Overruling a 2006 decision in light of recent SCOTUS precedent, the Supreme Court in People v. Gallardo today restricts the fact finding a trial court may do in determining the nature of a criminal defendant’s prior conviction.  The court’s opinion by Justice Leondra Kruger holds that when it’s uncertain whether a prior conviction can be used as a sentence enhancement, the trial court “is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, [but] may not rely on its own independent review of record evidence to determine what conduct ‘realistically’ led to the defendant’s conviction.”

The court remands the case for the trial court to determine the nature of the defendant’s previous crime “based on the record of the [defendant’s] prior plea proceedings.”  Justice Ming Chin, writing separately and concurring in most of the majority opinion, disagrees about who should review the earlier record.  He says a jury, not the trial court, should do so.  “The proper remedy for a violation of defendant’s jury trial right is to give her that jury trial,” he writes.

The opinion also includes a Supreme Court practice tip, in which the Attorney General is hoisted by his own petard or is caught throwing rocks in a glass house (choose your own metaphor).  He argued that the defendant forfeited her challenge to the trial court’s excessive fact finding because she did not object to it in the trial court.  The Supreme Court refuses to consider the Attorney General’s claim, however, “for the simple reason that the Attorney General did not make his forfeiture argument to the Court of Appeal and the Court of Appeal did not address it.”  In other words, the forfeiture claim was forfeited.

The court reverses the Second District, Division Six, Court of Appeal.