Opinion
F076135
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. CURTIS LEE ALLEN, JR., Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Chatman, and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR054017)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Chatman, and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The trial court consolidated into one trial defendant Curtis Lee Allen, Jr.'s charges for robbery, two counts of making criminal threats, and indecent exposure with a prior strike conviction. The indecent exposure charge arose from a May 2, 2016, incident when defendant removed his pants and touched himself publicly in a fast food restaurant. The robbery and criminal threats charges arose from a May 30, 2016, incident when defendant went into a market and began threatening people after he demanded food on credit, an employee refused to give it to him, and he left the store with merchandise he did not pay for. A jury convicted defendant of all charges.
Defendant challenges his convictions, arguing (1) the trial court prejudicially erred by consolidating the charges from the different incidents into one trial; (2) even if the trial court did not err in consolidating the trial, the consolidation resulted in "gross unfairness" and denied him his Fourteenth Amendment right to due process; (3) the evidence was insufficient to establish his prior conviction for battery with serious bodily injury was a serious felony; (4) the trial court violated the Sixth Amendment and People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) by conducting judicial factfinding regarding the nature or basis of his prior battery conviction; and (5) the matter should be remanded for a new sentencing hearing to permit the court to exercise its discretion and decide whether to strike defendant's serious felony prior in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).
We reverse the finding that defendant's prior Penal Code section 243 battery conviction was a serious felony within the meaning of the three strikes law and strike the enhancement imposed for that prior conviction for further proceedings consistent with this opinion. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People filed two cases against defendant, one charging him with indecent exposure on May 2, 2016, and another charging him with robbery and making criminal threats on May 30, 2016. Before trial, the court granted the prosecutor's request to consolidate the cases pursuant to Penal Code section 954. May 2 , 2016 , Incident
On May 2, 2016, at around 7:00 p.m. defendant was sitting in a fast food restaurant in Madera, California talking to himself. According to a male restaurant employee working that day, defendant approached the counter talking and then started "grabbing on customers that were waiting in line" while simultaneously masturbating. Defendant began chasing a lady around and then went into the back of the restaurant where the employees work. At some point while in the restaurant, defendant "just took off his clothes." When the assistant manager saw defendant, he did not have on pants or underwear and "was playing with [his penis]," "giving himself pleasure." "He was just standing by the registers." Defendant said, "'If y'all call the cops, I am going to kill you'"; he said "he was going to fuck everybody in the restaurant." The assistant manager was scared. Defendant told her not to call the police and to sit with him. The male restaurant employee tried to get defendant to go outside and defendant threatened to beat him up.
At trial, defendant admitted going to the restaurant on the date of the incident, speaking with women behind the counter, and rubbing his crotch over his pants. He also admitted he took off his shirt but denied taking off his pants or exposing his genitals at any time. He denied running behind people while masturbating and testified "there were no customers in the restaurant ... only workers." He testified the two women behind the counter seemed interested in him and he began discussing the Bible and "had a rapt audience." He admitted to asking if people wanted to have sex, discussing the Kama Sutra, and "that the primal force of sex was powerful." He also admitted he was "high" during the incident. May 30 , 2016 , Incident
At around 10:00 a.m. on May 30, 2016, defendant entered a market and said, "I need food to eat." Defendant began picking up items like chips and peanuts before he went behind the counter. Romio Abdalatif was working at the market that day and told defendant the store does not give away free food. Defendant began talking about the Bible then went behind the counter towards the cash register, where customers were not allowed. Defendant tried to open the register and asked other customers how much money they wanted. Defendant was also saying "nasty" "sex stuff" to a female customer. Abdalatif asked defendant not to push the buttons on the register and defendant went after Abdalatif and threatened to punch him in the face. Abdalatif was scared defendant was going to hurt him. Eliel Rojas entered the market that day when he felt his cousins were taking too long inside. As he entered, Rojas saw defendant at the register. According to Rojas, defendant "appeared to be very dangerous." Defendant was saying unusual things and asked a woman "to take off her shirt." Defendant told Rojas that if Rojas wanted to fight him, defendant would kill him. Rojas felt uncomfortable and scared.
Abdalatif eventually activated a silent alarm and defendant ended up leaving the store with a bag of chips, nuts, cigarettes and an energy drink without paying for the items. Police apprehended defendant outside of the store. The People introduced video surveillance footage from the date of the incident.
Defendant testified that, on the date of the incident, he was passing the market and saw one of the store clerks outside whom he had known for approximately 20 years. Defendant asked the clerk if he could get food on credit on his food stamp card because he was hungry. According to defendant, at that point Abdalatif interjected and said "'we don't give credit here.'" Defendant again asked the other clerk for food on credit, offering to give him his food stamp card but the clerk said no. According to defendant, Abdalatif told him again that they "'don't give credit.'" Defendant felt like Abdalatif was being rude and had stopped the other clerk from giving defendant food on credit, so he decided to be disrespectful in response. Defendant began "binding the spirits" of people in the store. He told the people he was "speaking in the spiritual sense" and meant "no physical harm." He testified he was "hot on methamphetamine at that time." According to defendant, he told Abdalatif he was going to "rip" his heart out, not "rape" him. Defendant testified he was "speaking in the spiritual sense" and said he meant no physical harm. According to defendant, he never threatened anyone. Defendant admitted his hand went near the cash register but he denied touching any of the buttons on the register. Defendant also admitted he eventually took a pack of cigarettes, a bag of chips, an energy drink, and some almonds and walked out of the store without paying for the items.
Verdict
The jury convicted defendant of all counts. As to the May 2, 2016, incident at the fast food restaurant, the jury convicted defendant of indecent exposure, a misdemeanor violation of Penal Code section 314, subdivision 1 (count 4). As to the May 30, 2016, incident at the market, the jury convicted defendant of robbery in violation of section 211 (count 1) and the felony of making criminal threats to Abdalatif (count 2) and Rojas (count 3) in violation of section 422.
The court sentenced defendant to the aggravated term of five years, doubled under the three strikes law, for a total term of 10 years in state prison (Pen. Code, §§ 213, 667, subd. (e)(1)) for count 1 (the robbery charge)—designating this as the principal term. The court sentenced defendant to a consecutive term of 16 months' imprisonment (one-third the median term of four years) on count 3 (criminal threats as to Rojas). It sentenced defendant to an additional five-year consecutive term based on the section 667, subdivision (a)(1) enhancement. The court also imposed and stayed a six-year sentence on count 2 pursuant to section 654 and two additional five-year consecutive terms for additional enhancements pursuant to section 667, subdivision (a)(1). The court further sentenced defendant to time served on count 4 (indecent exposure). Accordingly, the court sentenced defendant to an aggregate term of 16 years 4 months' imprisonment.
DISCUSSION
I. Consolidation of Cases
In his first and second arguments, defendant challenges the consolidation of the charges arising from the separate incidents into one trial. He first argues reversal is required because the trial court prejudicially erred in granting the prosecutor's motion to consolidate. He next contends, even if the trial court did not err in granting consolidation, the consolidation resulted in "gross unfairness."
A. Relevant Factual Background
Before trial, the People moved to consolidate the trials on the indecent exposure charge arising from the May 2, 2016, incident at the fast food restaurant and the robbery and criminal threats charges arising from the May 30, 2016, incident at the market (case Nos. MCR054017 and MCR053978). The People argued the cases were connected because in both "defendant walked into operational businesses and made overtures and threats that were sexual in nature directed at individuals inside those businesses." They also argued the offenses are "of the same class," the charges were not "'unduly' inflammatory," and if they were tried separately, "elements of the cases may be cross-admissible for [Evidence] Code [section] 1101(b) purposes."
Defendant opposed the motion, arguing the charges associated with the different incidents were not "the same class of crimes" and "none of the witnesses are the same." Defendant further argued "there's not one element that is in both," and he challenged the People's claim that evidence from one case may be cross-admissible in the other pursuant to Evidence Code section 1101, subdivision (b). He also argued the Penal Code section 314 charge was "prejudicial to the more serious case, the felony" under Evidence Code section 352.
The court noted the facts related to the felony market case—defendant "demanding money from the business and threatening to cut people and rape them"—were not less prejudicial than the facts of the indecent exposure case such that joining the cases would prejudice defendant. The court granted the motion to consolidate concluding, "I think that they are sufficiently similar; I don't believe that they are unduly prejudicial; I think we're not joining a strong case with a particularly weak case."
B. Standard of Review and Applicable Law
Penal Code section 954 discusses the consolidation of accusatory pleadings. It provides in part:
"An accusatory pleading may charge two or more different offenses connected together in their commission; or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
The law favors the joinder of counts because it promotes efficiency. (People v. Merriman (2014) 60 Cal.4th 1, 37.) Nonetheless, a trial court has discretion to order that properly joined charges be tried separately. (Ibid.) And, although a trial court is authorized to consolidate two or more accusatory pleadings for trial in an appropriate case, it is not required to do so. (Ibid.; see Pen. Code, § 954.) "In exercising its discretion in this regard, the court weighs 'the potential prejudice of joinder against the state's strong interest in the efficiency of a joint trial. [Citation.]' [Citation.]" (Merriman, at p. 37.)
Appellate review of a trial court's joinder order proceeds in two steps. (People v. Simon (2016) 1 Cal.5th 98, 122.) First, we examine whether, in light of the information available at the time, the trial court abused its discretion in ordering consolidation or denying the severance motion prior to the guilt phase. (Ibid.; see People v. Merriman, supra, 60 Cal.4th at p. 37.) Even if consolidation of counts is authorized under Penal Code section 954, however, courts still "must always examine consolidation motions for their potentially prejudicial effect." (People v. Lucky (1988) 45 Cal.3d 259, 277.) "Prejudice may arise from consolidation where it allows the jury to hear inflammatory evidence of unrelated offenses which would not have been cross-admissible in separate trials." (Ibid.) Where the statutory requirements for joinder are met, a defendant must make a "clear showing of prejudice" to establish that the trial court abused its discretion. (People v. Simon, supra, at pp. 122-123; see People v. Merriman, supra, at p. 37.) In evaluating whether the trial court abused its discretion, we consider: "(1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether any of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case." (People v. Simon, supra, at p. 123.) Second, even if the trial court's ruling was proper as a matter of state law, we will reverse the judgment if the defendant shows that joinder of the charges actually resulted in "gross unfairness" amounting to a denial of due process during the guilt phase. (Ibid.; People v. Avila (2006) 38 Cal.4th 491, 575.)
C. Analysis
As a threshold matter, defendant argues the two charges arising from the incidents were distinct and not the "same class of crimes or offenses" such that consolidation was proper under Penal Code section 954. He next argues he was prejudiced from their joinder; accordingly, the trial court abused its discretion in granting the motion to consolidate. Finally, he contends even if the trial court did not abuse its discretion, the consolidation of the charges resulted in a trial that was "grossly unfair" to defendant in violation of his due process rights.
1. The incidents were sufficiently similar to justify consolidation
Defendant first argues "the joined offenses have no common characteristics or attributes" such that they are "of the same class." He contends robbery and criminal threats "have nothing to do with sexual motivation," whereas "lewd intent" is the quintessential element of indecent exposure. He also denies the two offenses had a common element of substantial importance. The People argue defendant's "sexual motivation operates as 'a common element of substantial importance'" in the commission of the offenses. They contend, during the fast food restaurant incident, defendant made sexual advances to a female employee, disrobed, and masturbated publicly. And during the market incident, he would not let customers leave and told them he was going to "bind" them and rape them. They argue, "[i]n each case, we have a man taking over a commercial establishment with the intent to derive sexual gratification from intimidating and dominating the people inside."
The law prefers consolidation or joinder of charged offenses in the interests of judicial economy, and the language "connected together in their commission" in Penal Code section 954 reflects legislative intent for a "very broad test for joinder." (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1217, 1220.) Offenses may be "connected together in their commission" within the meaning of section 954 even though they relate to conduct committed at different times and places against different victims. (People v. Miller (1990) 50 Cal.3d 954, 987.) Indeed, section 954 "'permits the joinder of different offenses not related to the same transaction or event "if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant."'" (Alcala, at p. 1218.)
Here, we cannot conclude the trial court abused its broad discretion in concluding the two incidents shared a common element of substantial importance. In both incidents, which occurred within weeks of each other, defendant entered public establishments while "high" on drugs, behaved erratically, threatened the people he encountered, and made comments of a sexual nature. At trial, he admitted being present during both instances but denied the related criminal charges. During both incidents, defendant talked about the Bible and told people not to leave either establishment. During the May 2d incident, defendant admitted to talking about sex and asking people to have sex with him at the restaurant. Similarly, during the May 30th incident at the market, there was testimony defendant asked a woman to take off her shirt and he made comments of a sexual nature toward her. Based on these common elements, we cannot conclude the trial court abused its discretion in concluding the events were "sufficiently similar" to justify consolidation. (See People v. Lucky, supra, 45 Cal.3d at p. 276 [concluding facts underlying joined offenses shared certain characteristics sufficient to justify consolidation where in all instances armed robber victimized small businesses managed by few employees that sold specialized merchandise and were located in same geographical area].)
2. Trial court did not abuse its discretion in consolidating cases
Weighing the relevant factors in evaluating the trial court's decision to consolidate the cases, we again cannot conclude the trial court abused its discretion.
a. Cross-admissibility of evidence
Defendant denies evidence of the two incidents would have been cross-admissible in separate trials and contends the trial court and prosecutor acknowledged this. The People argue "the trial court could reasonably have concluded—at the time of its decision, which [is] the operative time-frame—that some evidence in this case may have been cross-admissible" on the issue of intent, "specifically, on whether [defendant] intended that his statements about rape be understood as threats, rather than 'angry utterances or ranting soliloquies.'" Here, there was a weak showing to demonstrate the evidence of the crimes would be cross-admissible. Irrespective, although cross-admissibility of evidence may be an independently sufficient condition justifying a trial court's denial of severance, it is not a necessary one. (See People v. Simon, supra, 1 Cal.5th at p. 123; Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221.) "In the absence of cross-admissibility, we turn to the remaining factors to assess whether the trial court abused its discretion." (Simon, at pp. 123-124.)
b. Particularly inflammatory charges
Defendant contends "[t]he indecent exposure case was highly likely to inflame the jury against" defendant because its facts were "repugnant." He cites People v. Earle (2009) 172 Cal.App.4th 372 in support of his argument the charge for indecent exposure would incline the jury to convict him of a more serious offense and impair its ability to view the evidence objectively. The People respond "no bit of evidence on any charge in this case was more likely to inflame the jury than any other." They dispute whether defendant "telling multiple customers in the [market] that he would rape them and cut out their guts is much less 'repugnant' than [his] masturbating in public."
"[T]he animating concern underlying this factor is not merely whether evidence from one offense is repulsive, because repulsion alone does not necessarily engender undue prejudice. [Citation.] Rather, the issue is 'whether "'strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case' on another crime."' [Citation.]" (People v. Simon, supra, 1 Cal.5th at p. 124.) "Only when a defendant has made a clear showing of potential prejudice may we find an abuse of discretion in this context." (Id. at p. 127.)
In People v. Earle, supra, 172 Cal.App.4th 372, the trial court joined a misdemeanor indecent exposure charge with an unrelated charge of assault with intent to commit rape. (Id. at p. 378.) The defendant did not challenge the indecent exposure charge but "vigorously contested" the assault charges arising from the unrelated incident. (Id. at p. 384.) The primary issue as to the assault charge was the identity of the perpetrator, and the defense focused on undermining the victim's identification. (Ibid.) In evaluating the inflammatory effect of evidence of the indecent exposure charge, the Earle court noted "in many contexts an act of indecent exposure would not be expected to 'inflame' a jury's sentiments, however obnoxious they might find it. ...[I]t remains a distinctly nonviolent offense," and resulting fear and shock are not necessary to its completion. (Id. at p. 400.) However, the court there held the evidence of indecent exposure was "particularly inflammatory" given "the heavily contested assault charges," the weaknesses in the identification as to those charges, and in light of the prosecutor's arguments to the jury characterizing the defendant "as a 'predator' and 'scary guy.'" (Id. at p. 401.)
Unlike in People v. Earle, evidence of the charges arising from the market incident was strong. Furthermore, we cannot conclude the evidence of defendant's indecent exposure charge was "particularly inflammatory." Indeed, defendant himself admitted he was present at the market on the date of the offense, he told Abdalatif he was going to "rip" his heart out (though he testified he meant it in the spiritual sense), and he left without paying for merchandise in his possession. He admitted he wanted to "disrespect" Abdalatif. There was also other evidence that during the market incident, defendant made explicit threats to harm people in the store and he appeared dangerous. Abdalatif testified defendant threatened to punch him in the face and that he was scared. Rojas also testified defendant appeared dangerous and said if Rojas wanted to fight him, defendant would kill him. Rojas further testified defendant asked a female customer to take off her shirt and she looked scared. There was surveillance footage documenting the incident. Thus, even if the facts and evidence related to the indecent exposure charge could be viewed as "repugnant," we cannot conclude it was "used to bolster a weak prosecution case" regarding the crimes charged for the market incident, which were also supported by strong evidence. (See People v. Simon, supra, 1 Cal.5th at p. 124.)
c. Relative strength of cases
Defendant next asserts "[t]he indecent exposure case was strong. The robbery/criminal threat case was not." He argues he was "obviously either intoxicated ..., suffering from mental[] illness, or both," (fn. omitted) when he walked into the market that morning, so the jury "could have reasonably believed that he did not make a threat to either Mr. Abdalatif or Mr. Rojas '"with the specific intent that the statement ... [was] to be taken as a threat"'" or reasonably doubted he had the intent to steal. The People argue there was no difference in the strength of the evidence supporting the different charges. They note there was testimony from multiple disinterested witnesses supporting the charges arising from each incident. We agree with the People.
"The core prejudice concern arising in connection with this [factor] is that jurors may aggregate evidence and convict on weak charges that might not merit conviction in separate trials." (People v. Simon, supra, 1 Cal.5th at p. 127.) "But even where evidence from one incident could be considered 'inflammatory' as the term is understood in our case law [citation], we will find no abuse of discretion if the evidence of guilt for each of the joined incidents is sufficiently compelling." (Ibid.)
Here, as discussed, strong evidence, including defendant's own admissions, supported defendant's convictions as to the charges arising out of each incident. Multiple witnesses testified to defendant's behavior on each occasion, and he denied all of the charges against him. Because neither was a weak case needing joinder to bolster the likelihood of conviction, defendant also fails to make a clear showing of potential prejudice under this factor.
d. Conversion of charges resulting from joinder
Here, because the joinder of the counts did not convert the matter into a capital case or permit the prosecutor to seek a multiple-murder special circumstance, this factor is not applicable. (See People v. Jones (2013) 57 Cal.4th 899, 927-928; People v. McKinnon (2011) 52 Cal.4th 610, 632.)
3. Consolidation did not result in gross unfairness
Finally, defendant argues "[b]y joining the offenses for trial the prosecution here was able to get before the jury a significant amount of inadmissible character evidence that created a real risk that the jury would not decide the robbery and criminal threat charges on the basis of the evidence because they had been offered evidence that [defendant] was some kind of morally reprehensible 'freak' or 'pervert.'" But, for all the reasons discussed ante, defendant does not establish joinder resulted in a denial of fundamental fairness.
"'"A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process."' [Citation.]" (People v. McKinnon, supra, 52 Cal.4th at p. 632.) "Gross unfairness" exists when there is a reasonable probability that joinder affected the jury's verdict. (People v. Merriman, supra, 60 Cal.4th at p. 49.)
Given the evidence in support of both convictions, including defendant's own admissions, the testimony of other witnesses, and the surveillance footage, we cannot conclude it is reasonably probable the joinder affected the jury's verdict. Thus, joinder of the charges did not render the joint trial fundamentally unfair. (See People v. Merriman, supra, 60 Cal.4th at p. 49.)
We reject defendant's first and second contentions.
II. Sufficiency of the Evidence Defendant's Prior Conviction Was a Serious Felony
Defendant next argues there was insufficient evidence his prior conviction was a serious felony to qualify as a strike prior within the meaning of the three strikes law.
A. Relevant Procedural Background
In considering whether defendant's prior conviction for violating Penal Code section 243, subdivision (d) qualified as a "serious felony," the People urged the court to make reasonable inferences that the victim was not an accomplice from the certified records related to the prior conviction, considering the nature of the offense and the fact the victim sustained injuries. Defendant argued there was nothing in the record to show the alleged victim was a person other than an accomplice to elevate the offense to fall within the classification of a serious felony under section 1192.7, subdivision (c).
The court held the statements in the record that defendant choked the victim and struck her in the face supported a conclusion defendant personally inflicted serious bodily injury on the victim by striking her in the jaw. The court also concluded, "[w]ith regard to the status of accomplice or a non-accomplice, ... there's [a] reasonable inference based upon the facts before the Court that the defendant is the person who did that, and that the ... victim was not an accomplice." Accordingly, the court found the People had sufficiently proven the special allegations. It concluded that as to counts 1 through 3, defendant was convicted of a serious felony, to wit, battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d), in case No. 11866, within the meaning of section 667, subdivision (a)(1). The court also found defendant's prior conviction was a serious felony within the meaning of section 667, subdivisions (b) through (i).
B. Standard of Review
"The People must prove each element of an alleged sentence enhancement beyond [a] reasonable doubt." (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Id. at p. 1067.)
C. Applicable Law
Under the three strikes law, a prior conviction is a "serious felony" that counts as a strike for sentence enhancement purposes if it is a crime listed in Penal Code section 1192.7, subdivision (c). (§ 667, subd. (d)(1).) Battery with serious bodily injury is not one of the crimes specified in section 1192.7, subdivision (c) as a "serious felony." (§ 1192.7; In re Jensen (2001) 92 Cal.App.4th 262, 268.) However, "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice" is a "serious felony" under the three strikes law. (§ 1192.7, subd. (c)(8).) Accordingly, to establish a prior battery qualifies as a "serious felony," the People must prove the defendant personally inflicted the injury and the victim was not an accomplice. (Ibid.; People v. Bueno (2006) 143 Cal.App.4th 1503, 1508.)
It was once well-established in California that, when a prior conviction was based on a plea, the court could examine the record of conviction to determine whether the crime "realistically may have been based on conduct" that qualified as a strike and a serious felony. (People v. McGee (2006) 38 Cal.4th 682, 706.) The court was permitted to examine the record of the prior proceeding to determine whether it was sufficient to demonstrate the conviction is of the type that subjects the defendant to increased punishment under California law. (Ibid.)
Two subsequent federal Supreme Court cases, Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. ___ (Mathis), conflicted with this approach. In particular, the Descamps opinion disapproved of allowing a sentencing court "to try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct" because "[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt." (Descamps, supra, at p. 269.) The Mathis decision explained the relevant constitutional principles in a similar fashion:
"[O]nly a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. [Citation.] That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. [Citations.] He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about 'what the defendant and state judge must have understood as the factual basis of the prior plea' or 'what the jury in a prior trial must have accepted as the theory of the crime.' [Citations.] He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of." (Mathis, supra, 579 U.S. at p. ___ .)
Then, in Gallardo, supra, 4 Cal.5th 120, the California Supreme Court overruled People v. McGee "insofar as it authorize[d] trial courts to make findings about the conduct that 'realistically' gave rise to a defendant's prior conviction." (Gallardo, supra, at p. 134.) The Gallardo court held, "when the criminal law imposes added punishment based on findings about the facts underlying a defendant's prior conviction, '[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts unanimously and beyond a reasonable doubt.' [Citation.]" (Id. at p. 124.) "While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct 'realistically' led to the defendant's conviction." (Ibid.)
The Gallardo court held, "a sentencing court may identify those facts it is 'sure the jury ... found' in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea." (Gallardo, supra, 4 Cal.5th at p. 134.) "But it may not 'rely on its own finding' about the defendant's underlying conduct 'to increase a defendant's maximum sentence.'" (Ibid.) This is because "when the sentencing court must rely on a finding regarding the defendant's conduct, but the jury did not necessarily make that finding (or the defendant did not admit to that fact), the defendant's Sixth Amendment rights are violated." (Id. at p. 135.) Accordingly, "a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction." (Id. at p. 136.)
The Gallardo court noted "the holdings of Descamps and Mathis both concern the proper interpretation of a federal statute" and "did not squarely overrule existing California law." (Gallardo, supra, 4 Cal.5th at pp. 124, 128.) It concluded those cases "did not hold that the Sixth Amendment ... forbids application of the so-called modified categorical approach" to determining the nature of a prior conviction for enhancement purposes (id. at pp. 134-135), i.e., allowing trial courts "to review materials such as charging documents, jury instructions, and any agreed-to factual basis for a guilty plea" to determine what facts were necessarily found or admitted in the prior proceeding. (Id. at p. 131; see id. at pp. 137-138.) However, the justices in Gallardo agreed with the United States Supreme Court's discussion of relevant Sixth Amendment principles and chose to "follow the court's guidance" in that regard. (Gallardo, at p. 135.)
D. Analysis
Defendant notes Gallardo had not issued before he was sentenced, but he contends the evidence was insufficient to support the trial court's conclusion his prior battery conviction qualified as a "serious felony" under the applicable law at the time. He argues that in order to establish his prior battery conviction (violation of Pen. Code, § 243, subd. (d)) constituted a "serious felony" within the meaning of section 1192.7, subdivision (c)(8) such that it qualified as a strike prior, the prosecution had to prove (1) he personally inflicted the injury, rather than that he aided and abetted another; and (2) the victim was not an accomplice, or that he admitted the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(8). Defendant notes, though "the trial court was permitted to draw reasonable inferences from the records offered to prove that [he] suffered a prior serious felony conviction," "here the court went beyond reasonable inference when it made its own factual determination, based only on speculation, about the circumstances surrounding [defendant's] prior battery conviction." Relying on People v. Henley (1999) 72 Cal.App.4th 555, he contends the "the burden is on the prosecution to prove that the victim was not an accomplice," and nothing in the documents admitted at trial on the prior conviction allegation "foreclose[d] the possibility that [the victim] was an accomplice."
In People v. Henley, the trial court held the defendant's prior conviction for willful flight or attempt to elude a peace officer which proximately caused death or serious bodily injury qualified as a strike for purposes of the three strikes law. (72 Cal.App.4th at p. 566.) Such an offense is not a serious felony unless (1) the defendant personally inflicted great bodily injury, and (2) the injured person was not an accomplice. (Id. at p. 559.) In rendering its conclusion, the trial court had before it the factual basis for the defendant's prior plea, which explained the person injured during the defendant's flight was the passenger on the defendant's motorcycle. (Id. at p. 561.) The trial court stated the defendant had the burden of proving the injured party was an accomplice and, because the silent record did not establish this, it concluded the injured party was not an accomplice. (Id. at pp. 559, 561.) On appeal, our court reversed, holding the evidence was inconclusive as to whether the injured party in the prior case was an accomplice, and the trial court erred in placing the burden of proof on the defendant to show the injured party was an accomplice. (Id. at pp. 559-566.) We held, though the trier of fact is entitled to draw reasonable inferences from certified records of a defendant's prior conviction, the trial court's inference that the injured individual was not an accomplice was "without 'solid value' unless ... the burden of proof la[id] with [the defendant]," which it did not. (Id. at p. 561.) Our court explained, "neither the plea transcript nor the complaint mention[ed] the injured party's status" and "[t]he prosecution did not present any additional evidence to prove that she was not an accomplice." (Ibid.) The Henley court reasoned, though no other codefendants were charged in the prior case, there could "be many reasons why an accomplice [wa]s not charged and tried jointly with the defendant." (Id. at p. 562.) Additionally, the factual statement related to the plea did not establish the injured party was an innocent bystander or motorist but rather the passenger on the motorcycle the defendant was driving while fleeing from a pursuing police officer. (Ibid.) "Nothing in the record foreclose[d] the possibility" the passenger was not an accomplice. (Ibid.) Accordingly, "[b]ecause conflicting inferences [we]re at least as reasonable, an inference that the injured party was not an accomplice because she was not charged jointly with [the defendant was] not 'of solid value' such that a reasonable trier of fact could so find beyond a reasonable doubt." (Ibid.) The Henley court further held retrial of the allegation was not barred by constitutional protections against double jeopardy. (Id. at pp. 566-567.)
We conclude People v. Henley is distinguishable. Here, defendant previously pled no contest to battery with serious bodily injury (Pen. Code, § 243, subd. (d)); specifically, "willfully and unlawfully us[ing] force and violence upon the person of [the victim], resulting in the infliction of serious bodily injury to her." The prosecution presented the trial court with the complaint from this prior case, the plea waiver form completed by defendant in that case, the transcript of the plea colloquy, and our court's unpublished appellate opinion from that judgment. The transcript of the plea colloquy reflects the prosecutor stated the factual basis for the plea during the plea hearing: "on the 25th day of August, 1993, the defendant attacked [the victim] by choking and punching her, which resulted in serious bodily injury, resulting in medical treatment and hospitalization." Defendant stipulated to this factual basis and pled no contest to the charge. The court placed defendant on probation and ordered him not to "contact, harass[,] annoy, disturb, telephone, be around or in any way have anything to do with the victim in [that] case ...." Following a subsequent probation revocation hearing, in an unpublished opinion related to defendant's presentence custody credit, our court stated defendant previously "choked [the victim] and struck her in the face, breaking her jaw" and entered a plea to the related battery charge.
Before the sentencing hearing in the instant case, defense counsel argued the People failed to prove the prior battery conviction qualified as a serious felony under the three strikes law because they failed to establish defendant personally inflicted great bodily injury on a person other than an accomplice. But the trial court concluded, based on the documents presented by the People, it could reasonably infer the victim in the battery case was not an accomplice and that defendant perpetrated the charged act. It held it "would [not] be reasonable to conclude that [the victim] participated in the crime to break her own jaw, having been struck by the defendant."
Unlike in Henley, here the trial court's inference was reasonable in light of the submitted facts forming the basis for defendant's previous plea. The record of conviction before us evidences defendant pled to willfully using force or violence against the victim of the battery case by choking, punching, and attacking her. As part of the judgment, defendant was ordered not to contact the victim in any way. And the documents submitted by the People established defendant personally inflicted the injury. It is of no consequence that he pled no contest as opposed to guilty to this prior charge. "The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes" (Pen. Code, § 1016, subd. 3), and the court advised defendant as such during his prior plea hearing. Based on this record, we cannot conclude, as the Henley court did, that conflicting inferences regarding the injured party's status were equally reasonable such that "the trial court's inference that the injured individual was not an accomplice is without 'solid value.'" (People v. Henley, supra, 72 Cal.App.4th at p. 561.) Rather, viewing such evidence in the light most favorable to the trial court's conclusion, as we must, we conclude sufficient evidence supported the trial court's conclusion defendant's prior conviction qualified as a serious felony under the three strikes law under the applicable law at the time.
We reject defendant's contention.
III. Improper Judicial Factfinding
Defendant next contends the trial court engaged in improper factfinding by drawing inferences to conclude his prior conviction qualified as a strike prior based on the Supreme Court's subsequent decision in Gallardo. The People concede "the trial court's finding [that the victim of defendant's 1994 battery was not his accomplice] is a problem under Gallardo" because "[i]t used to be that a court trying to decide whether a felony was a 'serious felony' was allowed to conduct 'an examination of the record of the earlier criminal proceeding ... in order to ascertain whether that record reveal[ed] whether the conviction realistically may have been based on conduct that would not constitute a serious felony'"; but the law changed as articulated in Gallardo. They admit the trial court's inference from the record "is too close to the form of inference that Gallardo prohibited—that is, discarding a non-'serious felony' view of the facts as 'unreasonable' is too much like discarding such a view as 'unrealistic.'" Accordingly, "the People agree with [defendant] that his strike sentence cannot stand." They argue our court should order a limited remand so they can prove under newly applicable law that defendant's battery prior is a "serious felony." Specifically, they contend defendant "adopted the police reports as supplying the factual basis for his guilty plea, so they are part of the record of conviction" that the trial court can consider on remand. Defendant denies remand is appropriate on this basis and instead contends the determination the prior battery conviction constituted a prior serious felony conviction and strike should be reversed and the matter should be remanded for resentencing. Defendant relies on Descamps, supra, 570 U.S. 254 to argue that remand to permit the People to relitigate whether the prior conviction qualifies as a strike prior is improper. He argues, under Descamps, defendant was previously convicted under an indivisible statute, and the conviction itself is insufficient to establish it qualifies as a serious felony.
Here, under the applicable law at the time, as discussed ante, the court reasonably inferred the victim of defendant's prior battery was not an accomplice. However, based on the Supreme Court's subsequent decision in Gallardo, the trial court can no longer "determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction." (Gallardo, supra, 4 Cal.5th at p. 136 [trial court violated defendant's Sixth Amendment right to jury trial by finding a disputed fact about conduct underlying defendant's assault conviction that had not been established by virtue of conviction itself].) And whether the victim of the prior battery was a nonaccomplice was not established by virtue of the conviction or other records submitted on their face. Accordingly, applying Gallardo, we accept the People's concession and conclude the trial court violated defendant's Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying defendant's prior battery conviction that was not established by virtue of the conviction itself.
We conclude remand is appropriate on this issue. Defendant urges us to reject the People's request for remand and to follow the analysis our court previously adopted in People v. Navarette (2016) 4 Cal.App.5th 829. In People v. Navarette, our court adopted the categorical approach sanctioned in Descamps to analyze whether a prior conviction arising under a Mexican statute qualified as a serious felony in California. (People v. Navarette, supra, at pp. 852-855.) But People v. Navarette issued before the Supreme Court's opinion in Gallardo. (People v. Navarette, supra, at pp. 854-855 [noting "[o]ur state Supreme Court has yet to consider the impact of Descamps on the California procedure for proof of prior convictions as outlined in McGee"].) And the California Supreme Court in Gallardo observed that in Descamps "the high court did not hold that the Sixth Amendment, as opposed to the federal [Armed Career Criminal Act of 1984], forbids application of the so-called modified categorical approach when the statute of conviction has a single, 'indivisible' set of elements .... [I]ndeed, ... defendant here does not argue that California courts are constitutionally compelled to emulate the high court's version of the categorical approach in all of its particulars." (Gallardo, supra, 4 Cal.5th at pp. 134-135.)
Rather than requiring the approach described in Descamps, the Gallardo court sanctioned an examination of a defendant's admissions that formed the factual basis for a guilty plea. (Gallardo, supra, at p. 136.) The Gallardo court explained, "'[I]n determining the truth of an alleged prior conviction when ... the necessary elements of that conviction do not establish that it is a serious felony, and thus subject to California's Three Strikes law, the trier of fact must decide whether the defendant's conduct, as demonstrated in the record of the prior conviction, shows that the crime was a serious felony.' [Citation.]" (Id. at p. 135.) The Gallardo court noted "[t]he court's role is ... limited to identifying those facts that were established by virtue of the conviction itself ..., or that the defendant admitted as the factual basis for a guilty plea." (Id. at p. 136.) It determined the proper remedy was to remand the matter to the trial court "to permit the People to demonstrate to the trial court, based on the record of the prior plea proceedings, that [the] defendant's guilty plea encompassed a relevant admission about the nature of her crime." (Gallardo, at p. 139.) "Such a procedure fully reconciles existing precedent with the requirements of the Sixth Amendment." (Id. at p. 138.)
In light of Gallardo's holding, we conclude remand is appropriate because we cannot conclude the trial court examined all of the approved record-based documents in considering whether, as part of the plea proceedings related to his prior battery conviction, defendant admitted he personally inflicted injury on a nonaccomplice. Nor can we be certain the record on appeal contains all of the permissible record-based documents to determine whether defendant admitted as part of his plea that he personally inflicted the injury on a nonaccomplice. Accordingly, we remand the matter to allow the prosecution to present any additional documents comprising the record of conviction to identify the elements forming the basis of defendant's prior conviction and defendant's admissions related to his guilty plea. (See Gallardo, supra, 4 Cal.5th at p. 136 ["The court's role is ... limited to identifying those facts that were established by virtue of the conviction itself—that is, facts ... that the defendant admitted as the factual basis for a guilty plea"].) However, to the extent the People argue defendant's stipulation to the police reports as providing the factual basis for his plea means he admitted all of the facts in the police reports, and all the facts contained therein are part of the "record of conviction" the trial court can consider on remand, we reject this argument. (See People v. French (2008) 43 Cal.4th 36, 49, 50-51 [no contest plea constitutes admission of all elements of offense but not an admission to any aggravating circumstances and "[a] defendant is not required to personally admit the truth of the factual basis of the plea, which may be established by defense counsel's stipulation to a particular document, such as a police report"]; People v. Saez (2015) 237 Cal.App.4th 1177, 1206 [stipulating to a particular document like a complaint as the factual basis for a plea does not waive Sixth Amendment rights to a jury trial regarding additional facts beyond the elements of the charged offense].) And we note, under the heightened standard articulated in Gallardo prohibiting the court from engaging in judicial factfinding regarding conduct that "realistically" gave rise to the conviction, it will be difficult for the People to establish defendant's prior battery conviction qualifies as a "serious felony" absent an explicit admission by defendant as part of his plea proceeding to the additional circumstances necessary to support such a conclusion.
IV. Senate Bill 1393
Senate Bill 1393, signed into law on September 30, 2018, amends Penal Code sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five-year enhancements imposed pursuant to section 667, subdivision (a)(1). The new law took effect on January 1, 2019. The law is applicable to those parties, like defendant, whose appeals were not final on the law's effective date.
Here, the trial court imposed prior serious felony enhancements to defendant's sentences on counts 1 and 2 pursuant to Penal Code section 667, subdivision (a). Defendant seeks remand to permit the trial court to review these five-year prior serious felony enhancements in light of Senate Bill 1393. The People respond the court's language at sentencing reflects it would not have struck defendant's strike even if it had the discretion to do so; thus, remand is not required.
When a court is unaware of the scope of its discretionary powers, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) While the People correctly argue the trial court denied defendant's presentence motion made under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 requesting the trial court strike his prior three strikes conviction and concluded it found no reason to exclude him from the statutory scheme for sentencing a person under the three strikes law, the record before us does not reflect the trial court knew it had discretion to strike defendant's Penal Code section 667, subdivision (a) enhancement; nor does it reflect a clear indication by the trial court that it would not have struck these enhancements if it had the discretion to do so. Accordingly, in addition to striking these enhancements, should the trial court determine evidence in the record of conviction supports their reimposition, we also remand this matter for the trial court to exercise its discretion whether to dismiss these enhancements in light of its newfound discretion under Senate Bill 1393.
DISPOSITION
The finding that defendant's prior battery conviction was a serious felony within the meaning of the three strikes law is reversed and the enhancements imposed for that prior conviction are ordered stricken. The matter is remanded for a resentencing hearing and consideration of any additional documents that are part of the record of conviction in determining whether defendant's prior section 243, subdivision (d) battery conviction qualifies as a serious felony under the new standard articulated in Gallardo. If the court finds it does qualify as a strike, the court shall consider whether to exercise its discretion to dismiss the section 667, subdivision (a) enhancements in light of Senate Bill 1393. In all other respects, the judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.