Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA336752 Marcelita V. Haynes, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Defendant and appellant Raul Castro was convicted of kidnapping his wife and related crimes. He received a prison sentence of 28 years 4 months, plus a 5-year enhancement for a conviction of a prior serious felony. On appeal appellant challenges the 5-year enhancement but does not challenge the underlying convictions or the remainder of his sentence.
The trial court imposed the enhancement after appellant admitted he suffered a prior conviction of discharging a firearm in a grossly negligent manner in violation of Penal Code section 246.3. The admission was made “pursuant to Penal Code section 667(b) through (i), ” also known as the Three Strikes law. The Three Strikes law, however, does not provide for a 5-year enhancement under the circumstances of this case. Moreover, the prosecutor expressly stated that she was not seeking an enhancement under the Three Strikes law.
All future statutory references are to the Penal Code except as otherwise indicated.
We shall conclude that appellant’s admission must be set aside because it was not intelligently made. We shall also vacate the sentence and remand the matter to the trial court because the sentence was based on the admission and because it was erroneously based on the Three Strikes law. The judgment otherwise is affirmed.
On August 25, 2010, appellant filed a petition for a writ of habeas corpus (B226834) and, on September 7, 2010, this court ordered that this appeal and the petition be concurrently considered. The petition will be the subject of a separate order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Incident on February 7, 2008
On February 7, 2008, at about 9:00 p.m., appellant’s wife Cindy C. was in a parked vehicle with her friend Geovanni A. Appellant approached the vehicle, pointed a gun at Geovanni, and ordered him out of the car. Geovanni exited the vehicle, took a few steps away, and then turned back. Still aiming his gun at Geovanni, appellant told him, “Get the fuck out or I’ll kill you.” Geovanni walked away after Cindy indicated by a gesture that he should comply with appellant’s command.
After Geovanni left appellant and Cindy got into an argument. The argument escalated into a physical altercation. When Cindy attempted to get out of the car, appellant drove off. Although Cindy did not want to be in the car with appellant, she was not permitted to leave for two hours. While driving appellant pointed a gun at Cindy, continuously hit her, and repeatedly threatened to kill her. At one point, appellant punched Cindy in the face, giving her a black eye.
Eventually, appellant drove Cindy to his mother’s house. One of appellant’s friends approached the car, and appellant said, “Help me get this bitch up. I think I killed her.” Appellant used a garden hose to pour water on Cindy in an effort to revive her.
2. The Incident on February 9, 2008
On February 9, 2008, at about 9:30 a.m., Cindy called 911 and asked for police assistance at her workplace. When a sheriff’s deputy arrived he found appellant pacing back and forth in a suspicious manner. The deputy detained appellant and then talked to Cindy. Cindy advised the deputy that she was “beat up” by appellant. A search of the area revealed a scale, a bag of methamphetamine, and a small handgun.
3. The Charges against Appellant
In a second amended information, the People charged appellant with 9 counts: (1) assault with a firearm (§ 245(a)(2)) against Geovanni, (2) criminal threats (§ 422) against Geovanni, (3) criminal threats (§ 422) against Cindy, (4) corporal injury to spouse/cohabitant/child’s parent (§ 273.5(a)), (5) kidnapping (§ 207(a)), (6) possession of a firearm by a felon on February 9, 2008 (§ 12021(a)(1)), (7) possession for sale of a controlled substance (Health & Saf. Code, § 11378), (8) possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1(a)), and (9) possession of a firearm by a felon on February 7, 2008 (§ 12021(a)(1)).
With respect to counts 1, 2, 3 and 4, the second amended information alleged that appellant personally used a firearm within the meaning of section 1203.06, subdivision (a)(1) and section 12022.5, subdivision (a), causing the offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(8) and section 667.5, subdivision (c)(8). As to count 5, it was alleged that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b), causing this offense to be a serious felony pursuant to section 1192.7, subdivision (c)(8) and section 667.5, subdivision (c)(8). Finally, with respect to all 9 counts, the second amended information alleged that pursuant to section 667, subdivisions (b) through (i), appellant suffered a prior conviction of a serious or violent felony or juvenile adjudication, namely a conviction on April 23, 2001, in Case No. BA211217, of violating section 246.3.
4. The Verdict and Judgment
Appellant pleaded not guilty to all charges, and a jury trial was held. On August 18, 2009, the jury returned a verdict of guilty on all counts. The jury also found that the special allegations relating to counts 1 through 5 were true.
On November 6, 2009, the trial court held a hearing. Because appellant’s admission at that hearing is the subject of this appeal, we shall review the hearing in detail.
The hearing was attended by appellant, appellant’s counsel Nicolas Estrada, and Deputy District Attorney Jodi Castano. After the parties made their appearances, the following discussion took place:
“THE COURT: Matter is here for court trial on the priors and sentencing after jury trial. I’m looking at the [second amended] information. [¶] Are the People going to take the waivers?
“MS. CASTANO: Yes. I told counsel this. I don’t know if I told the court this or stated it on the record. After further review of the case, it [appellant’s prior conviction] is not a strike prior. So he’ll [appellant] be admitting it as a [section] 667(b) [sic] prior [conviction.]
“THE COURT: “I’m sorry. Say that again.
“MS. CASTANO: He’ll be admitting the [section] 246.3 as a [section] 667(b) [sic] prior, but not as a strike prior.
“THE COURT: I wish I had known that. Go ahead.
“MS. CASTANO: We received the police reports. Based on the police reports, we were unable to prove, even though he admitted it, that he was – personally shot that gun, which he would have to do in order for it to be a strike prior.”
Shortly thereafter, Ms. Castano had the following dialogue with appellant:
“MS. CASTANO: As to this case that’s before the court, [ Case No.] BA 336752, it is alleged that you suffered a prior felony conviction in Case [No.] BA211217, the charge of Penal Code section 246.3, a felony, with a conviction date of April 23rd, 2001, in Los Angeles County. Do you understand that?
“THE DEFENDANT: Yes.”
After appellant stated on the record that he waived various rights, including the right to cross-examine witnesses and to present evidence, the following exchange occurred:
“MS. CASTANO: As to the prior conviction, alleged pursuant to Penal Code section 667(b) through (i) [sic], in Case [No.] BA211217, as to Penal Code section 246.3, conviction date of April 23rd, 2001, in Los Angeles County Superior Court, do you admit that you suffered that conviction?
“THE DEFENDANT: Yes.
“MS. CASTANO: Counsel, do you join in the waivers?
“MR. ESTRADA: “Yes I do.”
The trial court then announced its sentence. Appellant was sentenced to serve 18 years in prison for count 5, kidnapping. He was also sentenced to serve 2 years 4 months for count 1, 24 months for count 2, 24 months for count 3, and 2 years 4 months for count 4, to be served consecutively with count 5. With respect to count 6, appellant was sentenced to 2 years in state prison, to be served concurrently with count 5. Appellant was sentenced to 2 years in state prison for count 7. The sentence for count 7, however, was stayed with the stay to become permanent upon appellant’s completion of the sentences imposed on the remaining counts. With respect to count 8, appellant was sentenced to 1 year in state prison to be served consecutively with count 5. Finally, appellant was sentenced to 8 months in state prison for count 9, plus a 5-year enhancement pursuant to section 667, subdivisions (b) through (i).
The trial court then stated that the total amount of the sentence was 32 years, 4 months. As we shall explain, however, the trial court miscalculated the total sentence. Appellant did not object at the November 6, 2009, hearing to the 5-year enhancement or to any other part of his sentence.
On March 4, 2010, the trial court held a resentencing hearing. At the hearing the trial court stated that it had incorrectly calculated the total amount of the sentence. The trial court thus vacated the previous sentence nunc pro tunc. The court then announced the same sentence for each of the 9 counts. The court concluded by stating that the sentence for count 9 was 8 months, “making the [total prison] term 28 years, four months, plus an additional five years pursuant to Penal Code section 667(b) [sic] for a total term of 33 years, four months.” Appellant did not object to this sentence.
DISCUSSION
Appellant admitted to a prior conviction pursuant to section 667, subdivisions (b) through (i), also known as the Three Strikes law. Based on that admission and pursuant to the Three Strikes law, the trial imposed a 5-year enhancement to appellant’s sentence. The Three Strikes law, however, does not include a provision for a 5-year enhancement. Where, as here, the defendant allegedly has one prior conviction of a serious and/or violent felony offense, the Three Strikes law provides: “[T]he determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd. (e)(1).) Further, the prosecutor expressly stated on the record that she was not seeking to prove “a strike prior” for purposes of the Three Strikes law.
It thus appears that appellant’s admission and the trial court’s sentence were based on the wrong statutory authority. This raises two related issues. The first is whether the admission was valid. The second is whether the trial court’s sentence, which was based on appellant’s admission, was authorized.
A defendant’s admission of a prior conviction must be voluntary and intelligent in light of the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 356.) In this case, there is no allegation that the admission was coerced, and thus it was “voluntary” assuming it was made intelligently and knowingly. We thus must decide whether under the totality of the circumstances the admission was intelligent-i.e. that appellant made the admission with an understanding of the nature of the admission.
Although the admission erroneously referred to the Three Strikes law, it is possible that appellant made an intelligent admission if, under the totality of the circumstances, we can determine that appellant admitted a prior conviction pursuant to some other statutory provision. Similarly, the trial court’s enhancement may have been authorized even though the trial court erroneously referred to the Three Strikes law.
Appellant argues that the trial court erroneously imposed a 5-year enhancement pursuant to section 667.5, subdivision (b). Section 667.5 states: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶]... [¶] (b)... where the new offense is any felony for which a prison sentence is imposed in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (Italics added.)
Appellant’s probation report states that he was sentenced to formal probation and time spent in county jail for his prior conviction of violating of section 246.3. There is nothing in the record indicating that appellant served a prison term for his prior conviction. Section 667.5, subdivision (b) thus does not apply on its face because appellant did not serve a prior prison term.
The People contend that the 5-year enhancement was imposed pursuant to section 667, subdivision (a)(1), which provides in part: “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” Appellant’s prior conviction of violating section 246.3, however, cannot be the basis for a 5-year enhancement pursuant to section 667, subdivision (a)(1) unless that crime was a “serious felony.” “As used in this subdivision, ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.” (§ 667, subd. (a)(4).) Section 246.3 is not specifically listed in section 1192.7, subdivision (c). But section 1192.7, subdivision (c)(23) defines a serious felony as “any felony in which the defendant personally used a dangerous or deadly weapon.” Thus, appellant’s prior conviction of violating section 246.3 was a “serious felony” within the meaning of section 667, subdivision (a)(1) if and only if appellant personally used a firearm in the commission of that crime. (See People v. Leslie (1996) 47 Cal.App.4th 198, 201-203.)
Although the People do not expressly refer to section 667, subdivision (a)(1) in their respondent’s brief, they argue: “A review of the entire record shows that appellant voluntarily admitted the fact he discharged the firearm for purposes of imposing the five-year enhancement.” In his reply brief, appellant argues: “Respondent responded that the record shows that appellant was properly sentenced to a 5-year enhancement under section 667, subdivision (a)(1), however, it has not pointed to one iota of evidence that supports that conclusion.” We address the applicability of section 667, subdivision (a)(1) because it authorizes under certain circumstances a 5-year enhancement and because the parties and the trial court erroneously referred to subdivisions (b) through (i) of section 667. We thus explore the possibility that the parties and the trial court erroneously referred to the wrong subdivisions of the statute.
The record does not indicate whether appellant personally used a firearm when he violated section 246.3. It is thus unclear whether appellant’s prior conviction can be the basis for a 5-year enhancement pursuant to section 667, subdivision (a)(1). Moreover, there are no section 667, subdivision (a)(1) allegations in the second amended information. Indeed, there is no mention of section 667, subdivision (a)(1) anywhere in the record. The record thus does not clearly indicate whether appellant intelligently admitted he was convicted of a prior felony for purposes of a section 667, subdivision (a)(1) enhancement. It is also unclear whether the trial court had the authority to impose a 5-year enhancement pursuant to section 667, subdivision (a)(1), because there is no evidence that appellant personally used a firearm when he violated section 246.3.
In sum, appellant’s admission pursuant to the Three Strikes law that he committed a prior felony was not intelligently made. The admission thus must be set aside. Likewise, appellant’s sentence must be vacated because the 5-year enhancement to appellant’s sentence was not authorized by section 667, subdivision (b) through (i), and because the enhancement was based on an admission that must be set aside.
DISPOSITION
The judgment is affirmed except appellant’s admission “pursuant to Penal code section 667(b) through (i)” that he suffered a prior conviction of violating section 246.3 is set aside and appellant’s sentence is vacated. The matter is remanded for further proceedings consistent with this opinion.
We concur: KLEIN, P. J., ALDRICH, J.