Opinion
C081502 C082911
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. SONNY DEAN HUTSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MC YK CR F 14-1271)
A jury found defendant Sonny Dean Hutson guilty of a lewd act on a child (Pen. Code, § 288, subd. (a)) based on his touching the vagina of an 11-year-old girl. The trial court found true allegations that defendant had two serious prior felonies, a kidnapping in Texas and an assault with a deadly weapon in California, both as five-year enhancements (§ 667, subd. (a)) and as strikes (§§ 667, subds. (b)-(i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to an indeterminate term of 25 years to life plus a determinate term of 11 years. Defendant appealed.
Further undesignated statutory references are to the Penal Code.
After the notice of appeal was filed, the trial court recalled the sentence pursuant to section 1170, subdivision (d). At resentencing, the trial court struck the allegation as to the Texas kidnapping for purposes of the three strikes law only. The court sentenced defendant to 27 years in prison, consisting of the upper term of eight years doubled, plus two 5-year enhancements for the serious prior felonies and a one-year enhancement for the prison term. The People have cross-appealed from resentencing.
Defendant contends it was prejudicial error to admit the testimony of the mother of the victim as to what the victim told her. He contends the true finding on the Texas kidnapping must be reversed because Texas law does not require asportation and there was insufficient evidence of asportation. Defendant further contends he was denied his right to a jury trial on the factual issue of whether there was substantial movement as required to prove kidnapping under California law.
The People concede defendant's contentions relating to the Texas kidnapping allegation. On cross-appeal, the People contend the trial court lacked jurisdiction to strike the Texas strike after recalling the sentence. They assert the allegations as to the Texas kidnapping, both as a five-year enhancement and as a strike, may be retried, with defendant entitled to a jury trial on the asportation element.
During the pendency of this appeal, our Supreme Court decided People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), on the role of judicial factfinding in determining whether a prior felony qualifies as a serious felony. In light of Gallardo, the People now contend the remedy in this case is the same as in Gallardo, a limited remand for the trial court to determine if the facts necessarily admitted in the Texas proceeding contain the elements of a California serious felony. (Id., at pp. 138-139.)
We affirm the judgment of conviction on the lewd act and reverse the true finding on the allegations relating to the Texas kidnapping. We also hold the trial court had jurisdiction to strike the strike. We find remand unnecessary because asportation is not an element of the Texas crime of kidnapping, so the Texas crime cannot qualify as a serious felony. Further, the record of conviction in the Texas crime does not prove asportation to the degree required by California law to sustain a conviction for kidnapping.
FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 2014, the 11-year-old victim, her mother, her friend A.B., and A.B.'s parents were camping at Lake Siskiyou. In the late afternoon, the victim and A.B. went to the beach and swam out to a blow-up slide. There was a man on the slide, who was later identified as defendant.
The girls asked if they could use the slide and defendant said yes. A.B. went down the slide first. Defendant then dropped his glasses down the slide for A.B. to catch; when she failed to catch them, he got angry and yelled. As A.B. was diving to try to find the glasses, defendant told the victim there was a bee on her leg. He moved his hand to the victim's leg as if to brush a bee away, but instead he pushed the bottom of her bathing suit to the side and touched her vagina with his finger. The victim swatted his hand away, got off the slide, and swam to the shore. As the victim left, defendant called after her, calling her, "Baby girl," which further upset her.
When she reached the shore, the victim called to A.B. She told A.B. what had happened and that they needed to go back to the campground. The victim was distraught and crying. An older woman asked if she was okay and the victim said yes.
The victim and A.B. returned to camp and told their parents what had happened. The victim was visibly shaken and crying and ran to her mother. One of the parents called the police and Officer Adam Crisci responded. At the picnic table at the campsite, with everyone present, the victim told the officer what had happened. Crisci asked the victim to write a full statement, which she later did.
The police found defendant that night at a McDonald's restaurant in Weed. Defendant admitted he had been at Lake Siskiyou that day and had been on a slide when two girls swam out and asked if they could slide down. Later that night, Crisci returned to the victim's campsite with a photographic line-up. The victim identified defendant, but A.B. could not identify anyone.
After the jury returned a guilty verdict on the charged count, there was a court trial on the priors. The court found all of the enhancements true, finding two strikes, two 5-year enhancements, and a prison prior. The court denied defendant's Romero motion and sentenced him to 25 years to life plus a determinate term of 11 years.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
After defendant filed his notice of appeal, the trial court recalled the sentence. (§ 1170, subd. (d).) At resentencing, both the Attorney General and the Siskiyou District Attorney represented the People. The court announced its tentative decision to strike the allegation of the Texas kidnapping conviction only as to the three strikes law. The Attorney General argued the court had no jurisdiction to strike a strike on recall of sentence. The court explained it was not making a factual determination that the prior did not occur; rather, it was determining the proper sentence. The court then sentenced defendant to 27 years in prison.
DISCUSSION
I
Admission of the Victim's Statements to her Mother
A. Background
To corroborate the victim's testimony, the People wanted to admit her statements to A.B., her mother, and law enforcement about the touching, and offered various theories of admission. The victim's statements to her mother were eventually admitted as spontaneous declarations under Evidence Code section 1240.
The mother testified the girls went to the beach and returned an hour later. When they returned, A.B. looked frightened and the victim was crying and visibly shaken. As the girls recounted what had happened, it appeared to the mother that the victim was still under the stress of what had happened. The People requested a sidebar and moved to admit the victim's statements to her mother as a spontaneous declaration under Evidence Code section 1240. The statements were made in front of the mother and A.B.'s parents. According to the mother, the victim told her about the man saying there was a bee and touching her, while A.B. may have told her about the sunglasses. The court made clear to the mother she could testify only as to the victim's statements. The court ruled Evidence Code section 1240 applied and the mother testified about what the victim told her about the man on the slide, the comment about the bee, and the man moving her bathing suit and touching her.
B. Analysis
Defendant contends the trial court erred in admitting the victim's statements to her mother because those statements were not spontaneous; instead, defendant asserts, the victim made the statements after she had the opportunity to reflect. He notes the victim made the statements after she left the lake, told an adult she was fine, watched defendant leave and noted his car, and returned to the campsite, where she was safely with her mother and A.B.'s parents. Further, the statements were made as part of a group discussion.
We review the court's ruling admitting the statements for an abuse of discretion. (People v. Stanphill (2009) 170 Cal.App.4th 61, 73.)
Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
" 'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.) "Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citations]." (Id. at pp. 318-319.)
" 'Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' " (People v. Poggi, supra, 45 Cal.3d at p. 319 [upholding admission of statement made 30 minutes after attack when victim had calmed down].)
We find no abuse of discretion in admitting the victim's statements to her mother. Although several minutes had passed since the touching, the young victim was crying and appeared visibly shaken and distraught. Upon returning to the campsite, she immediately ran to her mother. Thus, "her physical condition was such as would inhibit deliberation." (People v. Raley (1992) 2 Cal.4th 870, 894.) In People v. Brown (2003) 31 Cal.4th 518, our Supreme Court upheld the admission of a spontaneous declaration made two and a half hours after the event. The court found, "the facts available to the trial court amply justify its conclusion that the declarant continued to labor mightily under the emotional influence of the disturbing events he perceived, so much so that he could not stop his body from shaking nor stem the flow of tears." (Id. at p. 541.) The same is true here.
Defendant further contends the admission of the victim's statements to her mother violated his due process rights. The proper admission of evidence under Evidence Code section 1240 does not deprive a defendant of due process. (People v. Merriman (2014) 60 Cal.4th 1, 67.)
II
Texas Kidnapping Prior
Defendant contends the true finding on the Texas kidnapping prior must be reversed because the crime of kidnapping in Texas does not include the element of asportation, that the defendant move the victim a substantial distance, as required in California. The People properly concede the error. Defendant adds that his admitted conduct as contained in the "judicial confession" or factual basis does not prove asportation, a contention with which we also agree.
The trial court found true allegations that defendant had suffered two prior serious felonies, one in Texas and one in California. As a consequence, he received two 5-year enhancements and was sentenced under the three strikes law.
In California, the term "serious felony" has a particular meaning as set forth in section 1192.7, subdivision (c) which lists and describes dozens of qualifying crimes. "Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must 'include[ ] all of the elements of any serious felony' in California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law [citation], the foreign crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' [citations], and (2) must 'include[ ] all of the elements of the particular felony as defined in' section 1192.7(c) [citations]." (People v. Warner (2006) 39 Cal.4th 548, 552-553, italics added.)
One of defendant's serious priors was a conviction in Texas for kidnapping in violation of section 20.03 of the Texas Penal Code. Under California law, the crime of simple kidnapping (§ 207, subd. (a)) includes an asportation requirement that the person be moved a substantial distance. (People v. Bell (2009) 179 Cal.App.4th 428, 435.) Texas does not have the same asportation requirement. In Texas, a person commits kidnapping "if he intentionally or knowingly abducts another person." (Tex. Pen. Code, § 20.03, subd. (a).) "As used in Chapter 20 of the Texas Penal Code, the term 'abduct' means to restrain a person with intent to prevent the person's liberation by either (1) secreting or holding the victim in a place where the victim is not likely to be found, or (2) by using or threatening to use deadly force." (Anderson v. State (Tex. App. 2003) 125 S.W.3d 729, 730.) The key word is "restrain." "Nothing in the kidnapping statute requires the state to prove that a defendant moved a victim a certain distance or held him for a specific length of time." (Griffin v. State (Tex. Crim. App. 2016) 491 S.W.3d 771, 775.) Thus, the Texas crime of kidnapping does not "include[] all of the elements" of the serious felony of kidnapping (or any other serious felony) in California. (§ 667, subd. (a)(1).)
To prove defendant's Texas conviction for kidnapping qualified as a serious felony, the People offered various certified documents, including the bill of indictment, defendant's judicial confession, his plea agreement, and the judgment. These documents show defendant pleaded guilty to "unlawfully intentionally and knowingly" "abduct[ing]" the complainant by "confining" her and "by moving [her] from one place to another, and by secreting and holding [her] in a place where said complainant was not likely to be found and by threatening to use deadly force." Although the statement indicates defendant moved his victim "from one place to another," nothing in this statement, or the other documents offered, shows that defendant moved his victim a substantial distance, as required for kidnapping under California law, nor is such movement an element of the Texas crime. The true finding that the Texas kidnapping conviction was a serious felony must be reversed.
III
Jury Trial on Prior
Defendant contends he was denied his right to a jury trial on the finding that the Texas kidnapping conviction was a serious felony. This contention is premised on defendant's assertion that the trial court implicitly engaged in fact-finding. Although the People agree, we do not, because the record does not show any judicial factfinding.
In Gallardo, supra, 4 Cal.5th 120, the issue was the scope of a trial court's review of the record to determine if a prior felony qualified as a serious felony. In that case, the prior felony was assault with a deadly weapon or with force likely to produce great bodily injury. (§ 245, subd. (a)(1).) Assault is a serious felony only if committed with a deadly weapon. (Gallardo, at pp. 125-126.)
The court reconsidered its previous position in light of decisions of the United States Supreme Court in Descamps v. United States (2013) 570 U.S. 254 and Mathis v. United States (2016) 579 U.S. ___ . "[W]e now hold 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." (Gallardo, supra, 4 Cal.5th at p. 136.] "While a trial court can determine the fact of a prior conviction without infringing on the defendant's Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction." (Id. at p. 138.)
While our Supreme Court has clarified the law in this area, defendant fails to identify any facts that show the law applies in this case. Defendant does not identify any facts in the record of the Texas prior conviction to which the trial court looked to find the asportation requirement met. Indeed, none appears. While we agree defendant would have been denied his right to a jury if the trial court had made any disputed factual finding, we find no Sixth Amendment violation because the record does not show the trial court did so. Rather, it appears that neither the court nor the parties recognized that the elements of the Texas kidnapping statute did not include all the elements of the California kidnapping statute; that is, no one realized that Texas law does not have the same asportation requirement for kidnapping as California.
IV
Striking a Strike on Recall of Sentence
On cross-appeal, the People contend the trial court lacked jurisdiction to strike the Texas strike upon recall of defendant's sentence. Although the People concede the Texas strike must be reversed, they contend they may retry the allegations of both the five-year prior and the strike on remand based on the Texas kidnapping conviction. (People v. Monge (1997) 16 Cal.4th 826, 843, 845.) Accordingly, they seek to undo the trial court's action in striking that strike.
Generally, the filing of a valid notice of appeal deprives the trial court of jurisdiction to make any order affecting the judgment. (People v. Wagner (2009) 45 Cal.4th 1039, 1061.) One exception to this general rule is section 1170, subdivision (d), under which a trial court retains jurisdiction to recall a sentence and to resentence defendant within 120 days of his commitment notwithstanding the filing of a notice of appeal. (Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1836.)
Upon recall, a court may reconsider the entire sentence and all sentencing choices. (People v. Garner (2016) 244 Cal.App.4th 1113, 1118.) The court, however, is limited to sentencing on recall; it cannot modify the judgment of conviction. (People v. Espinosa (2014) 229 Cal.App.4th 1487, 1498.) Thus, on recall for resentencing, a court cannot dismiss a count (People v. Nelms (2008) 165 Cal.App.4th 1465, 1472) or reduce the degree of an offense (Espinosa, at p. 1498).
Here, the trial court's actions upon recalling defendant's sentence were limited to sentencing. The decision to strike a strike is a sentencing decision. "[T]he power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions." (Romero, supra, 13 Cal.4th at p. 504, italics added.) "The Three Strikes law, itself, expressly approves the striking of prior felony conviction allegations (§ 667(f)(2)), presumably for the purpose of affecting sentencing, since the striking of such allegations has no other purpose." (Id. at p. 524, fn. 11, italics added; see also People v. Garner, supra, 244 Cal.App.4th at p. 1116 ["We emphasize that, contrary to repeated assertions in defendant's briefing, the trial court did not strike the true findings on those three prison term allegations, but struck only the punishment therefor, which was a statutorily permitted method of handling them"].)
The trial court struck the allegations as to the Texas kidnapping charge only for purposes of the three strikes law. The true finding on the allegation was used to impose a five-year enhancement (which the parties concede must be reversed). As the trial court explained: "[T]he three strikes legislative scheme is a sentencing scheme, it's not an issue of charges. The Court is not making a factual determination that the conviction did not occur, the Court is making a determination for purposes of sentencing as to what is the appropriate sentence." The trial court was correct. The People's claim to the contrary is meritless. The trial court had jurisdiction to strike the allegation of the Texas prior for purposes of sentencing upon recall of defendant's sentence under section 1170, subdivision (d).
V
Remand Is Not Required
At oral argument, after conceding the Texas prior was not properly found to be a serious felony, the People requested a limited remand as in Gallardo. On remand, the court was to determine, from the record of the plea proceedings in Texas, whether defendant's plea encompassed a relevant admission (asportation) to qualify the crime as a serious felony in California. (Gallardo, supra, 4 Cal.5th at p. 139.)
We find remand is unnecessary. As the People conceded at oral argument, from the record of the Texas proceeding before us, it is highly unlikely any further record would contain an admission of asportation. Further, the judicial confession is the only conduct defendant admitted as part of his plea, and although referencing movement, it does not establish asportation as defined by California law. Moreover, any such admission would be irrelevant because it could not establish that the crime itself--the Texas crime of kidnapping--includes all the elements of the California crime of kidnapping, as required under section 667, subdivision (a)(1) to qualify as a serious felony. Even if defendant had admitted asportation, which he did not, his admission would not alter the fact that the law in Texas does not include asportation as an element of its crime of kidnapping. Section 667, subdivision (a)(1) requires that the offense itself must include "all of the elements of any serious felony" in California, not merely that all of the necessary elements appear at any point in the record.
Rather than remand the case, we exercise our authority to modify the judgment and reduce the punishment. (§ 1260.) We reverse the true finding on the Texas kidnapping and the attendant five-year enhancement.
DISPOSITION
The judgment of conviction is affirmed. We reverse the true findings on the Texas prior conviction allegations and strike one 5-year enhancement. The trial court is directed to prepare an amended abstract of judgment showing the reduced sentence and to forward it to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. I concur: /s/_________
Blease, Acting P. J. Hull, J.
I concur in Parts I, III, IV, and V of the majority opinion. As to Part II, I concur in the result.
As to Part II, I am unsure of the reach of the majority's opinion.
The majority begins its discussion of defendant's prior conviction for kidnapping in Texas by saying "Defendant contends the Texas kidnapping prior must be reversed because the crime of kidnapping in Texas does not include the element of asportation, that the defendant move the victim a substantial distance, as required in California. The People properly concede the error." (Maj. Opn., ante, at p. 7.)
The majority, emphasizing the word "elements," goes on to quote from People v. Warner (2006) 39 Cal.4th 548, 552-553 which holds that, for an out-of-state conviction to support a serious felony sentence enhancement, the out-of-state conviction must include all the elements of any serious felony in California. (Maj. Opn., ante, at pp. 7-8.)
Then the majority compares Texas to California law as to the crime of kidnapping, noting that, according to Texas law, nothing in that state's kidnapping statute requires proof that a defendant so charged moved the victim a certain distance or held the victim for a specified period of time. The majority thus finds that the Texas crime of kidnapping does not include, literally, all the elements of kidnapping in California, that is, it does not include the element of asportation. (Maj. Opn., ante, at pp. 7-9.) I do not take issue with that.
Herein lies my potential disagreement with the majority opinion.
Those portions of the opinion that I refer to above seem to suggest that, to determine whether an out-of-state conviction qualifies as a serious felony in California, we are restricted to laying the elements of the out-of-state conviction alongside the elements of a similar offense in California. If they do not "match up," the out-of-state conviction cannot qualify as a serious felony in California. I do not read California law so narrowly.
But, the majority opinion goes on to later review the information offered by the People regarding the history of the Texas conviction and finds it factually wanting on the issue of asportation. This suggests to me that, indeed, the majority may think we can look beyond an element by element comparison of the two criminal statutes to also consider the factual underpinnings of the out-of-state conviction. If that is the majority's view of the matter, I agree.
In People v. Gallardo (2017) 4 Cal.5th 120 our Supreme Court held that a court considering whether to impose an increased sentence based on a prior qualifying conviction 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 to the factual basis for a guilty plea." (Id. at p. 136; emphasis added.) The Court concluded in Gallardo that, "Because the relevant facts were neither found by a jury or admitted by the defendant when entering her guilty plea, they could not serve as the basis for defendant's increased sentence here." (Id. at p. 137; emphasis added.) By necessary implication then, if the necessary facts underlying defendant's prior conviction had been found by a jury or admitted by the defendant, they could serve as a basis for an increased sentence. By my reading of Gallardo, our Supreme Court would countenance looking to the facts of a prior out-of-state conviction that were necessarily found by a jury or admitted to by the defendant to decide whether that conviction could serve as a basis for an increased sentence in California. I recognize that Gallardo dealt with a prior California conviction, but I do not see how that should change this result.
Thus, it is my opinion that California courts are not limited to a simple comparison of the elements of an out-of-state conviction with the elements of an arguably comparable crime in California, but may, in addition, look to the facts underlying the out-of-state conviction if necessarily found by a jury or admitted by the defendant, to decide whether what the defendant did that led to his out-of-state conviction would have satisfied all of the elements of the comparable crime in California had he committed those acts here. It makes little sense to have an out-of-state conviction that demonstrates, factually, that defendant's criminal acts in another state satisfy all the elements of a California crime, but still hold that the out-of-state conviction cannot constitute a prior conviction for purposes of California's sentencing laws just because the out-of-state crime does not track, element for element, the California crime. I suspect, if that were the case, that many serious out-of-state convictions that factually satisfy all of the elements of a serious crime in California would, nonetheless, not qualify as a prior conviction here.
Applying my view of the law to the present case, had defendant done more than simply admit in Texas that he moved his victim from one place to another, and had instead admitted, for example, that he put his victim in the trunk of his car and drove her to Iowa to avoid detection and to give him the opportunity to commit additional crimes against her, he would have admitted to "asportation" as required by California law. In that event, the Texas conviction would have qualified as a serious felony here even though "asportation" is not set out as an element of the Texas crime of kidnapping.
But in this matter I can concur in the result, because I agree with the majority that the documents that the People have provided us which lie behind the Texas kidnapping are not sufficient to prove asportation under California law and there is no suggestion that anything more could be produced if we remanded for a further hearing on the matter.
I concur in the result as to Part II.
/s/_________
Hull, J.