Opinion
B320310
06-12-2023
THE PEOPLE, Plaintiff and Respondent, v. HARRY VONDALE HARRIS, Defendant and Appellant.
Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA082122 Alan Z. Yudkowsky, Commissioner. Affirmed.
Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, J.
The jury convicted Harry Vondale Harris of two counts of burglary. (Pen. Code, § 459.) The trial court sentenced Harris to five years four months in prison, comprised of the middle term of two years doubled to four years pursuant to the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in count 1, and a consecutive term of one-third the middle term of eight months doubled to 16 months pursuant to the Three Strikes law in count 2.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Harris contends that the court imposed an unauthorized sentence in count 2 because the amended information did not provide him with fair notice that the Three Strikes law would be applied to that count.
We conclude that the claim was forfeited, and affirm the judgment.
PROCEDURAL HISTORY
On December 21, 2021, the People filed a one-count information in case number MA082122 charging Harris with second degree commercial burglary (§ 459). The information alleged that Harris suffered a prior strike conviction within the meaning of the Three Strikes law.
On March 14, 2022, the People moved to join and consolidate cases number MA082122 and MA082305 under case number MA082122. Case number MA082305 also alleged a single count of burglary against Harris. The People's notice of motion stated that a grant of the motion for joinder "would bring the total charges to two and one strike enhancement for each count." (Italics added.)
The information in case number MA082305 is not contained in the record.
On March 21, 2022, the trial court granted the People's motion for joinder and discussed the possibility of resolving the case with the parties. The People represented that the "maximum exposure would be, for the two counts, seven years four months; high term doubled on count 1 for six [years]; one-third the midterm; count 2, doubled 16 months" "The offer from the People at this time to resolve this matter is midterm, concurrent-both counts The People are willing to strike the prior strike So I believe that would cut his time in half: two years, midterm, concurrent." The court advised Harris, "even if you got low term times two, that's four years .... So even if you got the low term and they didn't strike the strike, you're still looking [at] significantly more time." Harris elected to proceed to trial.
The four-year sentence referenced by the trial court was equivalent to the sentence that it would impose if it selected the low term of 16 months in count 1, doubled to 32 months pursuant to the Three Strikes law, plus one-third the midterm in count 2, or eight months, doubled to 16 months pursuant to the Three Strikes law.
The People filed an amended information the same day. The information summary reflected that Harris was charged with two counts of burglary and that a strike was alleged as to each count, which would double Harris's sentence if he was convicted. Count 1 alleged that Harris committed second degree commercial burglary on or about June 23, 2021. Count 2 alleged that Harris committed another second degree commercial burglary on or about August 6, 2021. After count 2, the amended information also included the following language: "It is further alleged that prior to the commission of the offense or offenses in [c]ount 1, the defendant, HARRY HARRIS had been convicted of the following serious and/or violent felon[y], as defined in Penal Code section 667[, subdivision] (d) and Penal Code section 1170.12[, subdivision] (b), and is thus subject to sentencing pursuant to the provisions of Penal Code section 667[, subdivisions] (b)-(j) and Penal Code section 1170.12." The strike alleged was for a June 23, 2005 burglary conviction. The wording of the strike allegation was identical to the wording of the strike allegation contained in the original information for case number MA082122, excluding the typographical errors.
The People's trial brief, filed on March 21, 2022, also reflected a maximum confinement time of seven years four months.
The jury found Harris guilty in both counts. Harris waived his right to trial by jury or court with respect to the prior strike allegation. Harris then admitted, following advisement by the court, that he suffered a prior strike conviction.
The People's subsequently filed sentencing memorandum set forth Harris's maximum exposure as seven years four months, calculated as "count 1: (HT) 3 X 2 (prior strike) = 6 years state prison + count 2: (1/3) midterm (8 months) X 2 (prior strike) = 16 months."
Harris moved to strike the strike conviction. The trial court denied the motion to strike, in part due to Harris's lengthy criminal history, which included over 20 theft and drug offense convictions. The court sentenced Harris, concluding, "the imposition of the mid[]term of two years in count one, doubled by the strike prior or four years as a principal term, and one-third of the mid[]term in count two, doubled by the strike prior or 16 months consecutive to the principal term for an aggregate total of five years and four months is appropriate." Harris did not object to the doubling of his sentence in count 2 under the Three Strikes law.
Harris timely appealed.
DISCUSSION
Harris contends that the court imposed an unauthorized sentence in count 2 because the amended information did not adequately inform him that the Three Strikes law applied to that count. The People argue that Harris forfeited the issue, or alternatively, that it lacks merit. We conclude that Harris forfeited his contention because he failed to raise it below.
Harris attempts to avoid forfeiture by arguing that his sentence was unauthorized, citing to the general rule that an unauthorized sentence may be corrected at any time. (People v. King (2022) 77 Cal.App.5th 629, 637-638.) The rule does not assist Harris, however, because his sentence was not unauthorized.
"The unauthorized sentence doctrine is designed to provide relief from forfeiture for 'obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.' [Citation.] It applies when the trial court has imposed a sentence that 'could not lawfully be imposed under any circumstance in the particular case.'" (People v. Anderson (2020) 9 Cal.5th 946, 962.) Defects in pleading do not necessarily result in an unauthorized sentence. (Ibid.) Our Supreme Court has held that a defendant with actual notice of a pleading defect prior to trial forfeits a claim by failing to raise the issue in the trial court. (People v. Houston (2012) 54 Cal.4th 1186, 1229 (Houston).)
The Three Strikes law applies" 'in every case in which a defendant has one or more prior serious or violent felony convictions ....' ([§ 667], subd. (f)(1), italics added; see also § 1170.12, subd. (d)(1).) Indeed, despite the 'general rule' that 'the selection of criminal charges is a matter subject to prosecutorial discretion,' 'the Three Strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction.' (People v. Roman (2001) 92 Cal.App.4th 141, 145; see § 667, subd. (f)(1) ['The prosecuting attorney shall plead and prove each prior serious or violent felony conviction ....' (italics added)]; see also § 1170.12, subd. (d)(1).)" (People v. Laanui (2021) 59 Cal.App.5th 803, 815.) The effect of the defendant's strike status may vary from one count to another only insofar as the trial court exercises its discretion to dismiss prior strike convictions on a count-by-count basis. (People v. Garcia (1999) 20 Cal.4th 490, 502.) Harris admitted that he suffered a prior strike conviction, and the trial court refused to strike the prior strike conviction because the court found Harris did not fall outside the spirit of the Three Strikes law. The sentence imposed under the Three Strikes law in count 2 could lawfully be imposed. It is not unauthorized if Harris had actual notice of his sentence prior to trial and had the opportunity to raise the issue of the pleading defect with the trial court. (Houston, supra, 54 Cal.4th at p. 1229.)
Harris had notice that the Three Strikes law applied to both counts. Prior to consolidation of the cases, the prosecution indicated that, if consolidated, there would be two counts total, and that each count would include a Three Strikes allegation. The summary of the two counts on the cover of the operative information reflected that the Three Strikes law applied to both counts 1 and 2, and informed Harris that his sentence would be doubled pursuant to the Three Strikes law if the allegation was found true.
Prior to trial, when Harris was present with his counsel, and the parties discussed the possibility of a plea agreement, the prosecutor calculated Harris's maximum exposure and indicated that Harris faced doubling of the sentence for both count 1 and count 2; that calculation could only be the result of sentencing imposed under the Three Strikes law for both counts. Likewise, the trial court pointed out that, at a minimum, Harris faced four years in prison, a term that necessarily incorporated a true finding on a Three Strikes allegation that applied to both counts. Defense counsel did not indicate at any point that this was inconsistent with counsel's own understanding, or Harris's understanding, of the potential sentence he could receive. Subsequent to Harris's admission that he suffered a prior strike conviction, the People's sentencing memorandum reflected a maximum exposure consistent with application of the Three Strikes law to both counts, and the court imposed a doubled sentence under the Three Strikes law to both counts. Counsel never objected.
Because Harris had actual notice of his sentence prior to trial and had an opportunity to object or request a continuance to allow him to formulate a defense, his sentence was not unauthorized. (Houston, supra, 54 Cal.4th at p. 1229.) His failure to raise the issue before the trial court forfeits the claim. (Ibid.)
DISPOSITION
We affirm the trial court's judgment.
We concur: BAKER, Acting P. J. KIM, J.