Opinion
E068069
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ROBERT CLINE, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1404943) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed in part as modified; reversed in part with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A. PROCEDURAL HISTORY
On September 21, 2016, an amended information charged defendant and appellant Timothy Cline with robbery in concert (Pen. Code, §§ 221, 213, subd. (a)(1)(A)), count 1); making a criminal threat (§ 422; count 2); and burglary (§ 459; count 3). The information also alleged that defendant personally used a firearm during the commission of the three offenses (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8), 12022.5, subd. (a)); had served seven prior prison terms (§ 667.5, subd. (b)); had one serious prior felony conviction (§ 667, subd. (a)); and had an out-of-state prior conviction (§§ 67, subds. (b) & (e)(1), 1170.12, subd. (c)(1)).
All statutory references are to the Penal Code unless otherwise specified. --------
On September 23, 2016, a jury convicted defendant on all counts and found true the gun-use enhancements. On March 10, 2017, defendant admitted the prior conviction allegations, and the trial court found that the out-of-state prior conviction qualified as a strike. Thereafter, the trial court sentenced defendant to state prison for 27 years as follows: 12 years on count 1 (six years doubled pursuant to the prior strike conviction); five years for the prior serious felony conviction; and 10 years for the gun-use enhancement. The sentences on the burglary and criminal threats convictions were stayed pursuant to section 654. On March 30, 2017, defendant filed a notice of appeal.
B. FACTUAL HISTORY
In April 2014 Todd Lane and his girlfriend, Kim Gallacher, rented a room at Bob Wilkerson's house in Fontana. Elizabeth Hardison, Wilkerson's girlfriend, did not approve of Lane or Gallacher living at her boyfriend's house. Hardison told Lane that he and Gallacher needed to move out. When that did not work, Hardison texted defendant stating, "come get this parasite out of the house, and you can check his pockets on the way out." Hardison had previously enlisted defendant's assistance in removing different people from Wilkerson's house. When defendant did so, he took drugs from that person's pockets.
On April 20, 2014, defendant, Scott Dueling and Sierra Reiss went over to Wilkerson's house to remove Lane and Gallacher from the house. Defendant and Dueling were both armed with handguns. When they arrived, they entered the house and asked Hardison to knock on Lane's bedroom door. After doing so, defendant and Dueling rushed into the bedroom holding their guns and began shouting, "get down." Once Lane and Gallacher complied, defendant and Dueling began asking Lane, "where's the gun? Where's the money?" Defendant began searching through Lane's drawers while Dueling held Lane face down on the ground at gunpoint. During that time, Dueling told defendant, "We should shoot him and not leave any witnesses." Defendant responded, "No. He's going to walk out of here, we're not going to—no one's going to get shot today, and we're going to let him walk out of here." Shortly thereafter, Lane was escorted out of the house and instructed to "keep walking and don't look back." After Lane left the house Dueling took a black money pouch from one of Lane's drawers, which contained approximately $3,000. Hardison took a backpack from Lane's room, which contained approximately $4,000, in addition to other items. Defendant, Dueling, and Reiss then fled the house.
Wilkerson was taken into custody by law enforcement shortly after the robbery; soon thereafter he received a text message from defendant. It read: "As we all know, there ain't much to say, except pay up. A deal is a deal, and I don't want to come out there."
Ultimately, defendant was identified and taken into custody. While in custody, defendant sent out two letters that were intercepted by law enforcement. One letter was addressed to Gallacher and the other letter was addressed to Lane. In the letter to Gallacher, defendant asked that she deliver the other letter to Lane, then get it back and destroy it. Defendant told Gallacher that if Lane were to tell the prosecutor and the judge that he was lying about the guns being used, then the gun enhancements would be dropped.
In the letter to Lane, defendant apologized for his conduct and begged Lane to either change his "story" regarding the use of guns or not to show up at court.
DISCUSSION
A. THE TRIAL COURT'S FINDING THAT DEFENDANT'S OUT-OF-STATE PRIOR CONVICTION CONSTITUTED A SERIOUS AND VIOLENT FELONY IN CALIFORNIA IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Defendant contends that there was insufficient evidence to support the trial court's finding that his 1995 prior conviction in Washington was a serious and violent felony under California law. The People agree. Under the least adjudicated elements test, assault with a deadly weapon in Washington does not necessarily constitute a serious or violent felony in California. Moreover, the record on appeal is devoid of evidence, such as a factual basis for the plea resulting in the prior conviction, in which the trial court could have relied upon in making its determination. As a result, we remand this case to the trial court.
1. ADDITIONAL PROCEDURAL HISTORY
In 1995, defendant pled guilty to conspiring to commit assault with a deadly weapon in violation of sections 9A.36.021, subdivision (1)(c), and 9A.28.040 of the Revised Code of the State of Washington. The prosecutor in the current case alleged that this out-of-state conviction qualified as a prior strike conviction.
The prosecutor's sentencing brief noted the 1995 information stated that defendant, "with the intent that the Crime of Second Degree Assault with a deadly weapon be performed, did agree with another to engage in such conduct and one of the parties so aspiring did assault Luther T. Valentine, a human being. . . , with a sawed-off-shotgun, therein a deadly weapon." The brief went on to note that, as a factual basis for his 1995 guilty plea, defendant stated, " 'On July 16, 1995, I planned an armed robbery with Jamie. It was planned that [Jamie] would do the robbery with the shotgun and I would drive the getaway car. This was in Yakima Count[y], Washington.' " (Fns. Omitted.)
During the sentencing hearing in this case, defendant admitted the truth of the 1995 conviction but disagreed that the conviction qualified as a prior serious felony conviction or a prior strike conviction. After an in-chambers discussion, the trial court found that the prior conviction qualified as both a prior serious felony conviction and a prior strike conviction.
2. LEGAL HISTORY
Section 667, subdivision (a)(1), provides for a sentence enhancement for each prior conviction for "any offense committed in another jurisdiction which includes all of the elements of any serious felony" under California law. Under the "Three Strikes" law, a prior conviction from another jurisdiction constitutes a strike if it is "for an offense that includes all of the elements of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Therefore, the prior foreign conviction "must involve conduct that would qualify as a serious [or violent] felony in California." (People v. Avery (2002) 27 Cal.4th 49, 53.)
Traditionally, to make this determination, a trial court applied the "least adjudicated elements" test. (People v. Crowson (1983) 33 Cal.3d 623, 632-634, italics omitted; People v. Guerrero (1988) 44 Cal.3d 343, 346-348, 354-355; People v. Myers (1993) 5 Cal.4th 1193, 1195.) The California Supreme Court explained: "A defendant whose prior conviction was suffered in another jurisdiction is, therefore, subject to the same punishment as a person previously convicted of an offense involving the same conduct in California." (Myers, at p. 1201.) Under this test, the trier of fact was permitted to consider the entire record of the proceedings of the prior conviction to determine whether the prior offense "involved conduct which satisfies all of the elements of the comparable California serious felony offense." (Id. at p. 1195.) If not precluded by the rules of evidence or other statutory limitations, the trier of fact may go beyond the least adjudicated elements of the offense and consider evidence found within the entire record of the foreign conviction. (Ibid.)
Recently, the California Supreme Court amended the least adjudicated elements test. The Supreme Court limited the scope of the review a trial court may conduct in determining whether an out-of-state conviction qualifies as a serious or violent felony. Now, a trial court may only determine what factual findings were necessarily made by virtue of the conviction and if the conviction was the result of a guilty plea, what was admitted as a factual basis for the guilty plea. The trial court, therefore, is no longer permitted to consider other records, such as the preliminary hearing transcript of the prior conviction, in determining whether the defendant's prior conduct would have constituted a serious or violent felony had it occurred in California. (People v. Gallardo (2017) 4 Cal.5th 120, 126 (Gallardo).)
3. THE COURT'S FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
In this case, defendant's 1995 Washington conviction for conspiracy to commit assault with a deadly weapon passes neither the elements test nor the record of conviction test.
Under the elements test, under Washington law, a defendant can be convicted of assault with a deadly weapon even if that firearm is unloaded. (Revised Code of Washington (RCW), §§ 9A.04.110, subd. (6), and 9A.36.021, subd. (1)(c).) In California, assault with a deadly weapon constitutes a serious felony and also a strike. (§ 1192.7, subd. (c)(31).) The offense, however, cannot be committed by the mere act of pointing an unloaded gun at a person because of the lack of a present ability to commit a violent injury. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3; People v. Glover (1985) 171 Cal.App.3d 496, 504, fn. 6; People v. Orr (1974) 43 Cal.App.3d 666, 672.) Therefore, because it is possible to commit an assault with a deadly weapon in Washington that would not constitute an assault with a deadly weapon in California, we must look to "the record of the conviction" examined by the trial court to determine whether it properly found that defendant's prior conviction was a serious felony within the meaning of section 1192.7, subdivision (c)(31). (People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
In this case, however, it does not appear that the trial court reviewed the transcript of the 1995 plea proceedings or the plea form itself, which contained a factual basis for the plea, before finding the prior conviction qualified as a serious felony and a strike in California. Defendant's 1995 plea agreement, which contained a factual basis for the plea, was not admitted into evidence during the sentencing hearing. Moreover, it was not discussed on the record. Instead, the trial court discussed the matter with both counsel in chambers and then went on the record, and summarily found the prior conviction qualified as a serious felony and strike conviction in California.
The California Supreme Court in Gallardo rejected this exact argument. (Gallardo, supra, 4 Cal.5th 120.) In Gallardo, after the defendant was convicted of numerous crimes, the trial court held a bifurcated bench trial on whether the defendant's prior assault conviction qualified as a serious felony. In order to make this determination, the trial court considered the preliminary hearing transcript of the prior conviction. Thereafter, the trial court ultimately found, based on its review of the transcript, that the defendant's prior assault conviction constituted a serious felony. (Id. at p. 124.) The Supreme Court held that such a review of the prior record of conviction violated the defendant's Sixth Amendment rights. Specifically, the Supreme Court held that a trial court's role in this regard is limited "to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for the guilty plea." (Id. at p. 136.) The Supreme Court remanded 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 defendant's guilty plea encompassed a relevant admission about the nature of her crime." (Id. at p. 139.)
In this case, the proper remedy is to remand this matter in accordance with Gallardo—to allow the trial court to examine the record of the prior plea proceedings, including the factual basis provided by defendant. (People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of strike allegation permissible when trier of fact found the allegation to be true and appellate court reversed that finding for insufficient evidence]; People v. Jenkins (2006) 140 Cal.App.4th 805, 816 [finding on strike & § 667, subd. (a)(1), allegations based on out-of-state conviction reversed for insufficient evidence; "these allegations may be retried if the prosecutor obtains additional evidence regarding the Utah robberies to establish that [the defendant] used force or fear against a person with a possessory interest in the property taken"]; People v. Cortez (1999) 73 Cal.App.4th 276, 284.)
B. DEFENDANT IS ENTITLED TO RESENTENCING PURSUANT TO SENATE BILL 620
Defendant contends that he is entitled to resentencing pursuant to recently passed Senate Bill 620, to allow the trial court an opportunity to exercise its new discretion to strike defendant's gun enhancement. The People agree, conceding that People v. Francis (1969) 71 Cal.2d 66 (Francis), is controlling.
On October 11, 2017, the Governor signed Senate Bill 620, ending the statutory prohibition on a court's ability to strike a firearm enhancement allegation or finding. Effective January 1, 2018, sections 12022.5, subdivision (c), and 12022.53, subdivision (h), became amended to allow a court to exercise its discretion under section 1385 to strike or dismiss such an enhancement at the time of sentencing or resentencing:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), and 12022.53, subd. (h).)
Whether a statute operates prospectively or retroactively is a matter of legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).) The starting point for this analysis is section 3 of the Penal Code, which codifies a presumption that the Legislature intends prospective operation of new statutes and amendments, unless it expressly declares the new law retroactive. (§ 3.) Section 3 "codif[ies] 'the time-honored principle . . . that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended retroactive application.' " (Brown, at p. 319, citing Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.)
In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court determined that, despite the omission of an express declaration, the Legislature intended retroactive application of amendments to sections 3044 and 4530, which reduced the punishment for the crime of escape without force. The court held that a "legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law." (Estrada, at p. 745.) The Estrada court concluded, "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." (Ibid.) Because the Legislature has determined that the new lighter punishment is sufficient in all cases, "[i]t is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid., italics added.)
Recent cases have limited the holding of Estrada. (See e.g., Brown, supra, 54 Cal.4th at p. 319; In re Pedro T. (1994) 8 Cal.4th 1041, 1045; and People v. Conley (2016) 63 Cal.4th 646, 661 (Conley).) In Brown, the Supreme Court explained the modern understanding and applicability of the rule announced in Estrada, and its "limited role" in the "jurisprudence of prospective versus retrospective operation." (Brown, at p. 324.) The Brown court reiterated the strong presumption in favor of prospective application embodied in Section 3, and noted that, if applied "broadly and literally," the language of Estrada would "justify retroactive operation on evidence of less dignity and reliability than the express legislative declaration, or clear implication from extrinsic evidence, that we now require under section 3 . . . [and would] reduce section 3's strong presumption of prospectivity to a tie-breaking principle of last resort." (Ibid.) The Brown court held that this would "endanger the default rule of prospective operation." (Ibid.). To avoid this result, the Brown court limited the broad language of Estrada to its specific context. (Brown, at p. 319.) In other words, the Brown court held that Estrada aids in resolving the ultimate question—the quest for legislative intent—to the extent it articulates a "reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgment." (Brown, at p. 319; see also Conley, supra, 63 Cal.4th at p. 661 [recognizing "that the retroactive application of ameliorative changes to the criminal laws is ultimately governed by the intent of the legislative body"]; and see Pedro T., supra, 8 Cal.4th at p. 1045 ["The basis of our decision in Estrada was our quest for legislative intent"].)
Three years after Estrada, and decades before the Supreme Court's modern limitation on Estrada, the California Supreme Court, in People v. Francis (1969) 71 Cal.2d 66 (Francis), applied Estrada to a statutory amendment similar to that at issue in this case. In Francis, the punishment for an offense was amended to permit trial courts, in their discretion, to impose a misdemeanor or a felony sentence, where the crime had previously punishable only as a felony. (Francis, at p. 75.) The court in Francis noted: "Here, unlike Estrada, the amendment does not revoke one penalty and provide for a lesser one but rather vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty." (Id. at p. 76.) But the court rejected the People's argument that this difference necessarily took the case outside of Estrada's rule because the extension of discretion was necessarily not a legislative determination that the former punishment was too severe in all cases. (Francis, at p. 76.) Instead, the Francis court held, "there is such an inference because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances." (Ibid.)
The conclusion in Francis seems to be at odds with the Supreme Court's recent opinion in Conley, and Francis may therefore be ripe for reconsideration. In Conley, where the court found Estrada inapplicable to Proposition 36's resentencing scheme, the court noted that the recall mechanism in the legislation contained substantive limitations, i.e., it included an ability for trial courts to deny resentencing if it found the defendant posed "an unreasonable risk of danger to public safety." (Conley, supra, 63 Cal.4th at p. 658.) The inclusion of this limitation "call[ed] into question the central premise underlying the Estrada presumption: that when an amendment lessens the punishment for a crime, it is reasonable to infer that the enacting legislative body has categorically determined that 'imposition of a lesser punishment' will in all cases 'sufficiently serve the public interest.' " (Ibid., citing Pedro T., supra, 8 Cal.4th at p. 1045.) Conley appears to call into question whether Francis is still good law when a new statute is enacted that provides discretion to reduce punishment, but does not mandate reduction in all cases. The Supreme Court, however, has never addressed or overruled Francis. The People agree with defendant: given that the precise context that arises in Francis—a new law granting discretion to mitigate punishment—seems indistinguishable from the context presented by the recent amendment at issue in this case, the holding in Francis applies. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court."].) As such, defendant is entitled to remand and resentencing in accordance with Senate Bill 620.
C. DEFENDANT IS ENTITLED TO 12 MORE DAYS OF PRESENTENCE CREDITS
Defendant contends that he is entitled to 12 more days of presentence credits; the People agree. A defendant is entitled to conduct credits from the day he was taken into custody, the day of sentencing, and every day in between. (People v. Morgain (2009) 177 Cal.App.4th 454, 469.) He is also entitled to an additional 15 percent of those days he actually spent in custody pursuant to section 2933.1.
In this case, defendant was arrested on May 28, 2014, and sentenced on March 10, 2017. Therefore, he was entitled to 1,018 days of actual custody credits, and an additional 115 days pursuant to section 2933.1 (15 percent of 1,018), for a total of 1,170 presentence custody credits. The court, however, awarded defendant 1,158 days. Defendant is entitled to 12 more days of presentence custody credits.
DISPOSITION
The judgment is modified to correct the presentence credits to a total of 1,170 days. The case is remanded to the trial court, which is directed to (1) hold a new hearing on the prior conviction allegation in accordance with Gallardo, supra, 5 Cal.5th 120; and (2) resentence defendant in accordance with Senate Bill 620. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.