Opinion
C088356
07-09-2020
In re ANGEL M. RODRIGUEZ on Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F08115)
Angel M. Rodriguez filed this petition for writ of habeas corpus to challenge the imposition of sentence enhancements in connection with a 2013 criminal conviction. He was convicted of one count of second degree robbery, and his sentence was enhanced based on prior federal and out-of-state convictions. In this petition, he complains that a 1990 second degree robbery conviction from Oregon does not qualify as a serious felony and, consequently, does not constitute a strike under the three strikes law or warrant a five-year enhancement pursuant to Penal Code section 667, subdivision (a).
Further undesignated statutory references are to the Penal Code.
The Attorney General concedes that the record of the Oregon conviction does not establish the offense is a serious felony under California law, but argues in supplemental briefing that case authority limiting a court's power to determine whether a prior conviction constituted a "serious felony" is not retroactive and cannot apply to the current case. The Attorney General otherwise argues petitioner's claim is procedurally barred because of his failure to adequately raise it either on appeal or at an earlier time by way of petition for writ of habeas corpus. Considering the nature of the claim, which depends only on review of the fixed record of the Oregon conviction, we conclude that relief is available by way of habeas corpus at this time. Accordingly, we shall dismiss the "strike" and the five-year sentence enhancement imposed for that prior conviction and remand for resentencing.
BACKGROUND
Petitioner had four prior Oregon state convictions and one prior federal conviction that were charged in the 2013 case as strikes pursuant to the three strikes law. These convictions include the 1990 second degree robbery conviction at issue. At sentencing in August of 2013, the court declined to strike any of petitioner's prior convictions, finding he fell within the spirit of the three strikes law. The court sentenced him to state prison for 25 years to life pursuant to the three strikes law and an additional 15 years, which consisted of three, 5-year terms for prior serious felonies pursuant to section 667, subdivision (a).
On direct appeal in 2015, this court found one of the prior convictions, a 1980 second degree robbery conviction from Oregon, could not be used as an enhancement because the prosecution had been allowed to amend the information to include it following discharge of the jury. (People v. Rodriguez (Jan. 23, 2015, C074676) [nonpub. opn.] p. 11.) The opinion modified the judgment in accordance with that decision and affirmed in all other respects. As relevant here, petitioner had also argued there was insufficient evidence his remaining Oregon robberies qualified as strikes because Oregon did not require an actual taking of property. (Id. at pp. 10-11.) The opinion observed that the issue of whether property was taken was not itself dispositive since even an attempted robbery is a serious felony under California law. (Id. at p. 10.) Moreover, the opinion observed that any felony is considered a serious felony if "the defendant personally used a dangerous or deadly weapon." (§ 1192.7, subd. (c)(23).) Petitioner had been charged with and admitted, pursuant to his plea, that he used a firearm or knife in the crimes. (People v. Rodriguez, supra, C074676 at p. 10.)
But that was not true of the 1990 Oregon conviction for second degree robbery at issue here. The indictment for that particular offense actually charged that petitioner "did represent by word that he, the said defendant, was armed with a deadly weapon, to-wit: a gun." (Italics added.) This language is consistent with one of a few alternative ways of establishing that a robbery is of the second degree, rather than first or third degree, under Oregon law. (Or. Rev. Stat., § 164.405 [second degree robbery may be shown if person "[r]epresents by word or conduct" they are "armed with what purports to be a dangerous or deadly weapon"]; compare Or. Rev. Stat., § 164.415 [first degree robbery may be shown if a person "[i]s armed with a deadly weapon" or "[u]ses or attempts to use a dangerous weapon"].) In his plea form, petitioner indicated he admitted the charge but explained that while he represented to the victim he was armed, he was not in fact armed.
If the record of conviction does not establish petitioner was armed, his Oregon conviction for second degree robbery cannot be considered a serious felony under California law. Oregon's robbery statute, which is based on the Model Penal Code, differs from California's in that in Oregon, the victim need not be in actual or constructive possession of the property that is the subject of the robbery. (See People v. Nguyen (2000) 24 Cal.4th 756, 763-764 & fn. 4 [contrasting California's robbery statute with that of other states, including Oregon]; compare Or. Rev. Stat., §§ 164.395 & 164.405, with Pen. Code, § 211.) In connection with this petition, the Attorney General does not otherwise dispute that petitioner's plea failed to establish this element of robbery pursuant to California law. Although this issue was not explicitly raised in petitioner's direct appeal by appellate counsel, it is noteworthy that counsel had raised whether the evidence supported use of the prior conviction as a serious felony and that this court elected to review the record and expressly uphold the enhancements based on petitioner's weapon use.
Petitioner filed a petition for writ of habeas corpus challenging the use of his prior convictions for enhancement purposes, first in the superior court in 2016, and then in this court in 2017. Petitioner cited authority, including the United States Supreme Court's ruling in Descamps v. United States (2013) 570 U.S. 254 (Descamps), concerning what materials in the record of a prior conviction could be considered in establishing the elements of an enhancement. This court directed that an order to show cause issue returnable in the superior court, emphasizing petitioner had made a prima facie case at least as to the 1990 second degree robbery conviction at issue here. (In re Rodriguez, case No. C084234 [order directing issuance of order to show cause issued Jan. 5, 2018].) Further, in directing issuance of the order to show cause, this court cited authority including the United States Supreme Court's decision in Strickland v. Washington (1984) 466 U.S. 668 , governing claims of ineffective counsel. (See In re Rodriguez, supra, C084234 [order directing issuance of order to show cause, Jan. 5, 2018].) This was consistent with petitioner having included in the claims stated: "Petitioner is asking that the Court of Appeal . . . scrutinize his grounds and see the [errors] . . . , as well as petitioner['s] counsel's ineffectiveness." The superior court ultimately denied the petition without an evidentiary hearing. The superior court concluded that petitioner's "problem" was that he had not raised "an ineffective assistance of counsel claim in the instant proceeding."
The superior court's order was entered on October 3, 2018. Petitioner filed the current petition for writ of habeas corpus in this court on November 21, 2018. We subsequently issued an order to show cause returnable in this court. The Attorney General has filed the return, and petitioner was appointed counsel, who filed the traverse. In the order directing issuance of the order to show cause, we emphasized that it provided the Attorney General "an opportunity to identify and provide any documentary evidence showing petitioner's prior conviction qualifies as an enhancement consistent with those limitations discussed in [Descamps, supra, 570 U.S. 254] whether or not that evidence appears in the appellate record in People v. Rodriguez, case number C074676." The Attorney General has not provided any such documentation.
DISCUSSION
Petitioner's conviction fails to qualify as a serious felony based on the record of the Oregon conviction. The opinion on direct appeal in this case indicated petitioner had used a weapon in the Oregon robbery, but the record does not support that. Review of the appellate record cannot go beyond identifying the nature of the prior conviction, as recognized by the United States Supreme Court in Descamps, supra, 570 U.S. 254, which preceded petitioner's conviction. Subsequent state Court of Appeal cases culminating in the state Supreme Court's decision in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), recognized these limitations. "The jury trial right is violated when a court adds extra punishment based on factfinding that goes 'beyond merely identifying a prior conviction' by 'try[ing] to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' " (Id. at p. 135, quoting Descamps, at p. 269.) On direct appeal, this court looked to the relevant materials that may be considered based on these limitations, including the indictment and admissions pursuant to the plea. But these were not accurately characterized by this court, as we have explained, and appellate counsel failed to point out the mischaracterization. Accordingly, petitioner's claim is cognizable as a claim of ineffective appellate counsel.
In supplemental briefing, the Attorney General, citing In re Milton (2019) 42 Cal.App.5th 977, review granted March 11, 2020, S259954 (Milton) argues that petitioner is not entitled to relief because Gallardo, supra, 4 Cal.5th 120, is not retroactive and thus does not apply to cases, like his, in which the conviction was final before the Gallardo opinion issued.
In Milton, the Second District, Division 7, held that Gallardo did not apply retroactively to a defendant whose direct appeal was decided in 2000. The court applied the federal rule on retroactivity under Teague v. Lane (1989) 489 U.S. 288, 307 , a rule followed in California, which denies retroactivity where a case announces a new rule of law that mandates a result not compelled by precedent existing at the time a defendant's conviction became final. The Milton court concluded that review was not circumscribed by Gallardo because the state of the law at the time of Milton's conviction allowed a broader review of material in the record of his prior conviction, which supported the finding it constituted a serious felony. (Milton, supra, 42 Cal.App.5th at pp. 983-986, rev. granted.) The court rejected Milton's argument that the decisions in Taylor v. United States (1990) 495 U.S. 575 and Apprendi v. New Jersey (2000) 530 U.S. 466 , which were decided before Milton's conviction became final, compelled the later conclusion reached in Gallardo. (Milton, at pp. 989-991, rev. granted.) The Milton court recognized instead that the foundation for Gallardo was Descamps, supra, 570 U.S. 254 as well as Mathis v. United States (2016) 579 U.S. ___ (Mathis).
In re Brown (2020) 45 Cal.App.5th 699, review granted June 10, 2020, S261454, disagrees with Milton, supra, 42 Cal.App.5th 977, review granted, and instead finds Gallardo, supra, 4 Cal.5th 120, to be retroactive on state retroactivity grounds. The Supreme Court has granted review in Milton to resolve the conflict. We need not weigh in on this issue because, as we explain, Milton is distinguishable.
Milton, supra, 42 Cal.App.5th 977, review granted, is therefore distinguishable from the present case. At the time Milton's conviction became final the United States Supreme Court had not decided Descamps, which foreshadowed Gallardo and formed the basis for our Supreme Court's decision in Gallardo. In contrast, Descamps had been decided before petitioner's conviction. As to our petitioner, Gallardo did not announce a new rule; it simply recognized the changes in the law effected by the United States Supreme Court in Descamps. The United States Supreme Court decision in Descamps, supra, 570 U.S. 254, preceded petitioner's conviction, and the limitations in Descamps are applicable to review of the record of the prior conviction. Multiple Court of Appeal decisions applying Descamps anticipated the decision in Gallardo and concluded review of the record of a prior conviction was circumscribed by the limitations described therein. (People v. Denard (2015) 242 Cal.App.4th 1012; People v. Marin (2015) 240 Cal.App.4th 1344; People v. Saez (2015) 237 Cal.App.4th 1177; see also People v. Wilson (2013) 219 Cal.App.4th 500.) And, as noted above, Descamps preceded petitioner's conviction and this court reviewed the record on appeal and considered material in the record that was consistent with the Descamps limitations.
The Attorney General suggests petitioner should have included a declaration from trial and/or appellate counsel explaining why this issue was not raised, suggesting the claim falls within "the broad category of . . . tactics." We fail to see any legitimate basis for appellate counsel not raising the claim. Appellate counsel successfully challenged use of another prior conviction, resulting in it being stricken. And, as previously explained, appellate counsel unsuccessfully challenged use of the conviction at issue here for enhancement purposes. This court rejected that claim in part based on a misapprehension of the record.
The Attorney General otherwise contends that petitioner's earlier petition did not adequately state a claim of ineffective appellate counsel and that procedural default rules favoring timely presentation of claims in a single petition should bar relief in the current petition. The Attorney General suggests the case is simply a belated attempt to raise mere sufficiency of the evidence. We disagree.
First, we reject the Attorney General's argument that petitioner has failed to exercise diligence in raising this issue and that he has engaged in repetitious and piecemeal presentation litigation. A petition for writ of habeas corpus "must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim." (In re Harris (1993) 5 Cal.4th 813, 828, fn. 7.) A petitioner must justify any "substantial delay." (Id. at p. 828.) "[A]bsent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely petitions will be summarily denied" unless a "fundamental miscarriage of justice" is shown. (In re Clark (1993) 5 Cal.4th 750, 797 (Clark), superseded in part in capital cases by Prop. 66 as described in Briggs v. Brown (2017) 3 Cal.5th 808 (Briggs).)
Petitioner represented himself in the habeas proceeding commenced first in the superior court in 2016. And, as noted above, he cited ineffectiveness of prior counsel in the 2017 petition to this court that resulted in issuance of an order to show cause to the superior court. Until the time the direct appeal was resolved, petitioner reasonably relied on appellate counsel to represent him and could not claim ineffective appellate counsel. Following resolution of the appeal, petitioner needed to obtain the appellate record from counsel and conduct legal research. The period of delay following the 2015 direct appeal until first presentation of the claim does not appear particularly long, considering these facts. Likewise, any lack of specificity on petitioner's part in asserting the claim in the 2017 petition, which resulted in the first issuance of an order to show cause, does not appear unreasonable. Although the earlier petition was not a model of clarity, petitioner did cite ineffective counsel as a ground for relief. And, following denial of that petition by the superior court upon issuance of the order to show cause, petitioner promptly filed the current petition in this court.
Further, and in any event, we perceive no prejudice to the government's interests based on delay. Procedural default rules limiting delayed presentation of claims help "ensure that possibly vital evidence will not be lost through the passage of time or the fading of memories" and consider also the interest in finality, including "the value of the psychological repose that may come for the victim, or the surviving family and friends of the victim, generated by the knowledge the ordeal is finally over." (In re Sanders (1999) 21 Cal.4th 697, 703.) But here, we are not concerned with a crime or enhancement imposed for conduct underlying petitioner's 2013 conviction. Rather, we are concerned with an enhancement imposed for a prior conviction, imposition of which is limited to review of a fixed record, i.e., the record of conviction for petitioner's Oregon second degree robbery conviction. This is akin to our decision in a parole case, in which we suggested concerns of delay were mitigated because finality of a conviction was "not an issue" and the record was "all on paper, so there is little risk of vital evidence being lost." (In re Burdan (2008) 169 Cal.App.4th 18, 31.) "Because this is not a situation where a grant of habeas corpus relief would require a retrial of the criminal charges, there is no potential prejudice to the state." (Ibid.)
Finally, even if we were to conclude otherwise and consider barring the petition for lack of diligence, petitioner would still be entitled to relief if a "fundamental miscarriage of justice" were shown. (See Clark, supra, 5 Cal.4th at p. 797.) The "fundamental miscarriage of justice" exception applied to both capital and noncapital cases prior to Proposition 66, and it continues to apply in noncapital cases. (See Briggs, supra, 3 Cal.5th at pp. 841-845 [rejecting claim Prop. 66 violated equal protection by eliminating fundamental miscarriage of justice exception in capital cases].) Four alternative criteria for determining a fundamental miscarriage of justice were articulated by the Supreme Court in the capital case context, but the elaboration of the standard in that context has also guided courts in noncapital cases. (See, e.g., In re Douglas (2011) 200 Cal.App.4th 236, 244-245 [referencing criteria in a noncapital case]; see also In re Reno (2012) 55 Cal.4th 428, 472 [four criteria applied "at least" in capital cases].) Petitioner asserts that two of these criteria apply here, namely: (1) an "error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner," and (2) "the petitioner is actually innocent of the crime or crimes of which the petitioner was convicted." (Clark, at pp. 797-798.)
While otherwise limiting consideration of untimely and successive petitions in capital cases, Proposition 66 codified and retained the actual innocence exception. (§ 1509, subd. (d); Briggs, supra, 3 Cal.5th at pp. 841-842.)
Although the current case involves the limited question of a sentence enhancement, we are persuaded it would represent a fundamental miscarriage of justice to allow that enhancement to stand. To put it in plain terms, petitioner should not be subject to a sentence enhancement that could not lawfully be imposed under any circumstances based on the record of the Oregon prior conviction at issue.
The Attorney General otherwise concedes that if petitioner is entitled to relief, "the proper remedy is to strike the five-year prior serious felony conviction and have appellant be resentenced." We accept the Attorney General's concession as to the remedy.
DISPOSITION
The trial court is directed to strike the enhancements imposed based on petitioner's October 19, 1990, Oregon second degree robbery conviction and to set the matter for resentencing.
/s/_________
RAYE, P. J. We concur: /s/_________
ROBIE, J. /s/_________
RENNER, J.