Opinion
D071098
09-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ROY LACY, Defendant and Appellant.
Athena Shudde, 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, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD258912) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Reversed in part and remanded. Athena Shudde, 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, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent
A jury convicted Roy Lacy of two counts of robbery. (Pen. Code, § 211.) The trial court made a true finding that Lacy incurred two prior strikes (§§ 667, subds. (b)-(i), 668, 1170.12), two serious felony priors (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and two prior prison terms (§§ 667.5, subd. (b), 668). The trial court sentenced Lacy to an indeterminate prison term of 50 years to life and a determinate prison term of 21 years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Lacy contends that the true finding as to one of the prior prison terms must be stricken because there is insufficient evidence that he served at least one year of the six-year prison term imposed for a 2007 federal conviction, as required by section 667.5, subdivision (f). We conclude that the trial court's true finding that Lacy served at least one year of the federal prison term is not supported by substantial evidence. Accordingly, we reverse the true finding that Lacy incurred a prior prison term relating to a federal conviction in 2007, and we remand to the trial court for the People to decide whether to retry the allegation, or in the alternative, for the trial court to amend the abstract of judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Based on a bank robbery on February 4, 2013, Lacy was charged and convicted in a jury trial of committing two counts of robbery (§ 211).
After the jury returned its verdict, the trial court held a bifurcated proceeding on additional allegations in the amended information concerning Lacy's prior convictions. Specifically, the amended information alleged that Lacy incurred two prior strikes (§§ 667, subds. (b)-(i), 668, 1170.12), two serious felony priors (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and three prior prison terms (§§ 667.5, subd. (b), 668). After considering documentation provided by the People, the trial court made a true finding that Lacy incurred the two prior strikes and the two prior serious felony priors, as alleged. As to the alleged prior prison terms, the trial court made a true finding as to two of the priors, but not as to the third.
As relevant here, the three prior prison terms alleged in the amended information consisted of: (1) a prior prison term based on two felony convictions in the same case in 2000 in Sacramento County Superior Court (the Sacramento conviction), for which Lacy started serving a prison term in 2003 after a probation revocation; (2) a prior prison term based on a felony conviction in 2001 in San Mateo County Superior Court; and (3) a prior prison term based on a felony conviction in 2007 for federal bank robbery in the United States District Court for the Northern District of California (the federal conviction). The trial court made a true finding that the prison terms served in connection with the Sacramento conviction and the federal conviction were prior prison terms within the meaning of section 667.5, subdivision (b).
At sentencing, the trial court imposed an indeterminate prison term of 50 years, and a consecutive determinate prison term of 21 years. The determinate term included a one-year sentence for the prior prison term relating to the Sacramento conviction. However, the trial court did not impose a one-year sentence for the prior prison term relating to the federal conviction because that conviction had been used for the serious felony prior enhancement. (See People v. Jones (1993) 5 Cal.4th 1142 [a sentence may not be enhanced both for a prior conviction and for a prison term imposed for that conviction].) Lacy appeals.
According to the parties' sentencing briefs, the bank robbery at issue in this case was one in a string of 13 bank robberies committed by Lacy in California and Florida between December 2012 and March 2013, to which Lacy has confessed. The trial court indicated the sentence in this case would be served after Lacy finished serving a sentence for other bank robberies in Florida. In addition, the record reflects that Lacy was also convicted of bank robbery in Marin County Superior Court and sentenced to a prison term of 105 years to life. At the time of sentencing in this case, an appeal was pending in the Marin County case.
Although at the sentencing hearing, the trial court did not indicate that it was imposing and then staying a one-year enhancement for the prior prison term finding relating to the federal conviction, the minute order from the sentencing hearing as well as the abstract of judgment indicate that the trial court imposed but stayed the one-year enhancement. To the extent the abstract of judgment and minutes indicate that the enhancement was imposed but stayed, that statement is both legally and factually incorrect, as it is not supported by the trial court's statement at sentencing and is precluded by case law. (See People v. Perez (2011) 195 Cal.App.4th 801, 805 ["the trial court should have stricken rather than stayed the one-year section 667, subdivision (b) enhancement"].) In the event the People retry and prove the prior prison term allegation relating to the federal conviction, the trial court should insure that the new abstract of judgment reflects that the one-year enhancement was stricken rather than stayed.
II.
DISCUSSION
A. Substantial Evidence Does Not Support the Trial Court's True Finding on the Prior Prison Term Allegation Relating to the Federal Conviction
Section 667.5 provides for "[e]nhancement of prison terms for new offenses because of prior prison terms." With certain exceptions, subdivision (b) imposes a one- year enhancement for "each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony." (§ 667.5, subd. (b).) However, subdivision (f) provides that "[a] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction." (§ 667.5, subd. (f), italics added.) Thus, "[w]hen a prior California prison term is charged as an enhancement, the duration of the term actually served is irrelevant," but "[u]nder subdivision (f) of section 667.5, . . . a prior prison term from another jurisdiction qualifies as an enhancement only 'if the defendant served one year or more in prison for the offense in the other jurisdiction.' " (People v. Gamble (1996) 48 Cal.App.4th 576, 578 (Gamble).)
Lacy does not dispute that his conviction for federal bank robbery includes all of the elements of second degree robbery under California law.
Here, Lacy's federal conviction is a "conviction in another jurisdiction." (§ 667.5, subd. (f); see also People v. Franz (2001) 88 Cal.App.4th 1426, 1450 [analyzing a federal conviction as a conviction in another jurisdiction].) Accordingly, the prison term served for that conviction qualifies as a prior prison term for the purposes of section 667.5, subdivision (b) only if the evidence presented to the trial court establishes that Lacy served one or more years in prison for that conviction. Lacy contends that the evidence does not support such a finding.
"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. Delgado (2008) 43 Cal.4th 1059, 1067.)
At the trial on Lacy's prior convictions, the People introduced several documents concerning the federal conviction, including the judgment, the information, the plea agreement, and the minutes from the sentencing hearing. According to the plea agreement, Lacy committed the bank robbery on March 1, 2007, in violation of title 18 United States Code section 2113(a). As stated in the judgment dated October 9, 2007, Lacy was "committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 72 months" and was remanded to the custody of the United States Marshal. The judgment further stated that upon release from prison, Lacy was to be on supervised release for a term of three years.
As the trial court pointed out upon reviewing the evidence, the People did not present any documentation showing when Lacy was released from federal prison. The trial court commented, however, that Lacy must not have served his full 72-month sentence because he committed the instant offenses on February 4, 2013 (which is less than 72 months after defendant's April 30, 2007 arrest date for federal bank robbery), so "there's some sort of a credit aspect of it." The trial court commented, "I'm not even sure . . . when he was received in federal prison and I have no idea when he was released from federal prison. I just know that he was sentenced to 72 months and then he was also sentenced to three years supervised release at the conclusion of whatever time they were going to give him in the feds." The trial court indicated, "I'm not exactly sure what the credit situation is in the federal courts because that hasn't been briefed." Despite recognizing that it had no information before it about the amount of time that Lacy served in federal prison, the trial court made a true finding that the prison term served for the federal conviction constituted a prior prison term within the meaning of section 667.5, subdivision (b).
Because the evidence presented to the trial court did not indicate how long Lacy spent in prison on his federal conviction, substantial evidence does not support a finding that he served at least a year in prison for the federal conviction. Although Lacy was sentenced to 72 months in federal prison, the evidence shows that he was released before the expiration of that term, and the People made no attempt to establish the date of Lacy's release. Under those circumstances, we may not infer that Lacy served at least one year in federal prison. (See Gamble, supra, 48 Cal.App.4th at p. 578 [concluding that a prior prison term enhancement must be stricken when, "[a]lthough there is evidence in the record that Gamble pled guilty in an Ohio state court to theft, a fourth degree felony, and was sentenced to a term of 'not less than' eighteen months 'nor more than' five years in the Ohio State Reformatory . . . , there is no evidence about how much time he actually served"].)
The People argue that we may find substantial evidence to support a finding that Lacy served at least one year in prison for the federal conviction by applying the evidentiary presumption that an official duty has been performed. (Evid. Code, § 664 ["It is presumed that official duty has been regularly performed.") Specifically, the People contend that the federal court's order that Lacy be remanded to the United States Marshal to serve a 72-month sentence gives rise to a presumption that Lacy was held in custody for 72-months as ordered. The court in Gamble thoroughly considered and rejected a comparable argument. (Gamble, supra, 48 Cal.App.4th at p. 578.)
In Gamble, where the record showed that the defendant was sentenced to a correctional facility in Ohio for a term of " 'not less than' eighteen months 'nor more than' five years," the People argued that Evidence Code section 664 supported an inference that defendant had served a term of at least 18 months as ordered. (Gamble, supra, 48 Cal.App.4th at p. 578.) Acknowledging that our Supreme Court has held that the "the official duty presumption supports an inference that a defendant properly sentenced and delivered to prison in fact completed a term of some duration" (ibid., citing People v. Tenner (1993) 6 Cal.4th 559, 566), Gamble concluded that such an inference is not sufficient when the question is whether a defendant has served a prison term of at least a year. As Gamble explained, "[h]owever proper it may be to 'infer the ultimate fact of completion of the prison term from the existence of the documents reflecting the defendant's commitment to prison' [citation], it does not follow that it is proper to infer a required minimum duration of the defendant's sentence from evidence that does not support that inference." (Gamble, at p. 578.)
We find Gamble's analysis to be persuasive and we follow it here. The mere fact that the federal court ordered Lacy to serve a sentence of 72 months does not give rise to an inference that Lacy completed that entire sentence. Moreover, even if such a presumption was justified by the trial court's sentencing order, it has been rebutted by the fact that Lacy clearly did not serve his entire 72-month prison term, as he reoffended before the conclusion of that period.
The People also contend that the absence of evidence that Lacy committed any crimes between October 2007 and February 2013 constitutes substantial evidence that he was in prison during that time, given his long criminal history and historical inability to remain law abiding for a substantial period. The inference that the People ask us to draw is unduly speculative. (See People v. Massie (2006) 142 Cal.App.4th 365, 374 [speculation and conjecture is insufficient to provide substantial evidence].) The absence of arrests during a certain time period does not necessarily mean that Lacy was in prison during that time, or even that he remained law abiding during that time. It means only that he wasn't arrested.
Accordingly, we conclude that insufficient evidence supports a finding that Lacy served at least a year in prison for the federal conviction, and thus the People did not establish that the prison term that Lacy served for the federal conviction qualifies as a prior prison term within the meaning of section 667.5, subdivisions (b) and (f). We therefore reverse the trial court's true finding that Lacy incurred a prior prison term relating to the 2007 federal conviction. B. This Matter Will Be Remanded
As the parties acknowledge, "[r]etrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1234, citing Monge v. California (1998) 524 U.S. 721; People v. Monge (1997) 16 Cal.4th 826; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296; People v. Scott (2000) 85 Cal.App.4th 905; see also People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of prior strike allegation is proper following reversal for insufficient evidence].) Therefore, the proper disposition here is to remand the case so that either (1) the People can retry the prior prison term allegation relating to the 2007 federal conviction, or (2) if the People decline to retry the allegation, the trial court can amend the abstract of judgment to reflect that it did not make a true finding on the prior prison term allegation relating to the federal conviction.
Lacy cites case law indicating that under certain circumstances after the reversal of a prior conviction allegation for insufficient evidence, an appellate court has the discretion to decline to order a remand if a retrial would not affect the length of the defendant's sentence. (People v. Ledbetter (2014) 222 Cal.App.4th 896, 903.) We may exercise our discretion to decline a remand when it would "be an idle act and 'a waste of ever-more-scarce judicial resources' to remand the matter," and " '[t]he futility and expense' " of remand for the purpose of retrying the matter " 'militates against it.' " (Id. at p. 904.)
Lacy argues that because of the length of his sentence and the fact that there was no time added to his sentence based on the true finding for the prior prison term allegation relating to the federal conviction, it would be a pointless act for us to remand this matter for the People to consider whether to retry the prior prison term allegation. However, Lacy undercuts this assertion by also contending that if we do remand this matter and the People are unable to establish the truth of the prior federal prison term allegation, the trial court would be required to reduce Lacy's sentence by striking the one-year prior prison term enhancement relating to the Sacramento conviction. Specifically, Lacy argues that for the prior prison term relating to the Sacramento conviction, the so-called "washout" rule of section 667.5, subdivision (b) would apply, under which an enhancement for a prior prison term is authorized only if the defendant does not commit another felony or incur a further term of imprisonment within five years of the prior prison term. Lacy contends that because we have stricken the true finding for the prior prison term allegation relating to the federal conviction, the trial court should also conclude that the federal bank robbery should not be viewed as giving rise to another felony conviction or another term of imprisonment within five years of Lacy being released from custody on the Sacramento conviction.
Section 667.5, subdivision (b) provides in relevant part that "no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).) " 'According to the "washout" rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply.' " (People v. Abdallah (2016) 246 Cal.App.4th 736, 742.)
We note that the trial court's true findings that the federal conviction constitutes a prior strike and a prior serious felony remain in place, so that there is no question that Lacy did commit the federal bank robbery in 2007. The sole issue that we have addressed in this appeal is whether substantial evidence supports a finding that Lacy served at least one year in prison for that crime. --------
We need not and do not decide whether there is any merit to Lacy's contention that the "washout" rule should have the effect of reducing his sentence by one year. That is an issue, which, if necessary, should be decided by the trial court in the first instance rather than in a premature advisory opinion. Indeed, if the People succeed on remand in establishing that Lacy served at least one year in prison for the federal conviction, Lacy's wash-out rule argument will become moot and will not need to be resolved.
Based on Lacy's contention that the "washout" rule may apply on remand, it would not be a completely idle act to remand this matter to the trial court for the People to decide whether to retry the allegation on the prior prison term allegation relating to the federal conviction. We therefore reject Lacy's request that we exercise our discretion to decline to remand this matter for further proceedings.
DISPOSITION
The true finding that Lacy incurred a prior prison term (§ 667.5, subds. (b), (f)) relating to the 2007 federal conviction is reversed. This matter is remanded to the trial court so that the People may decide whether to retry the prior prison term allegation. If the People decline to retry the allegation, the trial court shall amend the abstract of judgment to delete the true finding on the prior prison term allegation relating to the federal conviction and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.