Opinion
F073534
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO ALANIS, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR040897)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
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For purposes of the worktime credit limitation contained in section 2933.1 of the Penal Code, can a trial court make the finding a person other than an accomplice was present in the residence, which is necessary to turn first degree burglary into a " 'violent felony' " within the meaning of section 667.5, subdivision (c)(21), without running afoul of a defendant's Sixth Amendment jury trial right as set out in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Alleyne v. United States (2013) 570 U.S. 99 (Alleyne)? We conclude the answer is yes. We emphasize, however, that our holding is a narrow one, confined to the issue before us, and should not be read to suggest judicial factfinding would be permissible in the context of, for example, imposing a sentence enhancement or sentencing under the Three Strikes law. (See, e.g., People v. Frierson (2017) 4 Cal.5th 225, 233; People v. Gallardo (2017) 4 Cal.5th 120, 124-125, 134.)
All statutory references are to the Penal Code.
PROCEDURAL HISTORY
Marco Antonio Alanis (defendant) was charged, by first amended information, with burglary of an inhabited dwelling house (§ 459; count 1), assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), making a criminal threat, during the commission of which he personally used a deadly weapon (§§ 422, 12022, subd. (b)(1); count 3), and battery on the mother of his child (§ 243, subd. (e)(1); count 4). Insofar as is pertinent to this appeal, it was alleged, as to count 1, that the offense was a violent felony within the meaning of section 667.5, subdivision (c), in that another person, other than an accomplice, was present in the residence during commission of the offense. The jury convicted defendant on all counts and found the weapon enhancement true as to count 3. As to count 1, it found the burglary was of an inhabited house, but was not asked to make a finding with respect to the person present allegation.
We will sometimes refer to this as the person present allegation or finding.
A finding a house was inhabited at the time of a burglary does not automatically incorporate a finding another person was present. For purposes of California's burglary statutes, " 'inhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459; see, e.g., People v. Denard (2015) 242 Cal.App.4th 1012, 1025.)
Defendant was sentenced to an aggregate term of seven years in prison, calculated as the upper term of six years on count 1 plus a consecutive one-year term for the weapon enhancement appended to count 3. Sentence on counts 2 and 3 was stayed pursuant to section 654, and defendant was sentenced to 29 days on count 4 (a misdemeanor) and given credit for time served. Defendant was awarded 71 days of actual, plus 10 days of conduct, credits.
On appeal, this court modified the judgment to stay the weapon use enhancement, but otherwise affirmed. After the trial court transmitted an amended abstract of judgment to the California Department of Corrections and Rehabilitation (CDCR), CDCR requested clarification whether count 1 was a violent felony pursuant to section 667.5, subdivision (c)(21), in order to determine whether defendant was subject to limited time credits under section 2933.1. The trial court set the matter for hearing.
The People took the position the trial evidence showed, and the jury found, defendant personally used a deadly weapon when threatening the victim inside the residence. They requested that the court take judicial notice of the evidence it heard during the preliminary hearing, trial, and at any subsequent hearings, and asserted the omission from the verdict form of a finding with respect to the "person present" allegation was merely a technical defect. Defense counsel disagreed that the error was technical in nature. The court observed it had heard the trial testimony, which concerned an incident that occurred when the defendant broke into a house, then threatened and injured the victim. It agreed there was no jury finding with respect to the person present allegation. Because of the nature of the facts and what the jury did find, however, the court found the offense occurred with the residence being occupied, and that the jury did not find anything other than that.
FACTS
The facts are derived from this court's opinion in People v. Alanis (Mar. 25, 2014, F064925 [nonpub. opn.]), which is contained in the record on appeal.
On May 15, 2010, defendant broken into the apartment of his ex-girlfriend, who was the mother of his child. Once inside, he grabbed her by the hair, slapped her multiple times, held a knife to her throat, called her names, threatened to choke her with an electrical cord, and said she deserved to die. He also broke several items in the residence.
DISCUSSION
Generally, "[f]or every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months." (§ 2933, subd. (b); see § 4019.) When the person has been convicted of a " 'violent felony' " listed in section 667, subdivision (c), however, he "shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." (§ 2933.1, subd. (a); see id., subd. (c).) First degree burglary constitutes a violent felony for this purpose "wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).)
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) Thus, "[i]f the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment [jury trial] requirement is not satisfied. [Citation.]" (Cunningham v. California (2007) 549 U.S. 270, 290.)
In Alleyne, supra, 570 U.S. 99, the high court extended its Apprendi holding and rationale to facts that increase the mandatory minimum sentence for a crime. The court explained: "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt. [Citation.] Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." (Id. at p. 103.) In so holding, the court overruled its earlier decision in Harris v. United States (2002) 536 U.S. 545, which had drawn a distinction between facts increasing the statutory maximum sentence and those increasing only the mandatory minimum sentence. (Alleyne, supra, at p. 103.)
Alleyne dealt with a situation in which the defendant was convicted of robbery and was found to have used or carried a firearm during a crime of violence. The federal statute mandated that anyone who used or carried a firearm in relation to a crime of violence was to be sentenced to not less than five years in prison. If the firearm was brandished, however, that person was to be sentenced to not less than seven years in prison. The trial court imposed the seven-year minimum term despite the fact the jury's verdict did not indicate a finding the firearm was brandished. The lower court reasoned "brandishing" was a sentencing factor that the sentencing judge could find by a preponderance of the evidence, and the evidence at trial supported such a finding. (Alleyne, supra, 570 U.S. at pp. 103-104.)
The Supreme Court disagreed. It stated: "The Sixth Amendment provides that those 'accused' of a 'crime' have the right to a trial 'by an impartial jury.' This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. [Citations.]" (Alleyne, supra, 570 U.S. at p. 104.) "The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an 'element' or 'ingredient' of the charged offense. [Citations.] In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. [Citation.] . . . Apprendi's definition of 'elements' necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. [Citation.] Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt." (Id. at pp. 107-108.) "[B]ecause the legally prescribed range is the penalty affixed to the crime, . . . it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. [Citations.]" (Id. at p. 112.) The court noted: "Juries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty. Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment 'within limits fixed by law.' [Citation.] While such findings of fact may lead judges to select sentences that are more severe than the ones they would have selected without those facts, the Sixth Amendment does not govern that element of sentencing. [Citation.]" (Id. at p. 113, fn. 2.)
The statutorily prescribed sentence range for first degree burglary in California is two, four, or six years. (§ 461, subd. (a).) Defendant received a sentence within that range when he was sentenced to the upper six-year term.
"A reduction in the worktime credits allowed by section 2933.1 may feel like 'additional punishment' to a prisoner . . . . However, a reduction in credits is not considered 'punishment' under the law. Rather, such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs." (In re Pacheco (2007) 155 Cal.App.4th 1439, 1445.)
Credits, or limitations on the ability to earn credits, "cannot remove a sentence from the statutory range." (People v. Lara (2012) 54 Cal.4th 896, 905 (Lara); see People v. Garcia (2004) 121 Cal.App.4th 271, 277.) This being the case, neither Apprendi nor Alleyne precludes judicial factfinding with respect thereto. The limitation on the ability to earn credits contained in section 2933.1 does not increase the legally prescribed sentence range or aggravate the penalty within the meaning of those cases. The sentence received by defendant was within the range authorized by the jury's verdict. (See People v. Wall (2017) 3 Cal.5th 1048, 1075-1076.)
Defendant points out that the Iowa Supreme Court has determined certain of its credit-reducing statutes act to impose a mandatory minimum sentence. (State v. Iowa Dist. Court for Black Hawk County (2000) 616 N.W.2d 575, 579.) The issues in that case did not concern jury trial rights, however. Instead, they centered around the question whether the statutes at issue imposed a mandatory minimum sentence, the application of which to a particular defendant required a judicial determination under Iowa law, or whether the statutes merely constituted a restriction on the power of the parole board, which would determine the duration of the sentence in the absence of a legislatively prescribed minimum term. (Id. at pp. 578-579.) Given the issues addressed and the obvious differences in Iowa's and California's sentencing schemes, the fact the states' credit-reduction statutes may have some similarities is not enough to make the Iowa court's holding of any value to defendant. --------
Lara held that credit-limiting facts need not formally be pled and proved. (Lara, supra, 54 Cal.4th at p. 906.) It did so, in part, because the Legislature specified no such requirement in the statutes at issue in that case (id. at p. 902). In contrast, section 667.5, subdivision (c)(21) contains an express pleading and proof requirement. This does not, however, alter our conclusion. The person present allegation was pled and proven in defendant's case, albeit to the court rather than the jury. The literal language of the statute does not require more. (See People v. Garcia, supra, 121 Cal.App.4th at pp. 278-279.)
The trial court did not violate defendant's jury trial rights by engaging in factfinding with respect to the credit limitation contained in section 2933.1.
DISPOSITION
The judgment (order) is affirmed.
/s/_________
DETJEN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
PEÑA, J.