Opinion
C083187
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH SPEARS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P12CRF0216)
Defendant Brian Keith Spears was convicted of nine counts of sex-related crimes against four young girls, for which he was sentenced to 240 years to life plus four years four months in state prison. Following his first appeal, this court modified his sentence and remanded for further proceedings. On remand, defendant admitted a prior conviction with use of a firearm in the commission of that prior offense. The trial court resentenced him to 210 years to life plus four years four months in state prison.
Defendant appeals a second time, contending: (1) the trial court court's oral pronouncement of judgment erroneously stayed the sentence on count 2, which this court struck pursuant to his first appeal; (2) the trial court failed to recalculate his presentence custody credits; and (3) his admission to the prior felony conviction with use of a firearm did not provide substantial evidence to support either the prior prison term enhancement under Penal Code section 667.5, subdivision (a) or the prior serious or violent felony conviction enhancement pursuant to the three strikes law.
Further unspecified statutory references are to the Penal Code.
The People concede defendant's first two claims. As for the third, the People argue defendant's admission was sufficient to support the three strikes law and the section 667.5, subdivision (a) allegations.
We accept the People's concessions as provident and will remand for further proceedings as to defendant's first two claims. Finding no merit in his third claim, we otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts underlying defendant's convictions is unnecessary. Suffice it to say that, over a span of approximately 16 years and in three counties, defendant molested four young girls. He was charged with seven counts of committing lewd and lascivious acts against a child under the age of 14, one count of continuous sexual abuse, and one count of committing a lewd act against a child 14 or 15 years of age.
A jury found defendant guilty as charged and found true all special allegations. In a bifurcated proceeding, defendant admitted a prior violent felony conviction for involuntary manslaughter.
Defendant appealed to this court, and we modified his sentence in several respects.
On remand, defendant admitted a prior conviction for involuntary manslaughter and use of a firearm in the commission of that offense. After informing the parties of its intent to do so, the court imposed the same sentence as previously imposed but stayed the sentence on count 2, for an aggregate indeterminate term of 210 years to life plus a consecutive determinate term of four years four months in state prison. The parties stipulated that the Department of Corrections and Rehabilitation should recalculate and update defendant's credit for time served.
Defendant filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause.
DISCUSSION
I
Sentence On Count 2 Must Be Stricken
Defendant contends, and the People properly concede, that the trial court erred when it stayed punishment on count 2 pursuant to section 654 after this court struck the previously imposed 15-year-to-life sentence. However, the parties disagree on the appropriate remedy. Defendant contends that once the one strike sentence was stricken, the trial court "was called upon to decide whether to impose a determinate term on that count." Therefore, he urges, we should reverse the trial court's oral pronouncement purporting to stay the one strike sentence on count 2 and direct the trial court to correct the abstract of judgment to reflect that only the determinate term was stayed as to count 2 pursuant to section 654 and not the one strike sentence that was stricken. The People argue the case should be remanded to permit the trial court to exercise its discretion to impose a determinate term on count 2.
This court's remittitur to the trial court states as follows: "As to count 2, the indeterminate term of 15 years to life is stricken. As to all counts, the three strikes term (doubling each of the sentences for each of the counts) and prior prison term finding and sentence (three consecutive years) is stricken. The case is remanded for a court trial on the three strikes allegation and the prior prison term allegation, if the People so choose."
At resentencing following remand, the trial court noted "the Count 2 sentence is stricken" and asked counsel, "Do I need to discuss it?" The prosecutor responded, "well, if anything, it's a [section] 654 issue, I think . . . based upon the statutory law at the time of the commission . . . of that offense. So despite the fact that one could be charged with an act, there should not be additional punishment related to that." The court stated, "So maybe the proper thing to do would be to stay any additional punishment." Both the prosecutor and defendant's counsel responded affirmatively. The court concluded, "Okay. With regards to Count 2, the Court will stay any additional punishment, specifically the 15 years to life that would apply, to be doubled to 30 years to life, pursuant to [section] 667[, subdivision] (e)(1) of the Penal Code. That will be stayed."
As relevant to this issue, the court's written minute order states as follows: "Pursuant to the Appellate Court's Ruling the Court hereby orders: Per [section 1170, subdivision (d)], sentence imposed is removed and all charges are now active. [¶] As to Count 2 the indeterminate term of 15 years to life is stricken."
The abstract of judgment makes no mention of count 2.
"When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655; accord People v. Dutra (2006) 145 Cal.App.4th 1359, 1363-1364.) There are no exceptions to this rule. Thus, "[o]n remand, the trial court must adhere to the reviewing court's directions even if the lower court is convinced the appellate court's decision is wrong or has 'been impaired by subsequent decisions.' " (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 860.)
"A trial court may not disobey a remittitur, as that would amount to overruling the appellate court's decision, thereby violating a basic legal principle: '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.' " (People v. Dutra, supra, 145 Cal.App.4th at p. 1362, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the trial court erroneously concluded the 15-year-to-life sentence previously imposed as to count 2 should be stayed despite the remittitur stating the indeterminate term of 15 years to life "is stricken." While the error appears to have been inadvertent, the remittitur should nonetheless have been followed. Although the abstract of judgment makes no mention of count 2, in an abundance of caution and for purposes of clarification we will direct the trial court to modify the abstract to include the following language under section 12 ("Other orders"): Pursuant to the remittitur issued by the Court of Appeal, the indeterminate term of 15 years to life imposed as to count 2 has been stricken.
We reject the People's argument that the matter should be remanded to permit the trial court to exercise its discretion to impose a determinate term on count 2. Our remittitur did not provide for the trial court to exercise such discretion or for resentencing on count 2. Instead, we specifically remanded "for a court trial on the three strikes allegation and the prior prison term allegation" as to all counts. Remand for any additional purpose would cause the trial court to act beyond its jurisdiction.
In so rejecting the People's argument, we note the erroneous statement in the trial court's written minute order that, "[p]ursuant to the Appellate Court's Ruling the Court hereby orders: Per [section 1170, subdivision (d)], sentence imposed is removed and all charges are now active." Section 1170, subdivision (d)(1) provides in part that, "[w]hen a defendant . . . has been sentenced to be imprisoned in the state prison . . . and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Italics added.) Here, defendant's sentence was not recalled for purposes of resentencing. Instead, pursuant to defendant's appeal, we issued a remittitur directing the trial court to conduct "a court trial on the three strikes allegation and the prior prison term allegation, if the People so choose." Accordingly, section 1170, subdivision (d) does not apply to these circumstances.
II
Recalculation Of Custody Credits By Trial Court
Defendant contends the trial court's failure to recalculate his presentence custody credits requires remand for further proceedings. The People agree. So do we.
Here, after modifying defendant's sentence, the trial court deferred recalculation of custody credits to the Department of Corrections and Rehabilitation. That was error. Accordingly, we remand for recalculation of the credits to which defendant is entitled. (People v. Eastman (1993) 13 Cal.App.4th 668, 679.)
" '[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also id., subd. (a).)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) "[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (Id. at p. 29.)
III
Defendant's Admission Was Sufficient Evidence Of His
Prior Serious And Violent Felony Conviction
Finally, defendant contends his admission of his prior conviction for involuntary manslaughter with use of a firearm was insufficient (1) to support the trial court's finding that the prior involuntary manslaughter conviction qualified as a violent felony for purposes of the section 667.5, subdivision (a) enhancement, or (2) to qualify as a serious felony for purposes of the three strikes law. Both claims lack merit.
Defendant entered the challenged plea at the July 29, 2016, hearing. Relevant portions of that hearing are as follows:
"[COURT]: Mr. Spears, is that, in fact, the case? You would prefer to enter an admission to the prior strike, than have a jury trial or a court trial?
"[¶] . . . [¶]
"[DEFENDANT]: Okay. Well, yes, I'm willing to admit that I did have a previous crime, that I did have a manslaughter case, that I did serve a prison sentence, and I did use a firearm.
"[COURT]: Okay. Mr. Spears . . . I want you to understand that you'll be giving up certain rights if you make these -- I should say that one admission. [¶] And among the rights that you'll be giving up, you have the right to contest the existence of that prior conviction. And you could do that with either a jury trial or a court trial with a judge deciding whether or not that conviction was actually suffered by you. [¶] Whether you select a jury trial or a court trial, you'll have various rights, and did you discuss them all with Mr. Davenport [defense counsel], by chance, the rights that you'll be giving up?
"[DEFENDANT]: Well, we discussed that. I told him I didn't want to waste the jury's time. I'm going to admit to the matter.
"[COURT]: Well, what I'm going to do -- Mr. Davenport, did you discuss Mr. Spear's constitutional rights with him, those that he'd have to waive?
"[ATTORNEY DAVENPORT]: I would just like to clarify that with him.
"[COURT]: Yeah, you can do that right now. (Mr. Davenport conferred with the defendant.)
"[ATTORNEY DAVENPORT]: Yes, he understands.
"[COURT]: Okay. Mr. Spears, for the record -- and as you've discovered, the Court of Appeals [sic] goes over these things very meticulously. So I have to, for the record, make certain findings that you have had all of your constitutional rights explained to you and that you understand them. [¶] And what I'm going to do is not repeat everything that Mr. Davenport told you. I'm just going to list what your rights are. And if anything I say raises a question or a concern, please stop me, and I'll be happy to answer any questions that you have. Okay?
"[DEFENDANT]: Okay.
"[COURT]: Mr. Spears, as I indicated when I started, you have the right to contest the strike allegation, and you can do that by either presenting your case to a jury or to a judge in a court trial."
(Court goes on to explain defendant's rights, and defendant affirmatively waives those rights.)
"[COURT]: Okay. You know that the admission of this prior strike conviction will get your sentence just about to where it was before. There's one count that will not be included in the new sentence, but the strike will double everything else that is included. Do you understand that?
"[DEFENDANT]: Yeah. I'm guilty of that, so whatever it is, it is.
"[COURT]: Okay. Then let me focus on the prior strike allegation. I'll be just a minute. [¶] Okay. The allegation at issue is found on page 10 of the Second Amended Information, and it alleges that on or about June 22nd of 1994 in Humboldt County, in the superior court there, you were convicted of a violent felony and that is involuntary manslaughter, having used a firearm, in violation of Penal Code Section 192[, subdivision] (b). Your case number was 93CR0180S. [¶] It is alleged also that you served a separate state prison term for that offense and basically, with regards to the involuntary manslaughter conviction as alleged, that you used a firearm during the involuntary manslaughter. Do you admit or deny that?
"[DEFENDANT]: I admit that, Your Honor.
"[COURT]: You admit the involuntary manslaughter conviction, correct?
"[DEFENDANT]: Yes.
"[COURT]: And you admit, also, that you used a firearm in committing the involuntary manslaughter?
"[DEFENDANT]: Yes.
"[COURT]: Mr. Davenport, do you join your client in his admission?
"[ATTORNEY DAVENPORT]: Yes.
"[COURT]: Do the People wish to be heard?
"[ATTORNEY SUDER]: No. We join.
"[COURT]: Okay. I'm going to find, Mr. Spears, that you understand all of your constitutional rights and that you knowingly and intelligently have waived them. I'm going to also indicate that you're acting freely and voluntarily and that you understand the nature and consequence of this admission."
The court imposed sentence on defendant, noting the term on each count was "doubled . . . pursuant to [section] 667[, subdivision] (e)(1)," and the three-year enhancement was imposed on count 9 "pursuant to . . . [section] 667.5[, subdivision] (a)."
A
Prior Prison Term Enhancement (§ 667 .5, Subd. (A))
As relevant here, section 667.5, subdivision (a) provides that a trial court "shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
While subdivision (c) of section 667.5 does not identify involuntary manslaughter as a violent felony, it does include "any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55." (§ 667.5, subd. (c)(8).)
Defendant does not dispute he admitted having a violent felony. He contends, however, that he did not admit commission of a violent felony within the meaning of Penal Code section 667 .5, subdivision (a) because the trial court failed to read the allegation in the second amended information "fully and correctly" and simply referred to the prior involuntary manslaughter conviction as a "violent felony." That is, he claims, the trial court only obtained a partial factual admission--that he used a firearm in the commission of the prior offense--rather than the required legal admission that he used a firearm where such "use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55." Instead, he claims, the trial court was required to obtain his admission not only that he used a firearm in the prior offense but also that the firearm was "charged and proved" in the prior case within the meaning of section 667.5, subdivision (c)(8). Defendant relies solely on People v. Alvarado (1982) 133 Cal.App.3d 1003 (Alvarado) as support for his claim. As we explain, the claim lacks merit.
In Alvarado, the codefendant Cosper was charged with five counts and numerous enhancement allegations, including allegations concerning seven prior prison terms under section 667.5. Cosper admitted all the alleged priors. (Alvarado, supra, 133 Cal.App.3d at p. 1012.) On appeal, Cosper claimed the findings as to all seven of his priors must be stricken because the prosecution failed to lay a sufficient foundation for the admission of the purported records of the priors. The appellate court disagreed, noting Cosper complained only of proof offered at the preliminary hearing, a point before allegation of priors was required (§ 969a). The court noted the prosecutor was never required to prove the priors at trial "because Cosper admitted them" and, even assuming his admission was subject to his right to contest the proof of those admitted priors at sentencing, he never raised the issue. (Alvarado, at pp. 1015-1016.) The court concluded, "Whether by way of his admissions [citations], or by way of his failure to contest the issue at the sentencing [citations], or both, Cosper is now foreclosed from contesting the proof of his priors." (Id. at p. 1016.)
Cosper also argued on appeal that neither his admitted nor his current offense could serve as a basis for the three-year enhancement under section 667.5, as interpreted by case law. (Alvarado, supra, 133 Cal.App.3d at pp. 1024-1025.) Disposing of the issue as to the present offense, the appellate court concluded no further discussion as follows with regard to the prior felony: "[I]t appears that the trial court limited its inquiry to whether the facts of the prior offense included use of a firearm. This is not the test. The question is whether use of a firearm was 'charged and proved' in that instance. On remand, the trial court is directed to address itself to that question and pronounce sentence according to its factual conclusion." (Id. at p. 1025.) The appellate court rejected the People's argument that Cosper's admission of the prior forfeited his claim, noting that, according to the record, "at the time he accepted the admission, the trial judge bound himself to '[satisfy] myself . . . [that] there are valid priors before I sentence' " and therefore "[n]o further objections or arguments were required to preserve the issue for appeal." (Id. at p. 1025, fn. 11.)
Here, defendant failed to raise the issue at the time of sentencing. However, unlike Alvarado, the trial court made no statement alleviating the need for such an objection. Thus, defendant's claim was not preserved for appeal.
In any event, in eliciting defendant's admission to the prior prison term allegation, the trial court specifically referenced the second amended information, which alleged in part that, "as to COUNTS 1, 2, 3, 4, 5, 6, 7, 8 and 9," defendant was "on and about June 22, 1994 in the Humboldt Superior Court, convicted of a violent felony, to wit: Involuntary Manslaughter--Used Firearm, in violation of Section 192[, subdivision] (b) of the Penal Code, Case Number 93CR0180S, and that he then served a separate term in state prison of one year or more for said offense, and that he did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during a period of ten years subsequent to the conclusion of said term, within the meaning of Penal Code Section 667 .5[, subdivision] (a)." (Italics added.) The information further alleged that, "as to Counts 1, 2, 3, 4, 5, 6, 7, 8 and 9, pursuant to Penal Code sections 1170 .12[, subdivisions] (a) through (d) and 667[, subdivisions] (b) through (i)," defendant suffered "a prior conviction of a serious or violent felony or juvenile adjudication" on "06/22/94" for a violation of section "192(b) PC." (Italics added.)
When asked whether defendant wanted to admit that, "with regards to the involuntary manslaughter conviction as alleged, that you used a firearm during the involuntary manslaughter," defendant responded, "I admit that, Your Honor." (Italics added.) The trial court did not limit its inquiry to whether the facts of the prior offense included use of a firearm. Rather, the court inquired, and defendant admitted, that he was convicted of a violent felony with use of a firearm. His admission suffices for purposes of enhancing his sentence pursuant to section 667.5, subdivision (c).
B
Prior Strike Allegation (§§ 1170 .12, Subds. (A)-(D), 667, Subds. (B)-(I))
Relying on People v. Guerrero (1988) 44 Cal.3d 343 and People v. Trujillo (2006) 40 Cal.4th 165, defendant contends the trial court obtained factual admissions regarding the prior strike allegation but failed to ask him to admit, and he did not admit, that his prior conviction "met the legal definition of a 'serious' felony, within the meaning of Penal Code section 1192.7." This claim also lacks merit.
In Guerrero, the defendant waived a jury trial on the prior conviction allegations and, after reviewing the record of each conviction, the court found each allegation to be true. (People v. Guerrero, supra, 44 Cal.3d at p. 345.) The appellate court concluded "the trial court erred in its adjudication of the truth of the prior-conviction allegations," and vacated the enhancements. In particular, the appellate court concluded that, " '[b]ecause the nature of the building entered during the burglary was not an element of the crime when Guerrero committed his two prior offenses, enhancements cannot be imposed under Penal Code section 667.' " (Guerrero, at p. 346.) Addressing the question, "to what may the trier of fact look in determining whether the defendant suffered a prior conviction," our state's highest court stated the rule that, "in determining the truth of a prior-conviction allegation [in the context of section 667 enhancements], the trier of fact may look to the entire record of the conviction . . . [¶] . . . but no further." (Id. at pp. 348, 355.) The reason for the limitation was to "effectively bar[] the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial." (Id. at p. 355.)
Some years later, the state high court reiterated its rule in Trujillo, where it barred "the use of a defendant's statement reflected in a probation officer's report to prove that an alleged prior conviction was for a serious felony." (People v. Trujillo, supra, 40 Cal.4th at p. 180.) The court noted that "[p]ermitting a defendant's statement made in a postconviction probation officer's report to be used against him to establish the nature of the conviction would present similar problems, creating harm akin to double jeopardy and forcing the defendant to relitigate the circumstances of the crime." (Ibid.)
As a preliminary matter, defendant never raised this issue in the trial court either, thus failing to preserve the issue for appeal. In any event, his reliance on Guerrero and Trujillo is misplaced, as both cases address the adjudication by court trial of the truth of a prior conviction allegation. Here, on the other hand, defendant admitted his prior conviction for involuntary manslaughter after having waived his right to a jury or court trial. Again, a review of the plea colloquy defeats his claim.
As defendant correctly points out, section 1192.7, subdivision (c)(8) defines a " 'serious felony' " as, among other things, "any felony . . . in which the defendant personally uses a firearm." In taking defendant's plea, the court specifically noted the prior strike allegation in the second amended information. In particular, the court made reference to the "prior strike," the "strike allegation," the "prior strike conviction," the "prior strike allegation," and the fact that "the strike will double everything else that is included." In referencing the "prior strike allegation," the court noted the specific page of the second amended information which alleged that, "pursuant to Penal Code sections 1170.12[, subdivisions] (a) through (d) and 667[, subdivisions] (b) through (i)," the statutes underlying the three strikes law, defendant had a prior conviction "of a serious or violent felony" based on his prior conviction for involuntary manslaughter. The trial court inquired whether defendant admitted or denied having been "convicted of a violent felony and that is involuntary manslaughter, having used a firearm, in violation of Penal Code Section 192[, subdivision] (b)." (Italics added.) Defendant answered, "I admit that, Your Honor." Defendant's admission suffices to establish a prior violent felony conviction -- a prior strike -- within the meaning of section 1170.12, which provides in part that "a prior serious and/or violent conviction of a felony shall be defined as: [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." (§ 1170.12, subd. (b)(1).)
We reject defendant's claim that the trial court was required to ask him to "legally admit" that he had the prior serious felony within the meaning of section 1192.7. While he asserts that the nature of the conviction is determined by an examination of the record of conviction, not the facts or evidence, and argues that if the record of conviction does not show that a firearm was used in the commission of the prior offense, the prior conviction cannot be treated as a serious felony, he cites no supporting authority other than Guerrero and Trujillo, neither of which addresses the circumstance where, as here, the defendant admits the prior conviction. In any event, defendant's admission that he had a prior violent felony conviction was sufficient to establish a prior strike within the meaning of section 1170.12.
DISPOSITION
The matter is remanded for recalculation of presentence custody credits and amendment of the abstract of judgment consistent with this opinion, and the judgment is otherwise affirmed. The trial court is directed to provide a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.