People v. Guerrero , 44 Cal. 3d 343 ( 1988 )

Opinion

MOSK, J.

We are called upon to review People v. Alfaro (1986) 42 Cal.3d 627 [230 Cal.Rptr. 129, 724 P.2d 1154], in which a bare majority of the court held proof that a prior conviction was a “serious felony” for the purpose of the five-year enhancement under Penal Code sections 667 and 1192.7, subdivision (c), was limited to matters necessarily established by the prior judgment of conviction. We conclude that in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.

I

In an information filed by the Riverside District Attorney, defendant was charged with burglarizing an inhabited dwelling house on October 15, 1984, in violation of Penal Code section 459 (hereafter section 459). It was alleged that in 1978 defendant had been convicted of the crime of residential burglary in violation of section 459, which was a serious felony within the meaning of Penal Code sections 667 (hereafter section 667) and 1192.7, subdivision (c) (hereafter section 1192.7(c)). It was also alleged that he had suffered a similar conviction in 1981. Defendant pleaded not guilty, denied the prior-conviction allegations, and requested a jury trial.

The trial was bifurcated. The charge involving the 1984 residential burglary was tried to the jury. To link defendant to the crime, the prosecution presented eyewitness testimony and physical evidence, including loot from the burglarized house that was found in defendant’s possession. The defense offered no evidence. The jury returned a verdict of guilty.

On defendant’s waiver of further jury trial, the question of the truth of the two prior-conviction allegations was tried to the court. After reviewing the record of each conviction, which included an accusatory pleading charging a residential burglary and defendant’s plea of guilty or nolo contendere, the court found each allegation to be true.

At sentencing the court imposed the upper term of six years in prison for the burglary conviction. “As far as the two priors are concerned,” the court went on, “I’m not sure the Court has the power to strike any prior.” It then imposed a five-year enhancement for each of the prior convictions. Judgment was entered accordingly.

On appeal, defendant contended inter alia that the court erred when it considered evidence beyond the judgment of conviction in determining the truth of the prior-conviction allegations, and that it improperly determined it was without authority to strike those allegations.

The Court of Appeal concluded that the trial court erred in its adjudication of the truth of the prior-conviction allegations. It stated: “In People v. Alfaro [citation], the Supreme Court held the ‘record of conviction’ which may be used to prove the nature of the prior was ‘the judgment, and matters necessarily adjudicated therein.’ Because the nature of the building entered during the burglary was not an element of the crime when Guerrero committed his two prior offenses, enhancements cannot be imposed under Penal Code section 667.” As a result of that conclusion, the court vacated the enhancements and consequently did not reach defendant’s claim that the trial court erred in ruling it lacked authority to strike the prior-conviction allegations. Accordingly, the court modified the judgment to strike , the enhancements and reduce defendant’s term from 16 to 6 years, and affirmed the judgment as modified.

The Attorney General filed a petition for review, asking us to reexamine People v. Alfaro, supra, 42 Cal.3d 627. We granted the petition.

II

Section 667, adopted by the people as part of Proposition 8 at the June 8, 1982, primary election, provides for the enhancement of sentences for habitual criminals. Subdivision (a) of that section declares in relevant part that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each prior conviction brought and tried separately.” Subdivision (d) defines “serious felony” as a serious felony listed in section 1192.7(c). At the time relevant here, that provision listed 25 items, including “burglary of a residence” (former Pen. Code, § 1192.7, subd. (c)(18), added by Prop. 8, Primary Elec., June 8, 1982).

In general, the application of section 667 is unproblematical: virtually all the “serious felonies” Usted in section 1192.7(c) are in fact felonies specifically defined in the Penal Code. For example, among such offenses are murder (Pen. Code, §§ 187, 1192.7, subd. (c)(1)), rape (id., §§ 261, 1192.7, subd. (c)(3)), and robbery (id., §§ 211, 1192.7, subd. (c)(19)). But in the case of “burglary of a residence,” the matter is different: there is no offense specificaUy so defined in the Penal Code. The term, however, is not empty.

In People v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736], a plurality of this court addressed and rejected the claim that because there was no specific crime labeled “burglary of a residence," no enhancement could be predicated on what in fact had been the burglary of a residence. The opinion reasoned as follows.

“Proposition 8 . . . did not confine its list of ‘serious felonies’ to specific, discrete offenses. Its list of serious felonies enumerated in section 1192.7 appears to be based largely upon [Penal Code] section 12021.1, subdivision (b). That provision, enacted in April of 1982 to require a six-month county jail term as a condition of probation when a defendant previously convicted of a violent offense is found guilty of owning or possessing a concealable firearm, included a list of 26 ‘violent offenses.’ Section 1192.7 incorporated that list, deleted three paragraphs, and added two new matters: selling, furnishing, administering or providing heroin, cocaine or PCP to a minor 24); and burglary of a residence 18).

“The resulting list of serious felonies as set out in section 1192.7, and incorporated into section 667, is an amalgam of different elements. Two describe former felonies, now repealed. Another refers generally to ‘any felony punishable by death or imprisonment... for life.’ (§ 1192.7, subd. (c)(7).) Two other paragraphs incorporate enhancements which may attach to any felony. Finally, the two new paragraphs added to the fist both describe criminal conduct which does not correspond precisely to the elements of any then-existing criminal offense.

“In construing sections 667 and 1192.7, we must try to give effect to every phrase and paragraph, leaving no part of the statute useless or deprived of meaning. [Citations.] We therefore reject the view that these sections consist only of specific statutory offenses and enhancements, for that view ignores paragraphs (18) and (24) of section 1192.7, subdivision (c), and renders those paragraphs useless and of no effect. We must assume that these paragraphs were added to the list apparently taken from section 12021.1, subdivision (b), for a purpose—and on reflection, that purpose appears clear. The list in section 12021.1, subdivision (b), was intended to enumerate ‘violent’ crimes. Paragraphs (18) and (24) describe nonviolent criminal conduct which is, nevertheless, so dangerous that its repeated occurrence might in the minds of the voters call for enhanced punishment equivalent to that imposed upon violent recidivists. The inclusion of these items evidences the intent of the voters to deter the conduct described in these paragraphs equally with the violent criminal conduct described in other paragraphs. We give effect to this intent by construing paragraphs (18) and (24) as referring not to specific criminal offenses, but to the criminal conduct described therein, and applicable whenever the prosecution pleads and proves that conduct.” (37 Cal.3d at pp. 831-832, fns. omitted.)

From the foregoing discussion the question arises: to what may the trier of fact look in determining whether the defendant suffered a prior conviction for “burglary of a residence”?

In People v. Alfaro, supra, 42 Cal.3d 627, 632-635, a majority of the court held that proof that a prior conviction was a “serious felony” for the purpose of the five-year enhancement under sections 667 and 1192.7(c) was limited to matters necessarily established by the prior judgment of conviction. In coming to this conclusion, the majority relied on dictum in People v. Jackson, supra, 37 Cal.3d 826, 833-834. In framing that dictum, the Jackson court in turn relied on People v. Crowson (1983) 33 Cal.3d 623 [190 Cal.Rptr. 165, 660 P.2d 389]—which discussed sentence enhancement for a prior foreign conviction under Penal Code section 667.5, subdivision (f), and held that “enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction’s statutory or common law, include all of the elements of the California felony” (Crowson, supra, at p. 632). In arriving at that conclusion, the Crowson court in turn relied on a line of cases culminating in In re Finley (1968) 68 Cal.2d 389 [66 Cal.Rptr. 733, 438 P.2d 381], which construed Penal Code section 668, a parallel habitual criminal provision relating to prior foreign convictions. Thus, it is on this line of cases that the holding of the Alfaro majority ultimately rests.

The question before us is whether Finley and its predecessors do in fact support the Alfaro holding. As will appear, the answer is negative.

In re McVickers (1946) 29 Cal.2d 264 [176 P.2d 40], was the first in the relevant line of cases. There the defendant filed a petition for a writ of habeas corpus to review an adjudication that he, “having been previously three times convicted, upon charges separately brought and tried, and having served separate terms therefor in state and/or federal penitentiaries for crimes enumerated in Section 644 of the Penal Code . . . , is a habitual criminal under the provisions of Section 644 of the Penal Code.” (Id. at p. 266.) He challenged a Utah felony conviction for grand larceny and a federal conviction for nine counts of violating former section 347 of title 18 of the United States Code. Specifically, he attempted to show that neither of these two convictions was “of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison” (former Pen. Code, § 668, Stats. 1927, ch. 633, § 1, p. 1065). After a careful discussion, the court concluded that the defendant’s challenge was meritorious as to the Utah conviction but unmeritorious as to the federal conviction. The discussion, which is crucial to the question before us, is quoted in extenso below.

“Sections 644 and 668 of the Penal Code contemplate that a defendant shall have been convicted in a judicial proceeding of a crime enumerated in section 644. All the essential facts of his guilt must be res judicata. In applying section 644 the courts of this state may take cognizance only of what has been lawfully adjudicated. Any other rule would lead to absurd consequences. If our trial courts could take evidence to prove, and upon that evidence adjudicate for themselves, that a defendant had been convicted in another state of grand theft as defined in our code despite the fact that he had been there charged, tried, and convicted under a statute defining another offense (here, an offense the only adjudicated elements of which amount to petty theft in California), then our courts could also take evidence and decide that the defendant had been convicted in the other state of robbery or burglary or bribery, or any other offense enumerated in section 644, even though he had never been charged with, placed upon trial for, or adjudged guilty of, any of those offenses in such other state. Respondent relies upon certain language in In re Taylor (1944) ... 64 Cal.App.2d 47, 51 [148 P.2d 143], relating to the presumption of the verity of a judgment. But if the presumption of the verity of a judgment were implicitly relied upon in habeas corpus proceedings then such proceedings could rarely if ever benefit a defendant after conviction. The language referred to actually is not at all in point on the question before us. The Taylor case was decided adversely to the petitioner because, while his petition purported to show that the prior conviction in North Carolina, the efficacy of which as a basis for habitual criminality adjudication he challenged, was for the theft of tobacco ‘of the value of one hundred dollars,’ the record before the appellate tribunal disclosed that ‘on the same occasion of the indictment and conviction for the theft of tobacco’ of the value of one hundred dollars the same defendant was indicted for and convicted of the offense (committed on the same day as the theft of the tobacco) of ‘with force and arms’ stealing ‘an automobile of the value of four hundred dollars.’ Apparently it did not clearly appear what evidence had been before the trial court when the habitual criminal adjudication was made. The information charged the defendant, in somewhat general terms, with having suffered a prior conviction ‘for the crime of Larceny, a felony’ committed ‘in Wilson County, North Carolina.’ The only presumption the District Court of Appeal indulged in favor of the verity of the judgment was that in the absence of proof to the contrary ‘the complete record of petitioner’s prior convictions in the State of North Carolina was before the trial court, and that the court in adjudging him to be an habitual criminal did so with due regard to the provisions of section 644 of the Penal Code.’ Actually, that case, far from supporting respondent, sustains petitioner. With reference to the allegations of the petition therein tending to show that the prior conviction was for the theft only of the tobacco valued at one hundred dollars, the court said [citation]: ‘If nothing further was disclosed by the record before us we would feel compelled to grant the writ.’ But upon the showing that the petitioner had in truth been convicted on an indictment specifically charging the theft of property ‘of the value of four hundred dollars’ and upon the lack of any showing that such proof had not been made to the trial court, the writ was discharged. Such case is obviously materially different from that before us where the only conviction (in Utah) alleged or proved was for theft of property specifically charged to be ‘of a value exceeding $50.00.’

“The pertinent averment of the information in this case is that prior to the commission of the alleged substantive offenses petitioner in 1924 ‘was, in the District Court of the State of Utah . . . convicted of the crime of Grand Larceny, a felony, and . . . served a term of imprisonment therefor.’ Since the allegation specifically charges conviction of ‘Grand Larceny’ in Utah it is, of course, obvious that any court in which it is presented must look at once to Utah’s definition of grand larceny to ascertain whether the conviction there of that offense is a conviction of a felony enumerated in our section 644. The pertinent law of Utah is not a fact outside the record of local conviction, any more than the very California statute upon which the prosecution is based is a fact outside the record. We are required to take judicial notice of the laws of our sister states [citation]. In California grand larceny (theft) is committed ‘When the money, labor or real or personal property taken is of a value exceeding two hundred dollars’ [citation], but in Utah ‘Grand larceny is committed . . . when the property is of a value exceeding $50.00’ [citation]. The pleading and proof or admission of a conviction for grand larceny in Utah, without more, establishes that petitioner was convicted of the theft of property of a value of $50.01, a crime which is not enumerated in section 644 of the Penal Code.

“The conclusion above announced is in full accord with the decision of the District Court of Appeal (hearing in this court denied) in People v. Lohr (1938) ... 28 Cal.App.2d 397, 399, 400 [82 P.2d 615], wherein it was expressly held that ‘It was necessary for the prosecution to charge and prove that the prior convictions were among those set forth in section 644 in order to adjudge the defendant an habitual criminal’ (italics added) and that where the ‘charge in the information does not designate the section of the . . . Act upon which defendant was convicted and the record furnishes . . . no assistance in this regard’ the reviewing (as well as the trial) court ‘must therefore assume’ that defendant suffered the prior conviction for the least offense punishable under the statute. . . .

“It is, of course, true that after a trial on conflicting evidence and a verdict against a defendant, every reasonable inference of which the evidence admits in favor of the verdict, and, hence, against the defendant, will be assumed by a reviewing court, but we have no such situation now before us. We have only the record to consider. That record discloses a specific charge of previous conviction of ‘Grand Larceny’ in Utah and petitioner’s admission of that charge. By no process of law or reason acceptable to American standards can such admission of defendant be construed to admit more than the charge laid. There was no further proof. The trial court, therefore, was bound to assume, as are we now, that defendant suffered the prior conviction for the least offense punishable under the Utah statute, which is but a misdemeanor under California law. ... (If we go outside the record here the result is the same. The information filed in the Utah proceeding, a copy of which is attached to the petition, expressly alleged that the property stolen was of ‘a value in excess of $50.00.’ By the most elementary rules of pleading an adjudication on, or admission of, such charge would establish a value of $50.01 and no more.)

“It has long been the law, even in regard to a judgment of conviction, that ‘if it affirmatively appears by the record that the prisoner was tried and sentenced for the commission of an act which, under the law, constitutes no crime, the judgment is void and the prisoner should be discharged.’ [Citations.] Here it affirmatively appears by the record that the prior Utah conviction alleged in the information and admitted by defendant is a conviction of an offense which, insofar as the adjudicated facts are concerned, is by California law a misdemeanor and, hence, constitutes no basis for habitual criminal adjudication. . . .

“Petitioner contends that the determination that he was previously convicted of ‘forgery, a felony,’ and served a term of imprisonment therefor is also insufficient as a basis of the adjudication that he is an habitual criminal. This contention probably would have to be sustained if we were confined to matters appearing in the trial court record of conviction. The information, in this regard, charged merely that the defendant (petitioner, here) had been previously ‘in the United States District Court . . . convicted upon nine counts of the crime of Violation of Section 218 of the Criminal Code of the United States . . . and said defendant served a term of imprisonment therefor in the federal prison.’ Section 218 of the Criminal Code (18 U.S.C.A. § 347) enumerates many prohibited acts some of which, if comparable to any state offense, would amount to no more than misdemeanors but others of which are comparable to the state crime of forgery. . . . From . . . documentary evidence (certified copies of the indictment and judgment in the federal matter) [, however,] it appears that petitioner was convicted of nine counts of forging postal money orders. Section 470 of our Penal Code, which defines forgery, lists as the subjects of forgery ‘almost every conceivable kind and character of writing.’ [Citations.] In addition to more particularly designated instruments the section lists such general descriptions as ‘any transfer or assurance of money, . . . power to receive money, . . . writing obligatory,... or other contract for money. . . .’ We entertain no doubt that the forgery of a United States money order is an offense within section 470 and, therefore, would be punishable by imprisonment in the state prison [citation].” (McVickers, supra, 29 Cal.2d at pp. 276-281, italics in original.)

From the discussion the McVickers court presented the following rule emerges: the court may look to the entire record of the conviction to determine the substance of the prior foreign conviction; but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.

In re Seeley (1946) 29 Cal.2d 294 [176 P.2d 24], was the second in the relevant line of cases. There the defendant filed a petition for a writ of habeas corpus to review an adjudication that he was a habitual criminal under Penal Code sections 644 and 668 by virtue of his admission of two prior convictions of a felony. Specifically, he claimed that one of the two prior convictions—for larceny in a building in Oregon—did not constitute a felony for which he could be adjudged a habitual criminal. The court concluded that the claim was meritorious. Its reasoning was as follows.

“It appears from the record before us that on October 21, 1932, the petitioner was arrested and held in jail at Grants Pass, Oregon, on a tentative charge of burglary in violation of section 14-309, Oregon Code. Official investigation disclosed that the entry of the building involved had not been with an intent to steal or commit a felony. The charge of burglary was accordingly withdrawn and in its place there was substituted the charge of Larceny in a Building, a violation of section 14-316, Oregon Code. The petitioner pleaded guilty to that charge in the Oregon court. He and two others also accused were found to have entered a Standard Oil Company warehouse and carried away thirty gallons of gasoline. He was sentenced and was confined in the penitentiary at Salem, Oregon, for an indeterminate period not to exceed eighteen months.

“Larceny in a Building is defined by section 14-316 of the Oregon Code as follows: ‘If any person shall commit the crime of larceny in any dwelling house, ... or warehouse, ... or shall break and enter in the night or daytime any church, ... or other building erected or used for public uses, and commit the crime of larceny therein, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one year nor more than seven years.’

“The crime, as so defined, is not expressly included in section 644 of the Penal Code. Furthermore, the larceny of thirty gallons of gasoline, being goods of a value less than $200, is not comparable to grand theft in this state [citation], nor is it robbery [citation]. The respondent does not question that the conviction of Larceny in a Building is the prior conviction referred to in the information here involved. He contends, however, that the Oregon crime of Larceny in a Building is substantially identical to the crime of burglary which is defined in section 459 of the Penal Code as the entry of any house, warehouse, etc., with intent to commit grand or petit larceny or any felony. It is conceded that intent to steal or commit a felony, a necessary ingredient of the crime of burglary in this state, is not included in the definition of Larceny in a Building under the Oregon statute, but it is argued that it may be assumed to have been present by the act of ‘entering’ the building. One difficulty with the respondent’s position is that the uncontroverted showing in this proceeding is contrary to the assumption. The Oregon law (Oregon Code, § 14-311) defined burglary (other than in a dwelling house) as the breaking into and entering any ‘other structure or erection in which any property is kept, with intent to steal therein, or to commit any felony therein.’ The punishment prescribed is ‘imprisonment in the penitentiary not less than two nor more than five years.’ Thus Oregon has a burglary statute containing a definition of burglary comparable to that in our Penal Code. But as stated, before judgment in Oregon the official investigation of the petitioner’s conduct disclosed that there had been no violation of the burglary statute. On the showing in this proceeding it is clear that intent to steal or commit a felony was not inherent in the crime with which the petitioner was charged and of which he was convicted in Oregon. The intent in fact was not present. The crime of Larceny in a Building, as defined by the Oregon Code and as found by the court in Oregon to have been committed by the petitioner, is not a crime which would have been punishable as a felony in this state and is not comparable to any felony mentioned in section 644 of the Penal Code. The conviction of that crime was therefore not a legal basis for an adjudication that the petitioner was an habitual criminal.” (29 Cal.2d at pp. 301-302, italics added.)

In the discussion quoted above, the Seeley court plainly recognized and applied the rule laid down in McVickers: i.e., the court may look to the entire record of the conviction to determine the substance of the prior conviction.

In re Finley, supra, 68 Cal.2d 389, was the culmination of the line of cases stemming from McVickers and Seeley. In Finley, the defendant filed a petition for a writ of habeas corpus to review an adjudication of habitual criminality under Penal Code sections 644 and 668. Specifically, he claimed that one of the two predicate prior convictions—a 1932 Washington second degree burglary—did not constitute a- felony for which he could be adjudged a habitual criminal. In a unanimous opinion by Chief Justice Tray-nor, the court concluded that the claim was meritorious. In relevant part, its reasoning was as follows.

“. . . The McVickers-Seeley line of cases holds . . . that unless the record before the habeas corpus court establishes the adjudicated elements of the previous offense, the court will assume that the prior conviction was for the least offense punishable under the foreign statute. [Citations.]

“Here the only record of the 1932 Washington conviction now available, an authenticated copy of the judgment, sentence, and commitment, shows that petitioner was convicted of second degree burglary on his plea of guilty. Second degree burglary as defined by Washington statute is committed by entry with intent to commit any crime, whether misdemeanor or felony, or by innocent entry followed by the commission of any crime and breaking out. [Citation.] In California, however, the crime of burglary is committed by entry ‘with intent to commit grand or petit larceny or any felony. . . .’ [Citation.] Thus petitioner has established that his Washington conviction could have been based on acts not constituting burglary in California and he has therefore shown that ‘the least adjudicated elements of the Washington offense are not equivalent to the elements of the similarly denominated California offense enumerated in section 644 of the Penal Code and the Washington conviction is not competent to support a determination of habitual criminality under that section.’ ” (68 Cal.2d at pp. 391-392, fn. omitted.)

In the discussion quoted above, the Finley court plainly recognized and applied the rule laid down in McVickers and followed in Seeley, i.e., the court may look to the entire record of the conviction to determine the substance of the prior foreign conviction; but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.

After careful reconsideration, we believe that the McVickers-Seeley-Finley line of cases does not support the holding of the Alfaro majority that ultimately rests thereon. Indeed, far from establishing that proof of the substance of a prior conviction is limited to matters necessarily established by the prior judgment of conviction, those cases declare that the court may look to the entire record of the conviction for this purpose.

Further, we believe that the McVickers-Seeley-Finley line of cases supports the following rule for use in the context of section 667 enhancements: in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.

Such a rule is both fair and reasonable. To allow the trier of fact to look to the entire record of the conviction is certainly reasonable: it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for “burglary of a residence”—a term that refers to conduct, not a specific crime. To allow the trier to look to the record of the conviction—but no further—is also fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.

Defendant argues that the foregoing rule is inconsistent with Me Vickers and its progeny. But although those opinions do indeed contain certain language that can be taken to support the holding of the Alfaro majority, when given a careful reading they must be understood to allow reference to the entire record of the conviction.

Defendant also argues in substance that the application of the rule set forth above is unfair because it would allow enhancements to be predicated on matters that are fortuitous and whose future significance the accused was not aware of at the time of the prior proceedings. We do not agree. The law regularly requires persons to suffer the consequences of their actions, even though they had not or could not foresee those consequences. As pointed out in the dissent in Alfaro, “Of course the admission concerning the residential nature of the burglary was made without the knowledge that it could one day result in an enhanced sentence for later crimes. That is true, however, of every guilty plea to a charge of felony: it is seldom entered in anticipation of the commission of future crimes. Nevertheless if there are subsequent crimes, in most instances there will be enhanced punishment.” (42 Cal.3d at p. 638.)

Finally, defendant urges us to rely on the principle of stare decisis and refrain from overruling Alfaro. But defendant himself expressly “recognizes that this court can and should reconsider patently erroneous cases . . . .” Alfaro, as we have shown, is such a case.

For the foregoing reasons, we overruled If aro and adopt the rule set forth above to govern adjudication of the truth of section 667 prior-conviction allegations.

We turn to the case at bar. In light of the preceding discussion, we conclude the Court of Appeal erred in holding it improper for the trial court to look beyond the judgment to the entire record of the conviction in determining the truth of each of the two prior-conviction allegations. Under the rule we adopt, the trial court acted properly.¹

Moreover, as a result of its resolution of the issue going to the adjudication of the truth of the prior-conviction allegations, the Court of Appeal did not reach the question whether the trial court erred in failing to exercise the discretion it plainly has (People v. Fritz (1985) 40 Cal.3d 227 [219 Cal.Rptr. 460, 707 P.2d 833]) to strike the allegations “in furtherance of justice” under Penal Code section 1385. Since the resolution of this question may aifect the outcome of the case, the Court of Appeal should address it on remand.

The judgment of the Court of Appeal is vacated and the cause is remanded to that court for further proceedings consistent with this opinion.

Lucas, C. J., Panelli, J., Arguelles, J., and Eagleson, J., concurred.

1 In this case we are not called on to resolve such questions as what items in the record of conviction are admissible and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant. Because we are not called on to resolve such questions, we decline to address them here.