Opinion
C084286
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL EURAL CULVERSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03205)
A jury found defendant Samuel Culverson guilty of second degree robbery (here, robbery of a cigarette store) while personally using a firearm and found he had four strike priors/serious felony convictions from Nevada. (See People v. Culverson (Dec. 9, 2016, C080901) [nonpub. opn.].) Defendant previously appealed, challenging the sufficiency of the evidence to support each of the four strike priors/serious felony convictions. We agreed three lacked sufficient evidentiary support, reversing those strike priors/serious felony convictions and striking the associated five-year enhancements imposed for each. We, however, gave the People the opportunity to retry them. If the People elected to retry the strike and serious felony allegations, we directed the trial court to resentence defendant following retrial and, if the People elected not to retry the allegations, we directed the trial court to dismiss the strike and serious felony allegations for the three priors and resentence defendant accordingly.
The People elected to retry one strike prior/serious felony conviction we reversed in the prior appeal -- a 2000 Nevada conviction for robbery with use of a deadly weapon. A jury found true the allegations that defendant had been convicted of robbery with a deadly weapon in Nevada in 2000 and that the prior conviction met the statutory elements for robbery under California law. The trial court sentenced defendant as a third striker with enhancements for each of the two prior strikes and personal use of a firearm. Defendant appeals.
The amended information alleged this conviction occurred in 1997, but the trial court granted the People's motion to correct the amended information to reflect the 2000 date of the conviction.
Defendant raises several constitutional, evidentiary, and instructional error challenges to the jury's true findings and requests we "remand this matter for resentencing as a convicted person, with one strike and serious felony prior proven." We agree with defendant that, pursuant to our Supreme Court's decision in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), the jury impermissibly determined the Nevada conviction met the elements of robbery under California law. We therefore reverse the true finding that defendant's Nevada conviction was a serious felony within the meaning of the three strikes law, strike the associated five-year sentence enhancement, and remand for resentencing. Because we reverse, we do not consider the remainder of defendant's claims of error.
The retrial on defendant's Nevada conviction occurred prior to Gallardo.
Defendant also requests that we remand his case for resentencing to permit the trial court to exercise its discretion to strike the firearm enhancement in light of Senate Bill No. 620's amendment to Penal Code section 12022.53. The People do not oppose this request and we agree it is appropriate. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) Accordingly we remand for the trial court to consider exercising its discretion to strike the firearm enhancement.
All further section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At retrial of the Nevada conviction as a strike prior/serious felony conviction, the prosecution asked the jury to make two findings: (1) that there had been a conviction of robbery with a deadly weapon in Nevada on August 23, 2000; and (2) that the prior conviction met the elements of robbery under California law.
The prosecution presented one witness -- Brad Ng, a deputy district attorney. The trial court admitted Ng's testimony as an expert in explaining records of convictions from other states. Ng reviewed and testified regarding the following documents related to the Nevada conviction: (1) a certified multi-state rap sheet (noting an arrest and charges brought); (2) a case summary of the superior court case (which included the charging document, a series of minute orders, and a booking photograph); (3) records from the Nevada Supreme Court's review and affirmance of the conviction; and (4) a certified judgment of conviction following jury trial. The judgment of conviction indicates a Samuel Earl Culverson was convicted of robbery with use of a deadly weapon, possession of a controlled substance, and an felon in possession of a firearm.
The Nevada Supreme Court summarized the facts supporting the conviction in its order of affirmance. "The victim, Francisco Osorio, testified that he was at a friend's apartment when he heard a knock on the door. There were two men at the door, one of whom Osorio identified as [defendant]. [Defendant] wanted to see Osorio's friend, who had gone to the store. When Osorio let [defendant] and his companion into the apartment, [defendant] pulled out a small caliber handgun and said that it was a robbery. [Defendant's] companion searched Osorio and took over $400.00 in cash from Osorio. [Defendant] and his companion fled." After police located defendant and his companion, they "found $435.00 in cash on [the companion] and a rock of cocaine on [defendant]." Defendant "admitted to being in the apartment and getting into a fight with Osorio, but denied robbing Osorio. [Defendant] claimed that the fight was over Osorio selling him fake cocaine."
Defendant filed a request for the court to take judicial notice of the Nevada Supreme Court's order of affirmance, which was also entered into evidence at the retrial as exhibit 3. We deferred pending calendaring and assignment of the panel. We now grant the request.
In closing argument, the prosecution asked the jury to compare the factual record from the Nevada Supreme Court's opinion against the elements for robbery in California. The trial court informed the jury that defendant appeared to be depicted in the photographs attached to the Nevada judgment of conviction and the jury returned a verdict finding both allegations true. The trial court sentenced defendant to 25 years to life for robbery (based on defendant's status as a third striker) and 10 years for the firearm enhancement, 5 years for the prior strike upheld in our prior decision, and 5 years for the strike arising from the Nevada conviction. Defendant timely appealed.
DISCUSSION
I
Pertinent Law
Under California's three strikes law, a defendant's sentence is enhanced upon proof that the defendant has been previously convicted of a "strike" -- a " 'violent felony' " as defined in section 667.5, subdivision (c), or a " 'serious felony' " as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) A qualifying strike includes "[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of [a] . . . serious felony as defined in subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2); People v. Denard (2015) 242 Cal.App.4th 1012, 1024 [prior out-of-state conviction must involve the same conduct as would qualify as a strike in California and "include all the elements of the California strike offense"].) An out-of-state prior conviction may also be used to impose a five-year sentence enhancement for a prior conviction that is a serious felony listed in section 1192.7, subdivision (c). (§§ 667, subd. (a)(1), (a)(4), 668, 1192.7, subd. (c).)
The United States Supreme Court and our Supreme Court have discussed the permissible inquiry into prior convictions for increasing a current sentence. In Descamps v. United States (2013) 570 U.S. 254 , the United States Supreme Court held that when a sentencing court makes a finding regarding a qualifying offense that would increase the penalty for a crime beyond the prescribed statutory maximum and the judicial factfinding goes beyond merely identifying the prior conviction, the Sixth Amendment of the United States Constitution is implicated. (Id. at p. ___ .) A sentencing court may compare the elements of the statute under which the defendant was previously convicted with the elements of the comparable in-state offense. (Id. at p. ___ .) If the elements of the out-of-state offense are the same or narrower than the comparable in-state offense, the sentencing court may properly determine the out-of-state offense is sufficient for purposes of the sentence enhancement. (Ibid.) But the sentencing court may also consider additional evidence from the court record if the prior conviction was for violating a " 'divisible statute.' " (Ibid.)
A divisible statute "sets out one or more elements of the offense in the alternative -- for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not," sentencing courts may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." (Descamps v. United States, supra, 570 U.S. at p. ___ .) The court can then compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the comparable crime. (Ibid.) The court, however, disapproved the use of court records to determine whether the prior conviction was based on facts that satisfied the elements of the comparable offense. (Id. at pp. ___ [186 L.Ed.2d at pp. 450-451, 457].)
Our Supreme Court relied on Descamps in deciding Gallardo. The defendant in Gallardo had a prior conviction for assault with a deadly weapon or with force likely to produce great bodily injury. (Gallardo, supra, 4 Cal.5th at p. 125.) If the defendant committed assault with a deadly weapon, the prior conviction was a strike; if she committed assault by any means of force likely to produce great bodily injury, the prior conviction was not a strike. (Ibid.) The trial court examined the preliminary hearing transcript for the prior conviction to determine which crime the defendant was convicted of and, thus, whether the defendant's prior conviction qualified as a serious felony. (Id. at p. 126.)
Our Supreme Court summarized the defendant's Sixth Amendment right pertaining to use of a prior conviction to enhance a criminal sentence as follows: " 'The Sixth Amendment contemplates that a jury -- not a sentencing court -- will find' the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. [Citation.] This means that a sentencing court may identify those facts it is 'sure the jury . . . found' in rendering its guilty verdict, or those facts as to which the defendant waived a right of jury trial in entering a guilty plea. [Citation.] But it may not 'rely on its own finding' about the defendant's underlying conduct 'to increase a defendant's maximum sentence.' " (Gallardo, supra, 4 Cal.5th at p. 134.)
Disapproving its earlier holding in People v. McGee (2006) 38 Cal.4th 682, our Supreme Court held: "[A] court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself -- that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, supra, 4 Cal.5th at pp. 124-125, 136.) "While a trial court can determine the fact of a prior conviction without infringing on the defendant's Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction." (Id. at p. 138.)
Turning to the merits of the case, our Supreme Court found the trial court violated the defendant's Sixth Amendment right to a jury trial by engaging in factfinding about the nature or basis of the defendant's assault guilty plea and finding "a disputed fact about the conduct underlying the defendant's assault conviction that had not been established by virtue of the conviction itself." (Gallardo, supra, 4 Cal.5th at pp. 124-125, 136-137.) Although the court reversed the judgment, it remanded the case "to permit the trial court to make the relevant determinations about what facts defendant admitted in entering her plea." (Id. at p. 138.) In this regard, the court rejected the dissent's proposal of "reassigning the task of reviewing the record of conviction to a jury, as opposed to a judge." (Id. at pp. 138-139 & fns. 5-6.) The court agreed with appellate opinions finding "questions about the proper characterization of a prior conviction are for a court to resolve, based on its evaluation of the facts necessarily encompassed by the guilty verdict or admitted by the defendant in pleading guilty to the prior crime." (Id. at p. 139, fn. 6.)
II
The Jury Impermissibly Determined The Nevada Conviction
Met The Elements Of Robbery Under California Law
The parties agree the second question presented to the jury, i.e., whether the Nevada conviction met the elements of robbery under section 211 -- was improper as stated in Gallardo, and we agree. Our Supreme Court has been clear that "questions about the proper characterization of a prior conviction are for a court to resolve, based on its evaluation of the facts necessarily encompassed by the guilty verdict or admitted by the defendant in pleading guilty to the prior crime." (Gallardo, supra, 4 Cal.5th at p. 139, fn. 6.) Like the jury's proposed review of the preliminary hearing transcript in Gallardo, the jury's review of the record of the Nevada conviction did not allow for "the procedural safeguards, such as the Sixth Amendment right to cross-examine one's accusers, that normally apply in criminal proceedings. This kind of proceeding might [have] involve[d] a jury, but it [was not] much of a trial." (Id. at pp. 138-139, fns. omitted.)
Although the People agree the jury's finding on the second question submitted to it was improper and must be reversed, the People argue the jury also "determined, unanimously and beyond a reasonable doubt, that [defendant] had suffered" the Nevada conviction. They argue, "[t]his aspect of the court's procedure was unquestionably correct" and is "uninfected by Sixth Amendment error." While this may be true (see Gallardo, supra, 4 Cal.4th at p. 125 ["[a] defendant . . . [has] a statutory right to a jury trial on 'the question of whether or not the defendant has suffered the prior conviction' "]), the jury's finding on this question (if affirmed) does not inform, nor can it, whether the Nevada conviction meets the elements of robbery under California law. "Because the simple fact of the conviction does not establish these elements, the only way to determine whether they are met is by looking to the record of the prior conviction." (People v. Saez (2015) 237 Cal.App.4th 1177, 1195.)
To the extent this argument was raised to support the People's harmless error argument, which we next discuss, it is unavailing.
III
The Error Was Not Harmless And Remand Is Unnecessary
The People maintain the jury's serious felony finding error was harmless and we need not reverse it because "this Court can be confident that the Nevada jury that convicted [defendant] necessarily found that he personally used a firearm in committing robbery." The People further argue that, even if we find prejudicial error occurred, we should remand the case "to the trial court with instructions to determine what facts were necessarily proved in [defendant's] Nevada jury trial." We disagree with both arguments.
The parties disagree on whether a harmless error analysis is appropriate under these circumstances. Defendant argues the error constitutes structural error, requiring per se reversal. The People argue the error is similar to the failure to submit a sentencing factor to the jury, which is not structural error and does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18 . We need not address this question because, even if the harmless error analysis is appropriate under the circumstances presented, prejudicial error occurred.
It appears the People's harmless error assertion is grounded in two qualifying serious felonies listed in section 1192.7, subdivision (c). (§ 667, subds. (a)(1), (a)(4), (f)(1).) The first is "robbery" (§ 1192.7, subd. (c)(19)); the second is "any felony in which the defendant personally uses a firearm" (id., subd. (c)(8)). The robbery theory was presented in the trial court, the personal use theory was not. We presume the "any felony" portion of the personal use theory means robbery in this case, because robbery is the only felony discussed in the People's brief.
The People's argument is confusing in this regard. While the People assert that "this Court can be confident that the Nevada jury that convicted [defendant] necessarily found that he personally used a firearm in committing robbery," the People, in this section of the brief, do not explain how we can find the elements required for robbery under California law. The People only argue that we can find that defendant personally used a firearm. Later in the brief, however, the People argue that there is sufficient evidence of specific intent to find robbery under California law. Accordingly, it appears the People assert two theories supporting the serious felony finding.
We do not consider whether the Nevada robbery conviction meets the elements of another felony under California law. (People v. Jones (1998) 17 Cal.4th 279, 304 [claim without supporting argument not considered].)
We reject the People's arguments on harmless error and remand for the same reason -- having reviewed the record presented, there are no facts from which a trial court could conclude the Nevada conviction meets the elements of robbery under section 667, subdivision (a), without violating defendant's Sixth Amendment right.
The elements for robbery under Nevada law and California law do not match. "First, under Nevada law, robbery requires only general criminal intent [citation], whereas under California law, robbery requires a specific criminal intent to permanently deprive another person of property [citation]. Second, under Nevada law, a taking accomplished by fear of future injury to the person or property of anyone in the company of the victim at the time of the offense qualifies as robbery [citation], whereas under California law such a taking does not [citation]. [¶] In view of the foregoing distinctions between the elements of robbery under California law and those under Nevada law, it was at least theoretically possible that defendant's Nevada conviction[] involved conduct that would not constitute robbery under California law." (People v. McGee, supra, 38 Cal.4th at p. 688, disapproved on other grounds in Gallardo, supra, 4 Cal.5th 120.) This requires an "inquiry into the record of the Nevada conviction[] . . . to determine whether [the conviction] constitute[s] a qualifying felony for purposes of the relevant California sentencing statutes." (McGee, p. 688.)
As our Supreme Court said in Gallardo, a trial court is "limited to identifying those facts that were established by virtue of the conviction itself -- that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, supra, 4 Cal.5th at p. 136.) Here, we do not have a guilty plea. We only have the Nevada jury's verdict and, in rendering that verdict, the jury was not necessarily required to find facts relating to specific intent, nor is there any indication in the record that the jury did so.
The People's reliance on People v. Riel (2000) 22 Cal.4th 1153 is misplaced. In Riel (decided almost two decades before Gallardo), our Supreme Court considered whether the record contained sufficient evidence to support the jury's finding that the defendant's convictions in Washington constituted burglary under California law. (Id. at pp. 1205-1206.) In Washington, the defendant pled guilty to two counts of second degree burglary. (Id. at pp. 1203, 1205.) In his guilty pleas, the defendant admitted to entering two stores and taking liquor. (Id. at p. 1205.) Our Supreme Court determined those statements "clearly showe[d] . . . the burglary convictions were based on the intent to commit theft rather than some other, nonfelonious, crime." (Ibid.) The court further found it unlikely the defendant intended "to take the liquor only temporarily [because] [o]ne normally takes liquor to drink or otherwise to dispose of it." (Id. at p. 1206.)
The People maintain we may reach the same conclusion here. In Riel, however, the record of conviction included the defendant's personal admissions to the facts underlying his convictions. (People v. Riel, supra, 22 Cal.4th at p. 1205.) Here, in contrast, the Nevada record of conviction does not contain any factual admissions by defendant or a factual finding by the jury that defendant intended to permanently deprive the victim of his property. Specific intent was not an element of the Nevada conviction and, therefore, it was not a fact "the jury was necessarily required to find to render a guilty verdict." (Gallardo, supra, 4 Cal.5th at p. 136.) To infer specific intent from the Nevada record of conviction under these circumstances would violate the defendant's Sixth Amendment right, as explained in Gallardo. (Id. at p. 137.)
DISPOSITION
We reverse the finding that defendant's prior Nevada robbery conviction met the elements of robbery under section 211 and strike the sentence enhancement imposed for that prior conviction. We remand with directions to dismiss the strike and serious felony allegation for this prior and resentence defendant accordingly. We further remand for the trial court to consider exercising its discretion to strike the firearm enhancement as provided in section 12022.53, subdivision (h).
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Hull, J.