Which one of these is not the same?

On Sesame Street, Big Bird calls upon toddlers to compare various items to decide "which one of these things is not like the others." On First Street (in Washington, D.C.) and McAllister Street (in San Francisco), lawyers call upon the United States and California Supreme Courts to decide whether a prior conviction for one crime is like the types of crimes listed in whatever sentencing scheme the court is trying to apply.

The federal Armed Career Criminal Act mandates the imposition of a 15-year prison sentence for any person possessing a firearm if he has three or more prior convictions for a "serious drug offense" or "violent felony," and defines a "violent felony" as including, among other things, a "burglary." 18 U.S.C. Section 924(e). The act defines burglary "generically" as the "unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 598 (1990). Along the same lines, California's Three Strikes Law dictates a higher sentence if a defendant has a prior "serious" or "violent" felony conviction, which includes first-degree burglary of an inhabited dwelling. Penal Code Sections 1170.12(c), 667(e), 667.5(c)(21), 460. In each sentencing scheme, the prosecutors may rely on prior convictions from other jurisdictions.

Because states are free to define their crimes as they choose, federal and California courts are required to assess whether a burglary conviction obtained in, say, Nevada is equivalent to the "generic" definition of burglary under the act or qualifies as a "serious" or "violent" felony under the Three Strikes Law. This is easy if Nevada defines burglary identically to, or more narrowly than, these other definitions.

But it is a lot trickier if Nevada defines burglary more broadly. The question then becomes: What can the federal or California courts look to in deciding whether the defendant's Nevada conviction qualifies as a "generic" burglary or the burglary of an inhabited dwelling?

So far, this question has been answered by resort to no fewer than four different rules.

"Elemental" or "Categorical" Rule: The court may "look only to the fact of conviction and the statutory definition of the prior offense" with one proviso — if the statutory definition encompasses more than one crime, the court may also look to the charging document and jury instructions to see which crime was charged and proven. Taylor at 602; Descamps v. United States, 133 S. Ct. 2276, 2281-82 (2013).

"Undisputed Record" Rule: The court may look to any facts within the "record of conviction," but only if the fact was uncontested at the time. People v. Brown, 50 Cal. 4th 1082, 1118 (2010); People v. Wilson, 219 Cal. App. 4th 500, 516 (2013). The "record of conviction" is defined to include charging documents, preliminary hearing and trial transcripts, People v. Reed, 13 Cal. 4th 217, 223 (1996); People v. Brimmer, 230 Cal. App. 4th 782, 799-801 (2014), jury instructions, any documents to which the defendant stipulated as the factual basis for a plea, People v. Saez, 237 Cal. App. 4th 1177, 1197-98 (2015), as well as any appellate decisions summarizing the defendant's criminal conduct, People v. Woodell, 17 Cal. 4th 448, 457 (1998). It does not include a defendant's post-plea statements to probation officers. People v. Trujillo, 40 Cal. 4th 165, 179 (2006).

"Full Record" Rule: The court may look to any facts within the "record of conviction," disputed or not. People v. Guerrero, 44 Cal. 3d 343, 352, 355 (1988); People v. McGee, 38 Cal. 4th 682, 693-94 (2006).

"New Evidence" Rule: The court may consider any evidence, including new evidence, as well as facts subject to judicial notice.

These rules reflect different compromises on how to resolve the fundamental tension between obtaining the most accurate snapshot of the conduct underlying the prior conviction and ending up with a full re-trial of the prior conviction years later. People v. Alfaro, 42 Cal. 3d 627, 635-36 (1986); Taylor at 601-02.

With respect to the Armed Career Criminal Act, the U.S. Supreme Court has steadfastly applied the categorical rule. Taylor at 602; Shepard v. United States, 544 U.S. 13, 16-17 (2005); Descamps at 2283-93. The court reasoned that this rule best accords with the text and legislative history of the act, which focuses on the defendant's prior convictions, not his conduct. This rule also avoids the "daunting" "practical difficulties and potential unfairness of a factual approach." Taylor at 601-02.

Although California courts briefly adopted the categorical rule, see Alfaro at 635-36, they have by and large adhered to the full record rule, see Guerrero at 355; McGee at 693-94. In the view of these courts, the full record rule is preferable because it (1) "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," Guerrero at 355, and (2) better fits with the tradition that judges, not juries, assess the nature of convictions through analysis of court documents and inferences drawn from them, McGee at 691-94, 706. California courts have applied this rule not only when examining prior convictions under the Three Strikes Law, but also when applying a variety of other sentencing enhancements. See, e.g., Penal Code Sections 667(a) ("serious" felony enhancement), 667.5(b) (prison prison term enhancement), 190.2(a)(2) (special circumstance for murder).

In the last year, however, the Court of Appeal in Saez at 1198-1208, People v. Marin, 240 Cal. App. 4th 1344, 1348-49 (2015), and People v. Denard, 242 Cal. App. 4th 1012, 1030-34 (2015), started to reject the full record rule in favor of the categorical rule or some variant thereof.

Why the movement? Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi drew upon the Sixth Amendment right to a jury trial and the 14th Amendment right to due process to hold that "[o]ther than the fact of a prior conviction, 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." Id. at 490, 476-77. In Shepard, a four-justice plurality noted that any judicial inquiry going beyond the elements of a prior conviction went beyond Apprendi's exception for the fact of a prior conviction (derived from Almandarez-Torres v. United States, 523 U.S. 224 (1998)), and risked judicial fact-finding that might run afoul of Apprendi; in a separate concurrence in the judgment, Justice Clarence Thomas expressed a similar view on this point. Shepard at 24-26, 26-28. In Descamps, a seven-justice majority took the same stance. Descamps at 2288.

The emergence of this constitutional concern raises two questions: (1) Is the categorical rule mandated by Apprendi for all inquiries involving prior convictions?; and, if not, (2) which rule should courts use?

Shepard and Descamps strongly suggest the answer to the first question is "yes"; Saez, Marin and Denard went one step further and held that the answer is "yes." The Court of Appeal in People v. Gallardo, 2015 Cal.App.LEXIS 8238 (2015), declined to take that extra step, and the California Supreme Court granted review on the validity of full record rule. See S231260.

Apprendi does not apply where a trial court examines prior convictions for the purpose of reducing a sentence rather than increasing it. Dillon v. United States, 560 U.S. 817, 828-29 (2010). As a result, California's Three Strikes Reform Act (aka Proposition 36) and its Safe Neighborhoods and Streets Act (aka Proposition 47) — which empower defendants convicted of third strike sentences and certain drug and property felonies, respectively, to seek a reduction in their sentences — do not implicate Apprendi. See Penal Code Sections 1170.126, 1170.18; People v. Sup. Ct. (Kaulick) 215 Cal. App. 4th 1279, 1304 (2013); People v. Rivas-Colon, 241 Cal. App. 4th 444, 451-52 (2015). As to these re-sentencing schemes, the choice of rule — the second question noted above — remains driven solely by policy concerns.

If a court is called upon to decide whether a prior theft conviction involving less than $950 in property renders a defendant eligible for resentencing under Proposition 47, which rule should the court apply in assessing the value of the property? Several courts have used the full record rule without any discussion, Bradford, 227 Cal. App. 4th 1322, 1339-40 (2014), while others have adopted the new evidence rule, People v. Perkins, 244 Cal. App. 4th 129, 140 n.4 (2016). We may get some clarification when the Supreme Court decides People v. Estrada, 243 Cal. App. 4th 336 (2015), review granted, S232114.

Will the rule in California ultimately look like the federal rule? Stay tuned!