Summary
In Hall, the appellant made several motions, including one to set aside the judgment, and the trial court issued several orders, including granting bail, before the remittitur was issued.
Summary of this case from People v. HallOpinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR182015
Reardon, Acting P.J.
After the jury found appellant Floyd Shunday Hall guilty of felony carjacking, the trial court sentenced him to 23 years in state prison, including an upper term of 9 years and 14 years flowing from a Texas prior conviction. (Pen. Code, §§ 215, subd. (a), 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 1192.7, subd. (c)(19).) On appeal, Hall contends that the trial court erred in finding that his out-of-state prior conviction met the statutory requirements for a strike or a prior serious felony conviction enhancement. He also challenges the imposition of the upper term based on factors not found true beyond a reasonable doubt by a jury. (See Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).) We affirm in part and reverse in part.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
In May 2006, a second amended information alleged that appellant Floyd Shunday Hall committed felony carjacking on December 30, 2005. (§ 215, subd. (a).) The second amended information also alleged that Hall suffered a prior Texas robbery conviction that constituted a robbery in California, on which a prior serious felony enhancement and a strike could be based. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d).)
In August 2006, a jury found Hall guilty of carjacking. The trial court found that the Texas conviction constituted a prior serious felony conviction and a strike under California law. (See § 667, subd. (a)(1).) The trial court also found as aggravating circumstances that Hall took a leadership role in the carjacking; that his victim was a vulnerable woman; and that he did not exhibit remorse for the crime until the day of the conviction. It also found as other aggravating circumstances that Hall served prior prison terms for forgery and trespass in California and robbery in Texas; that he had performed poorly on a prior grant of probation; and that his criminal convictions have increased in seriousness over time. (See §§ 470, 602, subd. (l); former Cal. Rules of Court, rule 4.421; see also Tex. Pen. Code, § 29.02.) The trial court sentenced Hall to a total term of 23 years in prison—an upper term of nine years for carjacking, doubled for an additional nine years based on the strike and a five-year consecutive term for the prior serious felony conviction enhancement. (§§ 215, subd. (a), 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 1192.7, subd. (c)(19).)
II. OUT-OF-STATE CONVICTION
A. Contention on Appeal
On appeal, Hall first contends that his prior Texas conviction for robbery does not constitute a prior serious felony conviction that could lawfully support the imposition of terms as a strike or a prior serious felony enhancement. (See §§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 1192.7, subd. (c)(19).) We agree with the Attorney General, who concedes that the trial court erred when it found that Hall’s prior Texas robbery conviction qualified as a California robbery. However, the Attorney General argues that the prior Texas conviction constitutes an attempted robbery under California law, which qualifies as a serious felony, warranting a strike for sentencing purposes. Although Hall characterizes this issue as an insufficiency of evidence claim whether his prior Texas robbery constitutes a serious felony within the meaning of California law, it presents an issue of statutory interpretation, which is a question of law for us to decide anew on appeal. (See People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474, cert. den. sub nom. Shabazz v. California (1986) 479 U.S. 840.)
B. California Strikes and Prior Convictions
Under our Three Strikes law, a defendant who committed a prior serious or violent felony must serve a term additional and consecutive to the term for the current felony conviction. (§§ 667, subds. (b)-(i), 667.5, subd. (c), 1170.12, subds. (a)(1)-(b)(1), 1192.7, subd. (c).) A prior serious or violent felony conviction is commonly known as a “strike.” (People v. Barragan (2004) 32 Cal.4th 236, 239.) The prosecutor must plead and prove beyond a reasonable doubt each element of a prior conviction, qualifying it as either a prior serious or violent felony, if it is to be used to enhance a defendant’s sentence. (§§ 667, subd. (f)(1), 667.5, subd. (c), 1170.12, subd. (d)(1), 1192.7, subd. (c)(19); People v. Williams (1990) 222 Cal.App.3d 911, 915.) If a strike is pled and proved for a prior serious felony, then a five-year enhancement term must also be applied consecutively to the current conviction term if the current conviction is also a serious felony. (§ 667, subd. (a)(1).)
A prior conviction from a jurisdiction outside of California qualifies as a strike if the elements in the other state’s criminal law include all the elements of any serious or violent felonies under California criminal law. (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2), 1192.7, subd. (c); People v. Warner (2006) 39 Cal.4th 548, 552; People v. Woodell (1998) 17 Cal.4th 448, 453.) In evaluating the truth of a prior strike from another jurisdiction, the trier of fact may look to the whole record of the conviction to distill the substance of the prior conviction. (People v. Guerrero (1988) 44 Cal.3d 343, 354-355.) If the record fails to show all the facts necessary to determine the details of the committed offense, then the trier of fact must presume that the defendant was convicted of the least punishable version of the offense under that state’s law. (Ibid.)
C. Texas Robbery Conviction
1. Facts
In 2000, Hall was charged with robbery in Texas. In 2001, he pled guilty to this charge, admitting that he “did then and there unlawfully, while in the course of committing theft of property owned by [a victim], . . . and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the [victim] in fear of imminent and bodily injury and death, by DISPLAYING AN OBJECT RESEMBLING A FIREARM.” The Texas court sentenced him to serve three years in state prison.
2. Robbery Under Texas Law
At the time of Hall’s Texas robbery, Texas Penal Code section 29.02 defined robbery as “an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: [¶] (1) intentionally, knowingly, or recklessly causes bodily injury to another; or [¶] (2)intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” (Tex. Pen. Code, § 29.02, subd. (a)(1)-(2).) The Texas Penal Code defines the phrase “in the course of committing theft” as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” (Id., § 29.01, subd. (1).) Further, theft is defined as “unlawfully appropriat[ing] property with intent to deprive the owner of property.” (Id., § 31.03, subd. (a).) Under Texas law, appropriating property means “(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or [¶] (B) to acquire or otherwise exercise control over property other than real property.” (Id., § 31.01, subd. (4)(A)-(B).) Texas law does not require that the person committing robbery take property from the person or immediate presence of one who possesses that property. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 130; see Watson v. State (Tex.Crim.App. 1976) 532 S.W.2d 619, 622.) The Attorney General also concedes that “[a]sportation is not a required element of robbery under Texas law.”
3. Robbery Under California Law
Robbery is a serious felony in California which may qualify as a strike. (§ 1192.7, subd. (c)(19).) In 2000, at the time that Hall committed the Texas robbery, California robbery was defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Our Supreme Court confirmed that taking is an element of robbery, defining it as “gaining possession of the victim’s property and asporting or carrying away the loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165; see People v. Nguyen (2000) 24 Cal.4th 756, 761.) Thus, asportation is an element of robbery in California. (People v. Lopez (2003) 31 Cal.4th 1051, 1056.) A taking from a person or his or her immediate presence has been defined as a spatial description, not a temporal one, referring to the area in which a defendant takes the property from the person, not how far it is taken away from the person. (People v. Cooper, supra, 53 Cal.3d at p. 1166; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) Further, “ ‘ “[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.” ’ [Citations.]” (People v. Hayes (1990) 52 Cal.3d 577, 626-627.) Typically, the “immediate presence” requirement is one that is relevant to the gaining possession element of robbery rather than to the asportation element. (Miller v. Superior Court, supra, 115 Cal.App.4th at p. 222.)
4. Analysis
a. Robbery
Hall’s plea statement and hearing record establish that he admitted to committing robbery under a Texas law that does not contain a requirement that he take property from a victim’s person or immediate presence and asportation of the property—required elements for robbery in California. (People v. Rodriguez, supra, 122 Cal.App.4th at p. 130.) There is nothing in the record that shows whether Hall took property from the victim’s person or immediate presence during the Texas robbery and carried it away. Thus, Hall’s prior Texas robbery conviction does not constitute a robbery as California defines that offense. As the prosecution did not prove the elements of robbery, as a matter of law, there is no evidence to support the finding of a prior strike and the attendant sentencing consequences of the applicable provisions in section 667. (See People v. Rodriguez, supra, at p. 131.) Therefore, we find that the additional 14 years of Hall’s imposed prison term based on an alleged out-of-state prior serious felony conviction was not warranted by California law and must be stricken from his sentence.
b. Attempted Robbery
The Attorney General argues that we can find that Hall’s prior Texas conviction constitutes an attempted robbery under California law, such that the strike and enhancement were proper. However, the prosecutor did not allege an attempt, but a completed robbery. By law, each strike must be pled and proved at trial. (§ 667, subd. (c), 1170.12, subd. (c)(1).) To satisfy due process requirements, the prosecution must advise the accused of the charges against him or her so that he or she may have a reasonable opportunity to offer his or her defense. (People v. Bright (1996) 12 Cal.4th 652, 670.) To rely on an unpled allegation would violate Hall’s right to due process notice. (See U.S. Const., 5th Amend.; § 667, subd. (c).) As the Texas offense did not constitute a California offense that was pled and proven, the strike and the prior serious felony conviction enhancement must be stricken.
III. CUNNINGHAM
Hall also argues that the trial court erred by imposing an upper term of nine years for his carjacking rather than a midterm of five years without a jury determination of the facts that the trial court relied on to make this decision. (See § 215, subd. (b).) He reasons that this violated his Sixth Amendment rights. (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 870-871].)
At the time of the 2005 carjacking, the determinate sentencing law provided a trial court with three possible sentencing terms for a convicted defendant—a lower term, middle term, or upper term. (People v. Black (2007) 41 Cal.4th 799, 808, cert. den. sub nom. Black v. California (Jan. 14, 2008, No. 07-6140) ___ U.S. ___ [128 S.Ct. 1063-1064].) The trial court was to select the middle term unless mitigating or aggravating circumstances warranted an upper or lower term, depending on the relative weight of those circumstances. (See former § 1170, subd. (b) [as amended by Stats. 2004, ch. 747, § 1]; People v. Sandoval (2007) 41 Cal.4th 825, 836.) This procedure has been held to violate a defendant’s Sixth Amendment right to a jury trial because it allowed the trial court to determine aggravating circumstances without a jury determination of the truth of those circumstances beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 870-871].) However, these Sixth Amendment concerns are not implicated if the trial court imposes an upper term based on the aggravating circumstance of a defendant’s prior conviction. (People v. Black, supra, 41 Cal.4th at p. 816; Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].) In such a case, the aggravating circumstance has already been submitted to a jury and has been found to be true beyond a reasonable doubt. (See People v. Sandoval, supra, 41 Cal.4th at pp. 836-837.)
In the underlying matter, Hall’s record of prior convictions in California and Texas warranted imposition of the upper term. At sentencing, the trial court found true several aggravating circumstances, at least one of which was that he had served a prior prison term. (See former Cal. Rules of Court, rule 4.421(b)(3).) A trial court need only find a single, valid aggravating circumstance to support an upper term. (People v. Black, supra, 41 Cal.4that p. 816.) The trial court properly found that Hall’s three-year prison term for his Texas robbery conviction qualified as a prior prison term. This aggravating circumstance warranted the trial court’s imposition of the upper term. (See former Cal. Rules of Court, rule 4.421(b)(3).) Thus, there was no Sixth Amendment violation.
IV. DISPOSITION
The judgment is reversed. The strike and prior serious felony conviction enhancements are stricken. The matter is remanded to the trial court, which is ordered to issue an amended abstract of judgment. As modified, the judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.