Opinion
E070950
03-17-2020
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE MONROE GARDEAZABEL, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. SWF1600979 & SWF1601164) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed in part, reversed in part, and remanded with directions. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Freddie Monroe Gardeazabel, was tried by jury and convicted of multiple impaired driving offenses and driving on a suspended or revoked license. (Veh. Code, §§ 23152, subds. (a), (b), (f), 14601.2, subd. (a).) At a court trial following this conviction, the court found true allegations that defendant had five prior strike convictions and six prior prison convictions. (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2).) Defendant was sentenced to a total of 13 years four months in state prison. Defendant appealed.
All further statutory references are to the Vehicle Code unless otherwise indicated.
On appeal, defendant argues that there was insufficient evidence to support a true finding as to the first alleged prior strike conviction. In supplemental briefing, defendant argues that based on a recent change in the law, his six one-year prior prison offense enhancements should be stricken. We affirm in part, reverse in part, and strike the prior prison offenses. We further remand so that the trial court can correct the abstract of judgment to reflect defendant's new sentence and permit the People to decide whether to retry defendant on the reversed enhancement allegation.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because the issues on appeal do not concern the factual basis for the underlying crimes, we only briefly summarize that background for context.
Defendant was driving in the early morning hours of March 29, 2016, when he was pulled over by a Riverside County Deputy Sheriff for crossing the centerline twice and nearly hitting a curb during a turn. The deputy smelled alcohol on defendant's breath and he showed other signs of being intoxicated, including slurred speech, delayed responses, and bloodshot eyes. Defendant failed several field sobriety tests and was taken into custody, where he refused to participate in blood or breath testing.
On July 4, 2016, about 11:00 p.m., a witness was awoken by a loud noise and found defendant behind the wheel of a truck, in a ditch, revving the engine. The witness could smell alcohol as he approached the truck. Defendant admitted to the witness that he had been drinking. When a California Highway Patrol officer arrived, defendant was asleep in the cabin of the truck with the keys in the ignition. The officer also smelled alcohol and noted that defendant had red, watery, glassy eyes. Defendant refused to perform any field sobriety test or roadside breathalyzer test. He was arrested, and again refused to cooperate with blood or breath testing. Police drew his blood pursuant to a warrant, which revealed a blood alcohol level of .07. According to expert testimony elicited by the People at trial, this blood alcohol level was consistent with a blood alcohol level of between .12 and .17 at the time defendant would have been driving.
The Riverside County District Attorney charged defendant by information with felony driving under the influence (D.U.I.) of alcohol, with prior D.U.I. violations (§§ 23152, subd. (a), 23550.5, subd. (a); counts 1 and 2); felony driving with a blood alcohol level of .08 or higher, with prior D.U.I. violations (§§ 23152, subd. (b), 23550.5, subd. (a); count 3); felony driving under the combined influence of alcohol and a drug, with prior D.U.I. violations (§§ 23152, subd. (f), 23550.5, subd. (a); count 4); and misdemeanor driving while driving privileges were suspended or revoked for driving under the combined influence of alcohol and a drug (§ 14601.2, subd. (a); counts 5 and 6). The information also alleged that as to counts 1 through 4, defendant refused to submit to a chemical test at the time of his arrest despite previously being convicted of a D.U.I. (Veh. Code, §§ 23577, subd. (a)(5), 23578.) In addition, the information alleged that defendant had six prior prison offenses (Pen. Code, § 667.5, subd. (b)) and five prior strike convictions (Pen. Code, §§ 667 subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2).)
On October 24, 2017, a jury convicted defendant on all counts and found true the allegations that he refused to submit to chemical testing. At a bifurcated court trial, the court found all of the allegations concerning defendant's prior offenses true. Defendant brought a motion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), which the trial court denied.
The trial court sentenced defendant to a total of 13 years four months in prison, composed of the upper term of three years for count 1, doubled to six for the prior strike conviction; one year and four months for count 2; and one year for each of the six prior prison offenses. Pursuant to Penal Code section 654, the court imposed but stayed a four-year sentence for count 3, and a sentence of one year four months for count 4. The court further imposed and stayed two concurrent one-year county jail sentences for counts 5 and 6.
Defendant timely appealed.
III. DISCUSSION
Defendant argues there was insufficient evidence to support the trial court's true finding as to the first alleged prior strike conviction, a 1982 robbery conviction. In supplemental briefing, defendant argues that a recent change in the law makes defendant's prior prison terms for felony offenses no longer eligible to be used to impose one-year enhancements under Penal Code section 667.5, subdivision (b), to his felony sentence and must therefore be stricken. We agree.
A. Substantial Evidence Supports the Trial Court's Finding
1. Relevant Background
The information alleged, and the court found true, that defendant had five prior strike offenses. Among these was a robbery conviction alleged to have occurred in Los Angeles County in 1982. It is uncontested that the People did not produce any certified copies of prison records pursuant to Penal Code section 969b showing that defendant served time in prison for this conviction. Instead, the People produced a 2007 criminal information alleging that defendant was a felon in possession of a firearm. This information relied on allegations of multiple prior convictions, including the 1982 conviction, to support the allegation that defendant was a felon. This information also alleged the 1982 conviction in support of enhancement allegations for another charged offense. In that 2007 case, defendant pleaded no contest to possession of a firearm by a felon. He does not appear to have ever objected to or even raised any argument regarding the 1982 offense in connection with this 2007 case.
In addition to this information and defendant's plea, the People also presented evidence that they characterized as corroborative but not decisive. This included the fact that defendant's 1982 conviction is recorded in several probation reports, including the report for his current convictions as well as previous convictions going back to 2001. The People also produced several prior felony complaints going back as far as 1991 in which the 1982 conviction was alleged.
In addition, the People produced a transcript of defendant pleading to a 1991 robbery. In that transcript, the prosecutor notes that "the Court, I believe, is aware of your record. However, something may come up on your probation report that would cause the Court to feel that it could not in good conscience follow the recommendation." The People argued that the prosecutor in the 1991 case was "referring . . . to the fact that [defendant] had a prior strike conviction for robbery at the time of [the 1991] robbery conviction."
Finally, the People point to a transcript from a 1991 case in which defendant waived his right to a preliminary hearing. In that case, one of the charges for which defendant waived a hearing included an allegation regarding defendant's 1982 conviction. Defendant did not object to the court's on the record identification of this conviction. He also waived his right to a preliminary hearing even after being told that waiving a preliminary hearing would relieve the People of any burden of proof regarding the prior conviction that would otherwise apply at a preliminary hearing.
Based on this evidence, the trial court concluded that defendant had been convicted of robbery in 1982 and that the allegation was true.
2. There Was Insufficient Evidence to Conclude Defendant Was Convicted of the Alleged 1982 Robbery
When reviewing a true finding regarding a prior conviction allegation we apply the substantial evidence standard of review. (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).) Under this standard of review, "we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Ibid.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) "We resolve all evidentiary conflicts . . . 'in favor of the verdict, drawing every reasonable inference the [trier of fact] could draw from the evidence.'" (People v. Brady (2018) 22 Cal.App.5th 1008, 1014, quoting People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)
"Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value." (People v. Briscoe (2001) 92 Cal.App.4th 568, 585.) However, "[t]he trial court, not the reviewing court, 'is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences . . . .'" (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018, quoting People v. Woods (1999) 21 Cal.4th 668, 673.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.) "'"'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]'" (Ibid.)
"The People must prove each element of an alleged sentence enhancement beyond reasonable doubt." (Delgado, supra, 43 Cal.4th at p. 1065.) "The state may meet this burden . . . by introducing into evidence several types of evidence: certified copies of prison records [citations]; certified copies of court minute orders or of the abstract of judgment [citation]; or certified copies of writings in the custody of a public entity. [Citations.]" (People v. Brucker (1983) 148 Cal.App.3d 230, 241.) However, the trier of fact is not limited to considering only these pieces of evidence. "[I]n determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction." (People v. Guerrero (1988) 44 Cal.3d 343, 355.) Moreover the "'trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .'" (Delgado, at p. 1066.)
To meet their burden to prove the prior strike conviction allegation, the People point to defendant's no contest plea to a violation of Penal Code former section 12021, subdivision (a)(1)—possession of firearm by a felon—and argue that this admitted the prior conviction. The information charging defendant with this offense listed the 1982 robbery conviction as one of six prior felonies alleged to show that defendant was a felon when he was in possession of the firearm. "'A plea of guilty admits every element of the offense charged . . . , all allegations and factors comprising the charge contained in the pleading. . . .' [Citation.] The legal effect of a no contest plea is the same." (People v. Palacios (1997) 56 Cal.App.4th 252, 257.) Where the charged offense includes a prior conviction as an element of the offense, pleading to that charge also admits the prior conviction. (People v. McDaniels (1958) 165 Cal.App.2d 283, 285.) Thus, by pleading no contest to the 2016 charge, defendant necessarily admitted that at least one of the six alleged prior felony convictions was true.
However, Penal Code former section 12021, subdivision (a)(1), only criminalizes possession of a firearm by "[a]ny person who has been convicted of a felony." (Italics added.) The record of that conviction does not disclose what the factual basis for the plea was, only that there was a factual basis. Because only one of the six alleged felonies needed to be proven true to convict defendant of the crime alleged, and because the record does not disclose which of these defendant admitted to, defendant's plea is not sufficient in and of itself to prove the 1982 conviction in particular.
The additional evidence provided by the People is too speculative to make up the difference. The People offered corroborating evidence in the form of charging documents and probation reports which included the 1982 robbery conviction dating back to 1991. But "[t]he fact that a criminal charge has been filed against the defendant[] is not evidence that the charge is true." (CALCRIM No. 220.) Probation reports and charging documents are therefore not evidence of the underlying allegation and cannot be used to support the People's position.
Recognizing this, the People argue that the record does not show defendant ever objected to the inclusion of the 1982 conviction in any of those documents or on the record on any occasion. For example, the People offered a 1991 transcript of defendant waiving his right to a preliminary hearing in which the trial court specifically mentioned the 1982 offense without any objection or colloquy from defendant. The People also offered defendant's plea to a 1991 robbery in which the prosecution made reference to a prior conviction history. Defendant did not object to this reference.
However, while there is no evidence in the record of defendant objecting to references to the 1982 robbery conviction, there is also no evidence of defendant ever affirmatively admitting to it. At no point in any of the proceedings cited by the People was defendant obligated to speak up or object, and failing to do so is not an admission. "Knowing and intelligent waivers are generally required when a criminal defendant gives up 'any significant right' [citation], such as the constitutional rights relinquished by a plea of guilty." (People v. Trujillo (2015) 60 Cal.4th 850, 859.) No such knowing and intelligent waiver appears in the record before us, and we generally do not presume the forfeiture or waiver of important rights from a silent record. (See People v. Palmer (2013) 58 Cal.4th 110, 116 [application of waiver and forfeiture doctrine inappropriate "given the prophylactic purpose behind the factual basis requirement, a purpose analogous to that behind the prophylactic advisements of applicable federal constitutional rights given a defendant before his or her guilty plea is taken."]; cf. Boykin v. Alabama (1969) 395 U.S. 238, 243 ["We cannot presume a waiver of these three important federal rights [against compulsory self-incrimination, to trial by jury, and to confront one's accusers,] from a silent record."].)
Thus, the evidence only reflects that defendant admitted to at least one of six felonies, including the 1982 conviction, in 2007. The only additional evidence offered to prove that defendant was convicted of the 1982 robbery conviction in particular were charging documents, probation reports, and defendant's silence. This evidence was insufficient to support the trial court's true finding as to that prior conviction allegation.
B. Defendant's Prison Prior Enhancements Must be Stricken
Defendant also argues that his prior prison offenses may no longer be used to impose one-year enhancements to his felony sentence and must therefore be stricken. The People agree. We agree with the parties that defendant's six one-year enhancements for his prior prison offenses must be stricken.
Senate Bill No. 136 was passed into law on October 8, 2019, and became effective January 1, 2020. (Sen. Bill No. 136 (2019-2020 Reg. Sess.); Cal. Const., art. IV, § 8, subd. (c)(2).) Senate Bill No. 136 amends Penal Code section 667.5, subdivision (b), to allow the imposition of an additional one-year term for prior prison offenses only when the prior prison offense was for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats 2019, ch. 590, § 1.) It is undisputed that none of defendant's prior convictions was for a sexually violent offense. Accordingly, under Penal Code section 667.5, subdivision (b), as amended, defendant would not qualify for the imposition of the one-year enhancement for any of his prior prison terms.
Defendant's conviction was not final as of the effective date of this change. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].) Because defendant's conviction is not yet final, and because the amended statute leads to a reduced sentence, the amendment to Penal Code section 667.5, subdivision (b), applies retroactively. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973; In re Estrada (1965) 63 Cal.2d 740, 745.) Accordingly, the six one-year sentence enhancements must be stricken.
We would ordinarily remand for resentencing so the trial court could reconsider the entire sentencing scheme when striking the one-year enhancements for defendant's prior prison offenses. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 [on remand for resentencing a trial court is "[n]ot limited to merely striking illegal portions" of a sentence but "may reconsider all sentencing choices," "because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components"]; People v. Hubbard (2018) 27 Cal.App.5th 9, 13.) However, remand for resentencing is not necessary here. The trial court already imposed the maximum available sentence for defendant's offense, and denied defendant's Romero motion. Therefore, the trial court has already fully exercised its discretionary authority as to those portions of the sentence for which it retains discretion, and could not be expected to exercise its discretion otherwise on remand.
Because remand for resentencing is unnecessary, we exercise our independent authority to strike the six one-year prior prison offense enhancements and reduce the aggregate sentence to seven years and four months.
IV. DISPOSITION
We reverse the trial court's true finding as to defendant's alleged 1982 robbery conviction. We also modify defendant's sentence to strike the six one-year prison prior enhancements imposed under Penal Code section 667.5, subdivision (b), reducing defendant's sentence to an aggregate term of seven years and four months. We remand to permit the People to determine whether they wish to retry defendant on the truth of the alleged 1982 prior robbery conviction and to ensure a corrected abstract of judgment is prepared and forwarded to the California Department of Corrections and Rehabilitation reflecting defendant's new aggregate sentence. In all other respects, the judgment is affirmed.
We are aware that regardless of whether this prior is ultimately proven true or not, there will be no effect on defendant's sentence. However, the People are entitled to retry a prior conviction allegation where the appellate court reverses a true finding for insufficient evidence. (See People v. Barragan (2004) 32 Cal.4th 236.) --------
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.