Opinion
B265970
12-05-2018
THE PEOPLE, Plaintiff and Respondent, v. JIMMIE LASTER, Defendant and Appellant.
Christopher Love, 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, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA431487) APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund W. Clarke, Jr., Judge. Affirmed in part, vacated in part, and remanded with directions. Christopher Love, 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, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Jimmie Laster (defendant) appealed the sentence he received for his robbery conviction. In an opinion issued in 2016, we held resentencing was required because the trial court violated defendant's Sixth and Fourteenth Amendment rights by relying on a preliminary hearing transcript to conclude one of his prior convictions qualified as a predicate felony under the Three Strikes law. Defendant petitioned for review and our Supreme Court granted and held the petition pending its decision in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). Gallardo having since been decided, the Supreme Court returned the case to us with instructions to vacate our prior opinion and reconsider the matter in light of that decision. Complying with that direction, we issue this opinion and conclude that although our prior resolution of the Sixth Amendment issue is consistent with Gallardo, aspects of our prior disposition require modification to hew more closely to the Gallardo decision. We remand the case with instructions that conform to Gallardo and give the trial court the opportunity to exercise sentencing discretion it did not have at the time of the original sentencing.
I. BACKGROUND
In June 2015, a jury convicted defendant of second degree robbery in violation of Penal Code section 211. In addition to the charged robbery, the information against defendant alleged he had two prior convictions for serious or violent felonies within the meaning of the Three Strikes law (§§ 667, subd. (d), 1170.12, subd. (b)). These two prior convictions (the strike priors) were his 1994 conviction by plea for drawing a firearm with intent to resist arrest, a violation of section 417.8, plus a 2002 conviction for robbery. The information further alleged defendant had sustained six prior felony convictions within the meaning of section 667.5, subdivision (b) (the prison priors).
Undesignated statutory references that follow are to the Penal Code.
After a bench trial, the trial court found all the prior conviction allegations against defendant true. In doing so, the court relied on a transcript of the preliminary hearing held in connection with defendant's prior section 417.8 offense to determine the offense qualified as a "strike," i.e., a serious felony. At that preliminary hearing, a Los Angeles Police Department detective testified defendant personally pointed a revolver at him after he (the detective) and two other law enforcement officers stopped a car in which defendant was a passenger. Although the trial court relied on the preliminary hearing transcript, there was no evidence before the court that the preliminary hearing testimony served as the factual basis for defendant's plea to the section 417.8 offense, nor any evidence concerning what defendant may have said or agreed to in entering a plea.
Having found defendant's section 417.8 conviction was a serious felony because defendant personally used a firearm, and having found the other alleged serious felony conviction true (the 2002 robbery), the trial court sentenced defendant to a prison term of 35 years to life: 25 years to life for the robbery pursuant to the Three Strikes law (section 667, subdivisions (b) through (i) and section 1170.12) plus two consecutive 5-year terms for both strike priors under section 667, subdivision (a).
The court did not address the prior prison term allegations when imposing sentence. Defendant thereafter moved the court to correct the sentence imposed, arguing it should have either imposed or struck the section 667.5, subdivision (b) enhancements. The trial court chose neither option and instead imposed but stayed a one-year sentence on each of the six prison priors. Defendant separately appealed from this amended judgment, and the result we reach in this case dictates the outcome in the later appeal, as specified in our opinion in that case (People v. Laster (Oct. 19, 2016, B269858) [nonpub. opn.]).
II. DISCUSSION
A. Resentencing Is Required to Comport with Gallardo
Relying on Gallardo, supra, 4 Cal.5th 120 and Descamps v. United States (2013) 570 U.S. 254 (Descamps), defendant contends the trial court violated his Sixth and Fourteenth Amendment rights in concluding his section 417.8 conviction was a serious felony. (See, e.g., Gallardo, supra, at p. 137 ["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."' (Descamps, supra, [570 U.S.] at [pp. 262-263])"].) The Attorney General concedes this case "is almost identical to Gallardo and therefore the remedy in Gallardo applies," i.e., a remand to the trial court to give the People an opportunity to prove defendant's section 417.8 conviction qualifies as a prior "strike" conviction. That is what we shall order.
B. In Resentencing Defendant, the Trial Court Must Impose Sentence for Defendant's Prison Priors or Strike Them
Section 667.5, subdivision (b) requires the trial court to enhance a defendant's sentence with a consecutive one-year prison term for each prior prison stint served by the defendant where he or she was convicted of a felony within five years of completing that term. "Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Thus, at resentencing, the trial court must impose the prison term required by section 667.5, subdivision (b) or strike defendant's prison priors.
The previously prepared abstract of judgment also indicated, incorrectly, that defendant was sentenced to life with the possibility of parole, rather than the correct 25 years to life, for his Three Strikes robbery conviction. No matter whether the People are able to make the showing Gallardo requires, the trial court should ensure the abstract of judgment that is prepared correctly reflects the actual sentence imposed.
C. The Trial Court Will Have the Opportunity to Exercise Discretion, If It So Chooses, to Strike the Section 667 Enhancements
When the trial court sentenced defendant, imposition of the five-year section 667, subdivision (a)(1) enhancements for the strike priors was mandatory. (§ 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667"].) A recent legislative change, however, deletes the provision of section 1385 that makes imposition of a section 667 prior serious felony conviction enhancement mandatory (along with related language in section 667 itself), thereby permitting trial courts to strike such enhancements when found to be in the interest of justice. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) §§ 1, 2.) The changes made by Senate Bill 1393 are set to take effect on January 1, 2019. (See People v. Camba (1996) 50 Cal.App.4th 857, 865.)
Defendant argues, and the Attorney General agrees, that the change in law worked by Senate Bill 1393 would apply retroactively to defendant under the principles espoused in In re Estrada (1965) 63 Cal.2d 740 (Estrada). But the Attorney General objects to permitting the trial court to consider exercising its newfound discretion under section 1385 for just one reason: because he believes the claim for Senate Bill 1393 is not yet ripe given the legislation's effective date.
Because we order the trial court to resentence defendant, consideration of whether to exercise Senate Bill 1393 discretion is in order notwithstanding the Attorney General's ripeness objection. Under Estrada retroactivity principles, Senate Bill 1393's change in law will apply to defendant so long as his conviction is not legally "final" before Senate Bill 1393 takes effect on January 1, 2019. (People v. Vieira (2005) 35 Cal.4th 264, 305-306 (Vieira); Estrada, supra, 63 Cal.2d at p. 744.) Defendant's conviction will not be final until the time for seeking certiorari in the United States Supreme Court expires. (Vieira, supra, at p. 306.) Thus, as the Attorney General acknowledges, there is little if any chance defendant's conviction will be final before Senate Bill 1393 takes effect—the time to file a petition for certiorari would expire only after 90 days from the date our Supreme Court enters judgment in this case or denies discretionary review. (28 U.S.C. § 2101(d); U.S. Supreme Ct. Rules, rule 13(1).) In our view, that means the issue is sufficiently ripe. There is no reason to bar relief on ripeness grounds just to have the matter sent back to us later by a higher court or re-raised by a post-dispositional motion.
DISPOSITION
Defendant's robbery conviction is affirmed. Defendant's sentence is vacated and the matter is remanded to permit the trial court to conduct a new hearing on the prior conviction allegations—specifically, to permit the People to demonstrate, based on the record of the plea proceedings in connection with defendant's section 417.8 conviction, that defendant's plea encompassed a relevant admission about the nature of the crime for purposes of determining whether it qualifies as a prior serious or violent felony conviction within the meaning of sections 667, subdivision (d) and 1170.12, subdivision (b). In resentencing defendant (after January 1, 2019), the trial court shall consider whether it wishes to exercise its discretion to strike either or both of the section 667, subdivision (a)(1) enhancements under section 1385.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J. We concur:
MOOR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------