Opinion
E066290
10-19-2017
THE PEOPLE, Plaintiff and Appellant, v. RICKY BURTON, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public Defender, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIC1508459) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Reversed with directions. Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public Defender, for Defendant and Respondent.
Defendant and respondent Ricky Burton suffered two prior strike convictions, first degree burglary (Pen. Code, § 459) and first degree robbery (§ 211), as a result of offenses he committed in 1995. In 2001, he was convicted of two drug offenses by a jury, and his two strikes were found to be true. Under the Three Strikes law, the trial court sentenced him to 25 years to life. On July 10, 2015, he petitioned for resentencing in light of Vargas, in which the California Supreme Court held that two prior convictions arising out of a single act against a single victim cannot constitute two separate strikes, and the sentencing court should dismiss one of them. Defendant argued that because the two strikes used to qualify him for "three strikes" sentencing were based on the same single act, the trial court was required to dismiss one of them and resentence him. The trial court agreed and ordered defendant to be resentenced. The People appeal the resentencing court's order, arguing the court erred in applying Vargas. We agree and reverse.
All further statutory references are to the Penal Code unless otherwise indicated.
Under the Three Strikes law, if a defendant reoffends after having suffered a first qualifying felony conviction, a doubled sentence is mandatory. (People v. Vargas (2014) 59 Cal.4th 635, 638 (Vargas).) "If, after having suffered two qualifying felony convictions, an offender commits a third qualifying felony, the Three Strikes law presumes he or she is incorrigible and requires a life sentence." (Ibid.)
On December 4, 2012, defendant petitioned for recall of his sentence pursuant to section 1170.126 (Proposition 36). The People opposed the petition on the ground that resentencing him would pose an unreasonable risk of danger to public safety. After the People presented evidence regarding defendant's egregious misconduct while incarcerated, his counsel requested a deferment of the petition. The trial court found defendant presently posed a danger to the community, but over the People's objection, deferred the Proposition 36 petition for two years. The People filed a petition for writ of mandate challenging the trial court's authority to defer Proposition 36 petitions. On January 6, 2015, this court issued a published decision holding the trial court erred in deferring the petition. We further found that the trial court was legally required to deny the petition because defendant's record provided conclusive evidence that he posed a risk of danger to public safety. (People v. Burton (2015) 232 Cal.App.4th 1140, review granted March 25, 2015, S223805.) Defendant petitioned the California Supreme Court for review, and on March 25, 2015, the Court granted the petition but deferred further action pending decision in People v. Valencia, S223825, and People v. Chaney, S223676, which present the following issue: "Does the definition of 'unreasonable risk of danger to public safety' (Pen. Code, § 1170.18, subd. (c)) under Proposition 47 . . . apply on retroactivity or other grounds to resentencing under the Three Strikes Reform Act of 2012 (§ 1170.126)?" (<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2097919&doc_no=S223805> [as of Oct. 18, 2017].) To date, defendant's petition remains pending before the California Supreme Court.
I. PROCEDURAL BACKGROUND AND FACTS
Defendant's two prior strike convictions are based on the following facts: On March 22, 1995, Carmelithyra Lewis was waiting for a real estate agent to arrive at her home. When she heard someone at the front door, she asked if it was the real estate agent. A voice said "yes" and she opened the door. Earl Snoddy "pushed [Lewis] into [her] house with a gun pointed at [her] face." Defendant followed. Snoddy pointed a gun at her, while defendant put his hand over her mouth. The two demanded money as they moved Lewis to her den.
The real estate agent rang the doorbell. After inquiring as to who was at the door, Snoddy told the agent that Lewis was "in the bathtub." Snoddy returned to the den, and Lewis relinquished $100. Snoddy and defendant Lewis took her upstairs, where she gave them a handgun and approximately $300. They returned downstairs and heard the real estate agent still knocking at the front door. The men escaped through Lewis's back door. During the entire encounter, which lasted only five to 10 minutes, Snoddy kept his gun pointed at Lewis.
Defendant was subsequently convicted of both first degree burglary (§ 459) and first degree robbery (§ 211) in Los Angeles Court Superior Court, case No. TA033430. However, because the robbery and burglary "involved the same basic set of facts," the court stayed punishment for the burglary count under section 654.
On January 18, 2002, a Riverside County jury convicted defendant of possession of cocaine base for sale and transportation/sales of cocaine (Health & Saf. Code, §§ 11351.5, 11352, subd. (a)). The trial court found true the allegation that defendant suffered two strikes (robbery and burglary convictions). (§ 667, subds. (c), (e).) Under the Three Strikes law defendant was sentenced to 25 years to life.
On July 10, 2015, defendant petitioned the trial court for a writ of habeas corpus, arguing that because the two strikes used to qualify him for "three strikes" sentencing were based on the same single act, the trial court was required to dismiss one and resentence him. (Vargas, supra, 59 Cal.4th at pp. 646, 649.) The trial court agreed, observing: "When a defendant's prior strike is for a first degree robbery where the degree is due to the robbery's 'perpetration in an inhabited dwelling house' (Penal Code § 212.5(a)), and for a first degree burglary where the defendant's felonious intent was effectively to commit the robbery, the two priors are for the same act under the narrow holding in Vargas, and cannot be used to enhance the defendant's sentence under the three strikes law." The trial court granted relief and ordered the defendant to be brought to court to be resentenced.
II. DISCUSSION
The People contend the trial court erred in applying Vargas because defendant "committed multiple criminal acts during a single criminal course of conduct." We agree.
In Vargas, supra, 59 Cal.4th 635, the Supreme Court held that when two prior strike convictions are based on the same act, the trial court is required to dismiss one of them. (Id. at p. 645.) There, the defendant had two prior strikes—carjacking and robbery—which were based on the same act of forcibly taking the victim's car. (Ibid.) His prior strikes "were not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act, committed at the same time, against the same victim. . . ." (Id. at p. 638.) The trial court used both convictions to sentence the defendant to a 25-year-to-life prison sentence. The Supreme Court held that when a defendant has been convicted of committing a single criminal act on a single victim that results in two felony convictions under different statutes, the trial court abuses its sentencing discretion if it fails to strike one of the two convictions. (Id. at pp. 640-649.) The Court explained that treating such a defendant as a third strike offender "was inconsistent with the intent underlying both the legislative and initiative versions of the Three Strikes law. [Citation.]" (Id. at p. 645.)
In reaching its conclusion, the Supreme Court reasoned that when the offender commits but a single act, he or she does not pose a greater risk to society merely because the Legislature has chosen to criminalize the act in different ways. (Vargas, supra, 59 Cal.4th at p. 646.) The Court noted it had previously held that multiple crimes may constitute multiple strikes when crimes are tried together (People v. Fuhrman (1997) 16 Cal.4th 930, 933) or even when, because the multiple crimes occur during a single course of conduct, punishment of only one crime is imposed and punishment is stayed under section 654 with respect to the other crimes (People v. Benson (1998) 18 Cal.4th 24, 27-31 (Benson)). (Vargas, supra, at pp. 638-639.) However, the Court clarified that it was addressing "multiple criminal convictions stemming from the commission of a single act[]" and not "multiple criminal acts" committed in a single course of conduct. (Id. at p. 648.)
Contending that defendant's prior convictions involved multiple criminal acts committed in a single course of conduct, the People argue that the facts in this case are similar to those in Benson. In Benson, the two prior strike convictions were based on an incident in which the defendant returned to a neighbor's apartment to retrieve his keys, grabbed his neighbor, forced her to the floor, and repeatedly stabbed her. (Benson, supra, 18 Cal.4th at p. 27.) After the defendant in Benson was convicted of residential burglary and assault with intent to commit murder, the trial court stayed one of the convictions pursuant to section 654, since both offenses were based on the same course of conduct. (Benson, supra, at p. 28.) Both convictions were later alleged as strikes when the defendant reoffended. On appeal, he argued that section 654 prevents both burglary and assault charges to be alleged as strikes. (Benson, supra, at p. 28.) The Supreme Court disagreed, finding that a section 654 stay does not prohibit the imposition of multiple strikes. (Benson, supra, at pp. 28-31.) The Court distinguished the situation where "multiple convictions arise out of a single act by the defendant" from a situation in which "multiple acts [are] committed in an individual course of conduct . . . ." (Id. at p. 36, fn. 8.)
Analogizing the facts in this case to those in Benson, the People contend the residential burglary was committed when defendant entered Lewis's home with criminal intent; however, the robbery was committed later, when defendant moved Lewis to the den, where he robbed her of $100, and then took her upstairs, where he robbed her of $300 and a gun. The People criticize the trial court's finding that "there was a single act because the robbery was fixed at first degree due to its location within a dwelling house and because the felonious intent upon entry for the burglary was to commit the robbery." They assert that this finding misreads Vargas and Benson. We agree.
The facts of this case are similar to Benson. Here, defendant committed a robbery during the course of a burglary, rather than an assault, but this is a distinction without a difference for present purposes. And Benson remains good law; in Vargas, the Supreme Court reiterated the words it stated in Benson, "'the electorate and the Legislature rationally could—and did—conclude that a person who committed additional violence in the course of a prior serious felony (e.g., shooting or pistol-whipping a victim during a robbery, or assaulting a victim during a burglary) should be treated more harshly than an individual who committed the same initial felony, but whose criminal conduct did not include such additional violence.' [Citation.]" (Vargas, supra, 59 Cal.4th at pp. 646, 648.)
For the foregoing reasons, we conclude the trial court erred by granting defendant's petition for writ of habeas corpus, striking one of his prior felony convictions, and ordering him to be resentenced.
Defendant's responding brief represents that he was resentenced on September 2, 2016, to a "15-year second-strike sentence and, because this sentence was less than the total credit for time served, [he was] placed . . . on postrelease community supervision (PRCS) and released . . . from custody." --------
III. DISPOSITION
The trial court's order granting defendant's petition for writ of habeas corpus is reversed, and the sentence imposed on September 2, 2016, is vacated. The trial court is directed to enter a new order denying defendant's petition for writ of habeas corpus: defendant's original sentence is reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. FIELDS
J.