I respectfully dissent. The majority inexplicably ignores statutory language and case law precedent to hold some, but not all, elements of a Penal Code section 667, subdivision (a), enhancement raise questions of law, not fact, to be determined by the court, not the jury. Disclosing, moreover, a telling lack of confidence in its own decision, the majority contravenes established principles of appellate review to solicit and consider factual evidence neither presented nor considered in the court below. By its decision, the majority sows uncertainty where none existed before concerning the trial of enhancements, and opens the door to requests that this court sit as an extraordinary trier of fact.
I.
Under California statutory law, an enhancement for prior conviction of a serious felony (Pen. Code, § 667, subd. (a))1 must be pled and proven before it may be imposed. (§ 1170.1, subd. (f).) When, as here, more than one enhancement for prior conviction of a serious felony is alleged, such an enhancement has five elements: (1) conduct in the current case constituting a serious felony; (2) the fact of prior conviction; (3) an offense underlying the prior conviction that constitutes a serious felony; (4) separate initiation of the prior charges; and (5) separate adjudication of the prior charges. (§ 667(a).) As to the first three elements, the defendant’s denial of the enhancement allegation indisputably raises a factual issue that must be determined by the trier of fact.
Thus, if the defendant pleads not guilty to the current charge, the question whether he has committed a serious felony “shall be tried by the court or jury which tries the issue upon the plea of not guilty.” (§ 969f.) Second, as the majority concedes, the defendant’s identity as the person who suffered the prior conviction is similarly tried to the trier of fact, i.e., the jury, unless a jury is waived. (Maj. opn., ante, at p. 583.) Third, when the prior *596conviction is not on its face a serious felony, whether the criminal conduct underlying the prior conviction meets the definition of a serious felony (§ 1192.7, subd. (c)) is also a factual issue to be determined, if not admitted, by the “trier of fact.” (People v. Myers (1993) 5 Cal.4th 1193, 1195 [22 Cal.Rptr.2d 911, 858 P.2d 301]; People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150].)
Notwithstanding the defendant’s undisputed right to trial by jury on the first three elements, the majority, without any statutory authority, holds the final two elements alone were intended to be determined by the sentencing judge.
The majority’s view rests on the erroneous premise a fact necessary to an enhancement must be determined by the jury only if a statute specifically so directs. To the contrary, our substantive penal statutes merely set out the elements of the various offenses and enhancements; the defendant’s plea of not guilty or denial of an enhancement allegation puts each such element at issue for determination by the trier of fact, without the necessity of any further statutory direction that the particular issue be so determined. (See § 1019 [plea of not guilty puts in issue all material allegations regarding the offense charged]; People v. Jackson (1985) 37 Cal.3d 826, 835 [210 Cal.Rptr. 623, 694 P.2d 736] [residential character of current burglary is element of prior serious felony enhancement, which, “unless admitted by the defendant, becomes [an issue] to be proved at trial”]; cf. People v. Thomas (1986) 41 Cal.3d 837, 843-844 [226 Cal.Rptr. 107, 718 P.2d 94] [admission of prior serious felony charge impliedly admits each element of § 667(a)].) The Legislature is not required to individually direct, as to each factual issue raised by a defendant’s plea of not guilty or denial of a prior conviction allegation, that the particular issue must be resolved by the trier of fact. Rather, such factual issues are tried to the jury “[e]xcept as otherwise provided by law . . . .” (Evid. Code, §312.) Nothing in section 667(a) indicates the voters intended to make an exception for some, but not all, elements of this particular enhancement, nor does the majority even attempt such a claim.
Rather, as statutory authority for its assertion the only issue for the trier of fact is the defendant’s identity as the prior felon, the majority relies on sections 1025 and 1158. Those sections, originally enacted in 1874 and 1872, respectively, do not refer to any particular statute predicating punishment on prior conviction. Section 1025 deals generally with the procedural relationship between, on the one hand, a defendant’s plea and trial on a current offense and, on the other, his plea and trial on any allegation of prior conviction. The section requires a defendant charged with a prior conviction *597to admit or deny the allegation at the same time as he pleads to the current offense. If he admits the prior conviction allegation but pleads not guilty, the jury trying the current charge is not to be told of the prior conviction. If the defendant denies the allegation, while pleading either guilty or not guilty to the current charge, he receives a jury trial on the question “whether or not he has suffered such previous conviction ....’’ (Ibid.) Section 1158, which concerns the form of verdict or finding on a prior conviction allegation, uses the same phrase.
Seizing on the language just quoted, the majority infers that only the fact of prior conviction is determined by the trier of fact. The inference fails for several reasons. First, we have twice held to the contrary: in People v. Myers, supra, 5 Cal.4th at page 1195, and People v. Guerrero, supra, 44 Cal.3d at page 355, we stated that whether the defendant, in the prior case, committed criminal conduct meeting the definition of a serious felony is to be determined by the “trier of fact.” The Court of Appeal has likewise so held. (People v. Jackson (1992) 7 Cal.App.4th 1367, 1371 [10 Cal.Rptr.2d 5] [Where the allegation of prior serious felony conviction was based on a prior residential burglary, “the prosecutor had to prove not merely that appellant had been convicted of burglary but that the burglary was ‘of an inhabited dwelling house.' Absent such proof, the trier of fact was required to find the allegation not true.'' (Italics in original.)].)
Second, the majority’s reading attributes to sections 1025 and 1158 a meaning that could not have been intended at the time of their enactment. At the time these provisions were added to the Penal Code, the current scheme for sentencing serious felony recidivists did not exist. At that time both section 666 and former section 667 enhanced the punishment for prior offenses. Section 666 imposed increased punishment on those convicted of a new offense who previously had been “convicted of any offense punishable by imprisonment in the State Prison . . . .” (§666, as enacted 1872.) Former section 667 imposed increased punishment for those previously convicted of “petit larceny, or of an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the State Prison . . . .” (Former § 667, as enacted 1872.) When, therefore, section 1025 was added in 1874, it provided a procedure for pleading to and trying the only factual question that arose under sections 666 and 667 as they were then written, i.e., the question whether the defendant had suffered the alleged previous conviction.
The statute from which the “separately brought and tried” requirement derives, former section 644, was not enacted until 1923. Current section 667 was added by initiative in 1982. One cannot reasonably infer that the *598Legislature, in enacting the general guidelines of sections 1025 and 1158, anticipated the particular factual issues that would arise under statutes passed 50 or 110 years later and intended to determine, by negative implication, how those issues would be tried.
Third, the majority’s construction ignores the actual language of the provisions relied on. Under sections 1025 and 1158, the defendant must admit or deny, and if denied, the People must prove the defendant suffered “such previous conviction.” The antecedent of “such” in section 1025 is the previous conviction “charged in the accusatory pleading.” The charge of a prior serious felony conviction, within the meaning of sections 667 and 1192.7, impliedly alleges all of the necessary factual elements of the enhancement. (People v. Thomas, supra, 41 Cal.3d at p. 843; People v. Jackson, supra, 37 Cal.3d at p. 835 & fn. 12.)2 Consequently, a defendant’s denial of a prior conviction alleged in the information puts at issue all facts necessary to the enhancement, i.e., each factual element of the charge. (People v. Thomas, supra, 41 Cal.3d at pp. 843-844.) Thus, sections 1025 and 1158 require a jury trial on all the elements of a section 667(a) enhancement, not merely on the defendant’s identity as the person previously convicted.
Sections 1025 and 1158 have survived almost unchanged for 120 years because their language is flexible enough to accommodate changes in the particular facts the People must prove under our continually evolving system of punishment for recidivism. These provisions do not attempt to delineate the factual issues to be decided by the jury under each particular enhancement statute. They simply outline the procedures to be followed in trying those factual issues, which are established in each case by the particular enhancement charged.
The history of the separateness requirement also suggests the voters intended it as a factual requirement to be proven to the trier of fact. As we noted in In re Harris (1989) 49 Cal.3d 131, 135 [260 Cal.Rptr. 288, 775 P.2d 1057], the direct legislative history of section 667(a)—the analysis and *599arguments presented in the ballot pamphlet for the June 8, 1982, election— does not define or discuss the “brought and tried separately” requirement. The language, however, appears to derive from the “separately brought and tried” requirement in former section 644 and should be presumed to carry the same meaning as the former provision. (49 Cal.3d at pp. 135-136.)
Before the enactment of section 667(a), a closely related additional requirement of section 644, that the defendant served prior separate prison terms, had been held a matter for proof beyond a reasonable doubt to the trier of fact. (People v. Collins (1964) 228 Cal.App.2d 460, 464 [39 Cal.Rptr. 595] .)3 The drafters of section 667(a) and the voters who enacted it may be deemed aware of that judicial construction. (In re Harris, supra, 49 Cal.3d at p. 136.) The drafters’ failure explicitly to allocate to the sentencing judge the separateness-of-conviction question suggests they intended it, like the related question of separate prison terms, be the subject of proof beyond a reasonable doubt to the trier of fact.
In the absence of any indication of the voters’ intent to remove separateness of the prior convictions from the trier of fact, the majority cursorily offers several other insufficient reasons. First, the majority cites People v. Hernandez (1988) 46 Cal.3d 194 [249 Cal.Rptr. 850, 757 P.2d 1013]. In Hernandez, we rejected the People’s claim section 667.8, an enhancement for kidnapping for the purpose of committing certain sexual offenses, involved only a “sentencing fact.” Our primary reason was that section 667.8 (like all enhancements under the determinate sentencing system) allows the imposition of an additional, separate term of imprisonment, a term that was otherwise not available to the sentencing judge based on the verdicts returned by the jury. (46 Cal.3d at p. 205.) Although sections 667.8 and 1170.1 *600were silent on pleading and proof of this particular enhancement, under our determinate sentencing scheme section 667.8 imposed not just a minimum sentence, but an additional term, and the “inevitable pattern” of our statutes is that such additional terms can only be imposed if the facts necessary to them are pled and proven. (46 Cal.3d at p. 206.)
Analogizing the “brought and tried separately" requirement of section 667(a) to the limitation on multiple punishment in section 654, the majority argues the determination of separateness comes within what the Hernandez court referred to as the court’s duty to determine “what terms can be imposed from among those available based on the conviction offenses and the enhancements found true.” (People v. Hernandez, supra, 46 Cal.3d at p. 205.) Unlike section 654, however, the separateness requirement is a part of the statute authorizing the enhancement, rather than a general limitation on criminal punishment. The voters evidently believed cumulatively increased punishment for multiple prior serious felony convictions was called for if, and only if, the prior proceedings were conducted separately. They incorporated this aspect of increased culpability—prior separate conviction of multiple serious felonies—into the law establishing the enhancement, making separate conviction a factual element required for multiple enhancements. In this sense, recidivism after multiple separate convictions is “the wrongful criminal conduct for which punishment is being imposed” (46 Cal.3d at p. 205), and must accordingly be proven by the People in the same manner as other conduct on which punishment is predicated.
Next, the majority opines the issue of separate initiation is “largely legal in nature.” (Maj. opn., ante, at p. 590.) To the contrary, the issue as it arises here is, at least in the ordinary sense of the terms, factual rather than legal. In order for two or more enhancements to be imposed under section 667(a), the prior convictions on which the enhancements are based must have been “brought and tried separately.” Under the circumstances of this case, the statutory requirement is satisfied if the prior prosecutions were initiated by separate complaints, and is not satisfied if they were initiated in the same complaint. (See In re Harris, supra, 49 Cal.3d at p. 136.) Thus, the question at trial was: how many complaints were filed in the prior cases? This is purely and simply a question of historical fact.
Like many other facts, separate initiation can frequently be proven by circumstantial evidence. Where, for example, the prior convictions were obtained in different counties, or at times years apart, one could easily infer they were separately initiated, without the necessity of examining the accusatory pleadings. Here the prosecution introduced evidence the prior cases had different docket numbers in the superior court. The Court of Appeal *601found this an inadequate basis to infer separate initiation in the municipal court. In this court, the People argued otherwise, relying, to support the inference of separate initiation, on the premise that single complaints are only rarely severed into multiple informations. The majority agrees with the People’s position, relying in addition on the relatively large gap in the numbering of the two prior superior court docket numbers as supporting an inference they arose from different complaints. (Maj. opn., ante, at p. 593.) Whatever the merits of these arguments, they clearly concern the sufficiency of evidence to prove a fact.
Evidently dissatisfied with the circumstantial evidence presented by the prosecutor, the majority sought out direct evidence on the question, obtaining the original complaints from the municipal courts involved. (Maj. opn., ante, at p. 593.) This certainly resolved the question of historical fact: there were indeed two separate complaints. It also indisputably demonstrated, however, that the number of prior complaints is an issue of fact, not law. Had it been a legal issue, this court would have resolved it in our usual manner by reference to statutes, decisional precedent and whatever other sources of legal authority bore on the question. We were of course unable to resolve this question of historical fact by legal research and reasoning, and so, properly or improperly, we took additional evidence.
The majority also argues the “brought and tried separately” question must be resolved by a court because it raises “complex and detailed” interpretive problems; (Maj. opn., ante, at p. 590.) I cannot agree with this non sequitur. Questions about the legal effect of a given set of facts are, of course, to be decided by the court as a matter of law, and the jury is to be appropriately instructed. That does not alter the duty of the jury to resolve the disputed issues of fact raised by the pleadings, and to apply the instructions it receives to the historical facts as it finds them. To take but one example of the many possible, the legal difficulty of properly defining the element of asportation in our various kidnapping laws (see People v. Rayford (1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317, 884 P.2d 1369]) does not make asportation a legal requirement. However asportation is defined, the jury must ultimately make the factual determination whether it has been proven.
All of the cases cited by the majority on this point concern a single legal issue: whether prior convictions should be considered “tried separately” where the prior cases were not formally consolidated, but the convictions were obtained by guilty pleas on the same day or in a single proceeding. (See People v. Wagner (1994) 21 Cal.App.4th 729, 732-737 [26 Cal.Rptr.2d 383]; People v. Smith (1992) 7 Cal.App.4th 1184,1189-1193 [9 Cal.Rptr.2d 491].) The resolution of this question depends not on disputed facts, but on the *602legal effect to be accorded a certain set of historical facts. The trial court’s resolution of such legal issues should, when necessary, be embodied in appropriate jury instructions. Our statutory enhancement system, however, assigns to the jury the task of determining whether the prosecution, in a given case, has proven separate conviction, as defined in the instructions, beyond a reasonable doubt.
It bears repetition that, whatever may be the legal issues surrounding the interpretation of section 667(a), the question defendant sought to have the jury decide in this case did not involve any analysis of “provisions of California criminal procedure.” (Maj. opn., ante, at p. 590.) The question was whether one complaint or two complaints were filed in the municipal court. Again, I would note that when the majority sought to resolve this question definitively, it consulted no “provisions of California criminal procedure.” It consulted, rather, the documents actually filed and thereby ascertained there were two of them.
The majority also suggests the sentencing judge is to determine separateness of the prior convictions because the examination of a defendant’s criminal record is “the type of inquiry traditionally performed by judges as part of the sentencing function.” (Maj. opn., ante, at p. 590.) Whether the majority intends to hold that any factor traditionally considered by sentencing judges need not be proven to the trier of fact is unclear. Such a rule would be completely inconsistent with our statutes on enhancements. Most determinate sentencing enhancements are related or similar to traditional sentencing factors. Prior convictions, prior prison terms, arming-and weapon use, and infliction of bodily harm, for example, are all traditional sentencing factors—indeed, they are all factors still used under California Rules of Court, rule 421—but they are also the elements of enhancements that, to be imposed, must be pled and proven to the trier of fact under California law. (§ 1170.1, subd. (f).)
Finally, the majority may be understood to hold separateness is a legal issue because its resolution requires “an examination of court documents.” (Maj. opn., ante, at p. 590.) That reasoning is highly anomalous, since juries in many contexts must determine factual questions by examination of the record in prior proceedings. Whether the defendant has in fact suffered a prior conviction under section 667(a)—which the majority concede is for the jury to decide—is usually proven by the documentary record. Where, moreover, an allegation of prior serious felony conviction puts at issue the actual conduct for which the defendant was convicted in the previous proceeding, the trier of fact—that is, the jury, unless jury trial is waived—must decide from the record in the prior proceeding whether the prior conduct was within *603the statutory definition of a serious felony. (People v. Myers, supra, 5 Cal.4th at p. 1195; People v. Guerrero, supra, 44 Cal.3d at p. 355.) Numerous other penal laws require determination of the existence and nature of prior convictions; these, too, are normally proven to the trier of fact by “court documents.” (See, e.g., §§ 190.2, subd. (a)(2), 667, subds. (b)-(f), 667.5, 667.6, subds. (a), (b), 667.7, 667.71, 667.75; Health & Saf. Code, §§ 11353.4, 11357, subd. (b); Veh. Code, § 23190.) In other areas of law as well, prior legal proceedings may be the subject of factual disputes assigned to the jury for decision. (See, e.g., Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185 [156 Cal.Rptr. 745] [in trial of malicious prosecution action, jury decides whether voluntary dismissal of prior action was unfavorable termination], overruled on other grounds, Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 882-883 [254 Cal.Rptr. 336, 765 P.2d 498]; Stone v. Superior Court (1982) 31 Cal.3d 503, 509, fn. 1 [183 Cal.Rptr. 647, 646 P.2d 809] [material facts raised by plea of once in jeopardy are for jury to resolve].) In short, that resolution of a factual issue raised by the pleadings requires examining the record of prior proceedings is not cause to remove it from the trier of fact.
To summarize, separate initiation and adjudication of the previous charges are factual elements necessary to proof of multiple prior serious felony convictions under section 667(a). Under our system of sentences and enhancements, section 667(a) enhancements must be pled and, if denied by the defendant, proven to the trier of fact. As with other offenses and enhancements, the defendant’s denial places at issue all the elements of the section 667(a) enhancement, not merely the bare fact of prior conviction. No statute or precedent removes these particular factual elements from the trier of fact, and nothing in section 667(a) indicates an intent to do so. To the contrary, the settled interpretation of a predecessor statute suggests the voters intended to require, under section 667(a) as under the previous provision, that each element of the enhancement be proven beyond a reasonable doubt to the trier of fact. I would therefore hold the trier of fact, rather than the sentencing judge, determines factual issues necessary to deciding whether prior convictions were brought and tried separately as required by section 667(a).
II.
I also dissent from the majority’s conclusion the evidence presented at trial in this case was sufficient to support a finding of separate initiation. To determine if substantial evidence supports the trier of fact’s finding on an enhancement allegation, we ask whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the facts necessary to the enhancement beyond a reasonable doubt, viewing the evidence in a light *604favorable to the judgment and presuming in its support the existence of every fact the trier of fact could reasonably infer from the evidence. (People v. Tenner (1993) 6 Cal.4th 559, 567 [24 Cal.Rptr.2d 840, 862 P.2d 840]; see People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)
In this case no direct evidence showed how the charges originated in municipal court, whether in a single or multiple complaints. The evidence showed only that the two prior convictions were obtained in superior court on successive days under separate docket numbers. As we know from In re Harris, supra, 49 Cal.3d at page 134, the existence of separate informations in superior court does not allow one to infer with confidence the charges were initially brought by separate complaints. (See also People v. Williams (1990) 220 Cal.App.3d 1165, 1172 [269 Cal.Rptr. 705] [as in Harris, two charged priors had been brought in single complaint].) In my view, the 135-humber difference between the 2 actions, in the absence of evidence as to the rate of new filings in Contra Costa County Superior Court in 1983, did not establish what length of time separated the 2 superior court filings. The number difference was thus insufficient to show beyond a reasonable doubt the charges were separately brought in municipal court.
The majority’s independent investigation of the facts of the prior proceedings, and their use, in an appellate opinion, of the facts so discovered, is both puzzling and troublesome. It is puzzling because the facts judicially noticed are irrelevant to any issue on appeal. They were not presented to either the jury or the sentencing court below. Even under the majority view on the jury trial issue, therefore, these facts are irrelevant to the question whether the evidence in the lower court was sufficient to support a finding of separate initiation.4
The majority seems to acknowledge the irrelevance of the extra-record documents to show sufficiency of the evidence below, as it does not purport to use the products of its investigation to support its holding on sufficiency. *605Instead, the majority suggests the materials are properly noticed in order to preclude a possible petition for writ of habeas corpus. The merits of any possible writ petition, however, are patently not an issue in this appeal. In any event, such preclusion is wholly unnecessary: no claim for relief could be made on habeas corpus unless the petitioner, after his own investigation, was able to allege with particularity facts showing the prior charges were not brought separately. (See In re Swain (1949) 34 Cal,2d 300, 304 [209 P.2d 793].) The majority’s investigation, in discovering separate complaints, could only preclude a petition that would never be brought, because no facts would support it. We should not have taken notice of these irrelevant materials. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [31 Cal.Rptr.2d 358, 875 P.2d 73].)
The use of these extra-record materials in an appellate opinion is troublesome because it suggests, wrongly I believe, that litigants may safely neglect to make their most complete factual case before the trial court, since on appeal they can supplement the trial record with documentary evidence they failed to introduce below. The inefficiency of such procedures, and the increased burden their widespread use would place on the Courts of Appeal, are too obvious to require elaboration. This court recently decided to apply the doctrine of waiver more broadly in the sentencing process, in the hope that increased efforts to articulate and present sentencing issues in the trial court will “reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.” (People v. Scott (1994) 9 Cal.4th 331, 353 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) The majority’s use of judicial notice to supplement an appellate record seems inconsistent with that policy.
For the above reasons, I would affirm the judgment of the Court of Appeal.
Mosk, J., and Kennard, J., concurred.
Appellant’s petition for a rehearing was denied May 17, 1995, and the opinion was modified to read as printed above. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.
Hereafter section 667(a). All further unspecified statutory references are to the Penal Code.
In Thomas, the information alleged, in four identical paragraphs, the defendant was previously convicted “of a serious felony, to wit: Burglary, on charges brought and tried separately, within the meaning of sections 667 and 1192.7 of the Penal Code.” (People v. Thomas, supra, 41 Cal.3d at p. 841.) Defendant admitted the truth of the allegations as read to him. (People v. Thomas, supra, 41 Cal.3d at pp. 841-842.) This court rejected the defendant’s appellate contention his admissions did not serve to establish the residential character of the prior burglaries. We held “[i]t is not the function of the information to state the elements of an offense or enhancement.” (Id. at p. 843.) Rather, counsel should explain to the client the essentials of the charge, and in such a case “the client, in admitting the charges, knowingly admits each of the elements of that charge.” (Id. at p. 844.)
The majority incorrectly reads People v. Collins, supra, and People v. Figuieredo (1956) 146 Cal.App.2d 807 [304 P.2d 161], as suggesting the issue of separate prior prison terms, under former section 644, was decided by the sentencing judge rather than the trier of fact. In Collins, the court held the prosecution must prove separate terms “beyond a reasonable doubt.” In the absence of such proof, the court remanded for “a limited new triar on the question. (People v. Collins, supra, 228 Cal.App.2d at pp. 464-465, italics added.) In Figuieredo, similarly, the matter was remanded for a “limited new trial on the issue . . . .” (People v. Figuieredo, supra, 146 Cal.App.2d at p. 810, italics added.) In both cases the Courts of Appeal drew the remand remedy from our decision in People v. Morton (1953) 41 Cal.2d 536, 543 [261 P.2d 523], in which we reasoned, “There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses.” (Italics added.) In Figuieredo the defendant had admitted the charged prior convictions (146 Cal.App.2d at p. 808), which may explain the reference (in a quote from the People’s brief) to a decision on separateness by “the trial court.” (146 Cal.App.2d at p. 809.) In any event, it is clear from Collins, Figuieredo and Morton the courts there contemplated a trial in which the prosecution would prove all the elements of section 644 beyond a reasonable doubt to the trier of fact, i.e., the jury if one was not waived.
This precise issue was considered, and correctly decided against the use of extra-record evidence, in People v. Jackson, supra, 7 Cal.App.4th 1367. There the People, having failed to prove the 667(a) allegation at trial, requested the appellate court nonetheless find the evidence sufficient on the basis of certain documents from the prior proceedings put before the appellate court for judicial notice. As characterized by the Court of Appeal, “the Attorney General, despite virtually conceding the trial death of the allegation, argues that, like Lazarus, it can be raised from that death. [¶] This resuscitative feat, the Attorney General contends, may be accomplished either by appellate judicial notice [citations] or appellate factfinding [citations].” (7 Cal.App.4th at p. 1372, fns. omitted.) The Court of Appeal declined to judicially notice the serious felony character of the prior conviction, noting there was “no authority for the proposition that an essential element, not proved at trial, may be proved on appeal.” (Id. at p. 1373.)