Opinion
C083762
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL PERRY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CR22114)
A jury found defendant Robert Daniel Perry (an inmate) guilty of battery on a noninmate, two counts of possession of a deadly weapon by an inmate, and deterring correctional officers with force. The trial court dismissed one of the convictions for possession of a deadly weapon by an inmate and found true allegations that defendant was previously convicted of five serious or violent felonies. The court sentenced defendant to 25 years to life on each of his three convictions.
On appeal, defendant contends the People failed to properly plead and prove that he should be sentenced as a third-strike defendant because they never alleged his current convictions were serious or violent or that he was statutorily disqualified from being sentenced as a second-strike defendant. We are not persuaded.
Defendant further contends the trial court erroneously imposed four court security fees and four criminal conviction assessments; the People concede this issue. We accept the People's concession and modify the judgment accordingly. We affirm the judgment as modified.
PROCEDURAL AND FACTUAL BACKGROUND
On August 12, 2013, defendant attacked a noninmate physician at the Mule Creek State Prison. Defendant was combative with correctional officers when they tried to restrain him. Once the officers had defendant contained, they found a razor blade on the floor near him. A broken pen (referred to by prisoners as an "ice pick") also was found on the floor near defendant.
Also there was a handwritten letter; a second letter was found in defendant's pants. The letters read, in part: "A. . . . Creek state Prison . . . you now have a violent hostage situation here. this is a murder-suicide today. And if Mule Creek State Prison gets in the way today, it will turn into a murder-suicide right now. So fuck you in your necks. My weapons of choice are four razor blades glued together and one ice pick.
"[¶] . . . [¶]
"A. They have got to release me from prison by Friday. The deadline, or by Friday, the deadline, we will all witness a murder-suicide." A second razor was found in defendant's shared prison cell.
On October 27, 2014, defendant appeared in court with counsel. Counsel for both sides acknowledged that the People were alleging two prior strike convictions and defendant was facing a sentence of 50 years to life. Defendant refused to "waive time" and asked that his trial be set within 60 days.
Trial was then repeatedly delayed when defendant's counsel questioned defendant's competence to stand trial. The trial court, however, repeatedly found defendant competent to stand trial and on July 29, 2016, granted defendant's motion for self-representation. That same day, the court asked defendant directly if he understood "what the potential exposure is" if he were convicted. The court explained, "Sir in Count I there's a special allegation you used a deadly weapon. You do have two prior strikes. That makes your exposure 25 years to life in prison. Do you understand that?
"THE DEFENDANT: Yes." During that same hearing, the court advised counsel jury selection would take longer "because it is a 25-to-life case . . . ."
A couple of months later, the parties appeared before the court for a trial readiness conference. At that conference, the court twice again advised defendant his exposure was 25 years to life.
On October 7, 2016, the court confirmed trial would begin on October 18, 2016. The court again advised defendant that his "exposure" was "25 to life." Defendant said he understood. The court then explained to defendant, who was now representing himself, that he would get 20 preemptory jury challenges "because it's a 25-to-life case, . . . ." Defendant said he understood and believed he was capable of handling the case himself.
On the first day of trial, the People filed an amended information alleging five prior strike convictions: (1) making criminal threats, (2) three convictions for assault with the intent to commit rape; and (3) battery resulting in serious bodily injury. Defendant waived his right to a jury on these allegations.
The jury found defendant guilty of battery on a noninmate, two counts of possession of a deadly weapon by an inmate, and deterring correctional officers with force. The jury acquitted defendant of the remaining charge. The court found true the prior strike allegations. The court later dismissed one of defendant's convictions for possession of a deadly weapon by an inmate and sentenced defendant to 25 years to life on each of the remaining three convictions. The court also ordered defendant to pay various fines and fees including $160 for the court security fee ("that's $40.00 per count") and $120 for the conviction assessment fee ("that's $30.00 per count").
DISCUSSION
Defendant argues the three 25-year-to-life sentences were statutorily unauthorized and violated his right to due process because the People failed to plead and prove his current convictions qualified him to be sentenced as a three-strike defendant. He further argues the court erred in calculating the court security fees and criminal conviction assessments imposed.
I
Three Strikes Sentencing
Penal Code section 667, subdivision (e)(2)(A) provides in relevant part that "[e]xcept as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] . . . [¶] (ii) Imprisonment in the state prison for 25 years."
Further undesignated section references are to the Penal Code. --------
Section 667, subdivision (e)(2)(C) then provides, in relevant part: "If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) [second-strike sentencing] unless the prosecution pleads and proves any of the following: [¶] . . . [¶] (iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: [¶] (I) A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Italics added.)
As relevant here, subdivision (b) of section 6600 of the Welfare and Institutions Code provides: " 'Sexually violent offense' means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): . . . or any felony violation of Section . . . 220 of the Penal Code, committed with the intent to commit a violation of Section 261 . . . of the Penal Code."
Defendant does not dispute that his prior convictions for assault with the intent to rape in violation of section 220 make him eligible to be sentenced as a three-strike defendant. Instead, he argues the People failed to plead and prove his current convictions qualify as strike offenses or that he was disqualified from a second-strike sentence because of a specific disqualifying offense. The People agree they did not plead and prove defendant's current convictions qualified as strike offenses and so do we. We are, however, not persuaded that the People failed to plead a disqualifying offense.
In People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the defendant was convicted of 10 sex offenses against two different victims on two different dates. (Id. at pp. 739-740.) He was then sentenced under the "one strike law" (§ 667.61), which provides terms of 25 years to life for certain sex offenses where two or more of certain enumerated circumstances have been "pled and proved" by the prosecution. (§ 667.61, subds. (a), (e), & (f); see Mancebo, at pp. 741-742.) The one strike law also provides that if only the minimum number of qualifying circumstances required for one strike sentencing have been pled and proved, they must be used as the basis for imposing the one strike term "rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section." (§ 667.61, subd. (f).) The prosecution alleged personal firearm use as to all counts pursuant to section 12022.5, subdivision (a), which provides for a 10-year sentencing enhancement. (Mancebo, at p. 740.) For purposes of satisfying the minimum requirements of the one strike law, the prosecution alleged the minimum two enumerated circumstances -- kidnapping and firearm use as to one victim, and binding the victim and firearm use as to the other. (Ibid.)
At sentencing, in order to impose a one strike law sentence and the firearm enhancement without using the firearm use finding twice as prohibited by section 667.61, subdivision (f), the trial court substituted a one strike law enumerated circumstance that was never specifically alleged in the information -- that the offenses were committed against multiple victims under section 667.61, subdivision (e). (Mancebo, supra, 27 Cal.4th at p. 740.) Neither the multiple victim circumstance nor its numerical subdivision were specifically referenced in the information. (Ibid.) The Supreme Court held that the information was inadequate, and in violation of the "pled and proved" requirement of section 667.61, subdivision (f), "because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." (Mancebo, at p. 745.)
Here, in the amended information, the People identified defendant's five prior convictions, along with citation to "Penal Code sections 1170.12(a) through (d) and 667(b) through (i)." This was sufficient to satisfy the requirement that the People plead defendant was previously convicted for the purposes of section 667, subdivision (e)(2)(C) and to provide the "fair notice" required by Mancebo. (Mancebo, supra, 27 Cal.4th at p. 752.) Obviously, section 667, subdivision (e)(2)(A) and (e)(2)(C) is contained within section "667(b) through 667(i) inclusive." A specific reference to section 667, subdivision (e)(2)(C) was not required.
As explained by the Supreme Court in Mancebo, "the specific numerical subdivision of a qualifying One Strike circumstance under section 667.61, subdivision (e), necessarily must be pled. We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof. We do not purport to choose among them." (Mancebo, supra, 27 Cal.4th at pp. 753-754.) Section 667.61, like section 667, contains numerous subsections ((a) through (o)) and comprises the entirety of the one strike law, and thus our Supreme Court expressly suggested that the amended information as styled here would provide the required "fair notice" to defendant.
In People v. Wilford (2017) 12 Cal.App.5th 827, the defendant was charged with and convicted of two counts of corporal injury to a cohabitant, which ordinarily carries a sentence of two, three, or four years. (Id. at pp. 829, 835-836.) However, section 273.5 also provides that if the defendant has a prior conviction for the same offense within the previous seven years, the sentencing triad becomes two, four, or five years under subdivision (f)(1), and if the court grants probation, it must impose a 15-day jail sentence under subdivision (h)(1). (Wilford, at pp. 835-836 & fns. 6 & 7.) The information included an allegation of the prior conviction with reference to section 273.5, subdivision (h)(1), with the effect that a minimum sentence of 15 days was required, but made no mention of subdivision (f)(1). (Wilford, at p. 838.) The court concluded that Wilford could not be sentenced under the triad provided in section 273.5, subdivision (f)(1) because "[t]he amended information specified that, for counts 5 and 6, Wilford faced a sentence of two, three, or four years with the possibility of an additional 15 days under section 273.5, subdivision (h)(1) for each count. There was no indication whatsoever that Wilford faced the possibility of a sentence of two, four, or five years for each of those same offenses under section 273.5, subdivision (f)(1)." (Wilford, at p. 840.) Here, by contrast, the amended information did not indicate any particular sentence, nor did it suggest by citation to any specific subsection of section 667 that other applicable subsections would not be applied.
In People v. Sawyers (2017) 15 Cal.App.5th 713, the defendant was charged with and convicted of murder, three counts of attempted murder, and two counts of shooting at an inhabited dwelling. (Id. at p. 717.) The information alleged the defendant had two prior convictions, one for first degree burglary and one for receiving stolen property, and he served a prior prison term for both within the meaning of section 667.5, subdivision (b). (Sawyers, at p. 718.) "Nowhere did the information expressly reference the Three Strikes law and its alternative sentencing scheme." (Ibid.) However, at sentencing, the trial court doubled the terms on each count pursuant to the three strikes law, using the first degree burglary conviction as a first strike. (Id. at pp. 717, 719-720.) After concluding there had been no written, oral, or informal amendment of the information to allege that the burglary conviction was a strike, the appellate court found the three strikes sentencing impermissible "because the information did not allege section 667, subdivisions (b) through (i) or section 1170.12, subdivisions (a) through (d), or otherwise reference the Three Strikes law," and "neither the trial court's mention of the strike nor the information gave Sawyers even an inkling that the People would seek to use the prior burglary as the basis for Three Strikes sentencing." (Sawyers, at p. 726.) But in this case the amended information did "allege section 667, subdivisions (b) through (i)," thus putting defendant on notice that his prior convictions would be used as the basis for three strikes sentencing. (Id. at p. 726.)
In People v. Nguyen (2017) 18 Cal.App.5th 260, the defendant was found guilty of first degree burglary and various other offenses. The information alleged a prior conviction for first degree burglary, that it qualified as a "strike" prior with reference to section 667, subdivisions (b) through (i), and that it qualified defendant for a prior prison term enhancement by referencing section 667.5, subdivision (b). (Nguyen, at pp. 262-264.) "However, it never specifically alleged -- either in so many words or by citing the relevant statute -- a prior serious felony conviction enhancement" under section 667, subdivision (a). (Nguyen, at p. 262.) The prior conviction was then used at sentencing both as a strike to double the term on the burglary count and to impose a five-year enhancement under section 667, subdivision (a). (Nguyen, at p. 264.)
The Court of Appeal held the five-year enhancement could not be imposed, because "[t]he information affirmatively indicated that the prior conviction was being pleaded solely for purposes of the three strikes law" and "[c]harging language which expressly states that a fact is alleged to invoke one particular statute does not adequately inform the accused that the People will use it to invoke a different statute." (Id. at pp. 266, 267.) The court went on to explain: "We are not holding that an information must cite the applicable enhancement statute. It might be sufficient to allege that the defendant has a certain prior serious felony conviction 'for enhancement purposes' or 'for purposes of a five-year enhancement.' It might even be sufficient (though we need not decide the question here) to allege the conviction 'for all applicable purposes' or for no specified purpose whatsoever." (Id. at p. 267.) In this case, the People did not cite one statute in the information and then seek to apply another at sentencing. And the People did cite to the applicable enhancement statute in the amended information.
In People v. Tennard (2017) 18 Cal.App.5th 476, the defendant was convicted of domestic violence (§ 273.5, subd. (a)), and the information alleged several prior convictions, including for forcible rape (§ 261), a "super strike" making him eligible for third strike sentencing. (Tennard, at pp. 480-481.) The information referenced " 'sections 667, subdivisions (c) and (e)(2)(A)' " but did not reference section 667, subdivision (e)(2)(C). (Tennard, at p. 482.) "The information also did not specifically allege that defendant's prior forcible rape conviction disqualified him or rendered him ineligible for sentencing under section 667, subdivision (e)(1), or that the prosecution intended to seek an indeterminate 25-year-to-life term for defendant's current, nonstrike offense." (Tennard, at p. 482.) After the defendant was sentenced to a 25-year-to-life term, he argued, as defendant argues here, that his sentence was unauthorized because the information failed to allege his prior conviction for forcible rape made him ineligible for second-strike sentencing because it made no reference to section 667, subdivision (e)(2)(C). (Tennard, at p. 485.)
The Tennard court held that the prosecution satisfied the pleading requirements of section 667, subdivision (e)(2)(C) by alleging the fact of the defendant's prior rape conviction together with reference to subdivision (e)(2)(A): "The allegation of the forcible rape conviction, which was identified by its code section number, section 261, subdivision (a)(2), and as 'RAPE BY FORCE,' sufficiently notified defendant that the prosecution would seek to disqualify him from second strike sentencing eligibility, pursuant to section 667, subdivision (e)(1), based on the forcible rape conviction. Although section 667, subdivision (e)(2)(C) was not referenced in the information, it was not required to be. It was effectively noted by the reference to section 667, subdivision '(e)(2)(A),' which specifically references, in its introductory clause, section 667, subdivision (e)(2)(C) as an exception to its provisions. The information also specifically alleged that [the] defendant has a prior conviction for 'rape by force,' which is a super strike described in Welfare and Institutions Code section 6600, subdivision (b), a disqualifying factor identified in Penal Code section 667, subdivision (e)(2)(C)(iv)(I)." (Tennard, supra, 18 Cal.App.5th at pp. 487-488.)
Finally, in addition to receiving adequate notice of the People's intent to sentence him to a three strikes term, defendant actually knew of the People's intent. The record on appeal demonstrates that the trial court repeatedly advised defendant he was facing a term of 25 years to life and defendant repeatedly acknowledged his exposure.
In sum, the information's reference to "sections 1170.12 and 667(b) through 667(i) inclusive," although not a model of pleading clarity, was sufficient to satisfy the requirement that the prosecution plead that defendant had prior convictions for the purposes of section 667, subdivision (e)(2)(C), and was thus disqualified from second-strike sentencing. Moreover, the record demonstrates defendant knew he was facing an indeterminate sentence under the three strikes law. Accordingly, his challenge to his sentence fails.
II
Security Fees And Conviction_Assessment
Defendant also contends the trial court erred in imposing $160 in court security fees and $120 in criminal conviction assessments. The People concede the error. Both the court security fee, which is $40, and the criminal conviction assessment, which is $30, are mandatory and must be imposed on each conviction. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) The jury found defendant guilty on four charges, but the trial court dismissed one of the charges after the verdicts were read. Accordingly, defendant was convicted of only three charges and should have been ordered to pay a total of $120 in court security fees and $90 in criminal conviction assessments.
We therefore accept the People's concession and will modify the judgment accordingly. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [judgment can be modified on appeal with respect to mandatory fees].)
DISPOSITION
The judgment is modified to reduce the court security fee imposed pursuant to section 1465.8 to $120 and to reduce the criminal conviction assessment imposed pursuant to Government Code section 70373 to $90. As modified, the judgment is affirmed. The clerk of the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Butz, J.