero, supra, 44 Cal.3d 343, 355-356.)

In short, no California case has held that a 969(b) packet or the Abstract of Judgment alone is sufficient competent evidence to prove the nature of the prior conviction. The only case addressing the 969(b) packet’s sufficiency in proving a prior is People v. Tenner (1993) 6 Cal.4th 559. But that case dealt specifically with the issue of whether an abstract of judgment and a state prison commitment form constitute sufficient evidence to support a finding that a defendant completed a prior prison term for purposes of imposing the one-year enhancement provided in Penal Code section 667.5.

Defense counsel must independently research and obtain what records area available to determine the viability of the prosecution’s allegation that the defendant suffered a prior conviction within the meaning of the Three Strikes law. Effective assistance of counsel requires no less. (In re Brown, supra, 218 Cal.App.4^th 1216; Strickland v. Washington (1984) 466 U.S. 668.)

Angela B. from Los Angeles, CA is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).

To learn more about the information provided above or for questions about the above content, contact us at at 818-340-4529.

[1] Even if the defendant suffered only one prior “serious” or “violent” felony, as defined respectively in Pen. Code section 1192.7 (c) and Pen. Code section 667.5(c), he/she also falls within the “Three Strikes” alternative sentencing, even though the defendant faces the doubling of the otherwise imposed sentence rather than 25 to life.

[2] Pen. Code section 969(b).

[3] Los Angeles County recognizes that court reporters’ transcripts from prior to January 1, 1984 have been purged and can not be re-created.

[4] In fact, Pen. Code section 969b itself states that the prison packets only establish “prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment…   .