Opinion
G050259
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ALFRED ALEXANDER HOLLIMON, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Raquel M. Gonzalez and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13WF0274) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Conviction affirmed, enhancement vacated, and remanded for resentencing. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Raquel M. Gonzalez and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Alfred Alexander Hollimon was convicted of child abuse and mayhem. Defendant's 11-month-old daughter, Y.V., was severely burned while defendant was bathing her. While treating Y.V. for her burns, doctors discovered she had suffered multiple recent fractures that were the result of nonaccidental trauma.
Following People v. Anderson (2011) 51 Cal.4th 989 and People v. Jennings (2010) 50 Cal.4th 616, we reject defendant's argument that the trial court had a sua sponte duty to instruct the jury regarding the defense of accident.
Alternatively, defendant argues that his trial counsel was deficient for failing to request an instruction on accident. We conclude defendant did not suffer any prejudice due to the lack of such an instruction. The accident instruction reiterates the need for the prosecution to prove defendant's intent in committing the crime, and evidence relating to the defense of accident, as testified to by defendant himself, was inconsistent with the injuries suffered by Y.V. We affirm defendant's conviction.
Finally, defendant argues that the trial court erred by enhancing his sentence due to a prior conviction in Nevada. We agree. In June 2014, the trial court determined that the prior conviction in Nevada met the criteria of a serious felony within the California sentencing enhancement scheme. The trial court went beyond identifying facts that were necessarily admitted by defendant in his guilty plea in Nevada, and made its own independent review of the record to determine what conduct had led to defendant's Nevada conviction. A few years after the sentencing, our Supreme Court held that such an independent review is prohibited. (People v. Gallardo (2017) 4 Cal.5th 120, 124 (Gallardo).) Therefore, we vacate the trial court's finding on the serious felony prior conviction and remand the matter for resentencing.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
About 5:50 p.m. on January 26, 2013, police and paramedics responded to a 911 call from defendant's grandmother's house. Y.V. was found to have suffered third degree burns over 22 percent of her body.
At the scene, defendant told Westminster Police Officer Travis Hartman that he had given Y.V. a warm bath, and that he had repeatedly checked the water, which did not seem hot. Defendant claimed Y.V. played in the bathtub for 10 to 20 minutes without crying, and splashed the water with her hands. After Y.V. had been in the bathtub for about 15 minutes, defendant noticed her legs were red, and thought the water might be too hot. Defendant said that when he pulled Y.V. out of the water, her legs were bleeding, and he began peeling off her skin. Defendant also told Officer Hartman that Y.V. had "banged her head" in the bathtub two nights earlier.
Defendant was questioned at the University of California, Irvine, hospital, where Y.V. was transported for treatment. During that interview, defendant again said he had checked the water temperature and it did not feel hot to him. Defendant said he left Y.V. unattended in the bathtub "for ten seconds, maybe," to get her a diaper while she played in the water. Defendant said she became "fussy crying," so he pulled her out of the bathtub and discovered "she was all red" and her skin was peeling off. Defendant peeled off the skin from her legs, then screamed for his mother; defendant claimed he thought removing Y.V.'s skin would not hurt her, but would help cool her down. Defendant denied burning Y.V. on purpose, and denied that Y.V. had been crying when she was in the water. Defendant again claimed Y.V. had bumped her head on the bathtub faucet two days earlier. Defendant was arrested following the interview at the hospital.
Dr. Nicole Bernal, who treated Y.V. in the hospital, and performed several surgeries to cut away burn tissue and replace it with skin grafts, testified that Y.V.'s injuries were consistent with having been dipped into hot water, and reflexively bending her legs up to protect herself. Y.V.'s injuries were not consistent with defendant's explanation of what had happened while he was bathing Y.V.
Dr. Sandra Murray, who also treated Y.V., testified that Y.V. had suffered very deep, third degree burns, and that the water temperature must have been at least 130 degrees. Y.V. had developed infections as a result of the burns, and was in the hospital in critical condition for two months. Y.V. underwent two surgeries on her feet "because the toes were contracted and pulled up so that they were not . . . flat on the ground when she put her foot down." Y.V. would require additional skin grafts as she aged because "the graft skin does not grow as well as her normal skin does."
Dr. Murray testified that the pattern of burns on Y.V. was not consistent with defendant's story that she had been sitting in a tub of water for 15 to 20 minutes. Dr. Murray further testified that certain areas of Y.V.'s body were not burned because Y.V. reflexively bent her legs up toward her stomach when her feet or her buttocks touched the hot water. Dr. Murray opined that Y.V. was "absolutely clearly" dipped into the tub of hot water.
Dr. Murray also testified that X-rays taken at the hospital showed several recent fractures, including a right skull fracture, fractures of the vertebrae, a right rib fracture, and a right wrist fracture. Y.V. had been X-rayed 15 days before the burning incident; the foregoing injuries had all been suffered since that date. When she reexamined the earlier X-rays, Dr. Murray observed two healing right rib fractures; those had been acute on January 9, 2013, but were missed when the X-rays were originally reviewed. Dr. Murray testified that all of the fractures suffered by Y.V. were caused by "nonaccidental trauma." The fractures were not consistent with any of defendant's explanations, but rather had to have been caused by "high energy forces," such as those caused during an automobile accident or a multistory fall, and could not have been caused by Y.V. herself.
Y.V.'s maternal great-aunt, Jane V., testified that in January 2013, she was Y.V.'s foster mother. Visitation between Y.V. and defendant occurred at defendant's grandparents' house, and Y.V. was transported by a social worker. After Y.V. was returned from a visit with defendant on January 9, 2013, Jane V. noticed bruises on Y.V.'s ribs and pelvic bone area, and red marks on her shoulder and back. Jane V. called the social worker, the social worker's supervisor, and the child abuse hotline. She took Y.V. to St. Joseph Hospital, where Y.V. was examined. When Y.V. returned from a visit with defendant on January 16, Jane V. noticed a bruise on Y.V.'s forehead. Jane V. again called the social worker, the supervisor, and the child abuse hotline. Jane V. refused to continue as Y.V.'s foster mother because she was worried that she would be blamed for Y.V.'s injuries. Defendant's grandmother became Y.V.'s foster parent, and Y.V. moved into her paternal great-grandmother's house on January 24—two days before she was seriously burned.
The parties stipulated that defendant inflicted corporal injury on the mother of his unborn child (Y.V.'s older sibling) on February 23, 2010.
Defendant testified in his own defense at trial. Defendant testified that he put Y.V. in the bathtub, where she played without crying and without any apparent problems for 15 to 20 minutes. Defendant left her alone two or three times, for a few seconds each time. The last time he returned to the bathroom, Y.V. was standing up in the bathtub, and was "not crying but like something was wrong." Defendant picked her up, and saw that her skin was peeling off. Defendant claimed he did not intentionally burn or harm Y.V., and that her injuries were the result of an accident, but admitted he accepted responsibility for Y.V.'s burns.
A jury convicted defendant of two counts of child abuse; one count related to Y.V.'s burns (count 1), while the other count related to her fractures and additional injuries (count 3). (Pen. Code, § 273a, subd. (a).) The jury also convicted defendant of one count of mayhem (count 2). (Id., § 203.) With respect to count 1, the jury found true an allegation that defendant personally inflicted great bodily injury on a child under the age of five. (Id., § 12022.7, subd. (d).)
In a bifurcated proceeding, defendant admitted he had a prior conviction, which the prosecution alleged was a serious and violent felony (Pen. Code, §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and he had suffered a prior prison term for that offense (id., § 667.5, subd. (b)). Over defendant's objection, the trial court found the prior conviction was a serious and violent felony.
The trial court sentenced defendant to a total prison term of 25 years eight months: the upper term of six years on count 1, doubled to 12 years; a consecutive upper term of six years for the great bodily injury sentencing enhancement; a consecutive term of five years for the serious felony prior conviction; and a consecutive one-third doubled midterm of two years eight months on count 3. (The court stayed execution of defendant's sentence on count 2, pursuant to Penal Code section 654.)
DISCUSSION
I.
THE TRIAL COURT DID NOT HAVE A SUA SPONTE DUTY TO INSTRUCT THE JURY
ON THE DEFENSE OF ACCIDENT.
Defendant argues that the trial court erred by failing to instruct the jury sua sponte on the defense of accident. (Pen. Code, § 26.) In People v. Anderson, supra, 51 Cal.4th at page 992, the California Supreme Court held "a trial court has no obligation to provide a sua sponte instruction on accident where, as here, the defendant's theory of accident is an attempt to negate the intent element of the charged crime." (See People v. Jennings, supra, 50 Cal.4th at pp. 674-675 [same].) We conclude the trial court did not err in this case.
Defendant acknowledges that under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, this court is required to follow People v. Anderson, but submits the argument to preserve it for federal court review.
II.
DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
Defendant contends that his trial counsel was ineffective in failing to request that the jury be instructed with CALCRIM No. 3404 on the defense of accident. To prevail on a claim of ineffective assistance of counsel, defendant must prove by a preponderance of the evidence that his trial counsel's representation failed to meet an objective standard of reasonableness, and that absent counsel's deficient performance, there is a reasonable probability the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Frye (1998) 18 Cal.4th 894, 979.)
In his opening brief on appeal, defendant purports to raise a second issue—that his trial counsel was ineffective by conceding defendant's guilt as to count 1. Defendant fails to provide any argument supporting this contention; an argument mentioned only in a heading has effectively been forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)
We turn directly to the second prong and conclude there was no prejudice. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
In this case, the jury was properly instructed with CALCRIM Nos. 821 and 801, which contain the elements of child abuse likely to produce great bodily harm or death, and mayhem, respectively. Both instructions informed the jury what mental state the prosecution was required to prove as an element of the crime. CALCRIM No. 3404, which defendant contends should have been given to the jury as well, provides: "<General or Specific Intent Crimes> [¶] [The defendant is not guilty of ___ <insert crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of ___ <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.] [¶] <Criminal Negligence Crimes> [¶] [The defendant is not guilty of ___ <insert crime[s]> if (he/she) acted [or failed to act] accidentally without criminal negligence. You may not find the defendant guilty of ___ <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with criminal negligence. Criminal negligence is defined in another instruction.]" CALCRIM No. 3404 reiterates that intent is an element of the crime, which must be proven by the prosecution; giving that instruction would not have altered the result of the case.
In any event, the defense of accident was inconsistent with defendant's version of the case. Had defendant, without the intent to burn Y.V., dipped her into a scalding bath, he might not have had the necessary intent to be convicted of child abuse or mayhem. Defendant's contention that Y.V. was burned after sitting in a warm bath for an extended period of time, or that she was burned while defendant stepped out of the bathroom momentarily, was completely inconsistent with the testimony of two expert witnesses who explained how hot the water had to be, and how Y.V. must have been dipped into the water to produce the burns on her body.
The jury necessarily found defendant acted with the intent required to support convictions for child abuse and mayhem; there is no reasonable probability that the result would have been different if the jury had been instructed with CALCRIM No. 3404.
III.
NEVADA STRIKE
Defendant argues that the trial court erred in finding his 2008 Nevada conviction for attempted robbery was a prior strike and a serious felony, and, therefore, his sentence must be modified. "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." (People v. Miles (2008) 43 Cal.4th 1074, 1083.)
A.
Factual Background
Defendant waived his right to a jury trial on the prior conviction, and admitted he had been convicted on August 11, 2008, in the State of Nevada, for attempted robbery. Defendant contended in the trial court, and argues here, that attempted robbery in Nevada is not equivalent to attempted robbery in California, and therefore does not constitute a strike for sentencing purposes.
The trial court considered the information, guilty plea agreement, and judgment of conviction from the District Court of Clark County, Nevada, in case No. C245095. The information reads, in relevant part: "Alfred Hollimon . . . , having committed the crime of Attempt[ed] Robbery (Category B Felony—NRS 193.330, 200.380), on or about the 14th day of May, 2008, within the County of Clark, State of Nevada, contrary to the form, force and effect of statutes in such cases made and provided, and against the peace and dignity of the State of Nevada, did then and there wilfully, unlawfully, and feloniously attempt to take personal property, to-wit: an iPod, from the person of Henston Hortillosa, or in his presence, by means of force or violence, or fear of injury to, and without the consent and against the will of the said Henston Hortillosa." The guilty plea agreement provided that defendant pleaded guilty to "Attempt[ed] Robbery (Category B Felony—NRS 193.330, 200.380), as more fully alleged in the charging document attached hereto as Exhibit '1'." (The attached charging document was the information quoted ante.) The judgment of conviction reiterated that defendant had entered a plea of guilty to attempted robbery.
The trial court also had before it and considered the transcript of the hearing at which defendant pleaded guilty, the order for revocation of defendant's probation and amended judgment of conviction, and a copy of section 200.380 of the Nevada Revised Statutes.
The trial court stated: "The question before the court is whether the prior Nevada conviction qualifies as a conviction of a serious felony under California law. [¶] And based on the analysis and reading of People's 30, 31, 32 and 33, as well as the McGee case, the court will determine that the record is sufficient to demonstrate that the Nevada conviction is the type that subjects the defendant to increased punishment under California law, and would also qualify as a serious felony in California; therefore, which . . . would make it valid for purposes of the strike provision, the 667.5(b), and a 667(a)(1)."
In People v. McGee (2006) 38 Cal.4th 682, 685, the California Supreme Court concluded that the trial court, and not the jury, had the responsibility to examine the record of an earlier proceeding to consider whether it qualifies as a strike for purposes of increasing the punishment in the current case. The court in McGee based its holding on its interpretation of the United States Supreme Court's decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, which had held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." A few years after the trial court in this case followed People v. McGee, the California Supreme Court in Gallardo acknowledged that, in light of subsequent United States Supreme Court authority, "the approach sanctioned in McGee is no longer tenable insofar as it authorizes trial courts to make findings about the conduct that 'realistically' gave rise to a defendant's prior conviction." (Gallardo, supra, 4 Cal.5th at p. 134.)
B.
Legal Analysis
In California, robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) The felonious taking element "is the intent to steal, or to feloniously deprive the owner permanently of his or her property." (People v. Bacon (2010) 50 Cal.4th 1082, 1117, italics added.)
The Nevada and California statutes regarding attempt are virtually identical; neither defendant nor the Attorney General argues to the contrary. "An act done with the intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit that crime." (Nev. Rev. Stat. § 193.330(1).) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a.)
Nevada's statute prohibiting robbery provides, in relevant part: "Robbery is the unlawful taking of personal property from the person of another, or in the person's presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to: [¶] (a) Obtain or retain possession of the property; [¶] (b) Prevent or overcome resistance to the taking; or [¶] (c) Facilitate escape. [¶] The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear." (Nev. Rev. Stat. § 200.380(1).) The specific intent to deprive the victim of his or her property permanently is not an element of the crime of robbery in Nevada. (Litteral v. State (1981) 97 Nev. 503, 505-508.)
As the California Supreme Court explained in People v. McGee, supra, 38 Cal.4th at p. 711, "Under our law, a prior conviction is a strike if the conviction is for a 'serious felony' as defined in subdivision (c) of section 1192.7. Robbery is listed in that provision. Nevada's robbery statute, however, differs from California law . . . : (1) The Nevada statute requires only that the defendant act with general criminal intent, whereas in California the defendant must act with the specific intent to permanently deprive the victim of the property taken. . . . Therefore, in Nevada a robbery conviction can be based on conduct that under California law would not be robbery, and thus would not qualify as a serious felony strike."
In Gallardo, supra, 4 Cal.5th 120, the California Supreme Court held that "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. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, 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 a guilty plea." (Id. at p. 136, fn. omitted, citing Descamps v. United States (2013) 570 U.S. 254.)
In Gallardo, a jury found the defendant guilty of robbery, being an accessory after the fact, and transporting marijuana, and found true a sentencing enhancement allegation that a principal in the crime was armed with a firearm during the commission of the robbery. (Gallardo, supra, 4 Cal.5th at p. 125.) The information in that case alleged that the defendant had a prior conviction for a serious felony. (Ibid.) The defendant waived her right to a jury trial on the prior conviction allegation. (Ibid.)
The trial court found that the defendant's prior conviction for assault qualified as a serious felony, and therefore enhanced the defendant's sentence on her current convictions. (Gallardo, supra, 4 Cal.5th at p. 126.) The court based its finding on the testimony of the victim at the preliminary hearing in the assault proceeding. (Ibid.)
The California Supreme Court concluded that "the trial court engaged in a form of factfinding that strayed beyond the bounds of the Sixth Amendment. Defendant had entered a plea of guilty to assault under a statute that, at the time, could be violated by committing assault either with a 'deadly weapon' or 'by any means of force likely to produce great bodily injury.' [Citation.] Defendant did not specify that she used a deadly weapon when entering her guilty plea. The trial court's sole basis for concluding that defendant used a deadly weapon was a transcript from a preliminary hearing at which the victim testified that defendant had used a knife during their altercation. Nothing in the record shows that defendant adopted the preliminary hearing testimony as supplying the factual basis for her guilty plea." (Gallardo, supra, 4 Cal.5th at p. 136.) The court held that while a trial court, in identifying "the precise statutory basis for a prior conviction" (id. at p. 137), may rely on documents that "might help identify what facts a jury necessarily found in the prior proceeding" (ibid.), a preliminary hearing transcript was not sufficient. "[T]he sentencing court can only guess at whether, by pleading guilty to a violation of Penal Code section 245, subdivision (a)(1), defendant was also acknowledging the truth of the testimony indicating that she had committed the assault with a knife. [¶] By relying on the preliminary hearing transcript to determine the 'nature or basis' of defendant's prior conviction, the sentencing court engaged in an impermissible inquiry to determine '"what the defendant and state judge must have understood as the factual basis of the prior plea."' [Citation.] Because the relevant facts were neither found by a jury nor admitted by defendant when entering her guilty plea, they could not serve as the basis for defendant's increased sentence here." (Ibid.)
In this case, the issue of the specific intent to permanently deprive the victim of property was directly addressed at the sentencing hearing. Nothing in the information or guilty plea in defendant's Nevada robbery case necessarily admitted a specific intent to permanently deprive the victim of his property. The trial court's determination that the Nevada conviction was equivalent to a serious felony in California shows the trial court necessarily conducted an impermissible independent review of the record, and was therefore in error.
In supplemental briefing, the Attorney General argued that there was no distinction as to specific intent in this case because attempted robbery is a specific intent crime in both California and Nevada. The specific intent involved in an attempt in Nevada is the specific intent to commit a crime, not the specific intent to deprive the victim permanently of possession.
With regard to disposition, in Gallardo, supra, 4 Cal.5th at pages 137 to 139, the Supreme Court accepted the Attorney General's request for a limited remand to permit the trial court to conduct a new hearing "'confined to the record of the prior plea proceedings'" for the purpose of allowing the trial court to "'mak[e] a determination about what facts appellant necessarily admitted in entering her plea,' without 'relitigat[ing] the prior offense.'" (Id. at p. 137.) The Supreme Court noted that the parties did not anticipate the change in law its opinion was making. (Id. at p. 138.)
In supplemental briefing in this case, defendant argued that, in the interests of judicial economy, the appropriate disposition would be to vacate the enhancement finding and permit the prosecutor to determine whether to retry the sentencing enhancement allegation. We agree this disposition makes sense in this case, and we will vacate the trial court's finding on the sentencing enhancement allegation. On remand, the trial court shall permit the prosecutor to determine whether to retry the sentencing enhancement allegation consistent with the rule of Gallardo. We further direct the trial court to resentence defendant accordingly.
Defendant requested that we remand the matter for resentencing in light of Senate Bill No. 1393, which will be effective January 1, 2019, and which will amend Penal Code section 1385 to give trial courts the discretion to strike serious felony strikes. Because we have concluded that the true finding on the serious felony sentencing allegation must be vacated, we need not address the applicability of Senate Bill No. 1393 to defendant's case at this time. --------
DISPOSITION
The trial court's finding on the serious felony prior conviction is vacated, and the matter is remanded for resentencing. In all other respects, judgment is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.