Opinion
B301434
04-21-2021
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID GRANT, Defendant and Appellant.
Karyn H. Bucur, under appointment by Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA063572) APPEAL from a judgment of the Superior Court of Los Angeles County, Shannon Knight, Judge. Dismissed. Karyn H. Bucur, under appointment by Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2014, appellant Michael Grant was convicted of robbery. The trial court doubled his sentence under the Three Strikes law and added a five-year enhancement based on a prior conviction for first-degree burglary.
Five years later, in 2019, Grant moved to set aside his sentence as unauthorized. He argued the trial court had engaged in improper fact-finding when it found that his prior burglary conviction was in the first degree. The trial court denied the petition, and Grant appealed. We conclude that Grant's sentence was not unauthorized and, therefore, the trial court had no jurisdiction to rule on the petition. We dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2014, a jury convicted Grant of two counts of second-degree robbery (Pen. Code, § 211). He waived a jury trial on allegations he had a prior serious felony conviction for burglary within the meaning of the Three Strikes law (§§ 667, subd. (d), 1170.12, subd. (b)) and section 667, subdivision (a)(1). In 2015, a court trial was held on the prior conviction allegations.
All further undesignated statutory references are to the Penal Code.
After reviewing a 2006 abstract of judgment showing that Grant's prior conviction (by plea) was for first-degree burglary, the trial court found the prior conviction allegations to be true. The court sentenced him to 13 years in prison: the mid-term of three years for the first robbery count doubled under the Three Strikes law, a consecutive term of one year (one third the mid-term) for the second robbery count doubled under the Three Strikes law, plus a five-year enhancement based on his prior conviction. We affirmed the judgment. (People v. Grant (filed Jan. 9, 2017, B265788) [nonpub.opn.].)
In September 2019, Grant filed a petition to set aside his sentence as unauthorized pursuant to People v. Gallardo (2017) 4 Cal.5th 120, 136 (Gallardo). He argued that his prior conviction for "First Degree Residential Burglary" did not qualify as a "violent offense" because the police report showed "that the home was vacant and no person [was] present during the commission of that crime." Grant asserted that the court had engaged in "judicial fact finding" when it resolved this "disputed fact[] about his prior conduct" and had therefore "violated his Sixth Amendment right to a jury trial on the question(s) of his prior serious felony strike convictions."
Gallardo held that when determining whether to increase the statutorily authorized penalty for a crime based on a prior conviction, the trial court is limited to "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.) Because we conclude the trial court had no jurisdiction to entertain Grant's motion to set aside his conviction, we have no occasion to address the merits of Grant's Gallardo argument.
The trial court denied Grant's petition, and he timely appealed. We conclude that the trial court was without jurisdiction to consider Grant's motion to vacate his sentence. Accordingly, we dismiss the appeal.
DISCUSSION
Grant argues the trial court imposed an unauthorized sentence in violation of his Sixth Amendment right to a jury trial "when it enhanced [his] sentence based on its findings concerning facts underlying [his] prior burglary conviction." He contends that "by finding the prior burglary conviction was in the first degree, the court had to find that the structure was an inhabited dwelling. [] The record shows that the structure was not an inhabited dwelling as a matter of law. Therefore, the burglary was in the second degree . . . and . . . did not qualify to enhance appellant's sentence." We disagree because the record demonstrates that the trial court did not resolve any disputed fact when it found the 2006 abstract of judgment established a prior conviction for first-degree burglary.
"Generally, once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. [Citation.] If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed." (People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres).) However, there are exceptions to the general rule. Unauthorized sentences "can be challenged and corrected at any time." (In re Brown (2020) 45 Cal.App.5th 699, 714.) "Unauthorized sentences are those that ' "could not lawfully be imposed under any circumstance in the particular case" ' [citation] . . . ." (People v. Rivera (2019) 7 Cal.5th 306, 348.)
Here, Grant's argument that the sentence was unauthorized turns on the distinction between first- and second-degree burglary. For a burglary conviction to qualify as a "serious felony" for purposes of the section 667, subdivision (a)(1) enhancement and as a prior strike, the burglary must have been in the first degree. (§ 1192.7, subd. (c)(18); Gallardo, supra, 4 Cal.5th at p. 125.) A burglary of an inhabited dwelling house is of the first degree; all other kinds of burglary are of the second degree. (§ 460, subds. (a) & (b).) Grant argues that the "facts show the burglary conviction at issue was in the second-degree because the structure was not an inhabited dwelling," and "by finding the prior burglary conviction was in the first degree, the court had to find the structure was an inhabited dwelling."
The record does not support Grant's argument. The trial court found the prior strike and serious felony allegations to be true based on a 2006 abstract of judgment that showed Grant was convicted by plea of "1st BURGLARY" in violation of section 459. He was sentenced to the low term of two years which corresponds with the sentencing range for first-degree burglary. (§ 461, subd. (a).) In short, the record established he was convicted of first-degree burglary in 2006, and the trial court, did not engage in any factfinding about whether the residence he burglarized was inhabited.
A different sentencing scheme applies to burglary in the second degree, which is punished by imprisonment "in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170." (§ 461, subd. (b).) --------
Because Grant has failed to demonstrate that his sentence was unauthorized, the trial court lacked jurisdiction to entertain his petition, and the order denying it was not an appealable order. (Torres, supra, 44 Cal.App.5th at p. 1084.)
DISPOSITION
The appeal is dismissed.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.