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Filed 2/9/04
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A097749
v.

JAMES COREY MCGEE,
(San Mateo County
Super. Ct. No. 49252A)

Defendant and Appellant.

In
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States
Supreme Court announced that the federal due process clause entitles criminal defendants
to a jury trial on all factual issues, other than the fact of a prior conviction, that increase
the penalty for a crime beyond the statutory maximum. The next year, in People v. Epps
(2001) 25 Cal.4th 19 (Epps), the California Supreme Court raised but declined to resolve
whether Apprendi henceforth required a jury trial of factual issues relating to the
circumstances of a prior conviction used to enhance punishment. This case requires us to
answer the question left open by Epps. In the published part of this decision, we hold
that under Apprendi, a criminal defendant has a federal constitutional right to a jury trial
on factual issues relating to the circumstances and conduct underlying a prior conviction
used to enhance punishment.

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of part III.

1

Defendant James McGee (McGee) was charged with two "strikes" arising from
prior Nevada robbery convictions. Because Nevada's robbery statute omits certain
elements required under California law, the trial court decided whether McGee had acted
with the intent required by California law, and thus whether the Nevada convictions
counted as strikes. This deprived McGee of his due process right to have the issue of his
intent decided by a jury.

Nevertheless, in this instance the error was harmless. Because any reasonable jury
would have concluded, as the trial court did, that McGee's conduct satisfied the elements
of robbery under California law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND

On January 11, 2001, Aaron Kelly, Leonardo Lopez, and Matty Ibarra were sitting
in a parked car in East Palo Alto. There was a knock on the window, and Lopez opened
his door. A man wielding a shotgun demanded money. Lopez gave him $200. The
robber instructed Lopez to shut the door. Kelly and Lopez heard a shot either a few
moments or a minute later. Lopez saw the robber drive off in a red car.

On January 22, 2001, Lopez and Serafin Andrade were in Lopez's front yard when
they heard a gunshot. Lopez recognized the robber's red car as it drove by. Minutes
later, the car stopped close by, and the driver fired on Lopez and Andrade. Lopez was hit
by a shotgun pellet and suffered a minor cut. Lopez and Andrade fled.

McGee was arrested and charged with two counts of attempted murder with
firearm discharge enhancements (Pen. Code, �� 187, 664, 12022.5, subd. (a)(1)--
counts 1 and 10),1 two counts of assault with a firearm with a firearm use enhancement
(�� 245, subd. (a)(2), 12022.5, subd. (a)(1)--counts 2 and 11), two counts of unlawful
possession of a firearm (� 12021, subd. (a)(1)--counts 3 and 6), unlawful possession of
ammunition (� 12316, subd. (b)(1)--count 4), one count of robbery and two counts of
attempted robbery with use and discharge of a firearm enhancements (�� 212.5, 664,

1 All statutory references are to the Penal Code unless otherwise indicated.

2

12022.5, subd. (a)(1)--counts 5, 7, and 8), two counts of dissuading a witness with
firearm use enhancements (�� 136.1, subd. (c)(1), 12022.5--counts 9 and 14), and two
counts of discharging a firearm from a vehicle (� 12034, subd. (c)--counts 12 and 13). A
jury acquitted McGee of attempted murder but convicted him on all other counts.

The information listed two Nevada robbery convictions and alleged them as
strikes under section 1170.12, subdivision (c)(2) and serious felonies under section 667,
subdivision (a). The information alleged that because Nevada's robbery statute included
all the elements of robbery under California law, the Nevada convictions should count as
strikes and serious felonies under California law. The information also alleged a prior
prison term under section 667.5, subdivision (b) for the second Nevada robbery
conviction.

McGee argued that Nevada's robbery statute differed from California's robbery
statute, and the People agreed. Thus, a determination had to be made whether
defendant's conduct that led to the Nevada convictions would have violated California
law. McGee argued that due process entitled him to have a jury make this decision. The
People argued that McGee had no constitutional right to have a jury decide prior
conviction issues, and that the Penal Code authorized the judge to determine whether
McGee's actual conduct fit California's robbery statute.

The trial court agreed with the People. It examined the records of McGee's prior
convictions as submitted by the People. The trial court found the elements of
California's robbery statute were met, then instructed the jury to determine only whether
McGee had suffered the two prior robbery convictions--in essence, whether the Nevada
records were authentic. The jury found the prior strike allegations true. The trial court
sentenced McGee to 90 years to life.

On appeal, McGee challenges the trial court's denial of his request for a jury as a
violation of due process. He also challenges a single evidentiary ruling in the conduct of
the underlying trial, which we dispose of in the unpublished portion of this opinion.

3

DISCUSSION
I.
McGee Has a Federal Constitutional Right to Have the Issue of His Intent
in Committing the Nevada Robberies Resolved by a Jury
A.
The Three Strikes Law

" `Various sentencing statutes in California provide for longer prison sentences if
the defendant has suffered one or more prior convictions of specified types.' (People v.
Woodell (1998) 17 Cal.4th 448, 452 [71 Cal.Rptr.2d 241, 950 P.2d 85].) A prominent
example is a conviction of a `serious felony' as defined in Penal Code section 1192.7,
subdivision (c). Conviction of a serious felony has substantial sentencing implications
under the `Three Strikes' law (People v. Woodell, supra, 17 Cal.4th at p. 452) and also
under section 667, subdivision (a)(1), which mandates a five-year sentence enhancement
for each such conviction." (People v. Avery (2002) 27 Cal.4th 49, 53, fn. omitted.)

"To qualify as a serious felony, a conviction from another jurisdiction must
involve conduct that would qualify as a serious felony in California." (People v. Avery,
supra, 27 Cal.4th at p. 53; see �� 667, subd. (d)(2),2 1170.12, subd. (b)(2).3) In
determining whether an out-of-state conviction is a serious felony, "the trier of fact may
consider the entire record of the proceedings leading to imposition of judgment on the
prior conviction to determine whether the offense of which the defendant was previously

2 Section 667, subdivision (d) provides: "(d) Notwithstanding any other law and
for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall
be defined as: [�] . . .[�] (2) A conviction in another jurisdiction for an offensethat, if
committed in California, is punishable by imprisonment in the state prison. A prior
conviction of a particular felony shall include a conviction in another jurisdiction for an
offense that includes all of the elements of the particular felony as defined in
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7."

3 Section 1170.12, subdivision (b) provides: "(b) Notwithstanding any other
provision of law and for the purposes of this section, a prior conviction of a felony shall
be defined as: [�] . . .[�] (2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state prison. A prior
conviction of a particular felony shall include a conviction in another jurisdiction for an
offense that includes all of the elements of the particular felony as defined in
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7."

4

convicted involved conduct which satisfies all the elements of the comparable California
serious felony offense." (People v. Myers (1993) 5 Cal.4th 1193, 1195.) Thus, the trier
of fact may consider both the legal elements of the crime and the actual conduct, as
revealed by the record of conviction. (People v. Woodell, supra, 17 Cal.4th at p. 453;
People v. Avery, supra, 27 Cal.4th at p. 53.)

Conviction of a "violent felony" as defined in section 667.5, subdivision (c) also
triggers application of the Three Strikes law. (�� 667, subds. (d)(1) & (2), 1170.12,
subds. (b)(1) & (2); People v. Nava (1996) 47 Cal.App.4th 1732, 1735.) The same
principles apply to violent felonies as to serious felonies. A conviction for an offense in
another jurisdiction will qualify so long as it includes all the elements of the same felony
under California law. (� 1170.12, subd. (b)(2).) In determining whether the defendant
has been convicted of a violent felony, the trier of fact may consider the entire record of
proceedings. (People v. Riel (2000) 22 Cal.4th 1153, 1204-1205.)

Consequently, determining whether a conviction from another jurisdiction is a
strike involves distinct legal and factual questions. Legally, does the crime for which a
defendant was convicted include all elements of one of the crimes listed as a violent
felony in section 667.5, subdivision (c) or a serious felony in section 1192.7,
subdivision (c)? If not, then factually, does the record of conviction demonstrate that the
defendant's conduct satisfied any missing elements? And--the question posed in this
case--who decides these first two questions, a judge or a jury?
B.
Legal Inquiry into the Elements of a Crime Under California and
Nevada Law: A Question for the Judge

McGee does not dispute that the threshold comparison of the foreign jurisdiction's
law with California law is a question for the judge. Here, the People conceded at trial
that the elements of robbery under Nevada law and California law differed, and
consequently that the fact of McGee's Nevada robbery convictions alone did not establish
that he had been convicted of serious felonies under section 1192.7, subdivision (c)(19)
or violent felonies under section 667.5, subdivision (c)(9).

5

McGee contends that the Nevada robbery statute differs from the California
robbery statute in two respects. First, "[u]nder California law, theft requires an intent to
permanently deprive another of property." (People v. Avery, supra, 27 Cal.4th at p. 52;
see People v. Ortega (1998) 19 Cal.4th 686, 693 ["[t]heft requires an element--the
specific intent to permanently deprive a person of property"].) In contrast, robbery under
Nevada law is a general intent crime; Nevada law does not require the specific intent to
permanently deprive the victim of property. (E.g., Litteral v. State (Nev. 1981) 97 Nev.
503, 505-508, overruled on other grounds in Talancon v. State (1986) 102 Nev. 294,
301.)4

Second, under Nevada law, a taking may be accomplished by fear of future harm.
(Nev. Rev. Stat. � 200.380 ["Robbery is the unlawful taking of personal property . . . by
means of force or violence or fear of injury, immediate or future . . .," emphasis
supplied].) According to McGee, California law requires a fear of present harm.
Without deciding whether California law always requires a fear of present harm, we
agree that the fear element under California law applies to a narrower range of conduct
than the fear element under Nevada law.

"Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear." (� 211.) The "fear" element "may be either: [�] 1. The fear of an unlawful
injury to the person or property of the person robbed, or of any relative of his or member
of his family; or, [�] 2. The fear of an immediate and unlawful injury to the person or

4 The relevant question is the state of Nevada law as of 1988 and 1994. (See
�� 1170.12, subd. (b)(1) ["The determination of whether a prior conviction is a prior
felony conviction for purposes of this section shall be made upon the date of that prior
conviction"], 667, subd. (d)(1) [same].) However, there do not appear to have been any
material changes between 1988 and the present. In 1988, as now, Nevada's robbery
statute provided in part, "Robbery is the unlawful taking of personal property from the
person of another, or in his presence, against his will, by means of force or violence or
fear of injury, immediate or future, to his person or property, or the person or property of
a member of his family, or of anyone in his company at the time of the robbery." (Nev.
Rev. Stat. � 200.380.)

6

property of anyone in the company of the person robbed at the time of the robbery."
(� 212.) The definition of fear includes only fear of immediate harm to someone in the
victim's company, but omits the immediacy limitation with respect to fear of harm to the
victim or the victim's family. The People argue that under section 212, threat of future
harm to the victim may support a robbery conviction here, just as in Nevada.

This is certainly the most logical reading of section 212. The inclusion of the
"immediate" limit in section 212, subdivision (2) and its corresponding omission from
section 212, subdivision (1) strongly suggests that the feared harm need not be
immediate. In addition, section 212, subdivision (1) extends to fear of harm to family
members, who need not be present at the scene of the robbery. Any such feared harm
would necessarily be future harm, not immediate harm.

However, it is not necessary to decide whether robbery can ever be based on a fear
of future harm in California in order to say that the two statutes differ. In Nevada, unlike
California, robbery can always be based on future harm, whether to the victim, a family
member, or a companion. The Nevada robbery statute extends to a fear of "immediate or
future [harm] to [the victim's] person or property, or the person or property of a member
of his family, or of anyone in his company at the time of the robbery." (Nev. Rev. Stat.
� 200.380.) It is undisputed that in California, in contrast, Penal Code section 212 limits
the fear of harm to one's companion to immediate harm. Thus, the fear element under
Nevada law is broader than the same element under California law.

Because of these differences between California and Nevada law, McGee's
Nevada convictions do not establish as a matter of law that his actions constituted
robbery under California law. Instead, they leave factual questions as to whether McGee
acted with the requisite specific intent and took property with the requisite fear or force.
To answer these questions, a fact finder must look beyond the convictions to the record of
each conviction to determine whether that record establishes the missing elements. Over
McGee's objection, the trial court conducted that inquiry itself, rather than requiring the
prosecution to prove the elements of intent and fear or force to the jury.

7

C.
Factual Inquiry into the Defendant's Conduct: A Question for the
Jury
1.
Jury Rights Before Apprendi v. New Jersey

In 1995, the California Supreme Court, relying on United States Supreme Court
precedent, concluded, "[T]he federal Constitution does not confer a right to have a jury
determine [any] aspect of a sentence enhancement imposed upon a defendant for
previously having been convicted of a serious felony . . . ." (People v. Wiley (1995) 9
Cal.4th 580, 585 (Wiley), citing McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 and
Walton v. Arizona (1990) 497 U.S. 639, 648.) The California Supreme Court went on to
conclude that as a statutory matter, California law provides that a judge, rather than a
jury, should determine whether prior serious felony convictions had been brought and
tried separately so as to qualify as separate bases for enhancement. (Wiley, at pp. 590-
592; see � 1025.)

In 1999, the California Supreme Court revisited the question of the right to have a
jury decide prior conviction issues. Relying on Wiley, it reaffirmed that "defendants have
`no constitutional right to have a jury determine factual issues relating to prior
convictions alleged for purposes of sentencing enhancement.' " (People v. Kelii (1999)
21 Cal.4th 452, 455 (Kelii), quoting Wiley, supra, 9 Cal.4th at p. 589.) Treating the
question as a statutory one hinging on the interpretation of sections 1025 and 1158, the
Supreme Court held that a judge should determine whether a prior conviction qualified as
a "serious felony" for purposes of sentence enhancement under the Three Strikes law.
(Kelii, 21 Cal.4th at p. 454.) In Kelii, the defendant previously had been convicted of
burglary. The burglary convictions counted as strikes if and only if they were residential,
a factual issue not disposed of by the prior conviction itself. (� 1192.7, former
subd. (c)(18) [including "residential burglary" in list of serious felonies]; see �� 667,
subd. (d)(1), 1170.12, subd. (b)(1).) In order to determine whether the convictions
counted as strikes, a fact finder would need to consider the record underlying the prior
conviction to evaluate the nature of the defendant's conduct. (Kelii, at pp. 456-457.)
Holding that such factual issues were limited in scope, the California Supreme Court

8

concluded that section 1025 reserved such questions for the court, not the jury. (Id. at
pp. 457-458.)

Absent any change in the constitutional landscape, Kelii would require affirmance
here. The factual inquiries required in this case--whether McGee had the intent to
deprive his victims permanently of any property, and whether he committed each theft by
means of the sort of fear addressed by section 212--hinge on an examination of the
record of the prior convictions. These inquiries are precisely analogous to the post hoc
record review Kelii determined was reserved for the court by section 1025. No
intervening legislative amendments or California Supreme Court decisions have revised
that statutory allocation. The only question is whether such an allocation is
constitutional.
2.
Apprendi v. New Jersey

In the landmark opinion Apprendi, supra, 530 U.S. 466, the United States
Supreme Court invalidated a statutory scheme that allowed judges to increase criminal
penalties beyond the maximum established for a given crime after making factual
findings about the defendant's conduct. A New Jersey statute established penalties for
possession of a firearm for an unlawful purpose, and a second hate crime statute imposed
a sentencing enhancement if the court found by a preponderance of the evidence that the
defendant " `acted with a purpose to intimidate an individual or group of individuals
because of race, color, gender, handicap, religion, sexual orientation or ethnicity.' " (Id.
at pp. 468-469, quoting N.J. Stat. Ann. � 2C:44-3, former subd. (c).) Apprendi had fired
a rifle into the home of an African-American family; the trial court conducted an
evidentiary hearing, concluded by a preponderance of the evidence that the crime was
motivated by racial bias, and enhanced Apprendi's sentence. (Id. at pp. 469-473.)

The United States Supreme Court reversed, holding that this procedure violated
the federal constitution. (Apprendi, supra, 530 U.S. at pp. 476, 477.) The Supreme
Court framed the question as "whether the Due Process Clause of the Fourteenth
Amendment requires that a factual determination authorizing an increase in the maximum

9

prison sentence for an offense . . . be made by a jury on the basis of proof beyond a
reasonable doubt." (Id. at p. 469.) It reviewed the history of the rights to a jury and
proof beyond a reasonable doubt and concluded, "The historic link between verdict and
judgment and the consistent limitation on judges' discretion to operate within the limits
of the legal penalties provided highlight the novelty of a legislative scheme that removes
the jury from the determination of a fact that, if found, exposes the criminal defendant to
a penalty exceeding the maximum he would receive if punished according to the facts
reflected in the jury verdict alone." (Id. at pp. 482-483.) From these underpinnings, the
Court recognized a constitutional right: "Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum [for
the particular crime] must be submitted to a jury, and proved beyond a reasonable doubt."
(Id. at p. 490.) Consequently, " `[I]t is unconstitutional for a legislature to remove from
the jury the assessment of facts that increase the prescribed range of penalties to which a
criminal defendant is exposed.' " (Id. at p. 490, quoting Jones v. United States (1999)
526 U.S. 227, 252-253 (conc. opn. of Stevens, J.).)

Apprendi left open a single narrow exception to its broad rule. Two years earlier,
in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), the
Court had held in a 5-4 decision that a judge could sentence a defendant to a term higher
than that attached to the offense charged in the indictment on the basis of a prior
aggravated felony conviction. The Apprendi majority, consisting of the four Almendarez-
Torres dissenters and Justice Thomas, acknowledged, "[I]t is arguable that Almendarez-
Torres was incorrectly decided, and that a logical application of our reasoning today
should apply if the recidivist issue were contested"--in other words, that even the issue
of whether the defendant had suffered a prior conviction should go to a jury in those
cases where it was contested. (Apprendi, supra, 530 U.S. at pp. 489-490.) However, the
Apprendi majority expressly stopped short of overruling Almendarez-Torres. Instead, it
attempted to reconcile and limit Almendarez-Torres on two bases: (1) in Almendarez-
Torres, the defendant admitted the prior convictions, and (2) the "fact" of a prior
conviction carried with it procedural safeguards. (Apprendi, at p. 488.) These two

10

factors "mitigated the due process and Sixth Amendment concerns otherwise implicated
in allowing a judge to determine a `fact' increasing punishment beyond the maximum of
the statutory range." (Ibid.)
3.
Jury Rights After Apprendi v. New Jersey

The California Supreme Court considered the implications of Apprendi in Epps,
supra, 25 Cal.4th 19. Relying on Wiley and Apprendi, it reiterated, "The right, if any, to
a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from
the state or federal Constitution." (Epps, at p. 23, citing Apprendi, supra, 530 U.S. at
p. 490 and Wiley, supra, 9 Cal.4th at p. 585.) Epps's citation to Apprendi relied on the
portion of that decision exempting from the jury trial guarantee proof of "the fact of a
prior conviction." To that extent, Wiley's holding that there was no federal constitutional
right to a jury trial on "factual issues relating to prior convictions alleged for purposes of
sentencing enhancement" (Wiley, at p. 589) remained good law. Epps went on to confirm
that statutory amendments to section 1025 did not alter the conclusions reached in Wiley
and Kelii that, as a statutory matter, prior conviction allegations were to be decided by the
judge, not the jury.
However,
Epps acknowledged that where more was at issue than just whether or
not the defendant had previously been convicted, Apprendi might require a jury trial.
Because no such issue was presented in Epps, the court declined to decide whether
Apprendi might overrule the portion of Kelii finding no federal constitutional jury right
on ancillary factual questions: "The Los Angeles County Public Defender as an amicus
curiae argues we should reconsider our holding in Kelii in light of the high court's
decision in Apprendi, supra, 530 U.S. 466 [120 S.Ct. 2348], and thereby confer a more
significant role on the jury. Specifically, amicus curiae argues Apprendi gives defendants
a right to have a jury decide whether a prior conviction is a serious felony for purposes of
the three strikes law. Apprendi, however, reaffirms that defendants have no right to a
jury trial of `the fact of a prior conviction' (id. at p. 490 [120 S.Ct. at p. 2362]), and here,
at least, only the bare fact of the prior conviction was at issue, because the prior

11

conviction (kidnapping) was a serious felony by definition under section 1192.7,
subdivision (c)(20). We do not now decide how Apprendi would apply were we faced
with a situation like that at issue in Kelii, where some fact needed to be proved regarding
the circumstances of the prior conviction--such as whether a prior burglary was
residential--in order to establish that the conviction is a serious felony." (Epps, supra,
25 Cal.4th at p. 28.) Thus, Epps called into doubt whether the "no federal constitutional
right" holdings of Wiley and Kelii still applied to factual issues ancillary to the fact of a
prior conviction.
4.
Application of Apprendi to Factual Questions
Ancillary to a Prior Conviction

This case presents just such ancillary factual issues relating to the circumstances
and conduct giving rise to McGee's prior convictions. The issues are whether McGee
acted with the specific intent to deprive his victims permanently of their property, and
whether he did so by means of force or fear as defined in sections 211 and 212. We hold
that under Apprendi, McGee has the right to have these issues tried to a jury.

Plainly, the issue of intent is a factual issue whose determination could be used to
enhance McGee's sentence beyond the maximum to which he would otherwise be
exposed. It is, indeed, very much akin to the issue of intent in Apprendi. This factual
issue falls within the broad rule that "any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) The real issue is
whether it falls within the sole exception to that rule, for proof of "the fact of a prior
conviction." (Ibid.)

We interpret the scope of that exception both by reference to the specific facts of
Almendarez-Torres, the source of the exception, and by reference to the specific
rationales for the exception offered in Apprendi. In Almendarez-Torres, the sentence
enhancement arose from a statute that provided, " `Notwithstanding subsection (a) of this
section, in the case of any alien described in such subsection-- . . . [�] (2) whose
deportation was subsequent to a conviction for commission of an aggravated felony, such

12

alien shall be fined under such title, imprisoned not more than 20 years, or both.' "
(Almendarez-Torres, supra, 523 U.S. at p. 229, quoting 8 U.S.C. � 1326, subd. (b).) In
Almendarez-Torres, the determination whether the defendant had been convicted of an
aggravated felony involved no factual issues surrounding the defendant's conduct--what
the defendant had done--but only issues concerning what legal consequences had been
imposed. Indeed, Almendarez-Torres involved no contested factual issues at all, because,
as Apprendi emphasized, the defendant admitted his prior convictions for aggravated
felonies. (Almendarez-Torres, at p. 227; Apprendi, supra, 530 U.S. at p. 488.)
The
other
factor
Apprendi emphasized was the fact that the prior convictions in
Almendarez-Torres carried with them their own procedural protections; presumably, with
respect to each prior conviction, Almendarez-Torres had had the opportunity to have any
factual issues surrounding his conduct evaluated by a jury pursuant to the reasonable
doubt standard. So long as such assurances were present, Apprendi found it permissible
to have the determination of what legal consequences had been imposed, i.e., the fact of
conviction, made by a judge. (Apprendi, supra, 530 U.S. at p. 488.) This suggests that
the Almendarez-Torres exception applies, at most, to such legal consequences, but not to
the evaluation of a defendant's conduct in the first instance--an evaluation that Apprendi
placed in the hands of the jury. While Apprendi found it unnecessary to overrule
Almendarez-Torres, it expressly characterized it as a "narrow exception" arising from
"unique facts." (Apprendi, at p. 490.) Given this characterization, there is no reason to
interpret Almendarez-Torres as creating an exception that is any broader. Consequently,
we conclude that the Almendarez-Torres exception to Apprendi is confined to
determinations about the past legal consequences of a defendant's conduct, such as
whether his conduct has given rise to a conviction or prison term, and does not extend to
determinations about the conduct itself, such as the intent with which a defendant acted.

The People point us to three post-Apprendi Court of Appeal cases which they
contend militate in favor of a different result: People v. Thomas (2001) 91 Cal.App.4th
212 (Thomas), People v. Belmares (2003) 106 Cal.App.4th 19 (Belmares), and People v.
Garcia (2003) 107 Cal.App.4th 1159 (Garcia). However, none of these cases involved a

13

factual determination about the defendant's charged conduct; instead, all involved the
legal consequences of that conduct and thus fit within the Almendarez-Torres exception
to Apprendi.

Thomas dealt with an enhancement under section 667.5, subdivision (b), which
depends on proof that the defendant previously has served a prison term as the
consequence of a prior conviction. The issue in Thomas revolved around the past legal
consequences of the defendant's conduct, and did not require resolution of factual issues
surrounding what the defendant actually did. Thomas correctly recognized that the
Almendarez-Torres exception was not limited to "the fact of a prior conviction," but
extended to other legal consequences, such as whether the defendant had been required to
serve time in prison. It held that "[i]n terms of recidivism findings that enhance a
sentence and are unrelated to the elements of a crime, Almendarez-Torres is the
controlling due process authority." (Thomas, supra, 91 Cal.App.4th at pp. 222-223.) In
essence, Thomas drew the same distinction we draw today--between factual issues that
relate to whether a defendant's conduct satisfies the elements of a crime, and factual
issues that relate to the legal consequences a recidivist may have suffered because of that
conduct, whether it be a prior conviction or a prior prison term. While we agree with
Thomas, this case presents the flip side of the situation in Thomas--recidivist findings
that are related to the elements of a crime, that is, whether the defendant's earlier conduct
satisfies the elements of a specific crime. While Almendarez-Torres is the governing due
process authority for the issue raised in Thomas, Apprendi is the governing due process
authority for the issue raised here.

Belmares and Garcia each dealt with the issue of identity: was this defendant the
same person that had previously been convicted? (Belmares, supra, 106 Cal.App.4th at
pp. 27-28; Garcia, supra, 107 Cal.App.4th at p. 1165.) This is precisely what Apprendi
said was not covered by its rule: the fact of prior conviction. As with Thomas and Epps,
the factual issues in these cases related to the legal consequences defendant had suffered
as a result of past criminal conduct, not whether that conduct was criminal in the first
instance. These cases are governed by the Almendarez-Torres exception to Apprendi.

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In contrast, the instant case falls under the general rule of Apprendi. We cannot
reconcile with Apprendi the notion that a judge may, in the first instance, make a factual
determination about a criminal defendant's intent, and then use that factual determination
to increase substantially the maximum term to which the defendant will be subjected.
Apprendi compels the conclusion that that issue must go to a jury.

However, even in cases such as this one, the trial court may still exercise a
gatekeeper function. The question whether McGee is the person identified in court
documents is a question for the judge under section 1025, and the federal constitution
does not require otherwise. (Apprendi, supra, 530 U.S. at p. 490; Epps, supra, 25 Cal.4th
at pp. 23, 26.) In addition, the further question whether the foreign jurisdiction's law
contains the same elements as California law is a legal one, to be decided by the judge,
not the jury. (See Avery, supra, 27 Cal.4th at pp. 54-57.) However, once a judge
determines that there are differences between the two jurisdiction's laws--elements that
are omitted by the foreign jurisdiction's definition, or defined so as to criminalize a
broader range of conduct under foreign law--such that reference to the actual record is
necessary, the judge is required by Apprendi to put those elements to the jury. The
failure to do so here was federal constitutional error.

At oral argument, McGee contended that whenever there are differences between
California's and another state's law, a jury must decide anew all elements of the
California crime. We do not read Apprendi so broadly. Apprendi establishes a due
process right to a jury on those factual issues that have not previously been resolved
through a process that included jury and reasonable doubt protections. (See Apprendi,
supra, 530 U.S. at p. 488 [excluding fact of prior conviction because fact had already
been determined through process subject to "procedural safeguards"]; cf. Jones v. United
States, supra, 526 U.S. at p. 249 [recognizing that no jury right attaches to fact of prior
conviction because "unlike virtually any other consideration used to enlarge the possible
penalty for an offense . . . a prior conviction must itself have been established through
procedures satisfying the fair notice, reasonable doubt and jury trial guarantees"].) For
each element of robbery in California that is also an element of robbery in Nevada,

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McGee has already received the due process to which he is entitled in the Nevada
proceeding, either by having the element submitted to a jury or by waiving that right.
Only those elements that are different, that present new California-specific factual issues
not already decided, must be submitted to a jury. Similarly, in cases such as Kelii where
a prior burglary conviction is at issue, only the new factual issue (was the burglary
residential?) would need to be submitted to a jury under Apprendi, the other elements of
burglary having already been found in a proceeding comporting with due process.
II.
The Denial of the Federal Constitutional Right to a Jury Trial Was
Harmless

McGee argues that the failure to submit factual issues to a jury is a structural error,
and thus requires reversal per se. (See, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275,
279-281; People v. Collins (2001) 26 Cal.4th 297, 312-313; People v. Ernst (1994) 8
Cal.4th 441, 449.) "It has long been established that the denial of the right to a jury trial
constitutes a ` "structural defect[]" in the judicial proceedings' that, by its nature, results
in . . . a `miscarriage of justice' " requiring reversal. (People v. Ernst, at p. 449, quoting
People v. Cahill (1993) 5 Cal.4th 478, 493, 501.) However, McGee's argument is
foreclosed by more recent decisions.

In 1999, the United States Supreme Court held that the failure to instruct a jury on
an element of a crime, such that that element is never submitted to the jury, can be
harmless. (Neder v. United States (1999) 527 U.S. 1, 8-15 (Neder).) While Neder did
not clarify when such a partial denial of the right to a jury trial is simple trial error subject
to harmless error review, as opposed to structural error requiring reversal per se (see id. at
p. 33 (dis. opn. of Scalia, J.)), it did establish that the denial of a jury verdict on an issue
is not always reversible per se.
Following
Neder, the California Supreme Court addressed whether and to what
extent Apprendi error should be subject to harmless error analysis. (People v.
Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith).) In Sengpadychith, the trial court
submitted a charged gang enhancement to the jury, but did not instruct the jury on one
element of the enhancement. (Sengpadychith, at p. 322; see � 186.22, subd. (b).) The

16

Supreme Court concluded that this Apprendi error was subject to harmless error review
under the federal Chapman v. California (1967) 386 U.S. 18 standard: the error was
reversible "unless it can be shown `beyond a reasonable doubt' that the error did not
contribute to the jury's verdict." (Sengpadychith, at p. 326; see also People v. Smith
(2003) 110 Cal.App.4th 1072, 1079, fn. 9 [following Sengpadychith]; Summerlin v.
Stewart (9th Cir. 2003) 341 F.3d 1082, 1121 (en banc) ["Apprendi errors are not
structural and therefore are subject to harmless-error analysis"]; U.S. v. Nealy (11th Cir.
2000) 232 F.3d 825, 829 ["Apprendi did not recognize or create a structural error that
would require per se reversal"]; U.S. v. Swatzie (11th Cir. 2000) 228 F.3d 1278, 1283
["The error in Neder is in material respects indistinguishable from error under Apprendi"
and thus Apprendi error is subject to harmless error review].)
Hence,
the
Chapman harmless error standard applies. Under that standard, the
Apprendi error was harmless as to both the 1988 and 1994 convictions.

In 1988, McGee pleaded guilty to robbery. The transcript of the plea hearing
indicates that when McGee was 18 years old, he took $2 from another teenager he knew
through a Job Corps program while at a bus stop. The victim testified at the 1988
preliminary hearing that McGee "threatened us . . . he said if anybody tells on him that he
will beat them up, hunt them down and beat them up." According to the victim, he
watched McGee "slapping another guy and saying that that's what will happen if
anybody tells on him." According to the victim, McGee "demanded my money," and he
complied. McGee argues that on the limited record, a juror might have doubt whether he
intended to permanently deprive the victim of the $2, or whether the incident was any
more than schoolyard bullying. There is nothing in the record to suggest McGee ever
intended to return the money. On this record, McGee's suggested scenario amounts to
speculation, not reasonable doubt.

In 1994, McGee again pleaded guilty to robbery. At the preliminary hearing, the
victim testified that McGee, with another defendant, "asked me for money." When the
victim refused, McGee struck him, at which point the victim handed over his wallet,
which contained $120, and a Walkman. This record offers no room for doubt; any

17

reasonable jury would find the elements of California's robbery statute satisfied. Under
Chapman, therefore, the denial of a jury trial on the facts surrounding this prior
conviction was harmless.
III.
The Trial Court Did Not Abuse Its Discretion in Excluding Evidence of
McGee's Demeanor in Response to False Evidence of Guilt

In the course of their investigation of McGee's 2001 crimes, the police prepared
fictitious lab reports purporting to show that McGee's fingerprints had been found on
shotgun shells at the site of one shooting, and that powder residue had been found on
McGee's skin. Detective Gary Brown questioned McGee about these reports; in
response, McGee maintained his innocence.

At trial, McGee's attorney sought to question Detective Brown about the ploy.
The prosecution requested a sidebar. The prosecution argued that the reports were
hearsay and irrelevant, and that the detective's questioning of McGee was irrelevant.
Defense counsel conceded that McGee's statements in response to the reports were
inadmissible hearsay but argued that he should be permitted to introduce evidence of
McGee's "demeanor" in response to efforts to elicit a confession--in essence, the fact
that McGee did not confess. The trial court refused to admit the reports and allow the
line of questioning, concluding that the evidence of demeanor was speculative and
subject to too many conflicting interpretations.

On appeal, McGee argues that he was entitled to introduce evidence concerning
his demeanor in response to the accusations as tending to prove his innocence. We
review the trial court's exclusion of evidence for an abuse of discretion. (People v.
Rowland (1992) 4 Cal.4th 238, 264.)

The evidence McGee sought to admit is analogous to evidence of absence of
flight. In People v. Green (1980) 27 Cal.3d 1, 36-39, the court reviewed the historical
rule against admission of such evidence: "A century ago this court held such evidence
inadmissible in People v. Montgomery (1879) 53 Cal. 576. . . . The court held in effect
that evidence that a suspect did not flee when he had the chance was of little value as
tending to prove innocence because there are plausible reasons why a guilty person might

18

also refrain from flight: `He may very naturally have been deterred from making an
effort to escape from a fear that he would be recaptured, and that his fruitless attempt to
escape would be evidence of guilt; or he may have felt so strong a confidence of his
acquittal, for want of the requisite proof of his guilt, that he deemed it unnecessary to
flee.' " (People v. Green, at p. 37.)
The
Green court concluded that, even to the extent absence of flight had some
probative value, it should always be excluded under Evidence Code section 352.
"Evidence Code section 352 codifies the long-standing rule that relevant evidence may be
excluded if its probative value is substantially outweighed by the risk of prejudice. The
rule also applies if that value is outweighed by the probability that admission of the
evidence will create a substantial danger `of confusing the issues, or of misleading the
jury.' (Ibid.) Each of the latter consequences would be threatened by the introduction of
evidence of absence of flight. Against this manifest risk of confusion and delay is to be
weighed the probative value of the evidence in question: for the reasons given above the
absence of flight is so ambiguous, so laden with conflicting interpretations, that its
probative value on the issue of innocence is slight. Although such a weighing process is
ordinarily performed by the trial court as a question of fact, the Montgomery rule thus
embodies the view of this court that in all cases the scales tip so heavily against
admission of evidence of absence of flight that it must be excluded as a matter of law."
(People v. Green, supra, 27 Cal.3d at pp. 38-39, fn. omitted.) Principal among the
concerns in Green and Montgomery was the possibility that admission of such evidence
would lead to a side trial of a collateral issue, with each side introducing a host of
evidence to explain why the absence of flight was or was not consistent with guilt or
innocence. (People v. Green, at pp. 38-39, fn. 24.)

The demeanor evidence McGee sought to introduce stands on similar footing. It
gives rise to no substantial inference that McGee was innocent. Such "negative evidence
lacking in probative value is properly excluded as too speculative in nature." (People v.
Mehaffey (1948) 32 Cal.2d 535, 555.) " `The inference which [appellant] sought to have
drawn from the [proffered evidence] is clearly speculative, and evidence which produces

19

only speculative inferences is irrelevant evidence.' " (People v. Babbitt (1988) 45 Cal.3d
660, 682, quoting People v. De La Plane (1979) 88 Cal.App.3d 223, 242.) Against this
speculation is the likelihood that each side would then seek to explain why McGee's
demeanor was or was not indicative of innocence, for example, through extensive
evidence of McGee's previous dealings with the criminal justice system, dealings that
rendered him impervious to the tactic employed here. The trial court did not abuse its
discretion in refusing to allow McGee's line of questioning.
DISPOSITION

The judgment is affirmed.

GEMELLO,
J.

We concur.

JONES, P.J.

SIMONS, J.

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People v. McGee, A097749

Trial court:

San Mateo County Superior Court
Trial
judge:
Hon.
Carl
Holm

Counsel for defendant
and
appellant: John
A.W.
Halley, under appointment by the
Court
of
Appeal

Counsel for plaintiff
and
respondent:
Bill
Lockyer

Attorney General
Robert
R.
Anderson
Chief
Assistant
Attorney
General
Gerald
A.
Engler,

Senior
Assistant
Attorney
General

John H. Deist and George F. Hindall III,
Deputy
Attorneys
General

21